1

 1

 ----------------------------------X

 2 :

 PUBLIC HEARING :

 3 :

 RE: :

 4 DRAFT RULES GOVERNING JUDICIAL :

 CONDUCT AND DISABILITY PROCEEDINGS:

 5 : U.S. Courthouse

 : Brooklyn, New York

 6 :

 :

 7 : TRANSCRIPT OF PROCEEDINGS

 : September 27, 2007

 8 ----------------------------------X 10:00 a.m.

 9

 10 BEFORE:

 11

 12 HONORABLE RALPH K. WINTER, Chair

 Committee on Judicial Conduct and Disability

 13

 14

 15 SPEAKERS:

 16 ARTHUR D. HELLMAN

 17 RICHARD CORDERO

 18 FRANCIS C.P. KNIZE

 19

 20

 *************

 21

 22

 23

 24

 25 Proceedings recorded by mechanical stenography.

 Transcript produced by Computer-Assisted Transcription.



 2

 1 THE COURT: This is a public hearing concerning the

 2 draft rules that have been published for public comment, the

 3 rules governing judicial conduct in disability proceedings

 4 undertaken pursuant to 28 U.S.C. Section 351-364. We have

 5 three witnesses scheduled. Professor Friedman originally was

 6 scheduled. Professor Monroe Friedman was originally scheduled

 7 to testify, but was unable to make it, but he did submit a
 8 prepared statement that will become part of the record of

 9 these proceedings.

 10 These proceedings will be published in one form or

 11 another, probably on line, and will be available to the other

 12 members of the committee as well as myself. We will transmit

 13 the prepared statements of each of the witnesses to the

 14 committee immediately so you can be assured even though the

 15 other members of the committee were unable to make it here

 16 today they will be aware of the statements and testimony

 17 given.

 18 I want to call first Professor Arthur D. Hellman. I

 19 would ask that each of the witnesses give a summary of their

 20 views on these rules that last around ten minutes and I will,

 21 where appropriate, engage in dialogue with the witnesses.

 22 Each of the witnesses' prepared statements -- I may have said

 23 this already -- each of the witnesses' prepared statements

 24 will be part of the record.

 25 Okay, so I call Professor Hellman.



 3

 1 PROFESSOR HELLMAN: Is this mike working? Yes.

 2 THE COURT: Yes.

 3 PROFESSOR HELLMAN: Thank you, Judge Winter, for

 4 inviting me to express my views at this hearing. I'm going to

 5 be submitting a supplemental statement that will deal with

 6 some matters of drafting primarily involving the organization

 7 of the rules.

 8 THE COURT: We would be very, very happy to receive

 9 that. I think that the rules need a considerable amount of

 10 drafting work and style work and perhaps some substantive

 11 work, but we will be happy to receive that.

 12 PROFESSOR HELLMAN: Thank you, I appreciate it.

 13 I think it is important that this document be user

 14 friendly and I appreciate the -- that the initial document was

 15 prepared under some time pressure and it will be perhaps now

 16 time for some not just drafting, tweaking, but maybe even a
 17 little bit of reorganization.

 18 THE COURT: Can I ask you a question that has been

 19 posed in one of the comments, as we've seen in the comment

 20 period? Do you think that these rules should primarily be

 21 directed to use by chief circuit judges, special committees,

 22 judicial council and the conference committee, or do you think

 23 that they should be directed toward people who want to file

 24 complaints, to the public who have complaints?

 25 I must say that I personally am leaning to the view



 4

 1 that the rules ought to be addressed to the people who have to

 2 conduct the proceedings pursuant to the act and that the

 3 public user friendly material should be put on the web site so

 4 each court that is governed by these rules --

 5 PROFESSOR HELLMAN: Well, I think the first audience

 6 is, of course, the chief circuit judges, the circuit council

 7 and the other people who work on it, but I do think that, as

 8 I've said in my prepared statement, and I'll be saying again

 9 today, I do think transparency is important in this process

 10 and I don't think there's a conflict between those two

 11 purposes. I think for either group you want to explain what

 12 the rules require, what they don't require, and how they ought

 13 to be carried out.

 14 One of the things the Breyer Committee pointed out is

 15 that there are changing personnel within the circuit and

 16 within the committees, different people have to deal with

 17 these rules, and I don't think their interests in having a

 18 clear, well organized set of rules are user friendly -- to use

 19 that term again -- I don't think those interests are in

 20 conflict at all. I think if you write a set of rules that

 21 explains to the people who administer the act what they're

 22 supposed to do it will also serve the interests of the

 23 public. I don't see a conflict there.

 24 Well, in my remarks here this morning and at the risk

 25 of giving an unduly negative impression, because I think


 5

 1 overall the committee has done an excellent job, I will

 2 concentrate on the relatively few points where I take issue

 3 with the proposed rules. I'll address these in the order in

 4 which they appear in the draft, starting with Rule 5.

 5 Rule 5 deals with the power of a circuit chief judge

 6 to identify a complaint. In conjunction with Rule 3, the rule

 7 provides that if a chief judge obtains information from any

 8 source that gives reasonable grounds to inquire into possible

 9 misconduct by a judge, the chief judge must identify the

 10 complaint and initiate the review process under Chapter 16.

 11 That language would seem to make it clear that the

 12 threshold for identifying a complaint is very low and that

 13 doubts should be resolved in favor of instituting formal

 14 proceedings under the act. Well, I endorse that standard

 15 which is basically what the Breyer Committee recommended. My

 16 concern is that at least some of what the rule gives with one

 17 hand it takes away with the other. Section 2(b) relieves the

 18 chief judge of the obligation to identify a complaint if it is

 19 clear on the basis of a total mix of information that the

 20 complaint will be dismissed.

 21 Then, the next sentence provides the chief judge may

 22 identify a complaint in such circumstances in order to assure

 23 the public that highly visible allegations have been

 24 investigated.

 25 Here it seems to me the rule does depart somewhat



 6

 1 from the Breyer Committee recommendation and in my view

 2 unwisely. When allegations are highly visible and that isn't

 3 going to be very often, the chief judge should be required to

 4 identify a complaint even if it is clear that the complaint

 5 will be dismissed.
 6 This does at least two things. First, it helps to

 7 remove the cloud that would otherwise hang over the judge's

 8 reputation and perhaps more important and I'll quote the

 9 Breyer Committee here: "The more public and high visibility

 10 the matter, the more desirable it will be for the chief judge

 11 to identify a complaint in order to assure the public that the

 12 allegations have not been ignored."

 13 I'll turn now to Rule 11, which deals with the

 14 initial review of complaints by the circuit chief judge. This

 15 rule and rather lengthy commentary address what I view as the

 16 key operational question in the operation of the

 17 administration of the act. Under what circumstances must a

 18 chief judge appoint a special committee rather than act

 19 summarily to terminate the proceeding?

 20 Proposed Rule 11(b) includes language that emphasizes

 21 the limited scope of the inquiry that the chief judge may

 22 conduct without turning the matter over to a special

 23 committee. The chief judge must not make findings of fact

 24 about any matter that's reasonably in dispute -- of course,

 25 that's in the statute -- nor may the chief judge make



 7

 1 determinations concerning the credibility of the complainant

 2 or putative witness.

 3 That's fine as far as it goes, but I would go a bit

 4 further. I would like to see the rule state very explicitly

 5 that if the allegations have even the slightest factual

 6 foundation or objective evidence leaves some room for

 7 crediting them, a special committee must be appointed.

 8 THE COURT: Excuse me.

 9 Wouldn't the appropriate test and one that would be

 10 user friendly be the test that's used in motions for summary

 11 judgment - that the chief judge has to appoint a special

 12 committee where there are material issues in dispute based on

 13 public opinion or something else, where a reasonable fact

 14 finder could find misconduct or disability, but where a
 15 reasonable fact finder couldn't, then a special committee

 16 shouldn't be appointed?

 17 I mean, I'm not using the exact terms of art used in

 18 summary judgment proceedings, but wouldn't that be the useful

 19 test to incorporate in these rules?

 20 PROFESSOR HELLMAN: I think the summary judgment

 21 standard is very close to the one that is in the statute and

 22 which the rules propose to implement. What I'm suggesting,

 23 though, is that the rules themselves, based on the history

 24 that the Breyer Committee lays out, have to be quite emphatic

 25 that that is the standard and one particular matter that I



 8

 1 think ought to be in the rules, it is in the commentary, which

 2 is -- which I might applaud, is that a chief judge may not

 3 dismiss a complaint on the ground of insufficient evidence

 4 without communicating with all persons who might reasonably be

 5 thought to have knowledge of the matter. It is in the

 6 commentary. I would put that in the rule. It is in part to

 7 address situations like the one that's in the 8th Circuit

 8 complaint that I described in my statement and I won't go into

 9 details of that here.

