ALCEE L. HASTINGS, JUDGE, UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA, PETITIONER V. JUDICIAL CONFERENCE OF THE
UNITED STATES, ET AL.

   No. 87-1187

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   Brief for the United States in Opposition /1/

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1-85) is reported at
829 F.2d 91.  The opinion of the district court (Pet. App. 86-96) is
reported at 657 F. Supp. 672.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 98-99) was entered
on September 15, 1987.  On December 16, 1987, the time for filing a
petition for a writ of certiorari was extended by order of Justice
Brennan to January 13, 1988, and a petition was filed on that date.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals correctly rejected various challenges,
based primarily on separation-of-powers and due process principles, to
the proceedings that have resulted in the Judicial Conference of the
United States certifying to the House of Representatives, pursuant to
28 U.S.C. 372(c)(8), its conclusion that consideration of impeachment
may be warranted because petitioner conspired to solicit a bribe and
obstructed justice to avoid conviction.

                               STATEMENT

   1. Congress adopted the Judicial Councils Reform and Judicial
Conduct and Disability Act of 1980 Act (codified at 28 U.S.C. 331,
332, 372(c), 604(h);  reprinted in Pet. App. 106-132) in order to
provide a means for the federal judiciary to exercise supervisory
control over the administration of it own affairs.  Congress believed
that the new system, which in large part mirrors that previously
adopted by the Judicial Conference of the United States and various
circuit judicial councils (see Judicial Tenure and Discipline --
1979-1980:  Hearings Before the Subcomm. on Courts, Civil Liberties,
and the Administration of Justice of the House Comm. on the Judiciary,
96th Cong., 1st & 2d Sess. 63 (1979-1980)), would enable Article III
judges to "'put their own house in order'" (Chandler v. Judicial
Council, 398 U.S. 74, 85 (1970)) and thereby reinforce the integrity
of the judicial system.

   Under the Act, any person may file a complaint with the clerk of a
court of appeals alleging that a judge or a magistrate in the circuit
either "has engaged in conduct prejudicial to the effective and
expeditious administration of the business of the courts" or "is
unable to discharge all the duties of office by reason of mental or
physical disability" (28 U.S.C. 372(c)(1)).  If the chief judge of the
circuit finds that the complaint is "frivolous," that it is "directly
related to the merits of a decision or procedural ruling," or that the
matter prompting the complaint has already been resolved, he may issue
a written order terminating the proceeding (28 U.S.C. 372(c)(2)).
Otherwise the chief judge is directed to empanel a special committee,
composed of "himself and equal numbers of circuit and district judges
of the circuit," to conduct an investigation "as extensive as it
considers necessary" into the matters raised in the complaint (28
U.S.C. 372(c)(4)-(5)).  The committee is required to give notice to
the judge or magistrate whose conduct is the subject of the complaint
(28 U.S.C. 372(c)(11)(A)), who then has the right to appear before the
committee in person or by counsel, present oral and documentary
evidence, compel the attendance of witnesses and the production of
documents, and cross-examine adverse witnesses (28 U.S.C.
372(c)(11)(B)).

   After concluding its investigation, the committee is required to
file a report with the circuit's judicial council (28 U.S.C.
372(c)(5)), which may choose to conduct a further investigation (28
U.S.C. 372(c)(6)(A)).  The Act provides that upon consideration of the
committee's report or the conclusion of any subsequent investigation,
the judicial council may censure the judge privately or publicly, may
direct that no further cases be assigned to the judge for a temporary
period, may ask the judge to retire voluntarily, may certify the
judge's disability, or may take such other action as it considers
appropriate (28 U.S.C. 372(c)(6)(B)).  The Act specifically precludes
removal from office of "any judge appointed to hold office during good
behavior" (28 U.S.C. 372(c)(6)(B)(vii)) and includes no provision that
would authorize diminution of a judge's salary.  If the judicial
council determines that an Article III judge has engaged in conduct
"which might constitute one or more grounds for impeachment," the
council is required to certify that determination to the Judicial
Conference of the United States (28 U.S.C. 372(c)(7)(A)-(B)), but the
Act does not require the council to undertake to make such a
determination.

