November 3, 2014

Statement of Russell R. Wheeler

on

Proposed Amendments to Judicial Conference Rules for JudicialConduct and Judicial-Disability Proceedings 

Judge Scirica and Members of the Committee:

Thank you for the opportunity to comment on the proposed amendments. I have provided 

brief biographical and institutional information in the note below,

** but I speak only for 

myself in this statement.

With one partial exception, discussed below, I support five of the six major substantive

changes in the redlined draft: providing for review of chief judge and council orders 

when there is no complainant to seek such review; Conduct Committee review of any 

non-unanimous council order affirming a chief judge’s disposition of a complaint; on-line 

posting of all final orders (which I would amend further); precluding chief circuit judge 

participation in council review of his or her final orders; and, upon appointment of a 

special committee through final disposition of the matter, barring a chief judge who is the 

subject judge from participating in any Chapter 16 proceedings except as a subject judge. 

I agree with Professor Arthur Hellman that the amendment to Rule 21(c) is problematic: 

it would allow a council order to stand if, on a petition for Conduct Committee review, a 

disqualification produced a tie vote. More broadly, I agree generally with his statement’s 

analysis of and recommendations as to the red-lined version of the rules, while noting 

some alternative approaches.

By way of summary, this statement:

• particularly endorses two wording changes (making clear that refusal to cooperate in 

an investigation can be misconduct, and emphasizing the chief judge’s obligation not 

to find facts reasonably in dispute);

• proposes additional substantive changes to:

Rule 24(b)—suggesting that the rule direct chief judges and councils to denote nonroutine final orders posted on their courts’ websites and

Rule 28—suggesting that the Rule direct that complaint filing material be made 

prominently available on court websites’ homepages and that the complaint form give 

 

 This statement is a slight revision of one that I submitted to the Committee on Oct. 27, 2014.

** Visiting Fellow, Brookings Institution’s Governance Studies Program; President, The Governance Institute;

Adjunct Professor, Washington College of Law (American University). Former Deputy Director, Federal Judicial 

Center; provided staff assistance to the Report to the Chief Justice on Implementation of the Judicial Conduct and 

Disability Act of 1980” (the Breyer Committee). Author of various items about regulation of federal judicial ethics, 

most recently “A Primer on Regulating Federal Judicial Ethics,” 56 ARIZ. L. REV. 479 (2014).

Ph.D., University of Chicago (1970); B.A., Augustana College (Ill.), (1965)

rwheeler@brookings.edu; 202-797-6288
Statement of Russell Wheeler 2

November 3, 2014

the address for filing complaints. (The statement describes a survey I made of 200 

federal court websites in terms of the availability of such material.)

• comments on press misunderstandings of the principal judicial branch actors in the 

complaint process and proposes a modest amendment that might mitigate some of 

that misunderstanding.

I. Matters of Clarification and Emphasis

I particularly commend the committee for two non-substantive wording changes. A new 

Rule 3(h)(1)(H) specifies that cognizable misconduct includes “refusing, without good 

cause shown, to cooperate in the investigation of a complaint under these rules.” Section 

(h)(1)’s list of cognizable misconduct as originally promulgated and with these draft 

amendments makes clear that the list is not exhaustive. It is reasonable to assume that the 

behavior identified in new subsection (H) has always been cognizable misconduct, but 

the amendment makes that explicit for the same reason that another amendment makes

explicit that a judge’s retaliation against those involved in a complaint’s investigation is 

misconduct: “public confidence in the complaint process.” A judge’s cooperating with an 

investigation may be burdensome, but, as the commentary to Canon 2A of the Code of 

Conduct for United States Judges says, “A judge must expect to be the subject of 

constant public scrutiny and accept freely and willingly restrictions that might be viewed 

as burdensome by the ordinary citizen.”

I also commend the new sentence after Rule 11(b)’s admonition that in conducting the 

initial inquiry, “the chief judge must not determine any reasonably disputed issue.” The 

additional sentence emphasizes that the chief judge must leave any such determination to

a special committee and the circuit judicial council. Although the rule, both currently and 

with the proposed amendment, merely states what the Act itself makes clear at 28 U.S.C. 

§ 352 (a), there have been some instances in which chief judges appear to have dismissed 

or concluded complaints when they should have appointed special committees.

