September 17, 2007

Statement of Arthur D. Hellman

Committee on Judicial Conduct and Disability

Judicial Conference of the United States

Hearing on 

Rules Governing Judicial Conduct and Disability Proceedings:

Draft for Public Comment

September 27, 2007

Judge Winter and Members of the Committee: 

Thank you for inviting me to express my views at this hearing on the 

proposed “Rules Governing Judicial Conduct and Disability Proceedings”

prepared by your Committee for consideration by the Judicial Conference of the 

United States.1 At the outset, I applaud the Committee for holding the hearing and 

inviting public comment on the draft. As far as I am aware, this is the first time 

that any organ of the federal judiciary has sought public input on rules relating to 

judicial conduct. It is a very positive step, and it augurs well for the success of the 

enterprise. 

Before turning to the proposed Rules, I will say a few words by way of 

personal background. I am a professor of law at the University of Pittsburgh 

School of Law, where I was recently appointed as the inaugural holder of the Sally 

Ann Semenko Endowed Chair. I have been studying the operation of the federal 

 

1 Judicial Conference of the United States, Rules Governing Judicial Conduct and Disability 

Proceedings Undertaken Pursuant to 28 U.S.C. §§ 351-364 – Draft for Public Comment 

(6/13/2007) [hereinafter Proposed Misconduct Rules]. 
Hellman – Misconduct Rules Statement Page 2

September 17, 2007

courts for more than 30 years. During that period, I have written numerous 

articles, books, and book chapters dealing with various aspects of the federal 

judicial system. Of particular relevance to this Committee‟s task is an article 

scheduled for publication early in 2008 on the regulation of judicial ethics in the 

federal system.

2 In addition, I worked with the Subcommittee on Courts, the 

Internet and Intellectual Property of the House Judiciary Committee in drafting the 

bipartisan Judicial Improvements Act of 2002.

3 As this Committee is aware, the 

2002 Act revised the statutory provisions governing the handling of complaints 

against judges, primarily by codifying some of the procedures adopted by the 

judiciary through rulemaking. The 2002 Act is also the law that gave the judicial 

misconduct provisions their own chapter in the United States Code, Chapter 16. 

In this statement, I shall address five aspects of the draft Rules: the move 

toward greater centralization in the administration of the 1980 Act; the definition 

of misconduct; the increased emphasis on procedural formality; the nature and 

timing of public disclosure; and efforts to make the process more visible. Like the 

Committee, I shall draw on two landmarks in the administration of the current 

statutory regime: the Illustrative Rules Governing Judicial Misconduct and 

Disability, originally published in 1986 and revised in 2000 (Illustrative Rules);

4

and the report issued in September 2006 by the Judicial Conduct and Disability 

 

2 Arthur D. Hellman, The Regulation of Judicial Ethics in the Federal System: A Peek 

Behind Closed Doors, 69 U. Pitt. L. Rev. No. 2 (forthcoming 2008). The current draft of this 

article will be furnished to the Committee. For a briefer treatment, see Arthur D. Hellman, Judges 

Judging Judges: The Federal Judicial Misconduct Statutes and the Breyer Committee Report, 28 

Justice System Journal No. 3 (forthcoming 2007).

3 For the legislative history of the Act, see H.R. Rep. 107-459 (2002).

4 Administrative Office of the United States Courts, Illustrative Rules Governing Complaints 

of Judicial Misconduct and Disability (2000) [hereinafter Illustrative Rules].
Hellman – Misconduct Rules Statement Page 3

September 17, 2007

Act Study Committee (Breyer Committee).5 Minor points of drafting, not 

implicating substance, are flagged in an Appendix. I will use the shorthand 

“Conduct Committee” to refer to this Committee both under its present 

designation and in its former incarnation as the Committee to Review Circuit 

Council Conduct and Disability Orders. 

I. Self-Regulation – But Somewhat Less Decentralized

The present system for dealing with possible misconduct by federal judges 

was established by Congress in the Judicial Councils Reform and Judicial Conduct 

and Disability Act of 1980 (1980 Act). The legislation created a regime that has 

been aptly described as one of “decentralized self-regulation.”6 Under the 

proposed National Rules, self-regulation continues, but the decentralization would 

be cut back to a considerable degree. This development is manifested in three 

aspects of the current draft: the imposition of mandatory national rules; the 

implementation of a monitoring function for the Conduct Committee; and the 

expansion of the Committee‟s jurisdiction to review orders of the circuit councils. 

Each of these points warrants discussion. 

A. From “illustrative” to mandatory rules

The first signal of a shift toward greater centralization comes in Rule 2. The 

Rule itself states that its provisions “are to be deemed mandatory” and that “the 

 

5 Judicial Conduct and Disability Act Study Committee, Implementation of the Judicial 

Conduct and Disability Act of 1980: A Report to the Chief Justice, 239 F.R.D. 116 (2006) 

[hereinafter Breyer Committee Report].

6 Jeffrey N. Barr & Thomas E. Willging, Decentralized Self-Regulation, Accountability, and 

Judicial Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. 

Pa. L. Rev. 25, 29 (1993) [hereinafter Barr & Willging].
Hellman – Misconduct Rules Statement Page 4

September 17, 2007

accompanying Commentaries are to be deemed authoritative.”7 This is a 

significant departure from prior practice. The commentary elaborates: “Unlike the 

Illustrative Rules, these Rules provide mandatory and nationally uniform 

provisions governing the substantive and procedural aspects of misconduct and 

disability proceedings under the Act.” 

This is a desirable change. The federal judicial system is a single system for 

administering justice to the litigants who come before it. If allegations of 

misconduct are not dealt with in appropriate fashion, the fault will be imputed to 

the judiciary as a whole, not just to the circuit where the matter was handled. In 

addition, most of the circuits have already adopted rules that closely track the 

Illustrative Rules. This experience suggests that there are no substantial 

differences in the conditions that confront the chief judges and judicial councils in 

the various circuits. By the same token, there is little if any reason to continue the 

minor variations in the rules that exist today. 

Because the Judicial Conference of the United States is now imposing 

mandatory rules on matters that hitherto have been left to the discretion of the 

individual circuit councils, it might be useful if the Commentary to Rule 2 stated 

explicitly that this step is authorized by 28 USC § 358(a).

B. A monitoring function for the Conduct Committee

In its September 2006 report, the Breyer Committee urged the Conduct 

Committee to consider “periodic monitoring of the Act‟s administration.” The 

commentary to this recommendation indicates that Justice Breyer and his 

colleagues contemplated no more than “periodic samplings of dispositions to 

 

7 The Rule carves out a small exception for “exceptional circumstances” that “render the 

application of a Rule in a particular proceeding manifestly unjust or manifestly contrary to the 

purposes of” the underlying laws. 
Hellman – Misconduct Rules Statement Page 5

September 17, 2007

detect problematic areas.” However, a perusal of the draft Rules suggests that the 

Conduct Committee may envisage a more robust, hands-on approach. This 

inference is based on five parallel provisions in the Rules:

Under Rule 8, copies of each complaint will be sent to the Conduct 

Committee upon filing.

Under Rule 11(g), if the circuit chief judge dismisses the complaint or 

concludes the proceeding – which is what happens in the 

overwhelming majority of cases – the chief judge‟s order and 

supporting memorandum must be provided to the Conduct 

Committee. 

Under Rule 18(c), when a complainant or subject judge petitions the 

circuit judicial council for review of a chief judge order dismissing the 

complaint or concluding the proceeding, the petition must be sent to 

the Conduct Committee, along with “all materials obtained by the 

chief circuit judge in connection with the chief circuit judge‟s 

inquiry.” (Emphasis added.)