 10 Basically, what it comes down to, I think, and I

 11 don't think it is specially different from the summary

 12 judgment standard, but it may be useful to use something a

 13 little different and closer to the statute, is that if any

 14 reasonable observer would think that the matter remains

 15 reasonably in doubt, then the special committee should be

 16 appointed.

 17 It is a little different, I think, the setting is a

 18 little bit different from the summary judgment standard

 19 because there the Court is adjudicating a dispute between two

 20 private parties, in the ordinary case, be no suspicion at all,

 21 there wouldn't be any reason for the court to err one way or

 22 the other, but where it is the judiciary itself who is in --

 23 is the subject of the complaint, I think you have to push a
 24 little more, at least in the verbal directions, to make clear

 25 that the special committee should be appointed.



 9

 1 Now, I should add, also, and this isn't in my

 2 statement and maybe I should have added it there, that it does

 3 seem to me, as the view and Breyer committee both emphasize,

 4 there can be flexibility into the way special committees

 5 operate. They don't have to be a massive operation and if it

 6 is a simple kind of question, special committee ought to be

 7 able to operate pretty quickly and efficiently, but the

 8 statute draws this line between the chief judge role and

 9 special committee role and I think the rules should be written

 10 in strong terms to preserve and emphasize that line.

 11 Suppose, though, that notwithstanding the rule and

 12 all the admonitions you put into it, the chief judge fails to

 13 appoint a special committee when the rule requires it and the

 14 circuit council ratifies that action, is there anything that

 15 your committee, the conduct committee can do? Well, as you

 16 well know, in 2006, in one stage of the proceedings against

 17 Judge Emanuel Real, the committee said no, there's nothing

 18 they can do. The committee now thinks there is something they

 19 can do. What that something is is not totally clear.

 20 I'm referring, of course, to Rule 201(b). I've

 21 addressed this point at rather great length in my written

 22 statement and here I'm just making a couple brief comments.

 23 First, I do agree that there is a gap in the

 24 misconduct procedures that probably should be filled. Second,

 25 the preferable way to do that would be through a statutory --



 10

 1 THE COURT: Your statement did raise some doubt as to

 2 whether the committee was authorized by the statute to do

 3 this, but I take it you're concluding that it does have
 4 authority to do this?

 5 PROFESSOR HELLMAN: I think it is a very close

 6 question and I have to say I'm troubled by the prospect of the

 7 committee's pursuing review with -- with the language of the

 8 statute saying the order of the circuit council affirming a

 9 dismissal is final. What it does seem to me you could do,

 10 though, is in combination with the monitoring which is

 11 contemplated there could be a provision for committee

 12 scrutiny, preferably before the order has been made public,

 13 and then perhaps a quiet talk between the committee chair and

 14 the circuit council presiding judge to say, in effect, you

 15 know, I understand your position that they don't need a

 16 special committee here, but it seems to us that from a

 17 national perspective the interests of the judiciary would be

 18 better served by appointing one.

 19 I do think you would have to make it clear that you

 20 can't issue orders. I see no basis in the statute for that.

 21 You might have ultimately decided that --

 22 THE COURT: Then you really agree with what was then

 23 the majority of the committee in the misconduct case in which

 24 by three two vote the committees have no jurisdiction.

 25 PROFESSOR HELLMAN: I don't see how you get around



 11

 1 the language, in review preclusive language as far as any

 2 order from your committee to the circuit council would go.

 3 Now, again, what happened, as you know, is that in

 4 the end, a special committee was appointed in a related -- on

 5 a related complaint and that ended up looking at the same

 6 allegations. So, as I suggested in my statement, you could

 7 have a kind of collateral review that isn't reviewed

 8 technically the way habeas is, not review of the state court

 9 judgment, but a separate proceeding that may affect it.

 10 What I would really like to see is a statutory

 11 amendment that would be an enabling act type of amendment,

 12 something that would authorize the judicial conference to
 13 construct channels of review in the cases that we're talking

 14 about. I think to try to write the thing into a statute

 15 itself, I think that is hard and you don't need to do it in

 16 the statute, but I think the enabling act works well in

 17 that --

 18 THE COURT: You have pointed out a gap in the rule,

 19 the proposed rule, but I think the intent of the committee was

 20 that it would issue orders that special committees be

 21 appointed and the view of the committee which I have to say is

 22 now unanimous, this rule was proposed unanimously, including

 23 two of the three members of the committee who had joined in

 24 the earlier jurisdictional ruling, the majority there, but I

 25 think we think interstitially there is authority that that --



 12

 1 that the way the act is structured it makes almost no sense to

 2 have a system in which you can avoid review by not doing what

 3 the statute directs you to do and worse than that set up

 4 precedent that differ from circuit to circuit, that something

 5 might be misconduct in one circuit but not in another.

 6 So, I have to say, in case you want your supplemental

 7 comments to say something about that, I have thought at least,

 8 I -- I'm not authorized to speak for the rest of the

 9 committee, but I thought our deliberations indicated that this

 10 was not going to be an advisory opinion, this was going to be

 11 an act of the United States Judicial Conference ordering the

 12 special committee be appointed.

 13 PROFESSOR HELLMAN: Well, I'm certainly quite willing

 14 to rethink my views on that. It does seem to me important,

 15 though, that the rules themselves should then explain in a

 16 fairly comprehensive fashion where this authority comes from

 17 and how do you reconcile it with the seemingly absolute

 18 prohibition in what is -- I forget the statutory provision --

 19 352(c), factual statutory provision that says these particular

 20 kinds of orders you propose to review shall be final.

 21 That it seems to me is language that's very difficult
 22 to get around and I agree with you entirely as a policy matter

 23 and I agree, also, I suppose, that if Congress had thought

 24 this through at the time, they might have done something

 25 different. I suspect the assumption was that, as it turned



 13

 1 out to be true, virtually all of these dismissals would be

 2 clearly correct and Congress did not want to build in channels

 3 of review that would burden the judicial conference of the

 4 United States with reviewing what could be a very large number

 5 of petitions to find the one or two, maybe three every three

 6 years that would warrant a second look at the national level.

 7 I think that is not totally unreasonable judgment.

 8 THE COURT: I mean, I think the judgment of Congress

 9 -- I thought the Breyer Committee rather uncovered the fact

 10 that perhaps the most frequent error that was made was in not

 11 appointing a special committee, and I ought to add because

 12 there is some concern on the part of other witnesses we'll

 13 hear from that any system in which judges judge judges is

 14 going to be loaded against judges. At least one of the

 15 misconduct proceedings in which a special committee was not

 16 appointed, the findings favored -- the findings were that the

 17 Judge had engaged in misconduct, an acting chief circuit judge

 18 found that the chief circuit judge had engaged in misconduct,

 19 but no committee was appointed. That would have cut off

 20 national review.

 21 PROFESSOR HELLMAN: Yes. I discussed this in my

 22 article that I'll be making available to the committee. I

 23 thought that was maybe the most egregious case in the Breyer

 24 Committee report. Although, interestingly, it would not have

 25 been caught by the mandatory review provision in your rule,



 14

 1 because, as far as I'm aware, there was no dissent from the
 2 circuit council order that affirms that unfortunate order of

 3 the acting chief judge. So, I agree entirely as a policy

 4 matter.

 5 THE COURT: It would not have been shielded, though,

 6 in the review, because the rules as drafted -- you mentioned

 7 in your statement the rules as drafted vest the committee with

 8 discretion to review any council order that didn't involve a

 9 special committee, although we expect that review to be rare

 10 indeed.

 11 PROFESSOR HELLMAN: Yeah, it seems to me that that's

 12 a somewhat awkward procedure that perhaps should be clarified

 13 a little bit more in the rule, especially, as I think I

 14 indicated in my statement, the relationship between that and

 15 the timing provisions about public disclosure that your

 16 committee is going to want to do whatever it does before that

 17 order goes out to the public.

 18 THE COURT: I thought that was a very cogent

 19 criticism of the rules. You're going to turn to that now?

 20 PROFESSOR HELLMAN: I wasn't going to address the

 21 specific point here today. I would be happy to talk about

 22 it. I wasn't expecting to get into that level of detail.

 23 THE COURT: I was wondering whether you had any

 24 thoughts -- I don't think you mentioned it in your statement

 25 -- on Rule 12(c). I'm sorry 21(c). Rule 21(c) is the rule



 15

 1 that says that committee decisions reviewing council orders

 2 shall be by majority vote of the members of the committee, not

 3 from the same circuit as the subject judge. Then sets up a

 4 system of rotating lists when someone is disqualified. I was

 5 wondering if you would comment on that.