   Like the circuit judicial council, the Judicial Conference is
empowered to conduct an additional investigation.  /2/ The Judicial
Conference is authorized to impose the same sanctions available to the
judicial council (28 U.S.C. 372(c)(8)).  If the Judicial Conference
"concurs in the determination of the council, or makes its own
determination, that consideration of impeachment may be warranted," it
is required to certify and transmit that determination and the record
of proceedings to the House of Representatives (ibid.).

   2. Petitioner is a United States District Judge for the Southern
District of Florida.  In March 1983, two district court judges filed a
complaint against petitioner under 28 U.S.C. 372(c) alleging that he
had engaged in conduct prejudicial to the effective and expeditious
administration of the business of the courts and that he had violated
several canons of the Code of Judicial Conduct (see Pet. App. 13-14 &
n.12).  The complaint specifically referred to an indictment filed in
1981 charging petitioner with conspiring with an attorney to obtain a
bribe, on which petitioner had been acquitted.  See United States v.
Hastings, 681 F.2d 706 (11th Cir. 1982), cert. denied, 459 U.S. 1203
(1983) (holding that the Impeachment Clause does not bar indictment of
a sitting federal judge);  United States v. Borders, 693 F.2d 1318
(11th Cir. 1982), cert. denied, 461 U.S. 905 (1983) (upholding
conviction of petitioner's alleged co-conspirator).  As provided by
the Act, the Chief Judge of the Eleventh Circuit issued an order
appointing himself and four other judges to a committee to investigate
the allegations in the complaint.  In June 1983, the committee
petitioned for access to the records of the grand jury that had
indicted petitioner.  The petition was granted over petitioner's
objections.  In re Petition to Inspect & Copy Grand Jury Materials,
576 F. Supp. 1275 (S.D. Fla. 1983), aff'd, 735 F.2d 1261 (11th Cir.),
cert. denied, 469 U.S. 884 (1984).

   Petitioner then brought suit in the United States District Court
for the District of Columbia to enjoin the committee from proceeding
with its investigation.  He asserted in part that the Act violated
separation-of-powers principles by authorizing judicial councils to
investigate and discipline judges, thereby undermining the
independence of the judiciary, and that the Act on its face violated
various due process guarantees.  The district court dismissed
petitioner's claims, holding that the Act is constitutional on its
face.  Hastings v. Judicial Conference, 593 F. Supp. 1371 (D.D.C.
1984).  On appeal, the District of Columbia Circuit affirmed the
dismissal of petitioner's constitutional challenges, but did so on
ripeness grounds.  Hastings v. Judicial Conference, 770 F.2d 1093
(D.C. Cir. 1985).  The court ruled that it would be premature to pass
judgment on the constitutionality of the procedures created by the Act
when those procedures for the most part had yet to be invoked against
petitioner and ultimately might never be invoked (id. at 1099-1103).

   At the same time that petitioner was contesting the
constitutionality of the Act in the District of Columbia, related
litigation was taking place in the Eleventh Circuit.  In May 1985, the
investigating committee directed that subpoenas be served on
petitioner's secretary and on several of this then-current and former
law clerks.  The subpoenaed witnesses resisted enforcement of the
subpoenas and petitioner sought to enjoin their enforcement.  A
specially designated panel of the Eleventh Circuit (all of the active
judges having recused themselves) authorized enforcement of the
subpoenas.  Williams v. Mercer (In re Certain Complaints Under
Investigation by an Investigating Comm. of the Judicial Council of the
Eleventh Circuit), 783 F.2d 1488 (11th Cir. 1986).  After concluding
that the parties had standing to raise constitutional arguments "going
to the existence and investigatory authority of the Committee" (id. at
1502), it rejected the separation-of-powers claim that the Act
improperly assigns executive functions to Article III judges by
authorizing them to investigate fellow judges charged with misconduct,
thereby undermining the independence of the judiciary.