Under Rule 19(c), the circuit council‟s order disposing of the petition 

for review, along with any supporting memoranda or separate 

statements by council members, must be provided to the Conduct 

Committee.

Under Rule 20(f), when the chief circuit judge has appointed a special 

committee, any action by the circuit council based on the special 

committee‟s report “must be by written order,” and the order and 

supporting memorandum must be provided to the Conduct 

Committee.

In short, with one exception (discussed below), the Rules require that at each 

important stage in the handling of a misconduct complaint within the circuit, the 

relevant documents must be provided to the Conduct Committee in Washington. 

This includes documents filed by complainants (the complaint and the petition for 

review) and documents filed by the judges (orders and memoranda). 
Hellman – Misconduct Rules Statement Page 6

September 17, 2007

Of particular interest is the provision in Rule 8 that requires the clerk of each 

circuit, upon the filing of a complaint, to send a copy to the Conduct Committee. 

What are the implications of this requirement?

For the vast bulk of complaints, the implications are probably minimal. The 

Conduct Committee‟s staff will review the document and will readily determine 

that the complaint is a routine challenge to the merits of a judicial ruling or an 

allegation of bias or other misbehavior that is almost certainly frivolous. There 

would be no reason for Committee members themselves to become involved in 

any way with the handling of these complaints.

The implications may be different for the handful of complaints that are, or 

could become, what the Breyer Committee calls high-visibility complaints. These 

complaints can be identified without great difficulty. Most of them will have been 

filed by public officials or by advocacy groups like Community Rights Counsel or 

Judicial Watch. Occasionally they will be litigants‟ or citizens‟ complaints that 

have generated attention from media or on web sites. (I am assuming that as part 

of the Committee‟s monitoring function, the staff will track media or web reports 

suggesting that a misconduct complaint has been filed or is in the offing.) 

I suspect that when a complaint is filed in a high-visibility matter, the staff 

will alert the members of the Committee and will keep a watching brief. If, after a 

period of months, no further orders or other documents have been received, the 

chairman of the Committee might communicate informally with the circuit chief 

judge to ascertain the status of the matter.

This leads to a suggestion. The Rules in their current form do not require the 

circuit clerk to provide the Conduct Committee with copies of chief judge orders 

appointing special committees. The Committee might wish to consider including 
Hellman – Misconduct Rules Statement Page 7

September 17, 2007

such a provision. If the Committee knows that the chief judge has appointed a 

special committee, there will be no need to inquire as to the status of the complaint

simply because no dispositive order has been received. 

Even without this suggested addition, the proposed Rules assure that the 

Conduct Committee will have ample opportunity to track the handling of 

complaints by circuit chief judges and circuit councils – if it chooses to do so. By 

its silence, the current draft implies that the Committee has no immediate plans to 

pursue this approach. That is a sound decision. The proposed National Rules 

inaugurate a new era in the administration of the Act. It is appropriate for the 

Conduct Committee to give the circuit chief judges and circuit councils time to 

adjust to the new Rules before deciding how extensively, if at all, it wants to 

monitor proceedings that are still active within the circuits.

C. Expanded review jurisdiction of the Conduct Committee

One of the “high-visibility” complaints discussed by the Breyer Committee 

was the complaint filed by attorney Stephen Yagman alleging misconduct by 

District Judge Manuel L. Real of the Central District of California. The complaint 

asserted that Judge Real had improperly intervened in a bankruptcy case to help a 

woman whose probation he was supervising after she was convicted of various 

fraud offenses. After lengthy proceedings, the Ninth Circuit Judicial Council 

affirmed the order of the circuit chief judge dismissing the complaint.8 Three 

judges dissented from that order. Yagman asked the Judicial Conference of the 

United States to review the Council‟s action. The Conference referred the matter 

to this Committee (then operating under its former name as the Committee to 

 

8 In re Complaint of Judicial Misconduct, 425 F.3d 1179 (Judicial Council of Ninth Circuit 

2005).
Hellman – Misconduct Rules Statement Page 8

September 17, 2007

Review Circuit Council Conduct and Disability Orders). By a 3-to-2 vote, the 

Committee found that it had no jurisdiction “to address the substance of the 

complaint.”9 The majority explained: “[T]he statute gives the Committee no 

explicit authority to review the Judicial Council‟s order affirming the chief judge‟s 

dismissal of the complaint. We believe it inappropriate to find that we have 

implicit authority.”

10 The panel also noted the language of 28 USC § 352(c): “The 

[circuit council‟s] denial of a petition for review of the chief judge‟s order shall be 

final and conclusive and shall not be judicially reviewable on appeal or 

otherwise.”

11

The Conduct Committee now takes a different view. Proposed Rule 21(b) 

authorizes limited review of circuit council decisions affirming chief orders that 

dismiss a complaint or conclude the proceeding.12 Specifically, the Rule permits a 

dissatisfied complainant or subject judge to petition for review “if one or more 

members of the judicial council dissented from the order on the ground that a 

 

9 In re Opinion of Judicial Conference Committee to Review Circuit Council Conduct and 

Disability Orders, 449 F.3d 106, 108 (Judicial Conference of the U.S. 2006). 

10 Id. at 109.

11 As the text indicates, Chapter 16 refers to the circuit council‟s “denial of a petition for 

review” (emphasis added). But as the Conduct Committee‟s decision stated, the Ninth Circuit 

Judicial Council “affirmed” the order of the chief judge dismissing the complaint. The proposed 

Rules follow the same approach, and indeed the Commentary states explicitly: “The council 

should ordinarily review the decision of the chief circuit judge on the merits, treating the petition 

for review for all practical purposes as an appeal.” Proposed Misconduct Rules, supra note 1, at 

30 (Commentary). That makes sense as a description of what the Council should do, but it is a 

little odd to see the Rules providing for affirmance when the statute refers to the denial of a 

petition for review.

12 The proposed rule also applies when a judicial council, after considering a petition for 

review of a chief judge order, takes “other appropriate action” in “exceptional circumstances.” 

The Commentary explains that the “exceptional circumstances” language “would ... permit the 

council to deny review rather than affirm in a case in which the process was obviously being 

abused.” That of course would be the functional equivalent of affirmance. 
Hellman – Misconduct Rules Statement Page 9

September 17, 2007

special committee should be appointed.” The Rule also provides for review of 

other council affirmance orders “at [the Conduct Committee‟s] initiative and in its 

sole discretion.” In either situation, the Committee‟s review is limited “to the issue 

of whether a special committee should be appointed.” 

The proposed Rule raises two principal issues. Is the new grant of reviewing 

authority consistent with Title 28? And if it is, does the Rule implement the policy 

in the most effective way?

1. Statutory authority

When the Conduct Committee concluded in 2006 that it had no jurisdiction 

to review the order of the Ninth Circuit Judicial Council in the Real matter, two 

members of the Committee dissented. They argued that the majority‟s holding 

“means that chief circuit judges and circuit judicial councils are free to disregard 

statutory requirements. In fact, by disregarding those requirements, they may 

escape review of their decisions.” Apparently this concern was shared by the 

Executive Committee of the Judicial Conference. That Committee asked the 

Conduct Committee to consider “possible legislative or other action to address the 

jurisdictional problem” that the opinions in the Real matter had identified. The 

Conduct Committee did so at its meeting in January 2007. By that time, the 

Committee membership had changed. The reconstituted Committee concluded that 

in cases where a circuit council has affirmed an order dismissing a misconduct 

complaint, the Judicial Conference does have the authority to determine “whether 

[the] complaint requires the appointment of a special investigating committee.”13

The Committee urged the Judicial Conference to “take action to explicitly 

 

13 Report of the Judicial Conference Committee to Review Circuit Council Conduct and 

Disability Orders at 4 (2007) (on file with the author). 
Hellman – Misconduct Rules Statement Page 10

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authorize the Committee” to exercise this authority. The Conference endorsed this 

recommendation, and the results are embodied in the provisions of Rule 21 quoted 

above.