 6 The committee spent actually a fairly large amount of

 7 time on that rule. There was a very strong feeling on the

 8 part of the committee that we -- at some point in the review

 9 process you really had to have a body of people that were not

 10 from the same circuit as the subject judge. The review in our
 11 committee is likely to be of a very serious kind and we ought

 12 to do our best to get people in that are independent.

 13 Could you comment on that rule?

 14 PROFESSOR HELLMAN: Yeah. I have to say that is not

 15 one that I focused on myself and I might want to address that

 16 a little bit more, if I have further thoughts in my

 17 supplemental statement, but it raises a broader point which I

 18 think comes up in another -- in another point I don't address

 19 in my statement, namely, in the provisions for transfer. When

 20 the 2001 act or 2002 act was under consideration, it was an

 21 additional provision that got -- didn't get in because it just

 22 was vetted too late for transfer to another circuit when all

 23 of the circuit judges were recused and your comment suggests

 24 that there may -- that is an area that maybe ought to be

 25 looked at a little bit for the very reason you suggest, that



 16

 1 the suspicion that the judge's own colleagues may appear to be

 2 unduly favorably disposed and may be that once you get into

 3 the sort of adjudicated stage, as distinguished from the very

 4 early investigatory stages, it ought to be a little bit easier

 5 to send the case to another circuit. I'm not suggesting

 6 that. That was one of the legislative proposals some years

 7 ago and it never got anywhere, but I think that is

 8 something --

 9 THE COURT: We do have provisions for transfer of

 10 that kind --

 11 PROFESSOR HELLMAN: Yes.

 12 THE COURT: -- in the rules.

 13 PROFESSOR HELLMAN: Yes, you do and what I'm

 14 suggesting -- I think it is mostly for circumstances where

 15 everybody is disqualified.

 16 THE COURT: Well, I think the intent was broader than

 17 that. There are some cases in which the matter is so serious

 18 and the issue is so close that it is very awkward for

 19 everybody to have it in the circuit of the subject judge. I
 20 mean, I think there is that kind of case. It might be a very

 21 divisive case and the rules provide there can be transfers,

 22 but the request has to be made to the chief justice and the

 23 chief justice then picks the transfer circuit. We did that

 24 rather than just have the chief circuit judges communicate

 25 amongst each other, because we thought if you had a highly



 17

 1 controversial, highly sensitive case and you wanted to

 2 transfer it, there might be a very divisive argument over

 3 where the transfer.

 4 There was another point. There's nothing that says

 5 the other circuit has to accept the case when it gets there,

 6 so we thought that the best thing was leave it to the chief

 7 justice to pick the circuit and order them to take it.

 8 PROFESSOR HELLMAN: Two quick comments on that. One,

 9 I agree with everything you said about the policy

 10 considerations and the -- that may be one of the circumstances

 11 in which monitoring -- ongoing monitoring by the committee

 12 could really be useful, because sometimes the people in the

 13 circuit may be too close to see, too close to the situation to

 14 see how bad it might look and how things would be improved if

 15 the matter were handled by another circuit and again a quiet

 16 call from the committee chairman might do that.

 17 The other thing I want to add is this business of

 18 selecting the circuit to which the matter goes, that was the

 19 main object of the unsuccessful 2002 amendment that I

 20 mentioned and we came up -- actually, those working on it came

 21 up with a provision. I can't remember where it was drawn

 22 from, but basically it says you just go to the next circuit in

 23 sequence, but it did not give the chief justice any leeway in

 24 that, because it seemed that even picking the chief judge or

 25 the circuit that will handle it, that in the kind of situation


 18

 1 you've described, which by definition is highly charged,

 2 perhaps some partisan underpinnings or overtones to the

 3 matter, that there's much to be said for an automatic rule if

 4 it is from the 7th Circuit, it goes to the 8th; from the 8th

 5 to the 9th and so forth. You can do it any other way. That

 6 was just a simple way of doing it. That's another area where

 7 a small fix to the statute might be in order.

 8 THE COURT: What is wrong with the rule as the

 9 committee has proposed? It seems to me that is the fairly

 10 workable rule. It is 26.

 11 PROFESSOR HELLMAN: Yeah. I think it is a very

 12 workable rule. The question is whether it would be better to

 13 constrain the discretion of the chief justice and so that

 14 everybody knows that it went to circuit X because that's what

 15 the law required, not because the chief justice chose a

 16 circuit with a Republican chief judge, Democratic chief judge

 17 or anything like that. I regret tremendously I even have to

 18 talk in those terms here, but that is what some of these

 19 complaints involve and I think to the extent that the process

 20 can diminish the level of suspicion because it is just all --

 21 all required by statute or rule by that matter, maybe could do

 22 this by rule, I think you contribute to the perception that

 23 nobody's trying to fix the matter in any way. It is very,

 24 very important.

 25 THE COURT: There's another provision for it, for



 19

 1 transfer earlier in the statute that has to do with the rare

 2 but occasional case in which the misconduct is alleged to have

 3 occurred while a judge was sitting by designation. The rule

 4 set up a system in which the first filed or identified

 5 complaint determines which circuit. The home circuit is

 6 almost always the circuit which the judicial misconduct

 7 complaint must be filed. It is the circuit in which all

 8 judicial misconduct complaints can be filed, but that where
 9 you have a complaint involving misconduct in a circuit where

 10 the judge was sitting by designation, the complaint or --

 11 whether identified or filed could go there, and, then, there

 12 is a provision allowing transfers if it appears that it would

 13 be better heard in one circuit rather than another.

 14 I don't know whether you care to comment on that.

 15 PROFESSOR HELLMAN: Well, I read over that one and I

 16 thought the committee handled that -- the rule handled that

 17 very, very well, that it is -- it does make sense because the

 18 whole system under the statute is future oriented, it does

 19 make sense to have the judge's home circuit as the default

 20 circuit, but in the extremely rare situations where there is

 21 an episode in some other circuit where the witnesses may be in

 22 that circuit or where there may be impact on the practice of

 23 law somehow in that other circuit, there's the ability to

 24 transfer it there, if it makes sense.

 25 I mean, I would think it would be extremely rare.



 20

 1 You would have the adjudication -- not quite the right word,

 2 but the consideration of the matter in any but the judge's

 3 home circuit, but I think you've handled that in a very good

 4 way and making it possible for those rare situations where it

 5 does make sense.

 6 Let me jump now to Rule 244, which I see as raising

 7 two fairly distinct sets of issues. First, there are issues

 8 relating to the nature and timing of public disclosure. The

 9 basic rule which is continued to the illustrative rules is

 10 that orders and memoranda of the chief judge and the judicial

 11 council will be made public only when final action on the

 12 complaint has been taken and is no longer subject to review.

 13 Moreover, in the ordinary case, where the complaint

 14 is dismissed, the publicly available materials will not

 15 disclose the name of the judge without his or her consent.

 16 Now, after thinking about that a good deal, I

 17 concluded that for the overwhelming majority of complaints,
 18 these rules do no harm and on balance probably make sense for

 19 the reasons I include in my statement. I do think a different

 20 or at least a somewhat more flexible approach is called for

 21 when the substance of a pending complaint has become widely

 22 known through reports in main stream media or responsible web

 23 sites and in that relatively unusual situation. I would like

 24 to see a presumption, no more than that, that orders issued by

 25 the chief judge or the circuit council will be made public



 21

 1 when they're issued and the judge will be named.

 2 I emphasize very strongly I'm not suggesting any sort

 3 of absolute rule, but when it's no longer possible to achieve

 4 the goal that you've stated in the commentary, avoiding public

 5 disclosure of the existence of pending proceedings, when

 6 that's no longer possible, it would generally make sense for

 7 the judiciary to go public in its official actions.

 8 THE COURT: I find your suggestion was interesting,

 9 but in drafting rules it has to be made clear who it is that

 10 you would have make the judgment as to whether the presumption

 11 has been overcome.

 12 PROFESSOR HELLMAN: Well, there are a couple of ways

 13 you could do this. It could be the -- most naturally it would

 14 be the person or body issuing the order, but for something

 15 this sensitive you might say, for example, the chief judge --

 16 it is the chief judge, but only after -- with the approval of

 17 a circuit council. You might go to that end. If it is the

 18 circuit council, I don't know whether you could build in or at

 19 least encourage a consultation with the conduct committee.