   Petitioner filed petitions for writs of certiorari seeking review
of both the District of Columbia Circuit's decision and the Eleventh
Circuit's decision.  Both petitions contended that the Act's
mechanisms for investigating and disciplining Article III judges
offend separation-of-powers principles.  No. 85-1301 (Question 2);
No. 85-1609 (Question 3).  The petitions were denied on June 23, 1986.
 477 U.S. 904.

   3. In August 1986, the committee investigating petitioner presented
its report to the Eleventh Circuit's judicial council, recommending
that the council determine and certify to the Judicial Conference that
consideration of impeachment may be warranted.  The judicial council
subsequently presented the Judicial Conference with its own report,
which concluded that petitioner has "engaged in conduct which might
constitute one or more grounds for impeachment" by participating in a
conspiracy to solicit a bribe and engaging in obstruction of justice
in order to avoid conviction.  Pet. App. 19.

   Petitioner, meanwhile, filed the present suit in the United States
District Court for the District of Columbia, renewing his challenges
to the constitutionality of the Act.  The district court dismissed
petitioner's complaint (Pet. App. 86-96).  It ruled that all but one
of petitioner's claims either were not ripe or were barred by prior
judgments (id. at 89-92).  The remaining claim was petitioner's
contention that the Act violates separation-of-powers principles by
authorizing the Judicial Conference to certify its determination that
impeachment may be warranted to the House of Representatives.  The
court concluded that that contention, which is narrower than the
argument rejected by the Eleventh Circuit that the Act violates
separation-of-powers principles by assigning executive functions to
Article III judges, was ripe since the judicial council had
recommended that the Judicial Conference certify that impeachment may
be warranted.  The Court rejected petitioner's contention that the
certification provision unconstitutionally delegates Congress's power
of impeachment, explaining that a certified determination that
impeachment may be warranted is "merely informational, nothing more,
to be granted only such weight as Congress in its wisdom wishes" and
that Congress "completely control(s) all aspects of any impeachment
process" (id. at 93).

   In March 1987, while appeal was pending in the District of Columbia
Circuit, the Judicial Conference certified to the House of
Representatives that it concurred in the judical council's
determination that consideration of impeachment may be warranted.
Neither the judicial council nor the Judicial Conference has taken any
disciplinary action toward petitioner.

   4. The court of appeals affirmed the district court's judgment with
respect to most of petitioner's claims and remanded several claims to
the district court for further proceedings (Pet. App. 1-85).  In
affirming the dismissal of petitioner's principal claims, the court of
appeals declined to give the Eleventh Circuit's prior judgment the
broad preclusive effect accorded it by the district court.  The court
of appeals ruled that the only claim precluded by the Eleventh
Circuit's decision was petitioner's separation-of-powers challenge to
the investigatory authority vested in the judiciary by the Act, a
claim which had been directly and necessarily resolved by the Eleventh
Circuit.  Noting that petitioner "does not really deny that his broad
claims relating to the investigatory process prescribed by the Act
were decided," the court of appeals found no basis for permitting
petitioner to relitigate that issue (id. at 33-38).

   With respect to petitioner's other arguments, the court of appeals
first rejected petitioner's separation-of-powers challenge to the
Act's provisions for certifying possible impeachable conduct to the
House of Representatives.  Although the court of appeals thought that
a significant constitutional question might arise if the Act compelled
the judiciary to determine whether impeachable conduct had occurred,
the court found that "both determination and therefore certification
by both the councils and the Conference (are) entirely discretionary"
under the Act (Pet. App. 41).  The court of appeals concluded that if
the Judicial Conference chose to exercise its discretion to make a
determination that impeachment might be warranted in a particular
case, the statutory requirement that such a determination be certified
to the House of Representatives "is without independent constitutional
significance" (id. at 45).  While the House of Representatives might
choose to give weight to the Judicial Conference's determination, the
court of appeals noted that it might also give weight to
representations of possible impeachable conduct made by other persons
and concluded that any difference in the weight accorded the Judicial
Conference's determination does not render the certification provision
unconstitutional (id. at 46-47).  /3/