The draft Rules do not discuss the question of statutory authority; the 

Commentary says only that the proposed Rules “are intended to fill a jurisdictional 

gap as to review of dismissals or conclusions of complaints [within the circuit].”14

For the Committee‟s explanation, we must turn to the report that the Committee 

submitted to the Judicial Conference in March 2007. There, in support of its 

conclusion that the Judicial Conference has a power of review even when no 

special committee has been appointed in the circuit, the Committee relied on two 

provisions of Title 28. First, the Committee cited 28 USC § 331, the statute that 

defines the powers of the Judicial Conference. One sentence in the statute 

authorizes the Judicial Conference to “prescribe and modify rules for the exercise 

of the authority provided in chapter 16.” The Committee also relied on 28 USC § 

358(a). That section empowers the Conference to “prescribe such rules for the 

conduct of proceedings under [Chapter 16], including the processing of petitions 

for review, as [it] considers to be appropriate.”

The Committee did not explain how its recommendation could be reconciled 

with the seemingly explicit prohibition in 28 USC § 352(c), quoted earlier: “The 

[circuit council‟s] denial of a petition for review of the chief judge's order shall be 

final and conclusive and shall not be judicially reviewable on appeal or 

otherwise.” Perhaps the most plausible explanation is that the Committee views 

the proposed exercise of authority as a separate proceeding rather than as a review 

 

14 Proposed Misconduct Rules, supra note 1, at 35 (Commentary). 
Hellman – Misconduct Rules Statement Page 11

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of the circuit council‟s disposition.15 Under this rationale, if the Judicial 

Conference (or its Conduct Committee) concludes that the circuit council was 

wrong in denying review of a chief judge dismissal order, it would not reverse the 

denial; rather, it would simply direct that a special committee be appointed.16

Or would it? The Conduct Committee is actually rather circumspect in 

defining the precise scope of the review power it contemplates. In its report to the 

Judicial Conference, the Committee repeatedly states that upon adoption of its 

proposal the Committee would have authority to “examine” whether a misconduct 

complaint requires the appointment of a special committee. But what would the 

Committee do if, after examining a complaint, it finds that a special committee

should be appointed? The Committee does not say. In particular, it does not say 

that the Committee would order the appointment. Nor do the proposed Rules. The 

draft Rules provide only that “[i]f the committee determines that a special 

committee should be appointed, the Committee must issue a written decision 

giving its reasons.”17

Probably the Committee takes the approach it does because it is relying on 

two provisions of Title 28 that authorize the Judicial Conference to prescribe rules, 

but not to issue orders. I suspect that the Committee anticipates that a declaration 

by the Committee would be sufficient to persuade a circuit chief judge or circuit 

 

15 Another possibility is that the Committee reads the reference to “judicial[] review[]” in 

section 352(c) as referring only to case-and-controversy adjudication by judges acting in their 

judicial capacity. But that rationale would not explain how its proposal allows the Conference to 

take a second look at a disposition that Congress has said is “final and conclusive.”

16 The proceeding would thus be analogous to federal habeas corpus as a device for 

reviewing state criminal convictions. The federal habeas court does not “reverse” the judgment of 

conviction; it directs the state (typically through the warden) to release the defendant unless a 

new trial is held within a specified period. 

17 Proposed Misconduct Rules, supra note 1, at 34 (Rule 21(b)(2)).
Hellman – Misconduct Rules Statement Page 12

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council to reverse course without the need for an order designated as such. And 

probably it would be. 

Indeed, there might not be a need for “a written decision” at all. The Rule 

itself provides that before undertaking its review, the Conduct Committee “must 

invite [the] judicial council to explain why it believes the appointment of a special 

committee [is] unnecessary.” I expect that in most instances the Conduct 

Committee chairman will communicate informally with the presiding judge of the 

circuit council before the Committee issues a decision of any kind.18 Only if the 

circuit council adheres to its ruling would the Committee act formally under the 

Rule. 

At the House Judiciary Committee hearing on the bill to create an Inspector 

General for the federal judiciary, I suggested that the proposed new office could 

serve to fill the “gap” in Chapter 16 that was revealed by the Conduct 

Committee‟s conclusion that it had no jurisdiction over the complaint involving 

Judge Real. The Conduct Committee has now changed course, and it believes that 

it can fill the gap within the framework of the existing legislation. The 

Committee‟s proposal represents sound policy, basically for the reasons stated in 

the dissenting opinion in the Real case. But the preferable way of implementing 

the suggestion would be through statutory amendment. The proposed rule appears 

to stretch the language of Title 28, with the purpose of allowing the reopening of 

disciplinary proceedings that would otherwise have concluded.19 In that setting, 

there should be no room for doubt as to the legitimacy of what is being done.

 

18 The circuit chief judge does not participate in council consideration of petitions for review 

when the chief judge declines to appoint a special committee. See Rule 25(c). 

19 It is noteworthy that although the Breyer Committee was well aware of the views of the 

dissenting judges in the Real matter, its recommendations do not include creation of the review 

mechanism now proposed by the Conduct Committee. The closest the Breyer Committee comes 
Hellman – Misconduct Rules Statement Page 13

September 17, 2007

That said, I can understand why the Committee might be reluctant to seek an 

amendment to the statute. And the concerns I have expressed could be largely met 

if the Rules stated explicitly that any “written decision” by the Committee on the 

appointment of a special committee is only advisory and not binding. 

2. Implementation of the new jurisdiction 

Proposed Rule 21(b) creates two avenues of review for judicial council 

orders affirming a chief judge‟s dismissal of a complaint or termination of a 

proceeding. If one or members of the council dissented from the order on the 

ground that a special committee should have been appointed, the complainant may 

petition for review. In all other cases, review may occur only in the “sole 

discretion” of the Committee, and on the Committee‟s initiative.

If the Committee had decided to allow review only in cases where one or 

more council members dissented, it would be difficult to quarrel with the proposed 

Rule. The fact that even one Article III judge has expressed dissatisfaction with 

the status quo created by a circuit council decision is surely sufficient to justify a 

second look by the Conduct Committee. (By the same token, it is not clear why 

review is limited to cases in which the dissenter asserts that a special committee 

should have been appointed. Any dissent should be sufficient.) At the same time, 

instances in which unanimous orders of affirmance would warrant further attention 

will be rare.20 I would probably not fault the Committee if it had decided that the 

 

is in its recommendation that circuit council members should be able to “alert the chair of the 

[Conduct] Committee to complaints in which [they] believe appointment of a special committee 

may be warranted, for whatever advice, with whatever emphasis, the chair believes appropriate 

for the situation.” Breyer Committee Report, supra note 5, at 210. This procedure, with the 

initiative coming from within the circuit, is a far cry from review initiated by the Conduct 

Committee. 