 20 In other words, make it a little bit of a complicated

 21 process or at least make sure more than the -- decide himself

 22 or herself is the person to make that decision. We're talking

 23 here about a tiny number of cases, but they are, as the Breyer

 24 Committee points out, the cases that shape public perceptions

 25 on how this system is working. It does seem to me, I mean, a


 22

 1 question of bound to reality if everybody knows ... Also, it

 2 seems to me when the judiciary -- it is true of anybody else,

 3 too, but when the judiciary is withholding information for no

 4 apparent reason and that's the way it is going to look when

 5 people know what is being withheld, the effect is to reinforce

 6 that all the concerns about guild favoritism that the Breyer

 7 Committee talked about and which you did earlier, Judge

 8 Winter, that is what you very appropriately emphasized, so it

 9 is -- it is a handful of cases.

 10 I would be happy to see the rules build in procedural

 11 safeguards, perhaps, rather than trying to state the criteria

 12 in the form of a rule, but to make just for a little bit of

 13 flexibility for these circumstances where the -- again, where

 14 the purpose that is stated in the commentary can no longer be

 15 accomplished.

 16 THE COURT: Since you are one of the leading scholars

 17 in this area, I tell you that there is a concern I have heard

 18 voiced, I am not sure how much weight I give it, but there is

 19 a concern I've heard voiced and that is that sooner or later,

 20 if you don't keep the names, the name of the judge

 21 confidential, sooner or later people will, whether in a

 22 confirmation proceeding or in something else, people will then

 23 start saying, Ahh, this judge had 75 misconduct complaints

 24 filed against him or her and that will be the big headline in

 25 a follow-up story. That all 75 are filed by one or two



 23

 1 prisoners serving life sentences for murder who kept filing

 2 complaint after complaint alleging the decision on habeas

 3 corpus was wrong, clearly dismissible, that will get lost in

 4 the debate.

 5 There are very serious concerns that -- I mean, we're

 6 dealing with -- and this ought to be in the record -- minimum
 7 of 600, maximum now of 800 complaints a year. That is, I

 8 think, more than one per judge. Certainly one per Article III

 9 judge. And some of the complainants are people who file many

 10 complaints and many of the complainants are just complaining

 11 about a decision which is clearly outside the statute. I

 12 think there is a concern there.

 13 In anticipation, not that I share it, some people

 14 would say that your rule will encourage people who have access

 15 to the press to file complaints and to give them to the press

 16 at the time. But, anyway, I just want for your future work to

 17 know what the concerns you would hear are if you had talked to

 18 judges, as I have, about these problems.

 19 PROFESSOR HELLMAN: Let me address the first point.

 20 I share that concern. In fact, I say that in my statement at

 21 page 26. I think the very same concern you're talking about,

 22 that the -- that routine orders dismissing a complaint,

 23 because they address the merits would be misused by people if

 24 the judge's name were made public in those routine cases, so

 25 that's why I come down in agreement with the committee for the



 24

 1 routine cases which, of course, are the overwhelming majority

 2 of them. I agree with your rule, the publicly issued

 3 materials should not disclose the judge's name.

 4 So, as for the second, I recognize that and that's

 5 one of the reasons why the -- why I think any modification of

 6 the rule should be done very cautiously and giving a great

 7 deal of discretion and building in these procedural safeguards

 8 that I'm suggesting because there is a possibility. It has

 9 not happened yet, even though people can do this. I mean,

 10 people can -- I've seen -- when I was researching for my

 11 testimony a couple of years ago, I found that few complaints

 12 on web sites with unredacted materials identifying the judges,

 13 but that has not happened and I'm not sure that the limited

 14 flexibility I'm suggesting here would change that 'cause it

 15 would be so, so limited.
 16 THE COURT: Assuming we know who the decision-maker

 17 would be, would the act of the decision-maker have to be -- to

 18 publicize a name be sua sponte or would a complainant or

 19 representative of the media or someone have to ask for it?

 20 PROFESSOR HELLMAN: I would think that you ought to

 21 have rules that would require the decision-maker or

 22 decision-makers to make that judgment when they're thinking

 23 about the order, because how you -- how you write something, I

 24 think might affect -- might be affected by whether you know

 25 it's going to be published, made public at a particular time



 25

 1 and whether it is going to name the judge. I want to give a

 2 little bit more thought to that.

 3 THE COURT: I wish you would. Most judicial councils

 4 meet -- I think the 2d Circuit judicial council meets usually

 5 every six months. If it meets every six months, the number of

 6 dismissed complaints that it would be dealing with would be,

 7 you know, 50, 100, and I just think as a practical matter it

 8 would be very difficult for a judicial council with each

 9 complaint to find out how much publicity it may have gotten.

 10 I mean, I don't think it is quite as obvious. I mean, usually

 11 the complaints that really -- that get the really big

 12 publicity are complaints that do get considered at some

 13 length, but the fact that a complaint may have been in the

 14 paper once may not be something that council is even aware

 15 of. I mean, I would think a sua sponte rule would not work

 16 well.

 17 PROFESSOR HELLMAN: I think for the overwhelming

 18 majority, and, really, overwhelming, you wouldn't have to do

 19 anything different and even a single mention in some newspaper

 20 somewhere, I don't think that would meet the standard

 21 anywhere.

 22 I mean, again, one of the odd things about -- maybe

 23 it isn't so odd. One of the recurring features of working on

 24 these matters is that you spend an enormous amount of time on
 25 rules and practices that affect only a tiny handful of the



 26

 1 cases. If you look at the statute itself, it has a huge

 2 section devoted to the special committee which is one or two a

 3 year is what it has been, maybe half a dozen, if you have a

 4 very big year, but that's in some ways the largest.

 5 THE COURT: At present there is doubt as to how many

 6 special committees there are. The official statistics for one

 7 year were one, but several others were known to exist. I

 8 mean, there are statistics that are received by my committee,

 9 may or may not be correct, there is reasons to believe they

 10 aren't correct, and I must say I agree with your proposal that

 11 the rules be amended to make sure every order establishing a

 12 special committee be sent to my committee, if we're going to

 13 monitor it.

 14 PROFESSOR HELLMAN: Yes, but even if it is five

 15 rather than one, it's still a tiny fraction, but that is where

 16 the attention goes for good reasons and it is the same in this

 17 matter of what is going to be disclosed, that the -- the

 18 attention we're giving here and the attention I've given in my

 19 statement is disproportionate to the number of occasions on

 20 which there would be -- it would be -- there would be any need

 21 even to think about the question, but again those are the

 22 cases that shape public perceptions and, so, of necessity

 23 that's where our attention goes to.

 24 Rule 24 also deals with the manner of making orders

 25 public and here my suggestions are more in the nature of fine



 27

 1 tuning pretty minor stuff. I think the rule should require

 2 without qualification that all of these orders be posted on

 3 court web sites. That is a departure from what I suggested

 4 when I testified in 2001. At that time I suggested a few
 5 representative orders or routine orders, but it seems to me

 6 after the E Government Act, it is a de minimis burden and it

 7 will add a lot to our knowledge and, by the way, it has also

 8 occurred to me that it may be if a complainant saw these

 9 orders in these typical cases where all they're doing is

 10 complaining about the merits of a decision, maybe some of them

 11 would not file.

 12 I mean, it is very -- it is just about impossible for

 13 anybody to see those orders in the ordinary course so that you

 14 can have all the exhortations and admonitions and warnings on

 15 the web sites and in the rules and everywhere that people look

 16 for it saying the purpose of it is -- of this process is not

 17 to challenge decisions and you should not try to simply

 18 reargue your case or say that the judge made a wrong decision

 19 or even a very wrong decision. Instead, all of those things

 20 maybe would have a little bit more impact if people saw some

 21 of the complaints that had been filed and dismissed on those

 22 grounds. Maybe not.

 23 THE COURT: That's an interesting suggestion.

 24 PROFESSOR HELLMAN: It would be worth doing, I think,

 25 and it would certainly enlighten the public and it would be,



 28

 1 as I say -- it is six or 700 orders, as I pointed out in my

 2 statement. There are going to be that many orders from the

 3 5th Circuit in Almendar Torres cases this year. They are

 4 boilerplate orders published now in Fed appendix. Some people

 5 I think now pay money for that and they're posted on the Court

 6 web sites. Compared with that it is really not adding a lot

 7 of posting or work for court staff. I also think the

 8 committee should be more aggressive in promoting publication

 9 practices that will lead to the development of a readily

 10 available body of published precedent on what constitutes

 11 misconduct and how it ought to be appropriately dealt with

 12 under the act.

