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COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

OF THE JUDICIAL CONFERENCE OF THE UNITED STATES

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C.C.D. No. 16-01

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IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

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PROCEEDING IN REVIEW OF THE ORDER AND MEMORANDUM

OF THE JUDICIAL COUNCIL OF THE FIFTH CIRCUIT

J.C. No. 05-14-90120

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MEMORANDUM OF DECISION

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(Filed July 8, 2016) 

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

Flaum, Thomas F. Hogan, Kathryn H. Vratil, and James E. Gritzner.

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MEMORANDUM OF DECISION

This matter is before the Judicial Conduct and Disability Committee on attorney Ty 

Clevenger’s petition for review of his complaint against Judge Walter S. Smith, Jr. filed under 

the Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351–64, and the Rules for 

Judicial-Conduct and Judicial-Disability Proceedings (“Rules”) (U.S. Jud. Conf. Sept. 17, 2015). 

Mr. Clevenger alleges Judge Smith made inappropriate, unwanted physical and non-physical 

sexual advances toward a court employee in 1998. The Fifth Circuit Judicial Council issued an 

order dated December 3, 2015, confirming the misconduct alleged by Mr. Clevenger and 

reprimanding Judge Smith, suspending the assignment of new cases to Judge Smith for one year, 

 

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This panel was comprised of six members of the seven-member Judicial Conduct and Disability 

Committee. One member was disqualified, and the Chief Justice selected an additional judge to 

join the qualified members to consider the petition for review. R. 21(c) of the Rules for 

Judicial-Conduct and Judicial-Disability Proceedings.
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and requiring Judge Smith to undergo sensitivity training. In his petition for review, Mr. 

Clevenger characterizes the Circuit Judicial Council’s punishment as “far too lenient,” urging the 

Judicial Conduct and Disability Committee to recommend impeachment. We are unable to 

complete our review of the record before us because findings were not made by the Circuit 

Judicial Council on all matters raised in its investigation. 

Mr. Clevenger filed his complaint against Judge Smith on September 8, 2014, alleging 

Judge Smith committed misconduct when he made inappropriate, unwanted physical and 

non-physical sexual advances toward a court employee in 1998. The Chief Judge of the U.S. 

Court of Appeals for the Fifth Circuit appointed a Special Committee on October 28, 2014, to 

conduct an investigation into the allegations raised in Mr. Clevenger’s complaint. The Special 

Committee retained counsel to conduct an investigation, including interviews with and 

statements from witnesses. It also received testimony under oath from Judge Smith. Following 

its investigation, the Special Committee submitted its findings and recommendations to the 

Judicial Council of the Fifth Circuit.

Based on the Special Committee’s report, to which Judge Smith filed a response on 

November 4, 2015, the Circuit Judicial Council issued an order dated December 3, 2015, finding 

the following:

 “[I]n 1998 Judge Smith made inappropriate and unwanted physical and non-physical 

sexual advances toward a court employee.”

 “Judge Smith does not understand the gravity of such inappropriate behavior and the 

serious effect that it has on the operations of the courts.”
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 “Judge Smith allowed false factual assertions to be made in response to the 

complaint, which, together with the lateness of his admissions, contributed greatly to 

the duration and cost of the investigation.”

The Circuit Judicial Council issued a reprimand to Judge Smith, instructed the Clerk of Court for 

the Western District of Texas to suspend the assignment of new cases to Judge Smith for one 

year, and directed Judge Smith to complete sensitivity training. See 28 U.S.C. §§ 354(a)(1)(c), 

(a)(2)(A)(i), (a)(2)(A)(iii).

Mr. Clevenger filed his petition for review to the Committee on Judicial Conduct and 

Disability on January 18, 2016, in which he requests the Committee “suspend Judge Smith from 

the bench immediately and recommend impeachment.” Mr. Clevenger also notes he submitted 

“the names of witnesses to other alleged incidents wherein Judge Smith sexually harassed 

women in the courthouse” and thus he believes “the assault of [the court employee] was [not] an 

isolated incident.” The Circuit Judicial Council neither addressed nor made findings with respect 

to these additional allegations.

The Judicial Conduct and Disability Committee has reviewed the record and considers

this petition for review under Section 357 of the Act and Rule 21. We review circuit judicial 

council orders for errors of law, clear errors of fact, or abuse of discretion. R. 21(a). Rule 21(d) 

allows the Judicial Conduct and Disability Committee to return a matter to a circuit judicial 

council with directions to undertake additional investigation.

Because Mr. Clevenger’s petition for review includes the names of individuals who 

allegedly witnessed other instances of Judge Smith’s sexual harassment of women in the 
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courthouse, it raises the question whether there was a pattern and practice of such behavior.2The

Circuit Judicial Council’s order neither addressed nor made findings on these additional 

allegations of misconduct or on other matters raised by its investigation. Because we believe that 

additional findings are essential to the consideration of the petition for review, we are unable to 

complete our review of the Circuit Judicial Council’s order.

Accordingly, we return this matter to the Circuit Judicial Council with directions to 

undertake additional investigation and make additional findings where appropriate and 

reconsider the appropriate sanction if there are additional findings. Regarding Judge Smith 

allowing false factual assertions in response to the complaint, the Committee requests additional 

findings and recommendations as to the manner in which Judge Smith’s conduct adversely 

impacted or interfered with the inquiry, if at all.

 

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See, e.g., Judicial Conference of the United States, Certificate of Consideration of Impeachment 

of Former U.S. District Judge Mark E. Fuller (Sept. 9, 2015); Judicial Conference of the United 

States, Certificate of Consideration of Impeachment of U.S. District Judge Samuel B. Kent (June 

9, 2009).