COMMITTEE ON JUDICIAL CONDUCT AND DISABILITY

Memorandum of Decision

INTRODUCTION

1 This Memorandum of Decision addresses a petition for review

2 of an order of the Judicial Council of the Ninth Circuit. The

3 Committee’s review is based on the delegation to it by the

4 Judicial Conference of the United States of the responsibility to

5 consider petitions addressed to the Judicial Conference for

6 review of circuit council actions under 28 U.S.C. § 357(a). 

7 Jurisdictional Statement of the Committee on Judicial Conduct and

8 Disability (As approved by the Executive Committee, effective

9 March 12, 2007), available at

10 http://www.uscourts.gov/judconf_jurisdictions.htm#Disability. 

11 See also 28 U.S.C. §§ 331 (authorizing the Judicial Conference to

12 establish a standing committee to review petitions), 357(b) (“The

13 Judicial Conference, or the standing committee established under

14 section 331, may grant a petition filed by a complainant or judge

15 under subsection (a).”).

16 In the order in question, dated March 21, 2007, the Judicial

17 Council adopted the findings and recommendations of a special

18 committee. Based on its investigation and an acknowledgment of

19 the district judge, the committee found that the judge had

20 engaged in a pattern and practice of not providing reasons for

21 his decisions when required to do so and that this pattern and

22 practice was misconduct. It recommended a private reprimand.

23 In a letter dated March 26, 2007, the original complainant

24 sought review by the Judicial Conference of the Judicial
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1 Council’s Order, arguing that the sanction of a private reprimand

2 was insufficient. For the reasons stated below, we grant the

3 petition, vacate the Judicial Council’s Order, and remand for

4 further consideration.

5 BACKGROUND

6 On July 18, 2006, the special committee wrote to the

7 district judge complained against and informed him of the scope

8 of the investigations. The committee interpreted the complaint

9 as alleging that the district judge had engaged in a pattern and

10 practice of abusing his judicial power by (i) refusing to follow,

11 or demonstating recalcitrance in following, court of appeals

12 orders; (ii) improperly taking jurisdiction of cases; and (iii)

13 failing to follow the law. In addition to four cases cited in

14 the original 2004 Complaint, the committee identified twenty15 three additional cases -- cases that had been remanded to the

16 district judge multiple times, or reassigned to a different judge

17 on remand -- that it felt might bear on the complaint. On July

18 25, 2006, the committee advised the district judge that it had

19 identified two additional cases for consideration.

20 On September 21, 2006, the committee notified the district

21 judge that it had analyzed the twenty-nine cases more thoroughly

22 and refined the issues, reducing the number of cases to be

23 considered to seventeen. The committee informed the district

24 judge that the cases presented the following issues: (i) refusal

25 to follow, or demonstrating recalcitrance in following, court of

26 appeals orders or directives; (ii) improper taking of
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1 jurisdiction over cases, or improper treatment of jurisdiction;

2 (iii) failure to provide reasons when required; (iv) improper

3 reliance on ex parte contact; and (v) abuse of authority.

4 The special committee held a hearing on November 8 and 9,

5 2006, at which testimony -- including testimony by the district

6 judge -- was heard, and exhibits were introduced. At the

7 conclusion of the hearing, the committee advised the district

8 judge that it was persuaded that there was no basis for finding

9 judicial misconduct with respect to many aspects of the

10 complaint. The committee, however, also stated that it intended

11 to investigate further whether the district judge had a pattern

12 or practice of “failing to state reasons” when either prevailing

13 law or a direction from the court of appeals in specific cases

14 required him to do so, and whether -- if established -- such a

15 pattern or practice would constitute judicial misconduct. [Tr.

16 11/9/06, pp. 92-93.]

17 Following the hearing, the committee decided to expand the

18 scope of its investigation of the “reasons” issue and identified

19 seventy-two additional cases that appeared to be relevant to the

20 investigations. In a December 18, 2006 letter to the district

21 judge, the committee described the expanded investigation and the

22 additional cases it would be considering.

23 After sending this letter, the committee entered discussions

24 with the district judge’s counsel about “expediting” the

25 investigation. The discussions resulted in the following

26 acknowledgment from the district judge:
1

 The judge’s acknowledgment is not a model of clarity. In

particular, it appears to acknowledge only that the special

committee has found his pattern and practice of not giving

reasons to be misconduct.