 13 In the article that I was sharing with the committee,
 14 I cite at least half a dozen important decisions that are just

 15 not available anywhere outside of the Clerk's offices or the

 16 Thurgood Marshall Office Building.

 17 THE COURT: Well, we have recommended to the judicial

 18 conference and I believe it is Emil Famed (ph.), the creation

 19 of a compendium of decisions for that purpose in the Federal

 20 Judicial Center. Mr. Willging who's here today is working on

 21 that and we hope to have cross-references between the rules

 22 when finally promulgated in this compendium and I would

 23 suggest you -- when your testimony is concluded you might want

 24 to get Mr. -- I don't know, do you know Mr. Willging?

 25 PROFESSOR HELLMAN: Yes.



 29

 1 THE COURT: Okay, well, I don't have to go on with

 2 what I was about to say.

 3 PROFESSOR HELLMAN: Only thing I would just emphasize

 4 and I think it is implicit if what you already said is that

 5 this compendium ought to be on the public judiciary web site,

 6 not just something available to court insiders. These are

 7 public documents and there is absolutely no reason why the

 8 compendium should not itself be --

 9 THE COURT: If I recall, members of the audience,

 10 isn't that where we have our minds on?

 11 UNIDENTIFIED SPEAKER: I don't think we've decided

 12 that. What I'm preparing could go on a public web site, no

 13 question.

 14 PROFESSOR HELLMAN: I'm very glad to hear that. What

 15 makes it so sad about this body of decisions -- I will be

 16 closing on this note. What makes it so sad is that the

 17 overall picture that the decisions convey is of judges who do

 18 take seriously the obligation to investigate allegations of

 19 misconduct and to impose appropriate discipline. Not that

 20 there aren't occasional lapses, but they really are occasional

 21 and yet the habits of nondisclosure are so deeply embedded

 22 that the judiciary behaves as though it has something that
 23 it's trying to hide. In the past that might not have mattered

 24 quite so much. We live now, as we all know, in an era of

 25 mistrust and I think it is very important the judiciary



 30

 1 recognize the importance of transparency.

 2 The very fact you're holding this hearing today and

 3 inviting comment on the draft rules, that's a great start and

 4 I really do applaud that and I hope you'll make -- take the

 5 very modest additional steps that will truly bring visibility

 6 to the process, that will strengthen the credibility of the

 7 judiciary and ultimately the independence of the judiciary

 8 which is at bottom what this whole process is about.

 9 I would be happy to answer other questions and I will

 10 be submitting that supplemental statement on organization.

 11 Maybe I can say one thing about that organization at this

 12 point. I'll be happy --

 13 THE COURT: I have been interrupting you. Why don't

 14 you go ahead.

 15 PROFESSOR HELLMAN: The major point that I will be

 16 suggesting is that Rule 11, which deals with what the chief

 17 does ought to be broken up into two rules with a separate rule

 18 that would have the things that the chief does that terminates

 19 the proceeding and the statute is written very awkwardly.

 20 That's what you're dealing with here. The statute talks about

 21 dismissing a complaint on certain grounds and terminating the

 22 proceeding on others. I think you do have to follow the

 23 statute, but it makes it -- I mean, a lot of the difficult

 24 cross-referencing in these rules comes about because of that

 25 complexity and it seems to me if you could take the provisions



 31

 1 that deal with dismissals, orders dismissing and concluding

 2 proceedings and put them in what I suppose would be Rule 12,
 3 you would have Rule 12 orders and you would have a shorthand

 4 that people could use to refer to. Might even use it in the

 5 rule.

 6 Rule 12 orders would be orders the chief does and

 7 finally disposed of a complaint, whether by dismissing it on

 8 the grounds in which dismissal is authorized or concluding the

 9 proceedings, if that is done. I think you would find a lot of

 10 the later provisions would be easier to write if you could

 11 simply refer to Rule 12 orders, rather than ACDE, whatever it

 12 is that you have to do now.

 13 I am fairly experienced at this stuff and I find it

 14 pretty hard to navigate. That's my principal organizational

 15 suggestion. The other is I think there's some real misplacing

 16 between rules three and five. Some of the team in three

 17 describing when a chief judge ought to identify a complaint,

 18 belongs in five so that you have one rule that deals -- that

 19 gives everything the chief judge needs to know about when to

 20 identify a complaint.

 21 THE COURT: I would be very pleased to receive

 22 detailed comments of that nature from you.

 23 PROFESSOR HELLMAN: Sure, sure. I just wanted to

 24 sketch the kind of thing --

 25 THE COURT: Could you get them to us by October



 32

 1 15th?

 2 PROFESSOR HELLMAN: I would definitely do that.

 3 THE COURT: I want to thank you for your testimony.

 4 It is not up to me to direct your scholarship, but if you

 5 could find a way so that the judiciary's point of view about

 6 some of these problems, namely, that when you have a job in

 7 which you have to make decisions favoring one party or

 8 another, 50 percent of the people you deal with go away deeply

 9 unhappy and a very large percentage of them think a great

 10 injustice has been done, but we can't get fairness of justice

 11 without an independent judiciary, and no one wants to see this
 12 procedure turn into something that scares judges away from

 13 calling them as they see them when they do adjudicate disputes

 14 between people and I think it is that that creates the

 15 apprehension of the judiciary over the misuse of these rules

 16 and the misuse of how many numbers of complaints have been

 17 filed against the judge and things like that.

 18 Anyway, thank you very much. You have been very,

 19 very helpful.

 20 PROFESSOR HELLMAN: Thank you, Judge Winter. I do

 21 appreciate it. I just want to express complete agreement with

 22 the last point and to say that I don't think that transparency

 23 is at all intentioned with that, but will promote that.

 24 Thank you very much.

 25 THE COURT: Thank you.



 33

 1 Our next witness is Dr. Richard Cordero.

 2 Dr. Cordero, I have read your written testimony. It

 3 will become part of the record of this proceeding and will be

 4 transmitted to the other members of the committee and if you

 5 want to take ten minutes now and summarize your main points or

 6 add other points, go ahead.

 7 DR. CORDERO: Thank you, Judge Winter. I would like

 8 to add a statement that I have prepared, because it has some

 9 graphics and I am going to be making reference to them and it

 10 would be useful if you had a copy in front of you.

 11 THE COURT: Fine. That's fine.

 12 DR. CORDERO: Should I bring it to you?

 13 THE COURT: Yes. We will make that part of the

 14 record, also. Do you have an extra copy of it?

 15 DR. CORDERO: Yes.

 16 THE COURT: Would you give a copy to Mr. Saxe,

 17 please.

 18 Go ahead, Dr. Cordero.

 19 DR. CORDERO: You started the hearing this morning by

 20 asking a pertinent question. You asked whether the rules
 21 should be focused on the chief and circuit judge or on the

 22 complainants. It seems that to me that the question is

 23 actually irrelevant because the point is whether the rules

 24 will be effective as they are now. The rules are as they have

 25 been drafted simply identical to the current rules that have



 34

 1 been in place for almost 27 years and these rules have proved

 2 to be completely ineffective and --

 3 THE COURT: Well, I'm not sure I agree with that. I

 4 think that the rules that went to identify a complaint, the

 5 rules about the kind of inquiry chief circuit judges ought to

 6 make, the definitional sections, all involve materials that

 7 are hardly clear on the face of the statute and hardly clear

 8 in what might be called the common law that has developed

 9 under the statute.

 10 DR. CORDERO: Well, the fact is that the rules of

 11 now, as far as the substance goes of the process of

 12 complaining against you, the judges, they are the same as the

 13 current rules.

 14 THE COURT: In reviewing your testimony, I was struck

 15 by the fact that your main complaint is against the statute.

 16 The statute sets up that procedure about filing a complaint

 17 and who deals with it. This hearing is not about changing

 18 that. This hearing is about rules that have -- are proposed

 19 to implement that statutory scheme so that with all due

 20 respect the committee has no power to propose rules that would

 21 do the kind of thing that you seem to want, which is to get

 22 judges out of the misconduct procedure except as defendants.

 23 DR. CORDERO: Well, the fact is that in the statement

 24 that I submitted on August the 23rd, my focus was on the

 25 rules, it was not the act. I submitted commentary of specific



 35
 1 rules and they were addressed to their ineffectiveness. The

 2 rules as they stand now, they do not change the players or the

 3 procedure. They do not make the complaints available to

 4 complainants and to other people. The complaints are not to

 5 render public. They do not require that the complaint about a

 6 judge take cognizance of the complaint because the procedure

 7 as it stands now is simply for the clerk to receive the

 8 complaint, to send it to the chief circuit judge and then to

 9 send it to the complaint about judges and to his chief judge.

 10 They don't have to do anything whatsoever with the rules.

 11 So, as I'm going to show on the basis of evidence,

 12 they can simply ignore that a complaint was ever filed against

 13 them because they do not have to take any action because the

 14 chief and circuit judge overwhelmingly is not going to do

 15 anything whatsoever about the complaint.