   The court of appeals next rejected as premature petitioner's claim
that the Act violates the Compensation Clause because it does not
require the payment of his legal fees.  The court explained that the
Act authorizes the Director of the Administrative Office of the United
States Courts to "pay necessary expenses incurred by the judicial
councils of the circuits and the Judicial Conference" in proceedings
under the Act (28 U.S.C. 604(h)(1)).  Although the Director had
previously told petitioner that he has no authority to reimburse
petitioner's legal expenses based solely on petitioner's own request,
petitioner had not applied to the judicial council or the Judicial
Conference for a determination whether his legal expenses constitute a
"necessary expense() incurred by the judicial council() * * * and the
Judicial Conference." The court of appeals reasoned that petitioner
should give the judicial council and the Judicial Conference an
opportunity to consider his request for fees before ruling on the
matter (Pet. App. 48-50).

   The court of appeals then turned to petitioner's facial due process
challenges to the Act.  Relying on Withrow v. Larkin, 421 U.S. 35
(1975), the court concluded that the combination of investigative and
adjudicatory functions vested in the judicial councils and the
Judicial Conference by the Act is not inherently impermissible (Pet.
App. 51-56).  The court declined to reach the merits of petitioner's
claim that the Act violates due process by not requiring the judicial
councils and the Judicial Conference to allow accused judges to appear
and challenge adverse evidence.  It explained that petitioner had not
asserted that he was denied the right to appear and challenge adverse
evidence in his own proceedings and that "it makes no sense for a
court to strike down a statute that has in fact been applied in a
constitutional manner" (id. at 57-59).

   The court of appeals next rejected petitioner's claims that the
Act's prohibition of "conduct prejudicial to the effective and
expeditious administration of the business of the courts" (28 U.S.C.
372(c)(1)) is unconstitutionally vague and overbroad.  The court held
that the vagueness claim fails because the charges that petitioner
conspired to solicit a bribe and obstructed justice are clearly within
the intendment of the statutory language, and "(o)ne to whose conduct
a statute clearly applies may not successfully challenge it for
vagueness.'" Pet. App. 65-66 (quoting Parker v. Levy, 417 U.S. 733,
756 (1974)).  With respect to the overbreadth claim, the court pointed
out that the Act by its terms is directed at judicial misconduct
rather than protected First Amendment activities, and the Act's
legislative history clarifies that the Act is not aimed by protected
speech (Pet. App. 61-64).  Relying on Broadrick v. Oklahoma, 413 U.S.
601 (1973), the court concluded that the Act is not invalid on
overbreadth grounds because it does not reach a substantial amount of
constitutionally protected activity and any incidental overbreadth is
"clearly outweighed by the legitimate and important objective of the
Act," particularly given the lack of a practical alternative to the
Act's general standard (Pet. App. 64-65).

   Having disposed of these claims, the court of appeals remanded the
case for the district court to consider three specific constitutional
challenges to the manner in which the proceedings concerning
petitioner had been conducted:  that one of the judges serving on the
investigating committee had displayed bias;  that the judicial council
had not independently reviewed the evidence assembled by the
committee;  and that the judicial council improperly required
petitioner to travel from Miami to Atlanta to examine the committee's
report (Pet. App. 66-69).  The district court subsequently granted an
unopposed motion by petitioner to stay proceedings on remand pending
the disposition of the present petition for a writ of certiorari.

   The House of Representatives has not yet determined whether to
impeach petitioner.

                               ARGUMENT

   Except in passing, petition has not addressed the substance of the
court of appeals' decision.  He has made little attempt to show that
the decision is incorrect or that the rulings of the court of appeals
otherwise merit review by this Court.  The fact that petitioner offers
virtually no arguments directed specifically at the decision below is,
in itself, sufficient reason for denying this latest petition.  In any
event, the decision below is fully consistent with this Court's
decisions and is not in conflict with the decisions of any other
court.  In a number of respects, moreover, the decision turns on the
particular facts of this case and has no broader legal significance.
For these reasons, review by this Court is not warranted.