4

1 I realize that my failure in some cases to adequately

2 state my reasons for my decisions when this is required

3 by either prevailing law or direction from the Court of

4 Appeals causes additional expense and delay to the

5 litigants, and, therefore, is a pattern and practice that

6 the Committee has determined is misconduct because it is

7 prejudicial to the effective and expeditious

8 administration of the business of the courts. I hereby

9 commit to use my best efforts to adequately state reasons

when required in the future.1 10

11

12 Following this acknowledgment, the committee determined that

13 it was appropriate to treat the expanded investigation as a

14 separate complaint and to address it in a separate report. In

15 that February 14, 2007 report, the committee “decided to accept

16 the district judge’s acknowledgment [of misconduct]. Based on

17 that acknowledgment and on its own investigation, the Committee

18 unanimously [found] that the district judge had a pattern and

19 practice of not providing reasons when he was required to do so

20 and that this pattern and practice constitutes misconduct.”

21 [Special Committee Report at 7.] The committee unanimously

22 recommended a private reprimand as an appropriate sanction. [Id.

23 at 9.] The committee found that a sanction short of a private

24 reprimand was “not sufficient,” because the conduct of the

25 district judge was “manifestly prejudicial to the effective and

26 expeditious administration of the business of the courts, was

27 repeated and continued over a substantial period of time, caused

28 significant harm to litigants, and wasted judicial resources.” 
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1 [Id. at 9-10.] The committee found that a more severe sanction

2 was not warranted “based on the [Judicial Conduct and Disability

3 Act’s] non-punitive, corrective purpose, on the Committee’s

4 determination that most of the allegations of the 2004 Complaint

5 did not have merit, and on the district judge’s acknowledgment of

6 his misconduct . . . and his commitment to correcting that

7 behavior in the future.” [Id. at 10.] The Judicial Council’s

8 Order adopted the findings and recommendations of the special

9 committee in toto.

10 DISCUSSION

11 In a March 26, 2007 letter, the original complainant sought

12 review of the Judicial Council’s Order, arguing that the sanction

13 of a private reprimand was insufficient. Because we find that

14 two issues raised by the complaint -- explained more fully below

15 -- require the Judicial Council’s Order to be vacated, and the

16 case remanded for further consideration, we grant the petition.

17 First, we believe that the type of misconduct alleged in the

18 complaint may not be cognizable under the Act and, therefore,

19 requires further examination by the Judicial Council. A

20 complaint alleging only conduct "directly related to the merits

21 of a decision or procedural ruling" does not allege misconduct

22 within the meaning of the Act. 28 U.S.C. § 352(b)(1)(A)(ii). 

23 The misconduct procedure is not designed as a substitute for, or

24 supplement to, appeals or motions for reconsideration. Nor is it

25 designed to provide an avenue for collateral attacks or other

26 challenges to judges’ rulings. Id.; Implementation of the
2

 This district judge has not petitioned for review and thus

has not argued to the Committee the issues discussed. However,

given that the misconduct procedure is largely administrative and

inquisitorial, the Committee has discretion to follow the

mandates of the Act rather than apply ordinary waiver principles.

6

1 Judicial Conduct & Disability Act of 1980, A Report to the Chief

2 Justice, 239 F.R.D. 116, 239-40 (Sept. 2006) (“Breyer Committee

3 Report”).

This principle is of critical importance.2 4 The Act is

5 intended to further "the effective and expeditious administration

6 of the business of the courts." It would be entirely contrary to

7 that purpose to use a misconduct proceeding to obtain redress for 

8 -- or even criticism of -- the merits of a decision with which a

9 litigant or misconduct complainant disagrees. Adjudication is a

10 self-contained process governed by extensive statutory provisions

11 and rules of procedure. Inserting misconduct proceedings into

12 this process would cause these provisions and rules to be far

13 less “effective” and “expeditious.” Moreover, allowing judicial

14 decisions to be questioned in misconduct proceedings would

15 inevitably begin to affect the nature of those decisions and

16 would raise serious constitutional issues regarding judicial

17 independence under Article III of the Constitution. Judges

18 should render decisions according to their conscientiously held

19 views of prevailing law without fear of provoking a misconduct

20 investigation. Indeed, for these very reasons, judges have

21 absolute immunity from civil liability for their decisions,

22 Pierson v. Ray, 386 U.S. 547, 553-54 (1967), a principle fully

23 applicable to misconduct proceedings. 
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1 The present matter involves a reprimand for decisions

2 rendered without giving a statement of reasons. The failure of a

3 judge to give reasons for a decision is, in our view, a merits

4 issue regarding that decision. The merits of a decision and the

5 reasons given or not given for it are often inseparable. For

6 example, litigants seeking to overturn a decision often argue

7 that the decision violates existing law because inadequate

8 reasons have been given. United States v. Hirliman, 503 F.3d

9 212, 213 (2d Cir. 2007). If an appellate court finds that claim

10 to be correct, the decision will generally be vacated and the

11 case remanded for further proceedings that may result in a

12 different outcome. Id. at 215. However, it is often the case

13 that even when a statement of reasons is generally required, the

14 reasons for a particular decision are entirely obvious on the

15 record and would not benefit from an explicit recitation by the

16 judge. United States v. Travis, 294 F.3d 837, 841 (7th Cir.