 16 In fact, the Breyer report indicated that in some

 17 circuits it is the clerks that read the complaint and even

 18 prepare an order to be signed by the chief and circuit judge.

 19 So, it is not the judge that treats the complaint and that

 20 takes action on them. It is relegated to a matter that can be

 21 handled by simply clerks.

 22 Now, the rules do not provide any adversarial

 23 confrontation between the complainant and the judge so that

 24 there is a system completely different from the system that

 25 applies to anybody else that complains against anybody else,



 36

 1 that is, aside from complaint. What we have as a system of

 2 the courts is a person who is a complainant that complains

 3 against another person who is a defendant and everything

 4 happens in the open. Why is it in the case of against --

 5 complaining against a judge there must be such secrecy that

 6 even the name of the judge must not be known, that the public

 7 must not know the name of the judge?

 8 We see in respect to the order, other two branches of

 9 government, the Executive and Congress, that all sorts of
 10 complaints are made against the President of the U.S., all

 11 sorts of complaints are made against members of Congress. The

 12 republic doesn't fall apart because people complain against

 13 the President of the United States or against his Secretaries

 14 or against other members of the Executive. The republic

 15 doesn't fall apart because people complain against a member of

 16 Congress. Why is it there should be such secrecy when a

 17 complaint is filed against a judge?

 18 You indicated that there should be independence on

 19 the part of the judges so that they may not be afraid when

 20 deciding on controversies put before them. Why would they be

 21 afraid because somebody complains against them? Those are two

 22 different things. A person can complain against a judge and

 23 he can still decide however he wants, the same way that the

 24 President of the United States takes decision and everybody

 25 complains against him and he simply goes about his business of



 37

 1 performing the duties of his office. The judge could do the

 2 same thing even if a person complained about him and not only

 3 his name became public, but, also, the complaint itself, the

 4 substance of the complaint. That would eliminate the secrecy

 5 that shrouds the procedure right now which leads to the

 6 supported complaint that that secrecy is simply a way of

 7 supporting what the Breyer report called the gild favoritism,

 8 which means the judges are handling complaints against their

 9 peers and they are doing nothing about it.

 10 I want to bring now the evidence that I have here

 11 because this evidence -- if this evidence is produced by the

 12 administrative office of the U.S. Courts this evidence is

 13 produced by the reports that the -- reports to make every year

 14 to the office of the -- to the Administrative Office of the

 15 U.S. Courts. They have to report on the number of complaints

 16 that have been filed against judges every year. They are

 17 published in the judicial facts and figures. They're also

 18 published in the annual report of the director of the
 19 administrative office of the U.S. Courts.

 20 Now, I have examined those statistics that are

 21 available on the Internet for the last ten years and I have

 22 presented them in the graphics that you have in front of you.

 23 You will see that in the last ten years, since October 9th,

 24 1996 to September 2006, 7,472 complaints were filed. They

 25 were filed overwhelmingly by complainants. Out of those



 38

 1 complainants, you will see there that only five complainants

 2 were filed by the chief circuit judge and nevertheless he's

 3 the person who works with all the circuit judges, he attends

 4 committees, he attends meetings of the judicial council, he

 5 attends annually -- actually twice a year, the meetings of the

 6 judicial conference of the United States. He sees what people

 7 do when they come into -- what they do and say when they go to

 8 judicial junkets and have no more inhibitions and,

 9 nevertheless, in spite of all that insider information that he

 10 gets, all the 13 circuit chief judges in the last ten years

 11 have identified five complaints, five complaints.

 12 Now, we have -- the Professor spent --

 13 THE COURT: As I understand the draft proposed rules,

 14 they are intended to meet the criticism that chief judges have

 15 been too reluctant to identify complaints and to appoint

 16 special committees.

 17 DR. CORDERO: Excellent. So, let's go --

 18 THE COURT: Your problem is that you think the chief

 19 circuit judge shouldn't be the one doing that.

 20 DR. CORDERO: That is one of the --

 21 THE COURT: It is really beyond the scope of this

 22 hearing.

 23 DR. CORDERO: No, no, Judge.

 24 THE COURT: Statute --

 25 DR. CORDERO: No, Judge Winter, I would like to go


 39

 1 back to the evidence because whatever comment they make, they

 2 may be irrelevant, I want to --

 3 THE COURT: The evidence is not only in your

 4 document. The evidence is in the Breyer report, too, and I

 5 take it the conclusion you're drawing is not an illegitimate

 6 conclusion that this should not be a self-regulatory process,

 7 but it shouldn't be done through the judiciary itself. I

 8 think that's a feeling that you share with others.

 9 All I'm saying is that you are not commenting on the

 10 rules; you are making comments suggesting that the statute

 11 itself ought to be amended and my committee has no

 12 jurisdiction whatsoever to do anything like that.

 13 DR. CORDERO: Well, for one thing, your committee

 14 could examine the evidence that is available and say -- state

 15 where they're applying the rules as they are drafted now would

 16 change in any way the situation that we have right now.

 17 You indicated whether the chief circuit judge should

 18 be one identifying complaint. Well, look what happened when

 19 they do identify complaints. On page three, on the first

 20 graph, you see that for nine years circuit chief judges had

 21 identified only five complaints. Then, all of a sudden, in

 22 2006, they identify 88 complaints. That is incredible.

 23 Now, what happened with those 88 complaints?

 24 Absolutely nothing. They were dismissed the same way all

 25 other complaints were dismissed. You can see, also, something



 40

 1 that is statistically impossible. For nine years the number

 2 of complaints filed by complainants over --

 3 THE COURT: I'll ask you once again what is it that

 4 you want the rules to do to remedy your perception of what --

 5 of something going wrong?

 6 DR. CORDERO: I will address that question because I

 7 think it is a fair question. I would like to simply finish
 8 with the analysis of the statistics because it is --

 9 THE COURT: Well, you've had almost 20 minutes. I'll

 10 give you another five minutes, but you certainly have to get

 11 to the rules and tell me something, tell the committee

 12 something about what rules you think ought to be drafted to

 13 implement the statute rather than attacking the statute.

 14 DR. CORDERO: Well, Judge Winter, I am not attacking

 15 the statute. I am attacking the usefulness of the rules. You

 16 began the hearing by asking whether the rules should be

 17 addressed to the chief circuit judge or to the complainant and

 18 I am indicating that it doesn't matter. This won't change

 19 anything.

 20 Also, I would like to point out that the Professor

 21 had 55 minutes to --

 22 THE COURT: You're not going to get 55 minutes,

 23 Dr. Cordero. The Professor was engaged in a useful discussion

 24 of the draft proposed rules. I have yet to get any concrete

 25 suggestion from you as to how the rules ought to be



 41

 1 redrafted.

 2 DR. CORDERO: The rules should be redrafted in such a

 3 way that complaints are made public, that the secrecy

 4 protecting judges is lifted, that the public know why is it

 5 that people are complaining so that one can establish a

 6 pattern of conduct on the part of judges, either on one judge

 7 because there are several complaints filed against him, or on

 8 the part of judges because they engage in coordinated judicial

 9 wrongdoing. Why would they not do that if there is no

 10 possibility that they will be disciplined?

 11 In this graph that I present on page three, of all

 12 the complaints that were filed during ten years, 7,462, how

 13 many people, how many judges were disciplined? Nine. Nine

 14 judges. That is less than one point one tenth of a percent.

 15 That means that however much we discuss here about the rules

 16 as they stand now, they're going to be fundamentally use
 17 because they mirror the rules that are now in effect and

 18 therefore they're going to have the same effect as the present

 19 rules. Based on the principle that they say they are the

 20 hallmark of rationality is to do the same thing, what,

 21 expecting a different result? Well, that applies here.

 22 THE COURT: One would have to qualify your assessment

 23 of the number of judges disciplined by noting that the act

 24 allowed informal methods of resolving things and there might

 25 well be a complaint that a judge through age or disease or



 42

 1 illness or other infirmity was no longer able to conduct the

 2 business of the office and it may well be that the chief

 3 circuit judge talked to that judge and the judge resigned and

 4 the complaint is dismissed without any evidence of discipline,

 5 but, also, would you tell me what is the number of

 6 disciplinary actions that one should expect every year under

 7 your system?