1

II. Providing Additional Information to the Public on How Complaints are Addressed 

Under the Act: Posting and “Publishing” Final Orders

The draft amendment to Rule 24(b) removes the option of making all final orders public 

solely by placing them in a public file in the court of appeals’ clerk’s office. The 

amendment would obligate chief judges and councils to post all orders on the respective 

court of appeals websites as well as maintain them in the clerk’s office. 

The change will free from “practical obscurity” orders that are now reasonably available 

only to individuals in proximity to the headquarters of a court of appeals. It is commonsense recognition that websites are now the preferred and most easily accessible location 

for making documents available for public inspection. Researchers, journalists, and 

others who wish to undertake quantitative analysis of all final orders (cross-tabulating, 

for example, the orders according to categories in Table S-22 of Judicial Business of the 

United States Courts) will now have ready access to the orders.

 

1

 See, e.g., Wheeler, supra note ** at 517-519 and Hellman, “When Judges Are Accused,” NOTRE DAME JJ.L.

ETHICS & PUB. POL’Y 325, 353-55 (2008)
Statement of Russell Wheeler 3

November 3, 2014

At the risk, however, of sounding ungrateful to the committee and to those councils that 

already post all orders on line, such posting by itself is an insufficient step to meet Rule 

24 (b)’s goal of “provid[ing] additional information to the public on how complaints are 

addressed under the Act.” 

The great majority of final orders are fairly routine, semi-boilerplate documents in which 

the chief judge dismisses the complaint for well-established reasons or the circuit council 

affirms such dismissals. A very few orders do not fit those descriptions—and are thus 

likely to be of general interest—but identifying those few out of all posted orders is a 

time-consuming and laborious process.

2 On the court of appeals/council websites that 

now post all orders, the user encounters a list of docket numbers, dates, and either a pdf 

of the order or a hyperlink to it. Some councils specify the orders’ source, i.e., chief judge 

or council, but don’t distinguish between the many council orders affirming chief judge 

dismissals and the few council orders that follow special committee investigations. 

Unless one knows (probably from press accounts) of a non-routine final order and has its

docket number or date, the only way to identify the very few that are exceptions to the 

routine dismissals is to open every order. 

I suggest amending Rule 24(b) further to require the councils to use a uniform method to

identify the exceptional orders:

Manner of Making Public: The orders described in (a) must be made public by 

placing the orders on the court’s public website and by placing them in a publicly 

accessible file in the office of the circuit clerk and by placing the orders on the 

court’s public website. An asterisk (*) should be used to designate any websiteposted order in which the chief judge concludes the proceeding (rather than dismisses the complaint) or appoints a special committee, and any order in which the 

chief judge or the judicial council provides what either believes is a new interpretation of statutory provisions or these Rules. The list of orders placed on the 

website must also identify the number of pages of each order. If the orders appear 

to have precedential value, the chief judge, in addition to placing them on the 

court’s public website, should may cause them to be published.

I suggest changes to the first sentence simply to recognize that online availability is today 

the dominant mode of availability. 

Professor Hellman proposes an alternative to my suggestion of using asterisks to denote 

exceptional orders and suggests a broader category of orders to be published. The

committee may find his proposal preferable. In any event, should you pursue the idea, I 

hope the revised rule will specify a single method, to facilitate inter-circuit analysis.

The reason to provide the number of pages of each order is this: The great majority of 

routine orders in any particular circuit vary little in their length (although the typical 

length of orders varies among circuits due to different formats and boilerplate language). 

Orders with pagination beyond the typical range for the particular circuit are more likely 

to be exceptional, including those with novel interpretations. Moreover, comparatively 

 

2

See Wheeler, supra note * at 513 and my testimony before the April 2013 hearing of the House Judiciary 

subcommittee of jurisdiction available at http://www.brookings.edu/research/testimony/2013/04/25-judicialconduct-disability-wheeler
Statement of Russell Wheeler 4

November 3, 2014

longer orders might call attention to chief judge final dismissal orders that might have

invaded the province of special committees and councils.

I suggest changes to the final sentence because I assume chief judges do not need the 

rules’ permission (“may cause”) to publish orders in the Federal Reporter and on-line

data bases, among others. Rather the rules should require publication of orders that the 

chief judge or council believe offer new interpretations of the Act or the rules. And the 

sentence in its original form may be confusing because it fails to clarify the distinction 

between placing an order on the court’s website and publishing the order.

III. Providing Additional Information to the Public on How Complaints are Addressed 

Under the Act: Other Matters

A. Readily Available Information on How to File a Complaint

The Rule 24(b) change proposed by the committee is in keeping with efforts over the last 

fifteen years or so to make the 1980 Act and its implementing mechanisms easier for the 

public to understand and to use responsibly. 

