1

COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

OF THE JUDICIAL CONFERENCE OF THE UNITED STATES

____________

C.C.D. No. 17-02

____________

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

____________

PROCEEDING IN REVIEW OF THE ORDER AND MEMORANDUM

OF THE JUDICIAL COUNCIL OF THE TENTH CIRCUIT

J.C. Nos. 10-16-90009 (DC-16-90009) & 10-16-90017

____________

(Filed November 30, 2017)

Present: Judges Anthony J. Scirica, Chair, Sarah Evans Barker, Joel F. Dubina, Joel M. 

Flaum, Thomas F. Hogan, Jon O. Newman, and Kathryn H. Vratil.

____________

MEMORANDUM OF DECISION

____________

In early 2016, the Utah Attorney General’s Office and Terry Mitchell filed complaints of 

judicial misconduct against Judge Richard W. Roberts (retired) of the U.S. District Court for the 

District of Columbia under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. 

§§ 351–364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings (amended 

Sept. 17, 2015).

1 Terry Mitchell alleged in part that Judge Roberts, prior to his judicial 

appointment, “used his authority and status as a federal prosecutor to manipulate and coerce 

[then-]sixteen-year-old Terry Mitchell”—a witness in a 1981 trial—“into numerous sex acts 

before and throughout the trial.” Mitchell Compl. at 1. The Utah Attorney General made similar 

 1

The Utah Attorney General’s Office and Terry Mitchell filed their complaints in the U.S. Court 

of Appeals for the District of Columbia Circuit. At the request of the Judicial Council of the 

District of Columbia Circuit, on May 10, 2016, the Chief Justice transferred the Utah Attorney 

General’s complaint and any related complaints to the Judicial Council of the U.S. Court of 

Appeals for the Tenth Circuit.
2

serious allegations. Terry Mitchell further alleged that Judge Roberts dishonestly asserted a 

disability to retire and avoid the consequences of these allegations. See id. at 4. The Tenth 

Circuit Judicial Council dismissed the judicial misconduct complaints in an Order attached 

herewith, concluding that Judge Roberts’s pre-appointment conduct is not justiciable under the 

Judicial Conduct and Disability Act, and further that Judge Roberts did not dishonestly assert a

disability.

Neither Terry Mitchell nor the Utah Attorney General challenged the Judicial Council’s 

determinations by filing a petition for review.

2 Because neither Complainant took such an 

appeal, the Judicial Council’s determinations of the two principal issues described above are not 

before this Committee for review.

Judge Roberts, however, has filed a Petition for Partial Review in which he objects to the 

Judicial Council’s inclusion of the medical diagnosis underlying his disability retirement.3 He 

asks this Committee to strike that specific medical diagnosis from the record. For the following

reasons, we deny Judge Roberts’s Petition for Partial Review.

I.

On March 14, 2016, and May 26, 2016, respectively, the Utah Attorney General’s Office 

and Terry Mitchell filed judicial misconduct complaints against Judge Roberts. The allegations 

in the two complaints stem from Judge Roberts’s actions as a federal prosecutor in Utah 17 years 

 2 See 28 U.S.C. § 357(a) (“A complainant or judge aggrieved by an action of the judicial council 

under section 354 may petition the Judicial Conference of the United States for review 

thereof.”); R. 21(b)(1)(A) (“A complainant or subject judge may petition the Committee for 

review of a judicial-council order entered in accordance with . . . Rule 20(b)(1)(A) . . . .”); R. 

22(a) (“A petition for review of a judicial-council decision on a reviewable matter, as defined in 

Rule 21(b)(1), may be filed by sending a brief written statement to the Committee on Judicial 

Conduct and Disability . . . .”).

3 Brian M. Heberlig and Linda C. Bailey, of Steptoe & Johnson LLP, represent Judge Roberts.
3

before his 1998 appointment as a federal judge. Specifically, the complaints allege that (1) Judge 

Roberts had a manipulative and coercive sexual relationship with a young witness (Terry 

Mitchell) during a trial in Utah; (2) prior to and after his appointment as a federal judge, Judge 

Roberts breached his duty to report his past unethical behavior; (3) Judge Roberts misused his 

chambers and office equipment in contacting Terry Mitchell while he was a judge; and (4) Judge 

Roberts dishonestly asserted a disability to retire and avoid the consequences of the misconduct 

complaints and a related federal civil complaint.

Within a matter of days of the Utah Attorney General’s judicial misconduct complaint, 

Judge Roberts retired based on a permanent disability. The Acting Chief Judge4 of the U.S. 

Court of Appeals for the D.C. Circuit certified to the President that Judge Roberts was 

permanently disabled from performing the duties of a judge in regular active service on March 

15, 2016. On March 16, 2016 (the same day Terry Mitchell filed a related federal civil 

complaint), Judge Roberts notified the President of his retirement. See 28 U.S.C. § 372(a) (“Any 

. . . judge of the United States appointed to hold office during good behavior who becomes 

permanently disabled from performing his duties may retire from regular active service . . . . A 

circuit or district judge, desiring to retire under this section, shall furnish to the President a 

certificate of disability signed by the chief judge of his circuit.”). On March 18, 2016, the Acting 

Chief Judge dismissed the Utah Attorney General’s complaint on the ground that Judge 

Roberts’s recent retirement “‘render[ed] . . . the allegations moot or [made] remedial action 

impossible.’” In re Charge of Judicial Misconduct or Disability, No. D.C.-16-90009, Order &

Mem. at 2 (D.C. Cir. 2016) (quoting R. 11(e)). 

