D8 November 3, 2014 

Statement of 

Arthur D. Hellman

Sally Ann Semenko Endowed Chair

University of Pittsburgh School of Law

Judicial Conference of the United States

Committee on Judicial Conduct and Disability 

Hearing on 

Draft Amendments to 

Rules for Judicial-Conduct and Judicial-Disability Proceedings 

October 30, 2014
Hellman – Judicial Conduct Rules – Page ii

D8 November 3, 3014

Outline of Statement

Introduction ........................................................................................................................... 1

I. Background ......................................................................................................................... 2

A. The Judicial Conduct and Disability Act of 1980............................................... 2

B. The Illustrative Rules and the Judicial Improvements Act of 2002 ................ 3

C. The Breyer Committee Report and the 2008 Rules........................................ 4

D. Looking Ahead.......................................................................................................... 6

II. Policy Changes in the July 23 Draft .............................................................................. 7

A. Filling Gaps in the Availability of Review of Chief-Judge and Judicial-Council 

Orders.............................................................................................................. 8

B. Expanding Conduct Committee Review in “Track One” Cases.................... 9

C. Allowing Tie Votes in the Conduct Committee ............................................. 10

D. Requiring Electronic Posting of Final Orders................................................... 12

E. Assuring Independent Review of Chief-Judge Final Orders........................... 13

F. Mandating Disqualification of Circuit Chief Judge who is Under 

Investigation................................................................................................... 15

III. Dealing with the “High-Visibility” Complaint.......................................................... 16

A. Identifying Complaints Based on Public Reports............................................. 17

B. Disclosure of Proceedings.................................................................................... 18

C. Temporary Suspension from Judicial Duties.................................................... 20

D. Conclusion: Striking the Proper Balance .......................................................... 21

IV. Other Suggestions for Amendments to the Rules................................................. 22

A. Chief Judge’s Duty to Investigate Non-Public Allegations............................. 22

B. Judicial-Council Authority to Sanction Abusive Complainants..................... 23

C. Chief Judge’s Obligation to Appoint a Special Committee ........................... 25

D. Burden of Proof in Judicial-Council Factfinding............................................... 26

E. Judicial-Council Authority to Conclude a Proceeding .................................... 27

F. Disclosure of Vacated or Modified Orders....................................................... 29

1. Policy Considerations ............................................................................. 29
Hellman – Judicial Conduct Rules – Page iii

D8 November 3, 3014

2. Drafting Considerations......................................................................... 30

G. Developing a Body of Interpretive Precedent ................................................. 34

H. Disqualification of Judges from Chapter 16 Proceedings: the General Rule

.......................................................................................................................... 35

I. Availability of Rules and Forms............................................................................. 36

J. Making the Rules More User-Friendly................................................................. 37
D8 November 3, 2014 

Statement of 

Arthur D. Hellman

Judge Scirica and Members of the Committee: 

On September 2, 2014, your Committee issued a set of draft amendments 

(dated July 23, 2014) to the Rules for Judicial-Conduct and Judicial-Disability 

Proceedings adopted by the Judicial Conference of the United States in April 

2008. The announcement invited comments on the proposed amendments. This 

statement is submitted in response to that invitation.∗

Introduction

Even a casual glance at the redlined draft posted on the Judiciary website 

shows that the changes now being proposed are modest; they leave the 2008 

Rules largely intact. Many of the proposed amendments involve clarification or 

emphasis more than substance. 

In this statement I shall concentrate on policy issues. The statement is in 

four parts. Part I provides some background. Part II discusses the policy changes 

proposed by the Committee; I support all but one of these changes (sometimes 

with additional modest suggestions). Part III addresses the special problems raised 

by “high-visibility” complaints. Part IV suggests some additional modest revisions 

in the Rules and flags issues that warrant the Committee’s attention in the future.

First, a few words by way of personal background. I am a professor at the 

University of Pittsburgh School of Law, where I was appointed in 2005 as the 

inaugural holder of the Sally Ann Semenko Endowed Chair. I have been studying 

the operation of the federal courts for more than 30 years. My writings include 

two articles of particular relevance to today’s hearing. One is an overview of the 

regulation of federal judicial ethics.1 The other is an analysis of the current rules 

 

∗ I am grateful to Russell Wheeler of the Brookings Institution for numerous helpful 

comments on earlier drafts. Mr. Wheeler’s statement to the Committee expresses general 

agreement with “the analysis of and recommendations as to the red-lined version of the rules 

[in this statement], while noting some alternative approaches.”

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

Closed Doors, 69 U. Pitt. L. Rev. 189 (2007) [hereinafter Hellman, Judicial Ethics], available at 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015858.
Hellman – Judicial Conduct Rules – Page 2

D8 November 3, 3014

for judicial misconduct proceedings, published shortly after the rules were 

adopted by the judiciary.2

In addition to my academic writing, I have testified at several hearings of the 

House Judiciary Committee on various aspects of judicial ethics, including the 

2001 hearing that led to the enactment of the Judicial Improvements Act of 2002

and the 2009 hearing that preceded the impeachment of District Judge Samuel B. 

Kent. Most recently, in April 2013, I testified at a hearing on “An Examination of 

the Judicial Conduct and Disability System.” 