To that end, the Judicial Conference in 2002, responding in part to concerns of legislators

and on the recommendation of your previous, generally more passive incarnation, called 

on every court to include on its website a “prominent link” to the materials for filing a 

complaint. The Breyer Committee in 2006 recommended that judicial councils require all 

courts under their jurisdiction to provide information about filing a complaint on their 

respective websites’ homepages. 

Rule 28, however, is much less ambitious. Beyond directing courts to make the 

documents available in their clerks’ offices, it simply directs them to post the documents

on their websites or provide either a link to the documents on the respective court of 

appeals website or, with the Committee’s proposed amendment, a link to them on 

uscourts.gov. 

Requiring that courts display the material on their websites’ home pages, however, would 

not represent a radical departure from current practice. In late October 2014 I canvassed 

all court of appeals, district and bankruptcy court websites (as well as those of the Court 

of International Trade and Court of Federal Claims) to learn whether the judicial conduct 

material in question was available either on the homepage, or, if not, within one click 

(usually to a page such as “Court Information” or perhaps “Judges”). If the material was 

not on the homepage and did not appear within one click on any of the other locations 

where one might reasonably look for it, I regarded the website as not making the material 

adequately available.

This table on the next page summarizes the results; the note contains some caveats re the 

data.3

 

3

These data are instructive but may be imprecise; I coded them myself, but ideally another coder should 

have undertaken the same exercise to identify any discrepancies. And I did not use a standard protocol in 

both the 2009 and current inquiries, although both asked fairly simple questions. The small number of 

districts in some circuits makes circuit-specific percentages volatile.
Statement of Russell Wheeler 5

November 3, 2014

Judicial complaint material available:

On home-page With no more than 1 click

All courts (200) 111 (56%) 159 (80%)

Appellate, district, CIT (105) 56 (53%) 89 (85%)

Bankruptcy, CFC, terr. (95) 55 (58%) 70 (74%)

All but two courts of appeals make the material available on the homepage; those two 

post it within one click. The percentage of homepage availability by all courts within a 

circuit varied from 36% to 79%. The 2014 figures suggest a slight regression from the 

situation I found in 2009 as to courts with good-behavior tenured judges (the only ones I 

inspected then). In 2009, 69% of those courts put the material on their homepage and 

90% had it within one click, versus 53% and 85% respectively today. (To be clear, these 

findings only mean that the materials are not readily available on the other courts’ 

websites, not that they are necessarily out of compliance with Rule 28 as currently 

written,)

To bring Rule 28 in line with Judicial Conference policy and Breyer Committee 

recommendations, I suggest amending it further and adding Commentary. I have imposed 

my suggested language on the Rule as it would read with the Committee’s proposed 

changes in effect.

These Rules and copies of the complaint form as provided in Rule 6(a) must be 

available without charge in the office of each court of appeals, district court, 

bankruptcy court, or other federal court whose judges are subject to the Act. Each

court whose judges are subject to the Act must also make these Rules, the complaint 

form as provided in Rule 6(a), and complaint-filing instructions prominently 

available on the homepage of the court’s website or provide include on that 

homepage an prominent Internet link to those items on the appropriate court of 

appeals website or on www.uscourts.gov. The complaint form, whether available 

directly on a court’s website or by the link to the court of appeals website, should 

include the address to which to submit a complaint. These Rules and copies of the 

complaint form must also be available without charge in the office of the clerk of 

each court whose judges are subject to the Act.

Commentary on Rule 28

Rule 28 reflects Judicial Conference policy since 2002 that every court include on 

its website a “prominent link” to the materials for filing a complaint under the Act 

(JCUS Proceedings, 2002, at 58), as well as the Breyer Committee recommendation 

that the information be available on the homepage of the website (Chap. 6, item 6). 

As that committee said, “the judicial branch has a responsibility to inform the public about its operations, including the availability of this complaint procedure.” The 

committee also noted that its research staff could find no statistically significant 

relationship between complaints filed about the judges of any particular court and 

whether or not that court made the relevant information available on its website. 

The Breyer Committee also recommended that courts post a cautionary note to 

advise potential complainants that almost all complaints get dismissed because they 

are not in compliance with the Act, mainly because they are about judges’ judicial 
Statement of Russell Wheeler 6

November 3, 2014

decisions or offer no evidence to support the complaint. The full statement is 

available in the Breyer Committee report, Ch. 6 at Recommendation 6, and from the 

Judicial Conduct Committee staff.