 4 The Chief Judge of the D.C. Circuit recused from both Judge Roberts’s disability certification 

and the judicial misconduct complaint against Judge Roberts and played no role in the decisions.
4

The Utah Attorney General filed a Petition for Review of the Acting Chief Judge’s 

dismissal of its complaint. Upon request from the D.C. Circuit Judicial Council, the Chief Justice 

transferred to the Tenth Circuit the Utah Attorney General’s complaint and any related matters 

(including the subsequent complaint filed by Terry Mitchell). See R. 26. The Tenth Circuit 

Judicial Council granted in part the Utah Attorney General’s Petition for Review. Specifically, it

vacated the dismissal order after determining that Judge Roberts’s retirement “does not preclude 

him from coverage under the Judicial Conduct and Disability Act,” and returned the complaint to 

the Chief Judge of the Tenth Circuit for further action under Rule 19(b).5 In re: Complaint 

Under the Judicial Conduct & Disability Act, No. 10-16-90009, Order at 4 (10th Cir. 2016); see 

also 28 U.S.C. § 294(b) (stating “[a]ny judge of the United States who has retired from regular 

service under section . . . 372(a) . . . shall be known and designated as a senior judge”). The 

Chief Judge of the Tenth Circuit consolidated the two complaints and appointed a Special 

Committee to determine whether the claims fell within the scope of the Judicial Conduct and 

Disability Act and, if so, to investigate the allegations and underlying facts.

Following the Special Committee’s detailed investigation and submission of its Report, 

the Tenth Circuit Judicial Council dismissed the Utah Attorney General’s and Terry Mitchell’s 

judicial misconduct complaints. The Judicial Council dismissed the allegations related to Judge 

Roberts’s actions as a prosecutor, concluding that a judge’s pre-appointment conduct is not 

cognizable under the Judicial Conduct and Disability Act. 28 U.S.C. § 354(a)(1)(B); 

R. 20(b)(1)(A)(iv); see also 28 U.S.C. § 351(a) (providing that the Act applies to complaints 

 5 We agree that Judge Roberts’s retirement does not preclude him from coverage under the Act. 

Disability retirement under Section 372(a) is an essential and proper step for judges who can no 

longer discharge the duties of their office. It is not, however, a safe harbor from allegations of 

judicial misconduct.
5

alleging that “a judge has engaged in conduct prejudicial to the effective and expeditious 

administration of the business of the courts”). The Judicial Council also dismissed the allegations 

that Judge Roberts had a continuing duty to report his pre-appointment conduct because it was 

“unaware of any authority supporting such a duty for a federal judge.” Judicial Council Order at 

20; see also 28 U.S.C. § 354(a)(1)(B); R. 20(b)(1)(A)(i). In addition, the Judicial Council 

concluded the evidence did not support the allegation that Judge Roberts misused his chambers 

telephone and email account. 28 U.S.C. § 354(a)(1)(B); R. 20(b)(1)(A)(iii). Finally, the Judicial 

Council concluded that the evidence did not support the allegation that Judge Roberts 

dishonestly asserted a disability. Id. As noted, neither the Utah Attorney General nor Terry 

Mitchell filed a petition for review of those determinations.

II.

In reaching the conclusion that the evidence did not support the allegation that Judge 

Roberts dishonestly asserted a disability, the Tenth Circuit Judicial Council relied on the Special 

Committee’s “thorough investigation, including reviewing medical records and interviewing 28 

witnesses, including medical professionals.” Judicial Council Order at 20. This investigation 

included consideration of the diagnosis of Judge Roberts provided by his neurologist, who had 

been treating Judge Roberts for 22 months at the time he provided his opinion. Specifically, the 

Judicial Council noted, in a sentence that is the subject of the pending Petition for Partial 

Review, that “[Judge Roberts’s] neurologist diagnosed Judge Roberts with limbic encephalitis 

associated with voltage gated potassium channel antibody, a rare condition that in most cases has 

a spontaneous onset and caused Judge Roberts symptoms of near-term memory loss, several 

instances of disorientation, seizures, and changes in personality.” Id. at 18.
6

Judge Roberts asserts in his Petition for Partial Review that the Tenth Circuit Judicial 

Council’s inclusion in its final Order of the sentence explaining his neurologist’s diagnosis is 

neither warranted nor necessary in a public order ruling on the propriety of his requesting and 

being granted disability retirement. According to Judge Roberts, he has “a personal privacy 

interest in not having his specific medical diagnosis and symptoms shared publicly.” Pet. for 

Review at 3. In addition, he believes that a public order citing “the thoroughness of the 

investigation” alone is all that is necessary here. Id. at 4. He requests that this Committee strike 

the sentence from the record and replace it with the following: “Judge Roberts has been 

diagnosed with a rare condition that causes serious symptoms.” Id. The Tenth Circuit Judicial 

Council rejected these same arguments when Judge Roberts raised them before the Judicial 

Council, declining to remove the specific medical diagnosis from its final Order. 

III.

We recognize that there may be instances where a judge’s personal medical information 

should not be made public. This is not the case here. 

Judge Roberts’s medical diagnosis is not a collateral issue that in a different case might 

be treated in the manner he suggests. Rather, Judge Roberts’s medical diagnosis has been placed 

directly at issue due to the timing of his departure from judicial office, occurring within days of

the filing of the Utah Attorney General’s judicial misconduct complaint and Terry Mitchell’s 

federal civil complaint. See Judicial Council Order at 17 (“The timing of Judge Roberts’[s]

retirement . . . caused [the Tenth Circuit’s] Chief Judge . . . to appoint the Special Committee, 

which investigated whether Judge Roberts’[s] disability was merely coincidental and legitimate 

or otherwise.”). 
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The basis for Judge Roberts’s disability retirement was a fact in controversy that required 

a determination as to its legitimacy under the circumstances. The specific nature of Judge 

Roberts’s medical diagnosis is essential to a conclusion that his disability retirement was not a 

contrivance. In light of the nature of our review, see R. 21(a), the Tenth Circuit Judicial 

Council’s consideration and rejection of Judge Roberts’s arguments to strike the sentence from 

its final Order, and our independent conclusion that inclusion of Judge Roberts’s medical 

diagnosis in the Judicial Council’s Order is both warranted and necessary, we deny Judge 

Roberts’s Petition for Partial Review.