   1. Petitioner's first two questions presented concern his broad
separation-of-powers argument that the entire scheme of the Act is
unconstitutional because it assigns executive functions to Article III
judges, thereby undermining judicial independence.  The court below
properly concluded that this issue was settled by the Eleventh Circuit
in its decision that this Court previously declined to review (Pet.
App. 33-38).  Petitioner is accordingly precluded from raising the
argument again.  Moreover, any claim that the court of appeals erred
in finding that he is barred from making his broad
separation-of-powers argument -- and petitioner has not presented any
reason why the court erred -- would involve nothing more than the
application of settled principles of issue preclusion to the facts of
this case, so that review of such a claim would not be warranted.

   In any event, petitioner's broad argument, which is premissed on
the claim that the investigatory powers granted under the Act will
undermine the independence of the judiciary, lacks merit for the
reasons given by the Eleventh Circuit (783 F.2d at 1503-1510) and
summarized in the oppositions to the petition for a writ of certiorari
filed in that proceeding.  As this Court stated in Chandler v.
Judicial Council, 398 U.S. 74 (1970), there should be some mechanism
short of impeachment to discipline judges whose conduct is prejudicial
to the "'effective and expeditious administration of the business of
the courts'" (id. at 86 n.7).  The Act is designed to perform this
function, while recognizing that the mechanism that is least likely to
intrude on the independence of the judiciary is one supervised by the
judiciary itself.  Moreover, while allowing the judiciary to "'put
(its) own house in order'" (id. at 85), the Act expressly prohibits
interference with individual cases since complaints "directly related
to the merits of a decision or procedural ruling" must be dismissed
(28 U.S.C. 372(c)(3).

   2. Petitioner's third question presented raises his narrower
separation-of-powers argument that the Act is unconstitutional because
it authorizes the judicial councils and the Judicial Conference to
determine and certify that impeachment may be warranted.  The court of
appeals correctly rejected that claim.  As the court of appeals
recognized (Pet. App. 41-44), the Act does not purport to compel
either the judicial councils or the Judicial Conference to determine
whether impeachable conduct has occurred.  It merely requires the
certification of such a determination if the determination is made.
As a result, it is unnecessary to decide (and the court of appeals did
not decide) whether constitutional principles would preclude Congress
from requiring such a determination.  And, as the court of appeals
concluded (id. at 45), it hardly can be constitutionally infirm for
Congress to call on the judiciary to notify it formally of such a
determination if it is made.

   Given the discretionary character of the judicial inquiry, the only
real separation-of-powers question is whether the making of such a
determination by members of the judiciary impermissibly delegates the
House of Representatives' exclusive power of impeachment.  The courts
below, like the Eleventh Circuit, correctly concluded that it does
not.  /4/ As the district court stated (Pet. App. 93), whether the
House chooses to give weight to such a determination, and, if so, how
much weight it decides to give, depends entirely on the free choice of
the members of the House;  the House is not bound, legally or
otherwise, to accept the judiciary's conclusions concerning whether
petitioner or any other judge ought to be impeached.  Furthermore, the
Judicial Conference is authorized to determine (and has determined in
this case) only that consideration of impeachment may be warranted,
not that the judge under investigation in fact should be impeached (28
U.S.C. 372(c)(8)).  Accordingly, even if the House of Representatives
regarded itself as somehow bound by the Judicial Conference's
determination, it would be binding itself only to consider
impeachment, not to impeach (see 783 F.2d at 1512).  Thus, a
determination of the kind made regarding petitioner simply does not
trench upon the power of Congress over the impeachment process.

   3. Petitioner's fourth question presented challenges other aspects
of the court of appeals' decision.  The court did not err in its
treatment of these other arguments and, in any event, its decisions on
those matters plainly do not warrant review by this Court.