In short, I suggest a merging of the Breyer Committee recommendations and those of the 

Conference—requiring courts not simply to display the material on the homepage but to 

display it there “prominently” (some homepages are so crowded that they obscure the 

judicial conduct links displayed there).

As with Rule 24(b), I recommend reversing the order in which the rule directs website 

posting and hard-copy availability because on-line availability is the preferred mode. (I 

also recommend revising the last sentence of the first paragraph on the complaint form.)

Requiring each circuit to show the filing address on the complaint form is a simple step to 

assist t would-be filers. I commend to your consideration the cover page to the electronic 

complaint form on the Second Circuit website (included as an appendix to this 

statement).

This change is consistent with Professor Hellman’s call for making the rules more user 

friendly. The complaint form in the Rules Appendix says that Rule 7 specifies “where to 

file a complaint;” Rule 7(a)(1) tells most complainants to file with “the circuit clerk.” 

Many complainants probably have no idea what a “circuit clerk” is and are likely to be 

puzzled why a complaint about, say, a bankruptcy judge must be filed somewhere other 

than, in this example, the bankruptcy court. (I don’t know, but I suspect clerks of district 

and bankruptcy courts receive complaints that they either forward to their circuit-level 

counterparts or return with instructions.) In keeping with this recommendation, my 

proposed language deletes the option of including a link to the material on the 

uscourts.gov site because it is, by definition, not circuit-specific.

This rules change, if adopted, will hardly ensure the ready availability of complaint-filing 

material. Courts adjust their websites periodically, and information can get discarded 

despite having been put there earlier in response to statutory or Judicial Conference 

mandates. Periodic monitoring and reminding (which I understand the Administrative 

Office and the Judicial Branch Committee undertake) is a necessary supplement to the 

rule. Your committee may wish to ask your staff to undertake similar monitoring.

B. Transparency in Official Disclosures

One barrier to transparency and public understanding of the complaint process stems

from the common but erroneous practice of referring to a court of appeals as a “circuit” 

and from the confusion, even among journalists who cover the courts, about the 

existence—much less the functions—of the circuit judicial councils. This confusion was 

highlighted by news reports about an “Announcement” posted August 12 on the website 

of the U.S. Court of Appeals for the Eleventh Circuit, noting public reports that a case 

was pending in state court involving a federal district judge who had been arrested on 

misdemeanor charges. The announcement stated that “all legal matters filed with the 

United States District Court for the Middle District of Alabama that are pending before 

Judge Fuller will be reassigned to other judges in accordance with standard procedures 

for the assignment of cases. No new legal matters will be assigned to Judge Fuller until 

further notice.”
Statement of Russell Wheeler 7

November 3, 2014

Statutory authority to remove a district judge’s cases and prohibit the assignment of new 

cases would seem to be the sole province of the circuit judicial council, perhaps under its 

“all necessary and appropriate orders” authority in 28 U.S.C. § 332(d)(1) or perhaps its

authority in 28 U.S.C. § 137 to divide the business of a district court whose judges cannot 

agree on such division.

The announcement, however, was on the letterhead of the court of appeals and, because it spoke 

in the passive voice, there is no indication, other than the letterhead, as to which body took the 

announced action, or why, other than the reference to press reports about the pending state court 

case. Nor is there any statement of the authority or underlying purpose for the action. In that 

light, it is not surprising that press coverage reflected confusion on two distinct points: why the 

judge’s docket was removed and who removed it and is now investigating the matter. 

Some reporters assumed, at least initially (and reasonably), that the judge’s docket was removed 

as a sanction stemming from his arrest. One press report cast the action as a sort of

impeachment-lite: “A federal judge is appointed for life and can be removed from the bench only 

after he is impeached and then tried by the U.S. Senate. But the appellate courts can take 

administrative steps to make a judge irrelevant—even temporarily—by taking away cases and 

limiting duties while he remains on the payroll.”4

As to who is investigating the matter, the report above named the “appellate court[ ].” Another 

said that “An appellate court has empanelled a committee to investigate U.S. District Judge Mark

Fuller . . . .”5 A legal newspaper that advertises itself as “the official legal organ of Fulton 

County”

6

said “Federal courts of appeals are supposed to make public how they deal with 

[misconduct complaints]. At the U.S. Court of Appeals for the Eleventh Circuit, where U.S. 