IV. 

In concluding that it lacked authority under the Act to review Judge Roberts’s alleged 

misconduct, the Tenth Circuit Judicial Council acknowledged that “[t]he complainants are not 

without other avenues to address impropriety committed by a judge prior to appointment.” 

Judicial Council Order at 14. Recognizing “the importance of ensuring that governing bodies 

with clear jurisdiction are aware of the complaint,” the Judicial Council requested that this 

Committee forward a copy of its Order to the House Judiciary Committee, the House Oversight 

Committee, the Senate Judiciary Committee, and the Senate Finance Committee. Id. at 15. 

We agree. We will forward to those Committees copies of the Judicial Council’s Order 

and this Decision denying Judge Roberts’s Petition for Partial Review.
1

JUDICIAL COUNCIL OF THE

TENTH CIRCUIT

IN RE: COMPLAINT UNDER THE 

JUDICIAL CONDUCT AND 

DISABILITY ACT

Nos. 10-16-90009 (DC-16-90009) & 

 10-16-90017

Before TYMKOVICH, Chief Circuit Judge, BACHARACH, PHILLIPS, McHUGH, 

MORITZ, Circuit Judges, and HERRERA, DEGIUSTI, NUFFER, MELGREN, 

District Judges

ORDER

Two complaints of judicial misconduct were filed in the United States Court of 

Appeals for the District of Columbia Circuit against Judge Richard W. Roberts, then 

chief judge of the United States District Court for the District of Columbia.1

 The D.C. 

Circuit’s acting chief judge dismissed the first complaint. Complainant filed a petition 

for review and the D.C. Circuit’s Judicial Council requested that the matter be transferred 

to another circuit. Chief Justice John Roberts transferred the complaint and any related 

 1 The Rules for Judicial-Conduct and Judicial-Disability Proceedings (RJCD)

provide “if the complaint is . . . dismissed at any time after a special committee is 

appointed, the Judicial Council must determine whether the name of the subject judge 

should be disclosed.” RJCD 24(a)(2). Further, “the name of the complainant must not be 

disclosed in materials made public under this Rule unless the chief judge orders 

disclosure.” RJCD 24(a)(5). Given that the misconduct matter has already received

significant publicity, the names of the subject judge and first complainant have 

previously been disclosed by the media, and the second complainant’s civil action against 

the subject judge has received considerable media attention, the Judicial Council has 

determined that it is in the public interest to disclose the name of the subject judge in this 

order. For the same reasons, the Chief Circuit Judge has ordered the disclosure of the 

names of the complainants. 
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matters to this circuit. Shortly thereafter, the second complaint was filed and was 

automatically transferred in accordance with Chief Justice Roberts’ order. 

The allegations in the two complaints stem from Judge Roberts’ actions as a 

federal prosecutor in Utah 17 years before his appointment as a federal judge in 1998. 

Specifically, the complaints allege as misconduct: (1) that Judge Roberts had an improper 

sexual relationship with a young female witness during a trial in Utah; (2) that during and 

after his appointment, Judge Roberts breached his duty to report his past unethical 

behavior; (3) that Judge Roberts misused his chambers and office equipment in 

contacting the former witness while he was a judge; and (4) that Judge Roberts 

dishonestly asserted his disability in order to retire and avoid the consequences of the 

misconduct complaint and the civil complaint filed against him in federal court. Chief 

Circuit Judge Timothy M. Tymkovich appointed a Special Committee to investigate these 

matters. The Special Committee has submitted its report of findings and 

recommendations to the Judicial Council.

After considering the law and evidence, the Judicial Council agrees with the 

findings and recommendations of the Special Committee. It concludes that Judge 

Roberts’ pre-appointment conduct does not fall within the scope of the Judicial Conduct 

and Disability Act and that he had no continuing duty after he became a judge to disclose 

pre-appointment conduct. The Judicial Council finds that there is insufficient evidence 

that Judge Roberts misused his chambers or office equipment in contacting the former 

witness. Finally, the Judicial Council finds that, while the timing of Judge Roberts’ 
3

disability retirement was accelerated by the anticipated publicity about the Utah 

complaints, medical and other evidence strongly support the existence of his disability 

and, thus, his disability was not dishonestly asserted.

I. Background 

The Judicial Conduct and Disability Act (the Act) provides procedures for 

handling misconduct complaints and defines misconduct as “conduct prejudicial to the 

effective and expeditious administration of the business of the courts.” 28 U.S.C. 

§ 353(a). The Rules for Judicial-Conduct and Judicial-Disability Proceedings (RJCD), 

provide further guidance on what conduct may constitute misconduct and how the 

process proceeds once a chief circuit judge has referred a misconduct matter to a special 

committee. 