20 “Rare” does not mean nonexistent. The Breyer Committee report includes at least one 

instance – the mishandling of the complaint against Chief Judge Boyce F. Martin, Jr., of the Sixth 
Hellman – Misconduct Rules Statement Page 14

September 17, 2007

possibility of finding an occasional needle (a unanimous but perhaps flawed 

council affirmance) is not worth the burden of searching through a very large 

haystack (scores or hundreds of routine orders). 

But that is not what the Committee has done. Instead, it has provided a 

second track in which review will be available “at [the] sole discretion” of the 

Committee and on the Committee‟s initiative. I see at least two problems with this 

aspect of the Rule.

First, the provision for review at the initiative of the Committee appears to 

conflict with the provisions of Rule 24 on the public availability of decisions. 

Under Rule 24(a), the orders entered by the chief judge and the circuit council 

must be made public “[w]hen final action on a complaint has been taken and is no 

longer subject to review.” If the circuit council unanimously affirms a chief 

judge‟s order of dismissal, there is no right of review by anyone, and the clerk of 

the court of appeals would ordinarily release the order to the public. But Rule 21 

apparently contemplates that upon receiving a copy of the order pursuant to Rule 

19(c), the Conduct Committee could reopen the matter and call for (or at least 

suggest) the appointment of a special committee. This outcome would frustrate the 

Committee‟s policy of “avoid[ing] public disclosure of the existence of pending 

proceedings.”

I suppose the Committee could deal with this situation by adding a provision 

to Rule 24 requiring the circuit council to withhold public disclosure of affirmance 

orders for a specified period – say 60 days – so that the Committee will have a 

chance to review them. But this points to a more fundamental problem with the 

 

Circuit, by the acting chief judge. See Breyer Committee Report, supra note 5, at 180-83; 

Hellman, supra note 2, Part II-F-3.
Hellman – Misconduct Rules Statement Page 15

September 17, 2007

Committee‟s implementation of the new review authority. It seems rather 

inefficient to bar petitions for review in all but the tiny number of cases with a 

dissent, while authorizing the Committee, on its own initiative, to take a second 

look at the full range of circuit council affirmances. If the Committee is not 

satisfied to limit its power of review to dissent cases, the better approach is to 

allow petitions for review across the board. 

Consider the possibilities. If the complainant accepts the decision and no 

council member dissents, that is strong evidence that the decision does not warrant 

further review. On the other hand, if the complainant does seek review, the 

petition can provide some guidance, however small, to aspects of the council 

decision that may be open to debate. And while it would be something of a burden 

for the Committee (or more accurately its staff) to sift through the many petitions 

for review, there would be no need to even look at the large number of cases in 

which no review is sought. 

Based on this analysis, I suggest that the Committee modify Rule 21(b) to 

allow a complainant or judge to petition for review of all judicial council orders 

affirming dismissals of complaints or terminating misconduct proceedings. The 

Rule itself could warn that review “will be rare.” But if the Rule leads to the 

reopening of even a single high-visibility case that was mishandled in the circuit,

that might justify the modest additional judge time that it would require.21

II. Defining Misconduct: the Act, the Rules, and the Code

Chapter 16 defines misconduct in terms that are undeniably vague and openended: “conduct prejudicial to the effective and expeditious administration of the 

 

21 I am thinking here of the complaint against Chief Judge Boyce Martin, Jr. See supra note 

20.
Hellman – Misconduct Rules Statement Page 16

September 17, 2007

business of the courts.” The proposed Rules elaborate on this definition by 

providing a series of specific but non-exclusive examples of misconduct. The 

question is whether this goes far enough in giving ascertainable content to the 

statutory language. 

In past writings, Professor Charles G. Geyh has argued that the “solution” to 

the “hopelessly vague standard” of 28 USC § 351(a) is to make the Code of 

Conduct for United States Judges applicable to disciplinary proceedings under 

Chapter 16.22 I disagree with this suggestion and instead endorse the Committee‟s 

approach: the judiciary can and should look to the Code for guidance in Chapter 

16 proceedings, but the Code should not be viewed as establishing binding law. I 

reach this conclusion for two reasons.

First, I do not see evidence that uncertainty as to what constitutes misconduct 

has been a serious problem in the administration of the Act. For example, in the 

Real case, which Professor Geyh references, the circuit council did not disagree 

with the proposition that ex parte contact constitutes misconduct; rather, as the 

Breyer Committee explained, the council misunderstood the concept of “corrective 

action” under the Act.23

Second, the fact is that in administering the Act, chief judges and circuit 

councils have repeatedly looked to the Code for guidance in determining whether 

misconduct has occurred. In my forthcoming article I provide numerous examples 

 

22 For a recent exposition of this view, see Impeaching Manuel L. Real, a Judge of the 

United States District Court for the Central District of California, for High Crimes and 

Misdemeanors: Hearing on H. Res. 916 Before the Subcommittee on Courts, the Internet and 

Intellectual Property of the House Committee on the Judiciary, 109th Cong. 148-49 (2006)

(statement of Professor Geyh). 

23 One recent order that appears to reflect misunderstanding of the statutory standard is the 

one dismissing a complaint against District Judge Charles Shaw. See discussion infra Part III-B.
Hellman – Misconduct Rules Statement Page 17

September 17, 2007

of this practice, and I will refer the Committee to that discussion.

24 Those 

decisions constitute a body of interpretive precedents that is – or could be – far 

more valuable in giving content to the statute than adoption of the Code. The 

problem is that most of these decisions have not been published, so that the 

benefits of elaborating standards over time have not been realized. In Part V of my 

statement I urge the Committee to take further steps to encourage publication of 

misconduct orders. If the Committee follows that course, the judiciary will 

develop a body of law that will instruct everyone concerned – including judges, 

citizens, and the press – as to what does and does not constitute misconduct. 

III. Toward Greater Procedural Formality

In the overwhelming majority of cases, the federal judiciary acts 

conscientiously and effectively to assure that judges comply with the high ethical 

standards we expect of them.25 But as the Breyer Committee pointed out, it is the 

few high-visibility controversies that shape public perceptions, and as those, the 

record is more mixed.

If there is a single thread that runs through the various lapses chronicled by 

the Committee and other observers, it is this: at each stage of the process, the chief 

judge or circuit council opts for the action that is less structured and less public.

The proposed National Rules take two important steps to combat this tendency. 

These involve the power of the circuit chief judge to “identify a complaint” and 

the obligation of the chief judge to appoint a special committee.

 

24 See Hellman, supra note 2, Part II-B. 

25 This conclusion is supported by the Breyer Committee report and also by earlier research 

conducted for the National Commission on Judicial Discipline and Removal. See Barr & 

Willging, supra note 6.
Hellman – Misconduct Rules Statement Page 18

September 17, 2007

A. Chief judge authority to “identify a complaint”

In the American legal system, judges ordinarily act only in response to a 

motion or pleading filed by one side in an adversary process. Chapter 16 does not 

follow that model. Section 351(b) permits the chief judge to “identify a complaint”

and thus initiate the investigatory process even if no complaint has been filed by a 

litigant or other citizen. 

The Breyer Committee report encourages chief judges to make greater use of 

“their statutory authority to identify complaints when accusations become public.” 

This is a sound recommendation. If there is substance to the allegations, the public 

will be reassured that the judiciary is truly committed to policing misconduct in its 

ranks. If the allegations are without merit, the process will help to remove the 

cloud that would otherwise hang over the judge‟s reputation.26

The proposed National Rules would implement the Breyer Committee‟s 

suggestion. Under the draft rules, if a chief judge obtains “information from any 

source” that gives “reasonable grounds to inquire into possible misconduct” by a 

judge, the chief judge “must identify a complaint and, by written order stating the 

reasons,” initiate the review process under Chapter 16. This language makes clear 

that the threshold for identifying a complaint is very low, and that doubts should 

be resolved in favor of instituting formal proceedings under the Act. 