 8 DR. CORDERO: Judge Winter, I don't think anybody

 9 could answer that question because the answer --

 10 THE COURT: If you can't answer that question --

 11 DR. CORDERO: No, the answer --

 12 THE COURT: -- you can't using raw numbers alone say

 13 that the act isn't working. The Breyer Committee quite

 14 extensively went through the merits of many cases where

 15 discipline was not imposed or no special committee was

 16 appointed and the Breyer Committee was quite candid in

 17 concluding that the act had not been administered well in many

 18 of the serious cases. And that's one of the reasons we are

 19 now drafting rules that will bind chief circuit judges to

 20 doing things, but you're presenting me with nothing but raw

 21 numbers and I really can't draw a conclusion. I mean, where

 22 do you disagree with the Breyer report?

 23 Also, on confidentiality, I invite you to look at

 24 Section 360(a) of the statute. What you're attacking, what

 25 you're calling secrecy is in part at least in the statute.


 43

 1 DR. CORDERO: You talk about the Breyer report and

 2 the description of the members of the Breyer report. What was

 3 highlighted was that they had a lot of experience dealing with

 4 compliance. It is obvious that if people were assessing their

 5 own handling of those complaints, the outcome was going to be

 6 positive. So, the Breyer report was inherently bound to find

 7 that the handling of the complaints was appropriate because it

 8 was written by people that had a vested interest in reaching

 9 that finding.

 10 THE COURT: I think most people who have read the

 11 Breyer report have not come to the conclusion that it approves

 12 the implementation, that it regarded the implementation of the

 13 act as having been anywhere near perfection. I think most

 14 people who read the Breyer report find it to be quite critical

 15 of the judiciary.

 16 Okay, why don't you conclude with one or two more

 17 sentences and then I will call the next witness.

 18 DR. CORDERO: Judge Winter, I have more specific

 19 comments against -- on the rules and I would like to be able

 20 to --

 21 THE COURT: I'm asking you --

 22 DR. CORDERO: You see how many people are here. It

 23 is because the committee put the announcement of the hearing

 24 on only one single web site. Even the web site of the Supreme

 25 Court does not contain a notice of this hearing. This



 44

 1 hearing --

 2 THE COURT: The Supreme Court is not governed by the

 3 statute. The Supreme Court is beyond the statute. I'm sure

 4 that's why it isn't on their web site.

 5 All right, Dr. Cordero, if you would like to file a
 6 supplemental statement with the committee, you are welcome to

 7 do so, but thank you, that concludes your presentation.

 8 DR. CORDERO: Thank you.

 9 Next witness is Francis C.P. Knize.

 10 MR. KNIZE: Judge Winter, just let me change the

 11 tape.

 12 THE COURT: Okay.

 13 (Pause in proceedings.)

 14 MR. KNIZE: Hello. My name is Francis Knize and I'm

 15 a producer and --

 16 THE COURT: I apologize for mispronouncing your name,

 17 Mr. Knize.

 18 MR. KNIZE: That's quite all right.

 19 THE COURT: I want to welcome you here today. I have

 20 looked over, I've read your statement, and it will be part of

 21 the record of these hearings and you'll have ten minutes to

 22 summarize your statement to which I will add any interruptions

 23 that I make, time for that. Go ahead.

 24 MR. KNIZE: I thank you. I'm a producer, I've taken

 25 an interest in these hearings on behalf of the American public



 45

 1 and since we are a trickle up government that supposedly are

 2 represented by the people, the people believe that they have

 3 an interest in any kind of judicial oversight process.

 4 I start with a definition of constructive fraud and

 5 constructive fraud by Bovier's Law Dictionary 1856 Edition is

 6 as follows: Constructive fraud: A contract or act, which is

 7 -- which, not originating in evil design and contrivance to

 8 perpetuate a positive fraud or injury upon other persons, yet,

 9 by its necessary tendency to deceive or mislead them, or to

 10 violate a public or private confidence, or to impair or injure

 11 public interest, is deemed equally reprehensible with positive

 12 fraud, and therefore is prohibited by law. And since I only

 13 have ten minutes, I will cut out a lot of my presentation here

 14 and get to the point.
 15 In sum, in relation to the Ninth Amendment of the

 16 Constitution, the Ninth Amendment lends strong support to the

 17 view that, quote, unquote, liberty protected by the Fourteenth

 18 Amendments -- Fifth and Fourteenth Amendments from

 19 infringement by the federal government or states is not

 20 restricted to rights specifically mentioned in the first eight

 21 amendments. It was said that this category of fundamental

 22 rights includes those fundamental liberties that are implicit

 23 in the concept of ordered liberty, such that neither liberty

 24 nor justice would exist if they were sacrificed. That was in

 25 the Palko versus Connecticut case.



 46

 1 I will not state the numbers because there's not

 2 enough time, please, I ask the public to refer to the actual

 3 testimony on record. These hearings on judicial --

 4 THE COURT: Do you have any comments on the draft

 5 rules? I mean --

 6 MR. KNIZE: Absolutely. I agree with Dr. Cordero in

 7 that simply the omission of rules or the surrounding facts

 8 around -- concerning the rules are basis for a testimony and

 9 if the judiciary cares to hear public comment -- now, I'm not

 10 a lawyer, but I can tell you what I've heard from the American

 11 public at large. So, if I may continue?

 12 THE COURT: Sure, you may continue.

 13 MR. KNIZE: These hearings on judicial conduct stem

 14 from the 1980 judicial act which originally wasn't intended

 15 for, but did manage to immorally and by definition,

 16 fraudulently put judges above the law. For 27 years now,

 17 those who look to this branch of government for relief have

 18 been disappointed time and time again. They have been

 19 exacerbated in many instances by judges who threaten the very

 20 lives of those who petition their courts for relief. And our

 21 own former U.S. Attorney General John Ashcroft condemned the

 22 judicial branch of government by characterizing this branch as

 23 organized crime. And you can refer to the document on record
 24 as to his exact quote.

 25 But this is just the very tip of a very large iceberg



 47

 1 which each day gets worse, not better. Americans simply want

 2 the judicial conference to do something positive, act

 3 responsibly to remedy the harsh criticisms the judiciary has

 4 weathered. The judicial conference may have interest that not

 5 only has John Ashcroft has opined on such judicial crime, but

 6 other judicial officials have, as well, including but not

 7 limited to chief judge Edith Jones at the 5th Circuit Court of

 8 Appeals as follows:

 9 Corruption in the agencies charged with enforcing our

 10 laws not only threatens communities by allowing dangerous

 11 criminals to roam free, it also undermines the confidence of

 12 our citizens in law enforcement and the criminal justice

 13 system. The same is true with respect to judicial

 14 corruption. We must all, in our own countries, lead the fight

 15 to ensure integrity within our police and judicial systems.

 16 So, concerning these rules today, many in the public

 17 have expressed to me on behalf of my television series "In the

 18 Interest of Justice," that this document in itself shows an

 19 appearance of impropriety. Canon 2 implies judges shall avoid

 20 impropriety and the appearance of impropriety in all

 21 activities. That would include judicial conference activities

 22 concerning complaints against judges. The impropriety exists

 23 when judges are judging the judges. People perceive a lack of

 24 true oversight when men are the judges of their own causes and

 25 seem to form an illegal nobility. The recommendation from the



 48

 1 general public is that a fair and impartial tribunal of

 2 citizens should be the judges of misconduct accused of a

 3 judicial officer.
 4 And I go on, skipping some paragraphs. The illegal

 5 statement: Shocking to the universal sense of justice.

 6 Judges should not adjudicate hearings on complaints against a

 7 judge because it creates a quid pro quo situation where judges

 8 would tend to keep other judges off the hook for

 9 accountability. The judicial conference must incorporate,

 10 quote, unquote, the doctrine of judicial restraint and

 11 therefore accept restrictions on their conduct that might be

 12 viewed as burdensome by ordinary citizens and should do so

 13 freely and willingly, and that's out of Canon 2, as you well

 14 know.

 15 Having the gumption to produce a document as the one

 16 above shows the willingness of the judicial conference to

 17 forego the black letter of judicial ethics in order to

 18 maintain control over the rules and keep involvement by the

 19 public out of the process.

 20 The Constitution, in Article 1, Section 9, paragraph

 21 3, states no bill of attainder or ex post facto law shall be

 22 passed. The fact is it is perceivable that the rules

 23 governing judicial conduct are, in all practical effect, a

 24 bill of attainder or ex post facto law, and what I mean by

 25 that, the Constitution does not grant the kind of secrecy that



 49

 1 the judicial conference is giving its judges in the judiciary

 2 through the Judicial Conduct and Disability Act of 1980.