This matter involves two misconduct complaints, which Chief Judge Tymkovich 

consolidated pursuant to RJCD 11(f). The first complainant, the State of Utah Attorney 

General’s Office (Utah AG’s Office), received a complaint from a witness, Terry 

Mitchell, who testified in the 1981 high-profile trial of Joseph Paul Franklin. Franklin 

was tried in federal court on civil rights charges and in state court on first-degree murder 

charges for killing two black men at a park in Salt Lake City. At the time, Judge Roberts 

was a trial attorney in the Department of Justice’s Civil Rights Division, and he helped 

prosecute Franklin’s federal charges. Mitchell, who was 16 years old during the trial, 

testified against Franklin. Mitchell alleged to the Utah AG’s Office that she engaged in a 

sexual relationship with Judge Roberts during the federal trial preparation and trial. 
4

Franklin was convicted of both the federal and state charges and was executed by the 

State of Missouri in November of 2013 for a different murder conviction. Following the 

Franklin prosecution, Judge Roberts held various positions in private practice and the 

Department of Justice until 1998, when he was nominated and confirmed as a district 

judge in the United States District Court for the District of Columbia.

Upon receiving the witness’s complaint against Judge Roberts, the Utah AG’s 

Office initiated an investigation of the allegations. On March 14, 2016, the Utah AG’s 

Office filed a judicial misconduct complaint with the D.C. Circuit based on its 

investigation of Mitchell’s allegations. 

The same week that the complaint was filed with the D.C. Circuit, Judge Roberts 

retired on disability pursuant to 28 U.S.C. § 372(a). For a district judge to retire on 

disability under this section, he or she must provide the President with a certification of 

disability signed by the chief circuit judge. The D.C. Circuit chief judge recused from 

both the disability certification and the judicial misconduct complaint. The most senior 

active D.C. Circuit judge became acting chief judge for both purposes. On March 15, 

2016, the acting chief judge certified to the President that Judge Roberts was permanently 

disabled from performing the duties of a judge in regular active service. On March 16, 

2016, Judge Roberts notified the President of his retirement. On March 18, 2016, the 

acting chief judge dismissed the Utah AG’s Office’s complaint after determining that 

Judge Roberts’ recent retirement “‘render[ed] . . . the allegations moot or [made] 

remedial action impossible.’” In re Charge of Judicial Misconduct or Disability, No. 
5

D.C.-16-90009, Order and Mem. at 2 (D.C. Cir. 2016) (quoting RJCD 11(e)). The Utah 

AG’s Office filed a petition for review, and the Judicial Council for the D.C. Circuit 

requested that Chief Justice Roberts transfer the matter to another circuit. See RJCD 26. 

On May 10, 2016, Chief Justice Roberts transferred the complaint to the Tenth Circuit. 

On May 26, 2016, Terry Mitchell filed her own complaint dated May 22, 2016, 

containing similar and additional allegations. Like the Utah AG’s complaint, Mitchell’s 

complaint focuses mostly on Judge Roberts’ conduct as a federal prosecutor and other 

pre-appointment conduct. Additionally, Mitchell alleged that Judge Roberts may have 

dishonestly asserted his disability to avoid the consequences of the allegations being 

made public. Mitchell also asserted that Judge Roberts misused his chambers and office 

equipment to contact Mitchell. Finally, unrelated to Judge Roberts’ conduct, Mitchell 

alleged that the acting chief circuit judge improperly certified Judge Roberts’ disability 

because she was beyond the age permissible to act as chief judge under 28 U.S.C. 

§ 45(a)(3)(C) and that information about the Utah AG’s Office’s investigation was leaked 

to Judge Roberts by staff at the Utah AG’s Office. In accordance with the terms of Chief 

Justice Roberts’ transfer order, Mitchell’s complaint was also transferred to the Tenth 

Circuit.

On October 26, 2016, the Tenth Circuit Judicial Council granted in part the Utah 

AG’s Office’s petition for review from the acting chief circuit judge’s dismissal of the 

first complaint, vacated that dismissal order, and returned the complaint to Chief Judge 

Tymkovich for further action pursuant to RJCD 19(b), after determining that “the statute 
6

under which [Judge Roberts] retired does not preclude him from coverage under the 

Judicial Conduct and Disability Act.” In re: Complaint Under the Judicial Conduct and 

Disability Act, No. 10-16-90009 at 4 (10th Cir. 2016) (Tymkovich, C.J.); see also 28 

U.S.C. § 294(b) (stating “[a]ny judge of the United States who has retired from regular 

service under . . . Section 372(a) . . . shall be known and designated as a senior judge”). 

Chief Judge Tymkovich consolidated the two matters and appointed a Special Committee

to determine whether the claims fell within the scope of the Judicial Conduct and 

Disability Act and, if so, to investigate the allegations and underlying facts. 

II. Allegations Determined by Law

A. The Judicial Conduct and Disability Act and Pre-appointment Conduct

Both complaints allege that Judge Roberts’ alleged sexual relationship with a 

witness during trial constitutes misconduct. As this conduct occurred in 1981, before 

Judge Roberts was appointed as a judge, the Special Committee requested the Utah AG’s 

Office, Mitchell, and Judge Roberts to brief whether the Judiciary has jurisdiction under 

the Act to consider misconduct complaints containing allegations that focus on actions or 

conduct of a judge committed prior to the judge’s appointment to the federal bench. The 

Judicial Council has considered those responses and concludes that pre-appointment 

conduct is outside of the scope of the Act.

The Act addresses “complaints” and defines the term “judge”:

Any person alleging that a judge has engaged in conduct prejudicial to the 

effective and expeditious administration of the business of the courts, or 

alleging that such judge is unable to discharge all the duties of office by 
7

reason of mental or physical disability, may file with the clerk of the court 

of appeals for the circuit a written complaint containing a brief statement of 

the facts constituting such conduct. 

28 U.S.C. § 351(a). “[T]he term ‘judge’ means a circuit judge, district judge, 

bankruptcy judge, or magistrate judge.” Id. § 351(d)(1).