I strongly endorse this standard. Experience has shown that chief judges have 

sometimes been reluctant to identify complaints even when information has come 

to their attention suggesting at least prima facie that a judge has engaged in 

misconduct. Proposed Rule 5 would take away this discretion and require the chief 

 

26 For extended development of this point, with examples, see Hellman, supra note 2, Part 

II-F-2.
Hellman – Misconduct Rules Statement Page 19

September 17, 2007

judge to initiate the Chapter 16 process. However, two of the Rule‟s subsections 

require further attention. 

First, the Committee recognizes that there will be situations where it will 

make sense for the chief judge to pursue “informal means” before triggering 

formal proceedings. But it is not clear that Rule 5 as drafted implements this

judgment. The Commentary states that the chief judge “may properly treat 

identifying a complaint as a resort to be considered after informal approaches at a 

resolution, if feasible, have failed.” Presumably that is a reference to Rule 5(a)(3), 

which says that the chief judge “may decline to identify a complaint if the matter 

has been resolved by informal means.” (Emphasis added.) This language could be 

read as applying only when the matter has already been resolved by the time the 

chief judge gets wind of it. The ambiguity could be eliminated by including 

qualifying language in Rule 5(a)(1) or – preferably – by rewriting what is now 

section (a)(1) to cross-reference the exceptions. 

Second and more important, I think the Committee should reconsider the 

proviso that relieves the chief judge of the obligation to identify a complaint “if it 

is clear on the basis of the total mix of information available to the [chief] judge” 

that the complaint will be dismissed. The next sentence of the Rule provides that 

that the chief judge “may identify a complaint in such circumstances in order to 

assure the public that highly visible allegations have been investigated.” 

(Emphasis added.) It seems to me that when allegations are “highly visible” –

which will not be often – the chief judge should be required to identify a 

complaint even if it is clear that the complaint will be dismissed. There is nothing 

to be gained by leaving the allegations unrefuted, and much to be lost. That was 
Hellman – Misconduct Rules Statement Page 20

September 17, 2007

the conclusion that the Breyer Committee reached, and I urge this Committee to 

adopt the Breyer Committee‟s standard.27

B. Obligation to appoint a special committee

One of the changes made by the 2002 revision of the 1980 Act was to write 

into law the provision in the Illustrative Rules that drew a clear line between the 

“chief judge track” and the “special committee track.” The statute now provides: 

“The chief judge shall not undertake to make findings of fact about any matter that 

is reasonably in dispute.” If the facts are “reasonably in dispute,” a special 

committee must be appointed to carry out the investigation. But experience reveals 

that, too often, chief judges have dismissed complaints or concluded proceedings 

notwithstanding genuine disputes over facts or their implications. A recurring

theme in the Breyer Committee‟s account of “problematic” cases is the failure of a 

chief judge “to submit clear factual discrepancies to special committees for 

investigation.”

28

Proposed Rule 11(b) includes language that emphasizes the limited scope of 

the inquiry that the circuit chief judge may conduct without turning the matter 

over to a special committee. The chief judge must not “make findings of fact about 

any matter that is reasonably in dispute,” nor may the chief judge make 

“determinations concerning the credibility of the complainant or putative 

witnesses.” But it may be desirable to hammer the point home more forcefully. 

The commentary states that a matter is not “reasonably” in dispute – and thus may 

 

27 See Breyer Committee Report, supra note 5, at 191-92. As stated in the report, “there are 

many good reasons for not identifying a complaint, but ... a chief judge should not decline to do

so solely because the chief judge believes that he or she would ultimately dismiss it.” (Emphasis 

added.) 

28 Breyer Committee Report, supra note 5, at 200. For development of this point, see 

Hellman, supra note 2, Part II-F-3.
Hellman – Misconduct Rules Statement Page 21

September 17, 2007

be resolved by the chief judge – “if a limited inquiry shows the allegations to lack 

any factual foundation or to be conclusively refuted by objective evidence.” The 

implication is that if the allegations have even the slightest factual foundation, or if 

objective evidence leaves some room for crediting them, a special committee must 

be appointed. It would be better to make this standard explicit.

The Committee may also wish to include language in the Rule (or in the 

Commentary) to make clear that the chief judge may not dismiss a complaint on 

the ground of insufficient evidence without communicating with all persons who 

might reasonably be thought to have knowledge of the matter. This might seem 

obvious, but the need for such a provision is illustrated by a misconduct order that 

was handed down in October 2006, shortly after the Breyer Committee issued its 

report.29 In May 2006 the St. Louis Post-Dispatch reported that District Judge 

Charles A. Shaw, in remarks at a naturalization ceremony, “urged the crowd to 

vote for a congressman who shared the stage.”

30 If Judge Shaw did “urge[] the 

crowd to vote for” the congressman, it was a clear instance of misconduct.31 A 

citizen-activist who read the Post-Dispatch story filed a complaint against Judge 

Shaw, but Chief Judge James B. Loken dismissed it. He invoked two statutory 

grounds: the complaint “lack[ed] sufficient evidence to raise an inference that 

misconduct has occurred,” and the allegations of misconduct were “conclusively 

 

29 In fact, the order notes that the chief judge “considered it prudent to await publication of” 

the Breyer Committee Report. In re Complaint of John Doe, JCP No. 06-013 (Judicial Council of 

the 8th Cir. 2006) (Loken, C.J.) (on file with the author). 

30 Tim O‟Neil, Judge urges new citizens to vote for Rep. Clay; Code of Conduct bars federal 

judges from making endorsements, St. Louis Post-Dispatch, May 1, 2006.

31 See In re Charges of Judicial Misconduct, 404 F.3d 688 (Judicial Council of the 2d Cir. 

2005). This proceeding involved Judge Guido Calabresi of the Second Circuit Court of Appeals. 

Curiously, the order dismissing the complaint against Judge Shaw makes no mention of this 

widely publicized (and officially published) decision. 
Hellman – Misconduct Rules Statement Page 22

September 17, 2007

refuted by objective evidence.” The dismissal order noted that there was no 

transcript of the ceremony, and it quoted Judge Shaw‟s response to the newspaper 

account: “I emphatically deny that I endorsed [the congressman].” But Judge 

Loken never contacted the reporter who wrote the story.

32

It is at least possible that a full inquiry would absolve Judge Shaw of 

misconduct. The story quoted him as saying, “For Congressman Clay to continue 

doing his good work, he needs your vote, OK?” Perhaps, in context, the judge was 

doing no more than explaining to the newly naturalized citizens what it means to 

have the right to vote. But it is hard to understand how the chief judge could 

dismiss the complaint without communicating with the reporter who was present 

at the ceremony and who might have been taking notes while Judge Shaw was 

speaking.

33 The Rules should make clear that, just as the chief judge must not 

make credibility determinations, he or she must not pretermit possible factual 

disputes by failing to seek out relevant information.

The Shaw order raises another issue as well. Judge Loken states that “the 

judge‟s unrecorded impromptu remark following the congressman‟s speech –

whether quoted more accurately by the journalist or by the judge in his response –

did not convert the judge‟s conduct ... into the public endorsement of a candidate 

for public office within the meaning of Canon 7A(2) of the Code of Conduct.” 

