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After spending four years and more than $1 million challenging the punishment assessed by judicial superiors over his own abusive behavior, U.S. District Judge John McBryde may take his battle all the way to the U.S. Supreme Court. In a 2-1 panel decision on Sept. 21, the U.S. Court of Appeals for the D.C. Circuit handed the Fort Worth, Texas, jurist a defeat in the long-running dispute over a decision to take away his new case assignments for a period of one year starting in 1998. The court rejected McBryde’s attack on the constitutionality of the law used to punish him, the Judicial Misconduct and Disability Act of 1980. The dispute between McBryde and the federal judiciary — the details of which can still be found on the 5th Circuit’s Web site — dates back to 1995, when Jerry Buchmeyer, chief judge of the Northern District of Texas, jerked two cases — United States v. Michael Eric Satz and Sanjuana Torres, et al. v. Trinity Industries — away from McBryde and reassigned them to his own court. Buchmeyer was apparently bothered by McBryde’s quick-tempered actions, including his threats to sanction a lawyer and a clerk involved in those cases. In 1997, the 5th U.S. Circuit Court of Appeals ruled that Buchmeyer did not have the right to take away McBryde’s cases. But a committee of the Judicial Council of the 5th Circuit started a closed-door investigation of McBryde in 1997, after complaints from lawyers and judges about his courtroom demeanor mounted. The 5th Circuit judicial council reprimanded McBryde on Dec. 31, 1997, for engaging in a “pattern of abusive behavior” against lawyers and court staff in a way that was “prejudicial to the effective and expeditious administration of the business of the court.” The Judicial Conference of the United States, the highest administrative body overseeing federal judges, subsequently upheld that decision. After exhausting his administrative appeals with the Judicial Conference, McBryde filed suit in U.S. District Court in Washington, D.C., in 1998 against the 5th Circuit judicial council and 7th Circuit Judge William J. Bauer, who decided McBryde’s appeal. McBryde argued in his petition that the separation of powers doctrine prevents judges from punishing other judges, and only Congress has that right. McBryde also alleged that he was punished for his rulings, and that the punishment struck at the heart of his independence and power as an Article III judge with lifetime tenure. In 1999, D.C. District Judge Colleen Kollar-Kotelly threw out most of McBryde’s case. McBryde next appealed to the D.C. appeals court. But D.C. Circuit Judge Stephen Williams, writing for the majority in McBryde v. Judicial Conference, et al., rejected both of McBryde’s central constitutional claims and blessed the system used to punish him. “We see nothing in the Constitution requiring us to view the individual Article III judge as an absolute monarch, restrained only by the risk of appeal, mandamus and like writs, the criminal law, or impeachment itself,” Williams wrote in an opinion joined by Senior Judge Laurence Silberman. “We thus reject Judge McBryde’s facial constitutional claims.” David Broiles, a Fort Worth lawyer who has represented McBryde in his punishment appeals for years, says he and McBryde are dejected by the ruling. McBryde revealed in his 1998 petition challenging his punishment that he had spent more than $1 million of his own money fighting the battle. But the war may still not be over, Broiles says. McBryde could ask the D.C. Circuit for an en banc rehearing or take the matter to the U.S. Supreme Court, Broiles says. McBryde did not return a call for comment. “There’s certainly another court to go to,” says Broiles, of counsel at Fort Worth’s Wells, Purcell and Kraatz. “This is something that the Supreme Court may want to consider. It affects all judges.” Robert Fiske, a partner in New York’s Davis Polk & Wardwell who defended the 5th Circuit judicial council and Bauer, says he is very pleased with the D.C. Circuit’s decision. QUESTIONS REMAIN McBryde’s mission spurred an opinion from the D.C. Circuit that is as rare as it is exhaustive. Few appellate records regarding the punishment of federal judges are as extensive as McBryde. The most notable is that of former U.S. District Judge Alcee Hastings of Florida, who first made constitutional challenges to the Judicial Misconduct and Disability Act in 1983 to avoid being removed from office. Hastings lost that challenge and later became a Florida congressman. In McBryde, the D.C. Circuit went so far as to review and quote from congressional hearings held in 1979 that contemplated how to punish judges effectively and allow them to appeal. “They [the court] spent a lot of time,” says William B. Schultz, a former deputy assistant attorney general who defended the law on appeal in McBryde. “But in the end, it seemed to me that they were fairly confident of the result that, in fact, the judiciary does have this authority to discipline judges.” Since leaving the U.S. Department of Justice, Schultz joined Washington, D.C.’s Zuckerman & Spaeder in December 2000. A DOJ representative did not return a call for comment. While the majority found the Judicial Misconduct and Disability Act constitutional, it did not rule on whether McBryde’s judicial superiors used the act properly in McBryde’s case. “Congress clearly and convincingly barred our review of Judge McBryde’s claim of unconstitutional application of the Act,” Williams wrote. That troubled D.C. Circuit Judge David Tatel, who concurred in part and dissented in part in McBryde. Tatel believed some of McBryde’s behavior was sanctionable — but not all of it. He said the Judicial Council failed to inform McBryde as to which of his offenses was sanctionable. “The court never decides whether it was constitutional for the Judicial Council to have sanctioned Judge McBryde for the conduct described,” Tatel wrote. “I do not think informing Judge McBryde in the abstract that he must give his colleagues at least a ‘modicum of civility and respect’ provides much guidance about what kind of conduct is constitutionally sanctionable.” Tatel’s dissent reflects Broiles’ own problems with the ruling. “It means that you can be punished as an Article III judge and claim constitutional violations …,” Broiles says of the majority opinion. “And no court has to rule on it. That’s what it means. And that’s an incredible result.” Yet the majority opinion also took McBryde to task over his contention that only Congress can punish a judge by impeachment. “Judge McBryde’s attempt to fudge the distinction between impeachment and discipline doesn’t work,” Williams wrote. “The Constitution limits judgments for impeachment to removal from office and disqualification to hold office. It makes no mention of discipline generally.” That’s the main point to take away from the opinion, notes Schultz, who defended the law. Says Schultz: “It gives the judiciary pretty broad authority to manage its own affairs, and it doesn’t cross into Congress’ impeachment [powers].”

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