The Act gives the Judiciary authority to investigate and resolve complaints about 

the conduct of judges, i.e., “a circuit judge, district judge, bankruptcy judge, or magistrate 

judge.” Id. Thus, the Act applies to complaints only if they allege that “a judge has 

engaged in conduct prejudicial to the effective and expeditious administration of the 

business of the courts” (or that a “judge is unable to discharge all the duties of office by 

reason of mental or physical disability”). 28 U.S.C. § 351(a) (emphasis added). Section 

351(a) thereby effectively excludes any complaint aimed at a judge’s conduct before he 

or she became a federal judicial officer, i.e., before the nominee’s appointment. Section 

352(b)(1)(A)(i) permits the chief circuit judge to dismiss an allegation that does not 

constitute misconduct under § 351(a). See Judicial Conduct & Disability Act Study 

Comm., Implementation of the Judicial Conduct and Disability Act of 1980: A Report to 

the Chief Justice, 239 F.R.D. 116, app. E at 240 (West 2006) (“Breyer Report”). 

RJCD 3 correspondingly defines “[c]ognizable misconduct” as “conduct 

prejudicial to the effective and expeditious administration of the business of the courts,” 

and adds the following examples: 

(A) using the judge’s office to obtain special treatment for friends or 

relatives; (B) accepting bribes, gifts, or other personal favors related to the 
8

judicial office; (C) having improper discussions with parties or counsel for 

one side in a case; (D) treating litigants, attorneys, or others in a 

demonstrably egregious and hostile manner; (E) engaging in partisan 

political activity or making inappropriately partisan statements; (F) 

soliciting funds for organizations; (G) retaliating against complainants, 

witnesses, or others for their participation in this complaint process; (H) 

refusing, without good cause shown, to cooperate in the investigation of a 

complaint under these Rules; or (I) violating other specific, mandatory 

standards of judicial conduct, such as those pertaining to restrictions on 

outside income and requirements for financial disclosure.

RJCD 3(h)(1). “Cognizable misconduct” also includes “conduct occurring outside the 

performance of official duties if the conduct might have a prejudicial effect on the 

administration of the business of the courts, including a substantial and widespread 

lowering of public confidence in the courts among reasonable people.” Id. 3(h)(2). 

Critically, all of the examples listed in RJCD 3(h) suggest that misconduct, to be 

actionable, must be committed while the subject “judge” is actually serving as a “judge,” 

even though inclusive of a judge’s actions performed outside of his or her official duties. 

Thus, none of these examples encompass conduct that occurred before a judge’s 

appointment.

The Breyer Report provides committee standards for assessing compliance with 

the Act, noting that “the standard does not appear susceptible to a precise definition” and 

surmising “[p]resumably that was the intent of the Act’s drafters.” Breyer Report, 239 

F.R.D. app. E at 240. The Breyer Report advises that § 351(a) is given context in part by 

the “accumulated precedent of the circuits.” Id. Although the Breyer Report 

acknowledges a “contrary view . . . that pre-judicial conduct can be prejudicial to the 
9

current administration of the business of the courts,” id. at 241, both the accumulation of 

circuit precedents and the Code of Conduct support the conclusion that pre-appointment 

conduct falls outside the scope of the Act. 

The Ninth Circuit has provided the most thorough analysis of the scope of the Act. 

It held that the Act “is intended to deal with misconduct relating to the judicial office or 

judicial conduct.” In re Complaint of Judicial Misconduct, 366 F.3d 963, 964 (9th Cir. 

2004). Moreover, the Ninth Circuit has explained that “the plain language of the Judicial 

Conduct and Disability Act limits its scope to conduct by federal judicial officers.” In re 

Complaint of Judicial Misconduct, 570 F.3d 1144, 1144 (9th Cir. 2009) (Kozinski, C.J.) 

(citing 28 U.S.C. §§ 351(a) and (d)(1) and dismissing complaint that alleged misconduct 

when subject judge sat on state court). The court has also emphasized that “Congress 

limited the scope of misconduct proceedings in order to preserve the constitutional 

scheme of presidential appointment and legislative confirmation.” Id. That same Ninth 

Circuit order appended and incorporated a 1986 order by former Ninth Circuit Chief 

Judge James R. Browning dismissing a misconduct complaint for lack of jurisdiction. 

That appended order expounded on the constitutional separation-of-powers concerns: 

Article III, Section 2 of the United States Constitution vests the President 

with power to nominate officers of the United States, including federal 

judges, and to appoint such officers with the advice and consent of the 

Senate. The judicial branch has no constitutional role in considering the 

fitness of an individual to assume judicial office. Congress noted the 

differing roles of the coordinate branches in relation to judicial fitness, and 

recognized that, “[b]ecause of the separation of powers principle 

established by the Constitution, these roles must remain separate.” H.R. 

Rep. No. [96-]1313 at 5. It would be incompatible with this constitutional 
10

principle for the judiciary to review the determination of the executive and 

legislative branches in the nomination and confirmation process by 

investigating and possibly disciplining a judge for conduct occurring before 

appointment to the bench.

Id. at 1154-55 (first alteration in original) (analyzing the legislative history of the Act, 

concluding that “[t]aken as a whole the legislative history of both chambers can be 

harmonized only by interpreting the phrase ‘prejudicial to the effective and expeditious 

administration of the business of the courts’ according to its plain meaning,” and holding 

that pre-appointment conduct does not fall within that plain meaning). 