 3 And it does so by assigning a commission of partial

 4 parties to decide in favor of their peers. At least the

 5 appearance of that to the public from what I gather from

 6 talking to at least -- just hundreds of citizens around the

 7 country, due process rights concerning complaints against

 8 government agents must fairly be decided by an impartial jury

 9 of citizens because that is what is secured by the

 10 Constitution.

 11 And I cite some laws on the record that show

 12 reinforcement of that concept. Given that we philosophically
 13 are a trickle up government, whereby the government is by the

 14 people, rules 11 onward accomplish just the opposite, a

 15 nobility. Quote, a sovereignty itself is, of course, not

 16 subject to law for it is the author and source of law, but in

 17 our system while sovereign powers are delegated to the

 18 agencies of government, sovereignty itself remains with the

 19 people by whom and for whom the government exists and acts and

 20 that is Justice Matthews of the U.S. Supreme Court in the case

 21 of Yick Wo versus Hopkins.

 22 My main point today, if I have to emphasize a point,

 23 is that the problem is obvious when 99 percent of all

 24 complaints against judges are summarily dismissed. The public

 25 perceives a 99 percent dismissal of all complaints as a system



 50

 1 that is broken. The report "Implementation of Judicial

 2 Conduct and Disability Act of 1980," a report to the chief

 3 justice by the Breyer Commission concluding that the system

 4 works well is perceived as nothing more than a farce by the

 5 American public in light of such a high statistic for

 6 dismissal of complaints or ruling against complaints.

 7 The American Bar Association has shown through its

 8 polls that public confidence and trust is at an all time low

 9 and it is less than 30 percent. You have to look at different

 10 ratings they make that divide the average and it is running

 11 about 30 percent, so you can argue 40 percent, but in some

 12 areas of law it is starting at 20 percent confidence in the

 13 judiciary and the judicial conference must note these very

 14 pertinent polls done through the American Bar Association.

 15 There's a problem with the judiciary acknowledging

 16 its imperfections. Sooner or later a blow back effect will

 17 occur against the judiciary for suppressing the problem of

 18 judicial misconduct.

 19 America is demanding constitutionality by all three

 20 branches of the government. The Judiciary Act of 1801,

 21 Section 31, 6th Congress, Session 2, Chapter 4 is a preemptive
 22 congressional act section that prevents the judiciary from

 23 undue rule making. It is a legislative act that prohibits

 24 making regulations that are repugnant and repugnant to the

 25 Constitution for the public that doesn't know what that means.



 51

 1 Provided and the quote is in the ruling, quote,

 2 unquote, provided always that they are not repugnant to the

 3 laws of the United States.

 4 The draft rules of 19 -- of the 1980 Act are

 5 repugnant in that they don't afford an impartial hearing

 6 concerning complaints against judges and I'm going to cut

 7 through a lot of this, again, because I know I'm impinging

 8 upon --

 9 THE COURT: Are you suggesting that the committee had

 10 power to provide decision-makers other than judges in its

 11 rules?

 12 MR. KNIZE: Well, I think the judicial conference is

 13 a very powerful agency and that what they do --

 14 THE COURT: It would require action by the Congress

 15 of the United States, wouldn't it?

 16 MR. KNIZE: Obviously, the act has to go through the

 17 Congress. There has to be oversight, because it is a

 18 congressional act.

 19 THE COURT: What you're suggesting is something that

 20 simply -- you may be right, but what you're suggesting is

 21 something that would require legislation. It is totally

 22 beyond the jurisdiction of this committee.

 23 MR. KNIZE: Yes, but rule making should not be

 24 repugnant to the Constitution of the United States and that's

 25 how -- the appearance of impropriety for some of these rules



 52

 1 is apparent to many Americans and when the rules --
 2 THE COURT: I can well understand why there is doubt,

 3 why there is skepticism about a process, as there always is by

 4 any self-regulatory process, I can understand that, but these

 5 rules -- this committee does not have power to depart from the

 6 statute and the statute sets up a system that you don't like

 7 and I think you're just in the wrong forum. That's all.

 8 MR. KNIZE: I think whatever happens with the

 9 judiciary reflects upon the judiciary committees at both the

 10 house and the senate and there should be some cross talk.

 11 In fact, if I may, the report "Judicial Independence,

 12 Interdependence and Judicial Accountability: Management of

 13 the Courts from the Judges, Perspective, Institute for Court

 14 Management: Court Executive Development," a very prominent

 15 report of May 2006 just a little over a year ago, program

 16 phase three says on page 11 to answer your question, Justice

 17 Winter, a review of the separation of powers doctrine and the

 18 interbranch conflicts created will enhance the understanding

 19 of judicial independence. Separation of powers does not

 20 specifically mean creation of a barrier that positively

 21 prevents any connection or contact between the branches.

 22 Preferably it finds expression mainly in the existence of a

 23 balance among the branches, powers, in theory and in practice

 24 that makes it possible independence in the context of specific

 25 reciprocal supervision.



 53

 1 Although the judiciary is a independent coequal

 2 branch of government, the constitutional doctrine of

 3 separation of powers allows some overlap in the exercise of

 4 governmental functions. This overlap is sometimes referred to

 5 as the doctrine of overlapping functions. So, I think that

 6 pretty much explains that the judiciary itself by its highest

 7 judges through this report communicates to the world that

 8 there should be some sort of interbranch communication. Are.

 9 THE COURT: Would you wind up, please.

 10 MR. KNIZE: Winding up. Winding up. I -- the
 11 American public from my observation wants the judicial

 12 conference to add to the rules the following: Complaints are

 13 too often ignored by the judicial conference and it hardly

 14 ever gives notice to the movant. The citizens demand that

 15 once a complaint is filed an index number must immediately be

 16 issued by the ruling authority and that an official hearing

 17 must be granted within 30 days. That would be helpful. It

 18 would actually resolve a lot of problems that Dr. Cordero has

 19 brought up.

 20 I will conclude now with -- that the finding must

 21 address each of the specific allegations and be released

 22 publicly and put on the record. Canon 2 states public

 23 confidence in the judiciary is eroded by irresponsible or

 24 improper conduct by judges. A judge must avoid all

 25 impropriety and appearance of impropriety. A judge must



 54

 1 expect to be the subject of constant public scrutiny. So,

 2 that's par for the course that the public expresses its

 3 opinion through me today.

 4 And I also want to address one last point before I go

 5 that Dr. Cordero alluded to and I would like to say that the

 6 rules are dependent on the qualification that the judicial

 7 conference has set for misconduct. However, many in the

 8 public believe that breaking the law in itself is grounds for

 9 misconduct and that there's no discretion to ignore

 10 jurisdiction and there's many functions of a judge where

 11 discretion does not come to play where the judge must follow

 12 the law and time and time again judges are not following the

 13 law and when what I have experienced and what other Americans

 14 have experienced is that the other judges rally to protect the

 15 judge who broke the law and then it becomes a conspiracy, an

 16 ever building conspiracy and I have experienced this

 17 firsthand.

 18 I'm not here to talk about my case, but I could tell

 19 you that I have experienced this firsthand and it goes on and
 20 on and on and my next step is file some complaints with the

 21 judicial council and I wonder what's going to happen.

 22 So, on that note, I thank you very much. Thank you.

 23 If you have any other questions, I would be glad to

 24 answer them.

 25 THE COURT: Thank you. Thank you very much.



 55

 1 MR. KNIZE: Thank you, Justice winters.

 2 THE COURT: That concludes the hearing.

 3 UNIDENTIFIED SPEAKER: Would you permit further

 4 testimony from the public? I requested three-and-a-half weeks

 5 ago to be permitted to testify. I wish to address

 6 specifically the rules --

 7 THE COURT: I know of no such request.

 8 UNIDENTIFIED SPEAKER: I have it right here, E-mailed

 9 from the Administrative Office.

 10 THE COURT: If you will listen to me. Anyone who

 11 feels that they asked to testify, I would like to see the

 12 documents in which you asked to testify and see that they were

 13 filed in a timely fashion.

 14 Thank you.

 15 UNIDENTIFIED SPEAKER: I have it right here.

 16 THE COURT: You can send it to me.

 17 UNIDENTIFIED SPEAKER: I have a draft statement

 18 addressed to the rules, specifically the violations of the

 19 statute reflected in the rules with respect to merits

 20 related --

 21 THE COURT: The comment period on the rules is still

 22 open. It is open until October 15th. If you would like to

 23 comment on the rules, please, do so.

 24 UNIDENTIFIED SPEAKER: How?

 25 THE COURT: I'm not here to get in an argument


 56

 1 with the audience. I will have the room cleared if it

 2 starts.

 3 Thank you. The meeting is concluded.

 4 (Proceedings concluded.)

 5

 6

 7

 8

 9

 10

 11

 12

 13

 14

 15

 16

 17

 18

 19

 20

 21

 22

 23

 24

 25