District Judge Mark Fuller's behavior is being investigated . . . .”7(The story later identified the 

council as the relevant actor, perhaps assuming that the council is an appendage of the court of 

appeals, a common reporting error even in cases without this one’s confusing announcement.8)

The national media similarly misreported the proceeding, such as “As for [Fuller’s] professional 

fate, it now lies in the hands of a federal appeals court in Atlanta.”9

That announcement is, as far as I know, a one-of-a-kind incident as to its specifics, but it 

emphasizes the importance of clarity and transparency in announcements about, or that may

appear to be about, disciplinary actions—especially if the Committee reacts favorably to 

Professor Hellman’s suggestion for greater disclosure of and about chief judge-identified 

 

4

 Cook, Federal judge’s cases reassigned due to pending domestic violence case, The Atlanta Journal-Constitution, 

Aug. 13, 2014, available at http://www.ajc.com/news/news/breaking-news/federal-judges-cases-reassigned-due-topending-dom/ng2br/

5 Visser, Committee to investigate domestic violence charge against judge, The Atlanta-Journal Constitution, Sept. 

30, 2014, available at http://www.ajc.com/news/news/committee-to-investigate-domestic-violence-charges/nhYpT/

6

 See http://www.dailyreportonline.com/?slreturn=20140915111638

7

Palmer, Gripes About Federal Bench: Banal to Bizarre (Fulton County) Daily Report, August 27, 2014 available at 

http://www.dailyreportonline.com/id=1202668133271/Gripes-About-Federal-Bench-Banal-to-Bizarre 

8

E.g., “The Judicial Council for the US Court of Appeals for the First Circuit in Boston has tapped Susan J. 

Goldberg as the new circuit executive, to oversee all administrative duties for the region’s federal appeals court.” 

Valencia, “Appeals Court Taps Goldberg as Chief Executive,’ BOSTON GLOBE, Oct. 15, 2014 available at 

http://www.bostonglobe.com/metro/2014/10/15/appeals-court-taps-goldberg-chiefexecutive/vBpQKgzcOBEdTDwaWBFuhN/story.html

9 Arenas, “Alabama Judge’s Spousal Abuse Case Has Some Seeking His Resignation,” CBS Evening News, Oct. 28, 

2014, available at http://www.cbsnews.com/news/judges-alleged-spousal-abuse-case-has-some-seeking-his-resignation/
Statement of Russell Wheeler 8

November 3, 2014

complaints based on published accusations or reports. I recognize that the misunderstanding at 

issue here may be comparatively minor, in the total scheme of public misunderstanding and lack 

of knowledge of how the judicial branch functions, and that it is not the judiciary’s job to ensure 

accurate press coverage. On the other hand, if it can take modest steps to promote accurate 

understanding of its functions, it makes sense to do so.

The committee might consider a new section (e) for Rule 24:

(e) Official public disclosures. Public announcements of actions of judicial branch 

bodies directed at individual judges or groups of judges that reasonable observers 

might regard as related to complaints of misconduct or disability must identify the 

acting body and the authority for the action.
Statement of Russell Wheeler 9

November 3, 2014

APPENDIX—COVER PAGE OF SECOND CIRCUIT COMPLAINT FORM

(copied from 

http://www.ca2.uscourts.gov/Docs/CE/Instructions%20and%20complaint%20form.pdf)

LOCAL INSTRUCTIONS

FOR COMPLAINTS FILED UNDER THE JUDICIAL CONDUCT AND DISABILITY

ACT OF 1980, 28 U.S.C. §§ 351-364

When filing a complaint, a complainant is encouraged to use the form provided on 

the court’s website. The complaint must be written and must include a brief statement of 

facts containing the information described in Rule 6. It also must comply with the following 

additional requirements:

1. A separate complaint, with the required number of copies, must be filed for each judge 

complained about.

2. The complainant must submit the following number of copies of each complaint:

court of appeals judge – original and 3 copies

district court or magistrate judge – original and 4 copies

bankruptcy judge – original and 5 copies.

3. The envelope must be marked “COMPLAINT OF DISABILITY” or 

“COMPLAINT OF MISCONDUCT,” and must not show the name of any judge (for 

further information see Rule 6(e)).

4. The Statement of Facts should not be longer than 5 pages (five sides).

Complaints should be mailed to:

Clerk of Court

United States Court of Appeals

Thurgood Marshall, U.S. Courthouse

40 Foley Square

New York, NY 10007