The 1986 order went on to dismiss the misconduct complaint for lack of 

jurisdiction because it alleged pre-appointment misconduct, which Judge Browning held 

was “unrelated to the effective functioning of the judge’s court.” Id. at 1154. Following 

this same analysis, the Ninth Circuit has routinely dismissed judicial misconduct 

complaints focusing on pre-appointment conduct. See, e.g., In re Charge of Judicial 

Misconduct, No. 89-80031, Order at 2 (9th Cir. 1989) (Goodwin, C.J.) (concluding 

judge’s pre-appointment conduct was “beyond the administrative jurisdiction of the chief 

judge and the circuit judicial council” because it had no bearing on effective and efficient 

administration of the federal courts); In re Complaint of Judicial Misconduct, Nos. 09-

90269 & 10-90043, Order at 1 (9th Cir. 2010) (Kozinski, C.J.) (dismissing misconduct 

complaint because conduct occurred before appointment as federal judge and is, 

therefore, not cognizable under the Act). 
11

Decisions from other circuits are consistent: the Act does not cover preappointment conduct. See In re Complaint of Judicial Misconduct, No. 34, Order at 2, 4 

(Fed. Cir. 1990) (Markey, C.J.) (dismissing allegations of non-criminal pre-appointment 

misconduct, noting that the Act is concerned only with the conduct of judges); In re 

Charge of Judicial Misconduct, Nos. 10-90014 & 10-90015, Order at 3 (2d Cir. 2010) 

(Jacobs, C.J.) (dismissing complaint alleging pre-appointment conduct, noting that “any 

actions by the Judge in the Judge’s former capacity as a federal prosecutor would not 

constitute judicial misconduct under the Act”); In re Complaints of Judicial Misconduct 

or Disability, Nos. 04-35 & 05-16, Order at 8-9 (3d Cir. 2005) (Scirica, C.J.) (dismissing 

as not cognizable under the Act allegations that the judge made false statements during 

his Senate confirmation hearings, because the conduct occurred before the judge became 

a member of the Judiciary); In re Complaint of Judicial Misconduct, No. 06-6-351-02, 

Order at 1-2 (6th Cir. 2006) (Boggs, C.J.) (dismissing the misconduct complaint for lack 

of jurisdiction, because the complained-of conduct occurred before appointment to the 

federal bench); In re Complaint Against a Judicial Officer, No. 07-7-352-47, Mem. at 1 

(7th Cir. 2007) (Easterbrook, C.J.) (dismissing as outside of the scope of the Act 

allegations based on a judge’s conduct when he was a teenager); Memorandum of 

Reasons for Order of Dismissal of Complaint in Proceeding No. 92-10-372-10, Order at 

1 (10th Cir. 1992) (McKay, C.J.) (finding no jurisdiction under the Act or Tenth Circuit 

Judicial Council Rules to review a judge’s pre-appointment conduct and stating that 

“[t]hose matters are properly reviewed by the United States Senate in the course of 

confirmation proceedings”); but c.f. In re Complaint Against a Judicial Officer, No. 07-
12

11-90031, Mem. at 1 (7th Cir. 2011) (Easterbrook, C.J.) (dismissing a complaint 

premised on a judge’s conduct as a state judge in a state court proceeding on ground 

conduct was directly related to the merits of state court case); In re Complaint No. 262, 

Order at 1 (1st Cir. 1999) (Torruella, C.J.) (dismissing allegations of pre-appointment 

conduct as frivolous without discussing jurisdiction under the Act).2

 

The Judicial Council notes that circuits have varied in their reasoning as to why 

they have declined to address pre-appointment conduct. Most circuits have relied on 

§ 352(b)(1)(A)(i) (permitting the chief judge to dismiss the complaint upon finding the 

complaint not to be in conformity with § 351(a)3

) when dismissing an allegation of preappointment conduct. Some circuits do this by implying that no pre-appointment conduct 

could constitute conduct prejudicial to the effective and expeditious administration of the 

business of the courts. See, e.g., In re Charge of Judicial Misconduct, Nos. 10-90014 & 

10-90015 at 3 (2d Cir.). Other circuits have indicated that they lack jurisdiction to 

consider pre-appointment conduct at all. See, e.g., In re Complaint of Judicial 

Misconduct, No. 06-6-351-02 at 1 (6th Cir.); Memorandum of Reasons for Order of 

Dismissal of Complaint in Proceeding, No. 92-10-372-10, at 1 (10th Cir.). 

 2 These two latter decisions that reached the merits of the respective complaints are 

not authority for the presence of jurisdiction, however, because a court “is not bound by a 

prior exercise of jurisdiction in a case where it was not questioned and was passed sub 

silentio.” United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952). 

3 This was previously codified in 28 U.S.C. § 372(c). 
13

The Judicial Council does not believe it is necessary to determine whether the Act 

affords jurisdiction in the strict legal sense over pre-appointment conduct or whether the 

conduct is simply not prejudicial to the current business of the courts.4

 What is critical is 

that in no situation of which the Judicial Council is aware has a circuit expressly found 

that pre-appointment misconduct constitutes cognizable misconduct under the Act.

The Breyer Report also advises that, like the “accumulated precedent of the 

circuits,” the Code of Conduct for United States Judges (“Code”) provides context for 

§ 351(a). Breyer Report, 239 F.R.D. app. E at 240. The Code also supports the 

interpretation of the Act as excluding pre-appointment conduct. The Code makes clear 

that it applies only to those persons who are “officer[s] of the federal judicial system 

authorized to perform judicial functions.” Code of Conduct for United States Judges, 

Compliance with the Code of Conduct (Judicial Conference of the U.S. 1973). Further, 

each of the Code’s seven Canons begins with the phrase “A JUDGE” (e.g., “CANON 1: 

A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE 

JUDICIARY”) and focuses on what “a judge” should or should not do. See generally 

Code of Conduct. Although the Code indicates that it is meant to “provide guidance . . . 

to nominees for judicial office,” Canon 1, cmt., it otherwise does not reference pre-

 4 Of course, assuming jurisdiction to reach the merits in an adjudication of a case or 

controversy is prohibited. See Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 101-

102 (1998) (“For a court to pronounce upon the meaning or the constitutionality of a state 

or federal law when it has no jurisdiction to do so is by very definition, for a court to act 

ultra vires.”). Hypothetical jurisdiction is not implicated here, however, because this is 

an administrative matter, rather than an Article III proceeding. 
14

appointment conduct or advise that such conduct, even if disclosed after appointment, can 

be in violation of the Code. 