Here the question is not one of credibility but of interpretation. It is noteworthy 

 

32 The order makes no mention of any effort to contact the reporter, and a later story in the 

newspaper states that the chief judge did not do so. Stephen Deere, Complaint against judge is 

dismissed, St. Louis Post Dispatch, Nov. 2, 2006. 

33 According to the complainant, the reporter “stood by his original story and maintained 

that what Judge Shaw said was in fact an endorsement of Congressman Clay‟s re-election.” John 

Stoeffler, Judge Loken‟s Loose Logic, South Side Journal, Nov. 14, 2006 (on file with the 

author).
Hellman – Misconduct Rules Statement Page 23

September 17, 2007

that in the similar controversy involving public remarks by Judge Guido Calabresi, 

Acting Chief Judge Dennis Jacobs did appoint a special committee.34 I believe that 

a special committee can serve a useful role when facts are not in dispute but their 

interpretation is contested.35 The Committee may wish to incorporate this idea 

either into the Rule or into the Commentary. 

IV. The Nature and Timing of Public Disclosure

Except in the rare case where the Judicial Conference determines that 

impeachment may be warranted, Chapter 16 provides for only limited public 

disclosure in misconduct proceedings. Written orders issued by a judicial council 

or by the Judicial Conference of the United States to implement disciplinary action 

must be made available to the public. But unless the judge who is the subject of 

the accusation authorizes the disclosure, “all papers, documents, and records of 

proceedings related to investigations conducted under [Chapter 16] shall be 

confidential and shall not be disclosed by any person in any proceeding.” The 

statute is silent on the handling of chief judge orders dismissing a complaint or 

terminating a proceeding. 

The Illustrative Rules have filled in some of the statutory gaps, but they too 

evince a bias against disclosure. The basic rule is that orders and memoranda of 

the chief judge and the judicial council will be made public only “when final 

action on the complaint has been taken and is no longer subject to review.” 

Moreover, in the ordinary case where the complaint is dismissed, “the publicly 

 

34 See supra note 31.

35 The Breyer Committee emphasized the “fundamental principle” that “an allegation is not 

„conclusively refuted by objective evidence‟ simply because the judge complained against denies 

it.” Breyer Committee Report, supra note 5, at 243. This principle is equally applicable whether 

the denial relates to the facts or to their interpretation.
Hellman – Misconduct Rules Statement Page 24

September 17, 2007

available materials will not disclose the name of the judge complained about 

without his or her consent.”

The proposed National Rules continue the approach of the Illustrative Rules. 

The basic rule is that orders entered by the chief circuit judge and the judicial 

council must be made public, but only “[w]hen final action on a complaint has 

been taken and is no longer subject to review.” Additionally, if the complaint “is 

finally dismissed ... without appointment of a special committee, .. the publicly 

available materials must not disclose the name of the subject judge without his or 

her consent.”

The Commentary has little to say about the rationale underlying these rules; 

it refers without elaboration to the goal of “avoid[ing] public disclosure of the 

existence of pending proceedings.” A more comprehensive explanation can be 

found in the commentary to the Illustrative Rules. That commentary states:

We believe that it is consistent with the congressional intent to 

protect a judge from public disclosure of a complaint, both while it is 

pending and after it has been dismissed if that should be the outcome. ... 

In view of the legislative interest in protecting a judge from public airing 

of unfounded charges, ... the law is reasonably interpreted as permitting 

nondisclosure of the identity of a judicial officer who is ultimately 

exonerated and also permitting delay in disclosure until the ultimate 

outcome is known.36

Several points about this explanation deserve comment. To begin with, while 

the drafters of the Illustrative Rules assert that their disclosure policy is consistent

with congressional intent, they do not say that the policy is compelled. On the 

contrary, the authors concede that there is more than one way to read the statute: 

[P]ublic availability of orders under [28 U.S.C. ' 354(a)] is a 

statutory requirement. The statute does not prescribe the time at which 

 

36 Illustrative Rules, supra note 4, at 54.
Hellman – Misconduct Rules Statement Page 25

September 17, 2007

these orders must be made public, and it might be thought implicit that it 

should be without delay. Similarly, the statute does not state whether the 

name of the judge must be disclosed, but it could be argued that such 

disclosure is implicit.

Based on this analysis, it is fair to conclude there is at least some room for 

flexibility in the rules governing disclosure. 

The task is to weigh the competing interests. On one side is the interest in 

protecting judges‟ good names. This interest belongs to society as much as to 

individual judges; public confidence in judges‟ probity is a social good, especially 

in an era when judges often appear to be taking sides on hotly contested social and 

political questions. On the other side is the interest in accountability. 

Accountability too contributes to public confidence in the judiciary. Looking at the 

competing interests, I believe that three categories of situations can be identified.

First, there are some circumstances where the policy of the Illustrative Rules 

is readily justifiable – for example, when a disgruntled litigant or a discharged 

employee has filed accusations against a federal judge that are both baseless and 

scurrilous. In that setting, disclosure beyond what the Rules allow would cause 

injury to the judge without enlightening the public on a matter of public concern.37

The second category embraces the routine cases that make up the vast bulk 

of complaints. Here the policy of limited disclosure is less easily justifiable, but 

from the standpoint of public enlightenment the loss is probably minimal. Take the 

typical case: the chief judge dismisses a complaint on the ground that the 

 

37 This is not to say that the argument is airtight. Certainly other public officials do not enjoy 

protection from “public airing of unfounded charges.” But just as the Supreme Court has 

recognized that not all speech by government employees about the operation of government 

offices deserves First Amendment protection, see Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), 

one can argue that there is no legitimate public interest in learning the identity of a judge who has 

been the subject of a totally meritless accusation of misconduct.
Hellman – Misconduct Rules Statement Page 26

September 17, 2007

allegations are directly related to the merits of a decision. Is there really an injury 

to the judge‟s reputation – or to any other legitimate interest – if this “unfounded 

charge[]” of misconduct receives a “public airing”? At the same time, however, it 

is hard to see any serious threat to accountability if the judge‟s name remains 

undisclosed. Moreover, in today‟s political environment there is a real possibility 

that a routine order dismissing a plainly untenable complaint will be misused by 

persons who seek to attack the judge for reasons unrelated to the rejected 

allegations. On balance, I do not disagree with the policy of limited disclosure for 

the run-of-the-mill complaints that dominate Chapter 16 proceedings.

The calculus changes in high-visibility cases. To see why, it is useful to 

consider how the current policy played out in a later stage of the proceedings 

involving Judge Real. After the Conduct Committee determined that it had no 

power to review the Judicial Council decision affirming the dismissal of the 

complaint, Chief Judge Mary M. Schroeder appointed a special committee to 

investigate Judge Real‟s conduct. The special committee carried out a thorough 

inquiry; it heard testimony from 18 witnesses and reviewed thousands of pages of 

documents. It found that Judge Real had committed misconduct, and it 

recommended the sanction of a public reprimand.