   As the court below concluded, petitioner's due process challenge to
the combined exercise of investigatory and adjudicatory functions by
the judicial councils and the Judicial Conference is foreclosed by
Withrow v. Larkin, 421 U.S. 35 (1975).  The Court there held
unanimously that a state statute requiring a medical board both to
investigate charges of misconduct and to determine whether to impose
disciplinary measures does not violate due process.  In so holding,
the Court rejected the proposition that "the combination of
investigative and adjudicative functions necessarily creates an
unconstitutional risk of bias in administrative adjudication" (id. at
47).  The Court reasoned that "(t)he mere exposure to evidence
presented in nonadversary investigative procedures is insufficient in
itself to impugn the fairness of the Board members at a later
adversary hearing" (id. at 55).  Accord, Richardson v. Perales, 402
U.S. 389, 410 (1971);  FTC v. Cement Institute, 333 U.S. 683, 700-703
(1948).  In light of Withrow, the bare fact that the judicial councils
and the Judicial Conference may exercise investigatory functions prior
to determining whether impeachment may be warranted does not create an
impermissible risk of bias.  /5/

   Petitioner's vagueness and overbreadth challenges to the Act are
likewise controlled by prior decisions of this Court.  With respect to
vagueness, it long has been settled that "(o)ne to whose conduct a
statute clearly applies may not successfully challenge it for
vagueness." Parker v. Levy, 417 U.S. 733, 756 (1974);  accord Village
of Hoffman Estates v. The Flipside, Hoffman Estate, Inc., 455 U.S.
489, 495 (1982);  Broadrick v. Oklahoma, 413 U.S. 601, 608-609 (1973).
 In this case, the alleged conduct at the heart of the proceedings
concerning petitioner -- conspiracy to solicit a bribe and obstruction
of justice -- self-evidently constitutes "conduct prejudicial to the
effective and expeditious adminsitration of the business of the
courts" (28 U.S.C. 372(c)(1)).  Thus, even if it is assumed that the
statutory standard might be impermissibly vague as applied to the
hypothetical conduct of other judges, the court of appeals acted
correctly in this case in declining to invalidate the Act on vagueness
grounds.  /6/

   As for the overbreadth claim, "particularly where conduct and not
merely speech is involved, * * * the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615.
Unless "the enactment reaches a substantial amount of constitutionally
protected conduct * * * the overbreadth challenge must fail." Village
of Hoffman Estates, 455 U.S. at 494.  In this case, both the language
of the Act and its legislative history demonstrate that Congress did
not intend the Act's prohibitions to extend to protected First
Amendment speech.  See S. Rep. 96-362, 96th Cong., 1st Sess. 9 (1979).
 As a result, the Act does not even arguably reach a substantial
amount of constitutionally protected conduct and any incidential
application that the Act might have to protected speech can hardly be
deemed substantial in relation to the statute's plainly legitimate
sweep.  This Court properly can defer consideration of hypothetical
speech-related applications of the Act until the time, if ever, when
the Act is applied in a way that penalizes potentially protected
activity.  /7/

   The court of appeals disposed of petitioner's remaining claims --
those concerning the Compensation Clause, the adequacy of the Act's
appearance and confrontation provisions, and petitioner's specific
allegations of procedural unfairness in the judicial council's
proceedings -- without reaching their merits.  Its disposition of
those claims was correct for the reasons given by the court (Pet. App.
48-50, 57-59, 67-69).  Equally important, the disposition of those
issues involved nothing more than the application of settled legal
rules to the particular facts of this case, so that review by this
Court is not warranted.

   Finally, while largely ignoring the specific rulings of the court
of appeals in this case, petitioner offers the general complaint (Pet.
30-35) that none of the courts before which he has litigated has
simultaneously addressed all of his manifold constitutional challenges
to the Act.  However, in each instance in which a court has declined
to reach one or more of petitioner's claims, it has done so because
the claims were not then presented in a sufficiently concrete or
adversarial form to warrant their adjudication.  This does not mean
that petitioner has been denied the opportunity to litigate his many
claims;  to the contrary, the courts now have resolved the great
majority of them.  That the courts have waited for the claims to be
presented in concrete form simply reflects the principle that "under
our constitutional system courts are not roving commissions assigned
to pass judgment on the validity of the Nation's laws.  Constitutional
judgments * * * are justified only out of the necessity of
adjudicating rights in particular cases between the litigants before
the Court(s)." Broadrick, 413 U.S. at 610-611 (citation omitted).
Moreover, although the court below considered petitioner's claim that
"the whole of the Act is, in essence, more unconstitutional than the
sum of its parts" (Pet. App. 34), it concluded that there was no merit
to that claim (id. at 35), and petitioner has provided no reason why
that conclusion is erroneous.