In sum, the Judicial Council agrees with the Ninth Circuit and other circuits 

insofar as they have held that pre-appointment conduct is not cognizable misconduct 

within the scope of the Act. Here, Judge Roberts’ sexual relationship with the witness, 

the focus of the misconduct allegations, occurred over 17 years prior to his appointment 

as a federal judge. The Judicial Council concludes that the Act does not give the 

Judiciary authority to review that conduct. Because the Judicial Council has concluded 

that the conduct alleged does not fall within the scope of the Act, it makes no 

determination as to whether Judge Roberts has engaged in conduct that might constitute a 

ground for impeachment under 28 U.S.C. § 354(b)(2)(A). See In re Complaint of 

Judicial Misconduct, 570 F.3d at 1155.

The complainants are not without other avenues to address impropriety committed 

by a judge prior to appointment:

Confirmation by the Senate does not, of course, shield a judge from 

responsibility for prior misconduct. If allegations of pre-confirmation 

conduct involve violation of the state’s ethical standards for lawyers, the 

complainant may file charges with the state bar association’s disciplinary 

body. If the allegations rise to the level of criminal conduct . . . 

complainant may lodge his complaint with the United States Department of 

Justice or the appropriate state law enforcement authorities. If the 

allegations involve conduct constituting “Treason, Bribery or other high 

Crimes and Misdemeanors,” complainant may take the complaint directly 

to the House of Representatives. 

Id.
15

The Judicial Council also acknowledges the importance of ensuring that governing 

bodies with clear jurisdiction are aware of the complaint. Nat’l Comm’n on Judicial 

Discipline and Removal, Report of the Nat’l Comm’n on Judicial Discipline & Removal, 

152 F.R.D. 265, 342-43 (1994) (acknowledging “that some (non-frivolous) allegations of

criminal conduct by a federal judge may be outside the Act’s jurisdiction,” but noting that 

“any such serious allegation should be brought to the attention of other institutions that 

have and exercise jurisdiction”). Here, the House Judiciary Committee, the House 

Oversight Committee, the Senate Judiciary Committee and the Senate Finance 

Committee have already received a copy of the Utah AG’s complaint. The Judicial 

Council will request that the Committee on Conduct and Disability of the Judicial 

Conference of the United States forward a copy of this order to those committees. 

B. Continuing Duty to Disclose

Both complaints contend that Judge Roberts had a continuing duty to report his 

relationship with Mitchell, under either Brady v. Maryland, 373 U.S. 83 (1963), or 

attorney professional conduct rules. According to the Utah AG’s Office, these duties 

continued during Judge Roberts’ tenure as an Article III judge, and his failure to report 

his pre-appointment conduct constitutes cognizable misconduct. 

Neither of these points is persuasive. First, if Brady rights are at all relevant, 

which is dubious, they are personal to a defendant and Franklin’s death renders the 

argument moot. Second, a lawyer’s professional obligations are enforced by local 

bodies. The Judicial Council will leave to the appropriate governing bodies any 
16

determination of whether Judge Roberts’ conduct violated any professional standards, 

how long his obligations continued after conclusion of judicial proceedings against 

Franklin, and whether there should be consequences for any violation of those 

professional obligations. 

C. Allegations Unrelated to Judge Roberts’ Conduct

Mitchell’s complaint contains two additional allegations that are unrelated to 

Judge Roberts’ conduct and, thus, were not considered. First, Mitchell contends that the 

acting chief circuit judge improperly certified Judge Roberts’ disability because she was 

beyond the age permissible to act as chief judge under 28 U.S.C. § 45(a)(3)(C). Second, 

Mitchell asserts that information about her complaint to the Utah AG’s Office was leaked 

to Judge Roberts by staff at the Utah AG’s Office.5

 Neither of these allegations pertains 

to the conduct of Judge Roberts and thus, will not be addressed further. 

III. Allegations Determined by Fact

A. Allegation: Judge Roberts Misused his Chambers Telephone and Email with 

the Intent to Keep Mitchell from Disclosing their Relationship 

In the years following his appointment as a judge, Judge Roberts and Mitchell had 

occasional email exchanges and telephone conversations. Mitchell alleges Judge Roberts 

engaged in misconduct when he used his chambers telephone and email with the 

 5 In an abundance of caution, however, the Judicial Council investigated whether 

the Utah AG’s investigation was leaked to Judge Roberts and found no reliable evidence 

that it had been.
17

intention of preventing Mitchell from disclosing Roberts’ alleged abuse. The Special 

Committee reviewed all of the written or transcribed communications between Judge 

Roberts and Mitchell that the two of them had identified (they were consistent) and 

reviewed Judge Roberts’ court email account for all communications between them. 

Neither Mitchell nor Judge Roberts indicated that he contacted her using his personal 

email accounts. The Judicial Council agrees with the Special Committee that there is no

evidence to support an assertion that Judge Roberts used his chambers equipment to keep 

Mitchell from disclosing Roberts’ alleged abuse of Mitchell or otherwise engaged in 

misconduct while using his chambers equipment. 