On November 16, 2006, the circuit council issued an order adopting the 

findings and recommendations of the special committee. But the order was not 

made public at that time. Rather, the order stated that it would be made public 

“when the order is no longer subject to review, or within 30 days of this order if no 

petition for review has been filed with the Judicial Conference of the United 

States.” Judge Real did file a petition for review, and at this writing the petition is 

still under consideration. As a result, the Judicial Council order has not been 
Hellman – Misconduct Rules Statement Page 27

September 17, 2007

disclosed officially. Meanwhile, however, a copy of the order reached reporter 

Henry Weinstein of the Los Angeles Times, who published an article in December 

2006 describing its contents.38

In withholding immediate disclosure of its order, the Ninth Circuit Judicial 

Council relied on the Council‟s Rule 17, which in turn is based on the Illustrative 

Rules. But the current policy makes little sense in a situation like the one 

involving Judge Real. Even if one accepts “the legislative interest in protecting a 

judge from public airing of unfounded charges,” delaying disclosure of the 

Judicial Council order did nothing to serve that interest. The allegations had 

already been the subject of published opinions by the judiciary and a televised 

hearing in Congress. What is even worse, adherence to the deferred-disclosure rule 

had the perverse consequence of putting off the day when the public would see the 

serious and conscientious way in which the judiciary dealt with the accusations. 

In my view, the policy should be this: When the substance of a pending 

complaint has become widely known through reports in mainstream media or 

responsible web sites, there should be a presumption that orders issued by chief 

judges or circuit councils will be made public as soon as they are issued. In that 

circumstance there should also be a presumption that the order will disclose the 

identity of the judge. And once the information has become part of the official 

record, the judiciary should not withhold it from later reports or official 

documents.39

 

38 Henry Weinstein, Web error reveals censure of U.S. judge, Los Angeles Times, Dec. 23, 

2006.

39 The suggestions here are couched in broad terms; obviously, there are many details that 

could be the subject of debate. If adopting this policy would require amending the statute, 

Congress should take that course.
Hellman – Misconduct Rules Statement Page 28

September 17, 2007

The proposed National Rules do not adopt this approach. There is no 

exception for situations where the existence of the proceedings has been disclosed

to the public, irrespective of the nature or extent of the disclosure. Based on the 

analysis above, I believe that this approach is short-sighted, and that a more 

flexible policy would be preferable. 

V. Making the Process More Visible

As the Breyer Committee recognized, Congress took something of a risk 

when it opted to deal with possible judicial misconduct by instituting a system 

“that relies for investigation [and assessment of discipline] solely upon judges 

themselves.”40 The risk is that the system will be tainted by “a kind of undue 

„guild favoritism‟ through inappropriate sympathy with the judge‟s point of view 

or de-emphasis of the misconduct problem.” One of the most important safeguards 

against this risk is visibility. Visibility in this context entails two overlapping 

elements: the availability of the process must be made known to potential 

complainants, and the results of the process must be made known to all who are 

interested in the effective operation of the judicial system.

If there is a single glaring flaw in the administration of Chapter 16, it is the 

failure of judges at every level to make the process visible. This flaw has been 

manifested in two ways. Courts have not made it easy for citizens to ascertain how 

to file complaints; and they have failed to make their misconduct decisions readily 

available to the public. I have discussed these points at length elsewhere, and I will 

not repeat that discussion in my statement today.

41 The proposed National Rules 

address both problems, and, with some fine-tuning, the Rules should go far toward 

 

40 Breyer Committee Report, supra note 5, at 119.

41 See Hellman, supra note 2, Part II-F-6. 
Hellman – Misconduct Rules Statement Page 29

September 17, 2007

giving the process the visibility that will minimize the risk of “guild favoritism.”

Beyond this, the Committee may want to consider other measures that might 

increase public awareness of how the judiciary deals with allegations of 

misconduct by judges. 

A. Availability of rules and forms 

Proposed Rule 28 requires each court to make the complaint form and the 

Rules available on the court‟s own website or to provide an Internet link to the 

form and the Rules on the national judiciary website. That is the minimum; it does 

no more than to implement a recommendation made by the Judicial Conference in 

2002. The Committee can and should go further. The Breyer Committee reported 

that even when courts present information about the Act on their websites, they 

“often present it in a way that would stump most persons seeking to learn about 

how to file a complaint.”42

The solution is simple. As the Breyer Committee suggested, every court 

should be required “to display the form and [the National Rules] „prominently‟ on 

its website – that is, with a link on the homepage.”43 The website should also 

include “a plain-language explanation of the Act, emphasizing that it is not 

available to challenge judicial decisions.”

In addition to the Breyer Committee‟s suggestions, the Rule might also 

require that the link be labeled explicitly – for example, as “Judicial Misconduct 

and Disability.”44 A link that says only “Judicial Complaint Form” does not 

adequately identify the subject. 

 

42 Breyer Committee Report, supra note 5, at 208.

43 Id. at 218 (emphasis added). 

44 See Memorandum from Administrative Office Director James C. Duff to Chief Judges, 

United States Courts (June 27, 2007). 
Hellman – Misconduct Rules Statement Page 30

September 17, 2007

B. Public availability of decisions

Rule 24(b) outlines the procedures for making decisions public. The Rule 

contains three elements, each of which warrants brief discussion.

[Final orders disposing of a complaint] must be made public by 

placing them in a publicly accessible file in the office of the clerk of the 

court of appeals or by placing such orders on the court‟s public website.

[Emphasis added.]

On this first point I have only one small suggestion: “or” should be replaced 

by “and.” That is, the Rule should require without qualification that all final orders 

must be posted on court web sites. In today‟s world, availability means “available 

on line.” For most people, a document that is “available” only as a physical copy 

in the court of appeals clerk‟s office is not really “available” at all. Nor would the 

suggested rule impose a great burden on the clerks‟ offices. Today the courts of 

appeals post hundreds if not thousands of routine “unpublished” dispositions on 

their websites.45 Adding the equally routine misconduct orders would be de 

minimis. The benefit is that it would give citizens the chance to see the operation 

of the system in its full measure, including the merits-related allegations that 

generate most of the complaints and the conscientious treatment that most 

complaints receive. It would also comport with Congressional policy as expressed 

in the E-Government Act of 2002.46

 

45 By way of example: thus far in 2007, one court of appeals –the Fifth Circuit – has posted 

more than 500 dispositions that use identical language to reject “arguments that are foreclosed by 

Almendarez-Torres v. United States, 523 U.S. 224 (1998).” That is not far below the total number 

of misconduct complaints considered by all federal courts in a year. 

46 Section 205 of the E-Government Act, P.L. 107-347, requires all federal courts to provide 

access on their websites to “the substance of all written opinions issued by the court, regardless of 

whether such opinions are to be published in the official court reporter.” The judiciary probably 

takes the position that misconduct orders – which are issued in the name of the circuit council –

are not “written opinions issued by the court.” Even so, the policy underlying the E-Government 

Act would certainly seem to encompass misconduct orders.
Hellman – Misconduct Rules Statement Page 31

September 17, 2007

In cases in which such orders appear to have precedential value, the 

chief circuit judge may cause them to be published.

On this second point I have three suggestions. First, “may” should be 

replaced by “shall.” If a misconduct order “appears to have precedential value,” 

that means that it will provide guidance to other judges in administering the Act. 

That is enough to warrant publication. 

Second, the Rule should recognize the desirability of publication not only 

when dispositions appear to have precedential value, but also when they resolve 

complaints that have been the subject of discussion in the media or in Congress. 

At least some of the courts of appeals use “general public interest” as a 

circumstance justifying publication of opinions in adjudicated cases.

47 That 

criterion should carry even greater weight when the disposition deals with 

allegations of misconduct within the judiciary‟s own ranks. 

Finally, the rule should encourage chief judges and circuit councils to 

provide sufficient explanation in their orders to enable outsiders to assess the 

appropriateness of the disposition. If – as in the case involving Judge Jon McCalla

– a detailed account might interfere with the effectiveness of the remedy, the detail 

can be omitted.48 And there may be instances where it is impossible to adequately 

explain the disposition without disclosing the judge‟s identity.49 What is important 

is that chief judges and circuit councils recognize the obligation to provide a 

comprehensible explanation in the absence of circumstances implicating a 

countervailing imperative. 