                              CONCLUSION

   The petition for writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   BROOK HEDGE

   DOUGLAS N. LETTER

   SCOTT R. MCINTOSH

      Attorneys

   MARCH 1988

   /1/ In addition to the United States, this brief is filed on behalf
of the Judicial Conference of the United States, the Judicial
Conference's Committee to Review Circuit Council Conduct and
Disability Orders, and the Chief Justice of the United States.  The
Eleventh Circuit's judicial council and the five judges who composed
the committee that investigated petitioner and reported to the
judicial counsel are also respondents.

   /2/ The Judicial Conference is authorized by 28 U.S.C. 331 to
exercise the authority provided in 28 U.S.C. 372(c) through a standing
committee.  The Conference has established a Committee to Review
Circuit Council Conduct and Disability Orders to exercise its
responsibilities to review council orders issued under 28 U.S.C.
372(c)(6).

   /3/ Judge Buckley, while agreeing with the Act does not require
either a judicial council or the Judicial Conference to determine
whether an impeachable offense may have been committed, suggested in a
separate opinion that petitioner's constitutional challenge to the
certification procedures was nonetheless not "entirely frivolous"
(Pet. App. 78-84).  Judge Buckley emphasized, however, that he "ha(d)
reached no conclusion as to whether the certification requirement
represents * * * an unconstitutional encroachment on an independent
branch of the federal government" (id. at 84).  In all other respects,
Judge Buckley concurred in the court's disposition of the appeal.

   /4/ The Eleventh Circuit concluded that the Act "does not intrude
upon the House's sole power of decision whether or not to impeach" by
authorizing the judiciary to investigate the conduct of Article III
judges and make determinations concerning whether such conduct may
warrant consideration of impeachment (783 F.2d at 1510-1512).  The
court of appeals in this case declined to give preclusive effect to
the Eleventh Circuit's decision in this regard, not because it
disagreed with the Eleventh Circuit's reasoning, but because "it was
by no means essential for (the Eleventh Circuit) to decide this
constitutional issue in order to determine whether the subpoenas (at
issue in that case) were valid" (Pet. App. 32).

   /5/ It is open to serious question, moreover, whether the
determination that impeachment may be warranted constitutes an
adjudication of a judge's rights and liabilities in the first
instance.  The Eleventh Circuit, responding to the same due process
claim, concluded that "(t)o the extent a judicial council under the
Act engages merely in fact-gathering * * * and certifying the possible
existence of grounds for impeachment, it does not 'adjudicate' the
accused judge's rights and liabilities" (783 F.2d at 1514).

   /6/ The Eleventh Circuit, while declining formally to decide the
vagueness question for reasons of standing, stated that "the Act's
standard * * * describes with adequate explicitness the judicial
conduct that may be investigated" and that "with the possible
exception of certain marginal cases, a judge can reasonably be
expected to understand whether or not contemplated conduct will fall
within the Act" (783 F.2d at 1513 n.22).  As the Eleventh Circuit
noted, in addition to the guidance provided by the language of the Act
itself, Congress made clear in the Act's legislative history that it
intended the Act's standard to be informed by more specific guidelines
set forth in the Code of Judicial Conduct, resolutions of the Judicial
Conference concerning judicial conduct, and other congresssional
enactments governing judicial conduct (ibid.; see also Pet. App. 63).

   /7/ The court of appeals' conclusions regarding petitioner's
overbreadth claim are identical to those of the Eleventh Circuit.  As
the Eleventh Circuit noted, any First Amendment questions that might
be raised by "marginal applications" of the Act "can be effectively
dealt with by case-by-case analysis" (783 F.2d at 1513 & n.22).