B. Allegation: Judge Roberts was Dishonest in Asserting his Disability

Judge Roberts retired on disability only a few days after the Utah AG’s Office 

filed its misconduct complaint against him and on the same day Mitchell filed her civil 

action against Judge Roberts in the District of Utah. Mitchell contends that Judge 

Roberts’ retirement occurring so soon after these events suggests that Judge Roberts may 

have dishonestly asserted his disability in an attempt to avoid the consequences of the 

allegations against him. The timing of Judge Roberts’ retirement, in addition to the 

questions about his alleged misuse of chambers equipment, caused Chief Judge 

Tymkovich to appoint the Special Committee, which investigated whether Judge 

Roberts’ disability was merely coincidental and legitimate or otherwise. 

The Special Committee reviewed all of the materials submitted by the two 

complainants and Judge Roberts, including medical records from all doctors having 
18

knowledge of Judge Roberts’ medical condition leading to his disability retirement. The 

Special Committee interviewed the two physicians having the most relevant knowledge 

of Judge Roberts’ condition. It also interviewed nearly all of the court staff identified by 

Judge Roberts as having information about his medical condition prior to his retirement, 

as well as those persons identified by others as possibly having knowledge of Judge 

Roberts’ medical condition or any knowledge relevant to the allegations contained in 

either complaint. This included two circuit and two district judges in the D.C. Circuit, 

Judge Roberts, three current or former court unit executives, nine of Judge Roberts’ 

former law clerks, and eight support staff.6

 The Special Committee also engaged a 

board-certified medical expert to review medical evidence and consult on medical norms. 

The acting chief circuit judge’s certification that Judge Roberts was disabled was 

based on an opinion from Judge Roberts’ neurologist who had been treating Judge 

Roberts for 22 months at the time he gave his opinion that Judge Roberts was disabled. 

The neurologist diagnosed Judge Roberts with limbic encephalitis associated with voltage 

gated potassium channel antibody, a rare condition that in most cases has a spontaneous 

onset and caused Judge Roberts symptoms of near-term memory loss, several instances 

of disorientation, seizures, and changes in personality. While the condition has resolved 

in some patients, in the case of Judge Roberts, it had not done so by the time he took 

disability retirement. The Special Committee interviewed the neurologist who stood by 

his opinion that Judge Roberts was disabled at the time he retired. Judge Roberts’ long-

 6 Judge Roberts’ interview differed from the other interviews in that he was 

represented by counsel and a court reporter transcribed the interview. 
19

time internist agreed with that opinion. The Special Committee found both physicians to 

be credible.

Based on its review of the evidence developed by the Special Committee, the 

Judicial Council agrees with the Special Committee and concludes that Judge Roberts 

undoubtedly has a serious condition that significantly impacts his ability to perform as a 

trial judge. Accordingly, the Judicial Council concludes that neither the medical records, 

nor the interviews of district court staff or of doctors support a conclusion that Judge 

Roberts’ dishonestly took a disability retirement. 

IV. Conclusions 

The Judicial Council dismisses the allegations related to Judge Roberts’ actions as 

a prosecutor pursuant to 28 U.S.C. § 354(a)(1)(B) and RJCD 20(b)(1)(A)(iv) (requiring a 

complaint to be dismissed to the extent that the Judicial Council concludes that the 

complaint is “otherwise not appropriate for consideration under 28 U.S.C. §§ 351-364”). 

The Judicial Council takes very seriously the important responsibility of disciplining its 

colleagues, but the Council also respects the authority of the President and the Senate to 

assess the fitness of a judicial nominee. Should evidence of pre-appointment misconduct 

surface after a judicial appointment, Congress, not the courts, has the power and 

responsibility to take appropriate measures. 

Judge Roberts was not an officer of the federal judicial system nor was he 

performing judicial functions when he engaged in the alleged misconduct in Utah. The 

Act requires review of allegations that a judge has engaged in conduct prejudicial to the 
20

effective and expeditious administration of the business of the courts. See 28 U.S.C. 

§ 351(a). If a complaint is not within the scope of the Act, the judicial council may 

dismiss the complaint. See RJCD 20(b)(1)(A)(iv).

The Judicial Council dismisses the allegations that Judge Roberts had a continuing 

duty to report his pre-appointment conduct both before he became a judge and afterward 

pursuant to 28 U.S.C. § 354(a)(1)(B) and RJCD 20(b)(1)(A)(i) (permitting the judicial 

council to dismiss a complaint because “even if the claim is true, the claimed conduct is 

not conduct prejudicial to the effective and expeditious administration of the business of 

the courts”). The Judicial Council is unaware of any authority supporting such a duty for 

a federal judge. Should such a duty exist in another capacity, enforcing that duty is a 

matter best left to appropriate governing bodies. 

The Judicial Council concludes that the evidence does not support the allegation 

that Judge Roberts misused his chambers telephone and email account. This allegation is

dismissed pursuant to 28 U.S.C. § 354(a)(1)(B) and RJCD 20(b)(1)(A)(iii). 

Finally, the Judicial Council concludes that the evidence does not support the 

allegation that Judge Roberts dishonestly asserted his disability and dismisses the 

allegation pursuant to 28 U.S.C. § 354(a)(1)(B) and RJCD 20(b)(1)(A)(iii). The Special 

Committee conducted a thorough investigation, including reviewing medical records and 

interviewing 28 witnesses, including medical professionals. 
21

The Judicial Council concludes that despite any concerns about the timing of Judge 

Roberts’ retirement, the evidence supports his claim of disability. 

So ORDERED, July 28, 2017, and

Entered on behalf of the Judicial Council

Of the Tenth Circuit

By:

Honorable Timothy M. Tymkovich

Chief Circuit Judge