17 2002) (“[W]e shall uphold a sentence imposed with an incomplete

18 statement, provided that a more than adequate foundation in the

19 record supports the district court’s findings.”) (internal

20 citation and quotation marks omitted). Given this context, the

21 giving or not giving of reasons for a particular decision, like

22 the reasons themselves, should not be the subject of a misconduct

23 proceeding. We have concluded that misconduct complaints

24 regarding the failure to give adequate reasons for a particular

25 decision are, absent more, not cognizable under the Act.

26 The Judicial Council appears to have recognized this issue
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1 by restricting its consideration to whether the district judge

2 had engaged in, and had acknowledged, a "pattern and practice" of

3 not giving reasons for his decisions when required to do so by

4 prevailing law or by the direction of the court of appeals in

5 particular cases. 

6 We agree that a judge’s pattern and practice of arbitrarily

7 and deliberately disregarding prevailing legal standards and

8 thereby causing expense and delay to litigants may be misconduct. 

9 However, the characterization of such behavior as misconduct is

10 fraught with dangers to judicial independence. Therefore, a

11 cognizable misconduct complaint based on allegations of a judge

12 not following prevailing law or the directions of a court of

13 appeals in particular cases must identify clear and convincing

14 evidence of willfulness, that is, clear and convincing evidence

15 of a judge's arbitrary and intentional departure from prevailing

16 law based on his or her disagreement with, or willful

17 indifference to, that law. 

18 We have concluded that this standard is necessary to ensure

19 that misconduct proceedings do not intrude upon judicial

20 independence by becoming a method of second-guessing judicial

21 decisions. For example, every experienced judge knows of cases

22 where the circumstances justifiably called for a decision that

23 was superficially at odds with precedent. This is because

24 although prevailing legal standards have large areas of clarity,

25 litigation often involves the borders of those areas. Breathing

26 room -- something more than a comparison of a judge’s ruling with
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1 a special committee’s or judicial council’s view of prevailing

2 legal standards -- must therefore be afforded. This standard,

3 requiring clear and convincing evidence of an arbitrary and

4 intentional departure from, or willful indifference to prevailing

5 law, provides that breathing room. 

6 In the present case, the Judicial Council made no express

7 finding of willfulness, and the district judge's letter also

8 fails to admit willfulness expressly. Therefore, we conclude

9 that we must return this matter to the Judicial Council of the

10 Ninth Circuit for further consideration of the facts of this case

11 under the above-articulated standard. Great care must be taken

12 in finding clear and convincing evidence of willfulness. To the

13 extent that such a finding is based simply on a large number of

14 cases in which reasons were not given when seemingly required by

15 prevailing law, the conduct must be virtually habitual to support

16 the required finding. However, if the judge has failed to give

17 reasons in particular cases after an appellate remand directing

18 that such reasons be given, a substantial number of such cases

19 may well be sufficient to support such a finding. Hirliman, 503

20 F.3d at 216-17. 

21 The second issue with which we are concerned is the sanction

22 imposed in this matter. The judge in question has very recently

23 been publicly sanctioned by the same Judicial Council in a

24 decision affirmed by this Committee. In affirming that decision,

25 we noted that the judge had persistently denied an impropriety in

26 the face of overwhelming evidence of an ex parte contact. We
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1 find that history to be relevant to the determination of an

2 appropriate sanction. Morever, the conduct alleged here, if

3 found willful, is very serious indeed. A private reprimand for

4 such conduct in the wake of a previous public remand for other

5 misconduct is not a sanction commensurate with the totality of

6 recent misconduct by this judge. Therefore, if the Council finds

7 willfulness, it should consider a more severe sanction, such as a

8 public censure or reprimand and an order that no further cases be

9 assigned to the judge for a particular period of time.

10 CONCLUSION

11 For the reasons discussed above, we grant the petition for

12 review. 

13 Respectfully Submitted,

14 Hon. Ralph K. Winter, Chair

15 Hon. Pasco M. Bowman II

16 Hon. Carolyn R. Dimmick*

17 Hon. Dolores K. Sloviter

18 Hon. Joseph A. DiClerico, Jr.

19

20

21

22

23

24

25 * Judge Dimmick has not participated in this proceeding, having

26 concluded, in her discretion, that the circumstances warranted

27 her disqualification. See Rule 25(a) of the Draft Rules

28 Governing Judicial Conduct and Disability Proceedings Undertaken

29 Pursuant to 28 U.S.C. §§ 351-364, current working draft available

30 at

31 http://www.uscourts.gov/library/judicialmisconduct/commentonrules

32 .html. 

33