 

47 E.g., D.C. Cir. Rule 36(a)(2)(G) (2006).

48 For discussion of the McCalla case, see Breyer Committee Report, supra note 5, at 196; 

Hellman, supra note 2, Part II-F-6. The Breyer Committee Report does not identify the judge. 

49 This concern is implicated only in cases where there is no good reason to disclose the 

judge‟s identity. See Part IV supra. 
Hellman – Misconduct Rules Statement Page 32

September 17, 2007

[The Conduct Committee] must make available on the judiciary 

website ... selected illustrative [final] orders, ... appropriately redacted, to 

provide additional information to the public on how complaints are 

addressed under the Act.

This third element requires little comment. I would add only that in addition 

to posting new orders as they are issued, the Committee should create a 

retrospective collection of past orders that will help to enlighten the public on the 

administration of the Act. At a minimum, the compilation should include all orders 

that apply or interpret provisions of the Code of Conduct for United States Judges. 

This will help to address criticisms that the standards are too vague; it will also 

carry forward the recommendation of the National Commission that the judiciary 

develop “a body of interpretive precedents” to promote consistency in the 

implementation of the Act.50

C. Other measures to enhance visibility

The proposed Rules would make a significant contribution to increasing the 

visibility of the complaint process. The Committee and the Judicial Conference 

may wish to consider additional steps to that end.

First, this Committee has taken on the enlarged and invigorated oversight 

role contemplated by the Breyer Committee. That is all to the good; it is highly 

desirable to have an entity within the judiciary whose single function is – and is 

known to be – that of strengthening judicial ethics and enhancing transparency. 

But if the Committee is to perform its function effectively, it too should be visible. 

The announcement of today‟s hearing on the federal judiciary website refers to 

this Committee as the drafter of the proposed Rules, but it does not identify the 

 

50 Report of the National Commission on Judicial Discipline and Removal, 152 F.R.D. 265, 

352 (1993).
Hellman – Misconduct Rules Statement Page 33

September 17, 2007

Committee‟s chairman or its members. Indeed, if the members of the Committee 

are identified anywhere on the website, the information is well hidden. This is a 

mistake. The public should know that when misconduct issues arise, they will be 

dealt with, not by anonymous bureaucrats but by individual judges whose names 

and backgrounds can readily be ascertained. 

There are other steps that could be taken along these lines. For example, 

when a new chairman is selected for the Committee, the Chief Justice could make 

a public occasion of the announcement. The chairman and other Committee 

members could speak at meetings of bar associations and other organizations to 

describe and publicize the operation and availability of the complaint process.

VI. Conclusion: Buried Treasure

A few years ago, on a visit to Washington, I stopped at the Federal Judicial 

Center to browse through the misconduct orders stored in file cabinets in the 

Center‟s library. I paid particular attention to the folders containing orders from 

my home circuit, the Third. The chief judge at that time was the late Edward R. 

Becker. I discovered that even the most routine orders bore the unique stamp of 

Judge Becker‟s personality. And I found one order that was definitely not routine. 

The underlying case was not identified in the order, but it was obvious enough to 

anyone from Pennsylvania; the order involved the habeas proceeding in Lambert 

v. Blackwell,

51 and the target of the complaint was District Judge Stewart 

Dalzell.52

 

51 962 F. Supp. 1521 (E.D. Pa.), rev‟d, 134 F.3d 506 (3d Cir. 1997).

52 In re Complaint of Judicial Misconduct, J.C. No. 99-50 (Judicial Council of the 3d Cir. 

2000) (Becker, C.J.) (on file with the author).
Hellman – Misconduct Rules Statement Page 34

September 17, 2007

As Chief Judge Becker explained, the complaint was filed by “the parents of 

a young woman who was brutally murdered.” The woman convicted of the murder 

filed a habeas corpus petition, and the case was assigned to Judge Dalzell. After 

extended proceedings, Judge Dalzell not only agreed that the defendant‟s 

constitutional rights had been violated; he ordered that she be released and “and 

that she should not be retried.” (That decision was reversed on appeal.) The 

judicial misconduct complaint alleged that Judge Dalzell “ignored the law,” 

“undermined our justice system,” and “severely damaged the lives and reputations 

of many dedicated and honest people.”

Chief Judge Becker “studied the record in the underlying case with great 

care.” He found that Judge Dalzell had used language in his opinion that was 

“excessive,” “hyperbolic,” and even “intemperate.” But he concluded that “the 

offending language was merely part of „the decision making process‟” and thus 

“directly related to the merits of” the judge‟s decisions. He dismissed the 

complaint.

Anyone who reads this order will have no doubt that Judge Becker did study 

the record with great care; that he felt compassion for the grieving parents; and 

that he understood their anger at the judge who had freed their daughter‟s 

murderer. But the reader will also appreciate why the law – and the protection of 

an independent judiciary – required Judge Becker to dismiss the complaint of 

judicial misconduct. 

So here is a document that would enlighten the public, in a very concrete 

way, about how the misconduct process operates. It would provide reassurance 

that dismissal of a complaint, even in an emotional setting, did not represent mere 
Hellman – Misconduct Rules Statement Page 35

September 17, 2007

“guild favoritism.” But the document remains buried in a file cabinet in 

Washington. 

This Committee has drafted an excellent of set of rules. I have offered a few 

suggestions for improvement; with or without the suggested changes, I hope that 

the rules will be adopted by Judicial Conference. Yet more important than the

details of the rules is the attitude that the judiciary takes toward the complaint 

process. In the past, judges have too often appeared to view misconduct 

complaints as at best a nuisance and at worst an affront.53 They have not 

appreciated that the complaint process can be a valuable tool for strengthening the 

credibility and thus the independence of the judiciary. In holding this hearing 

today and in inviting public comment on the draft rules, this Committee signals 

that change is in the offing, and change for the better. 

 

53 The tendency to tiptoe around the subject can be seen even in the new name of this 

Committee. Symmetry as well as accuracy would suggest that it should be called the Committee 

on Judicial Misconduct and Disability.
Hellman – Misconduct Rules Statement Page 36

September 17, 2007

Appendix

Additional Suggestions re Drafting

Rule 5. This Rule has only a single subsection. I suspect that this was 

inadvertent and that the three numbered paragraphs should be identified by letters 

as subsections. (The body of my statement has additional suggestions relating to 

the substance of this Rule. See Part III-A.)

Rule 5(a)(2)(B). I do not understand what is meant by the reference (page 8, 

lines 28-30) to the possibility of appointing a special committee. If it is clear that 

the complaint will be dismissed, that is tantamount to saying that no special 

committee would be required anyway.

Rule 8. The Rule refers (page 12, line 19) to “Such complaints.” It would be 

clearer to say: “All complaints, whether identified under Rule 5 or filed under 

Rule 6, must also be filed with [the Conduct Committee].”

Rule 25(c). It seems to me that Rule 25(c) would be better placed in Rule 19. 

Non-participation by the circuit chief judge is an important element of circuit 

council review of chief judge orders.

Commentaries. There are occasional references in the Commentaries to 

Chapter 16, but most of these simply speak of “the Act.” It would give the Rules a 

firmer foundation if the Commentaries gave greater emphasis to the provisions of 

the statute that they implement. That was certainly the approach of the Illustrative 

Rules.