In the statement I submitted at the April 2013 hearing, I suggested some 

amendments to Title 28 of the United States Code.3 The substance of several of 

those statutory proposals has been incorporated into the Rules amendments 

now under consideration. That is a very positive development, and I welcome it. 

At the same time, for the reasons given in my April 2013 statement, I continue to 

believe that on some of the issues, optimal policy requires amendments to the 

governing statutes. Nevertheless, in this statement – submitted to a committee of 

the Judicial Conference – I shall concentrate on suggestions for revisions to the 

Rules. 

I. Background

Before turning to the proposed amendments, it will be useful to outline 

some of the background, with particular focus on the legislation, rules, and 

reports that preceded the adoption of the 2008 Rules.

A. The Judicial Conduct and Disability Act of 1980

For most of the nation’s history, the only formal mechanism for dealing with 

misconduct by federal judges was the cumbersome process of impeachment. The 

judicial councils of the circuits had some statutory authority to issue orders 

addressed to individual judges, but the extent of their authority was ill-defined 

and controversial.4

 

2 Arthur D. Hellman, When Judges Are Accused: An Initial Look at the New Federal Judicial 

Misconduct Rules, 22 Notre Dame J. L. Ethics & Pub. Pol. 325 (2008) [hereinafter Hellman, 

Misconduct Rules], available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1116703.

3 The statement is available at the House Judiciary website and on my SSRN author page. 

See Arthur D. Hellman, The Federal Judicial Conduct and Disability System: Unfinished Business 

for Congress and for the Judiciary, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2435287

[hereinafter Hellman, Unfinished Business].

4 See, e.g., Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74 (1969).
Hellman – Judicial Conduct Rules – Page 3

D8 November 3, 3014

That era ended with the enactment of the Judicial Councils Reform and 

Judicial Conduct and Disability Act of 1980 (1980 Act or Act). The 1980 Act was 

the product of compromise. Powerful members of the Senate favored a much 

more radical proposal, one that would have created a new national tribunal with 

power to remove judges who had committed serious misconduct. However, the 

Judiciary Committee leadership in the House was deeply skeptical of this 

approach, as were prominent representatives of the judiciary itself. Ultimately the 

two Houses agreed on a more modest measure.5 

The 1980 legislation adopted the basic framework of the system established 

by the Ninth Circuit in 1978 under the leadership of Chief Judge James R. 

Browning.6 This system included initial screening of complaints by the circuit chief 

judge, with investigation of serious matters to be carried out by a special 

committee that would report to the circuit council. In the 1980 Act Congress 

added several procedural protections to the system established by the judges; it 

also vested a limited but important review function in the Judicial Conference of 

the United States. In 1990, Congress adopted a modest package of amendments 

to the statute.

B. The Illustrative Rules and the Judicial Improvements Act of 2002 

The 1980 Act was quite specific on some matters (for example, 

consideration of the possibility of impeachment), but on others (notably the 

procedures to be followed in the early stages of routine cases) it spoke only in 

general terms. In 1986 a committee of chief circuit judges, assisted by the Federal 

Judicial Center, prepared a set of Illustrative Rules Governing Judicial Misconduct 

and Disability. These Rules addressed many procedural and substantive issues 

that were not resolved by the statute itself. A revised set of Illustrative Rules, 

accompanied by an extensive commentary, was promulgated by the 

 

5 A turning-point was the hearing held on July 13, 1979, by the Subcommittee on Courts, 

Civil Liberties, and the Administration of Justice of the House Judiciary Committee. The 

witnesses included Chief Judge James R. Browning of the Ninth Circuit, Judge J. Clifford Wallace 

of the Ninth Circuit Court of Appeals, and Judge Elmo Hunter of the Western District of 

Missouri, chairman of the Judicial Conference Committee on Court Administration.

6 See In re Charge of Judicial Misconduct, 593 F.2d 879, 880 n.* (9th Cir. 1979) (quoting 

Procedures for Processing Complaints of Judicial Misconduct); see also Chief Judge James R. 

Browning, [Report on the] State of the Circuit at 15-18 (July 24, 1979) (on file with the author). 
Hellman – Judicial Conduct Rules – Page 4

D8 November 3, 3014

Administrative Office of United States Courts in 2000.7 Most of the circuits 

adopted rules based on the Illustrative Rules.

The Illustrative Rules were brought to Congress’s attention in November 

2001 when a subcommittee of the House Judiciary Committee held an oversight 

hearing on the operation of the 1980 Act. Based on the record of that hearing, 

Chairman Coble and Ranking Member Berman introduced a bipartisan bill to 

further revise the statutory provisions governing the handling of misconduct 

complaints. The bill codified some of the procedures adopted by the judiciary 

through rulemaking; it also gave the misconduct provisions their own chapter 

(Chapter 16) in Title 28 of the United States Code. The bill was signed into law 

as the Judicial Improvements Act of 2002.8

In revising the law in 2002, Congress also had the benefit of research and 

analysis carried out under the auspices of the National Commission on Judicial 

Discipline and Removal. The Commission, created by an Act of Congress in 1990, 

published a thorough report as well as an extensive compilation of working 

papers.9

C. The Breyer Committee Report and the 2008 Rules

The 2002 Act moved through Congress with bipartisan support and no 

indication of any serious dissatisfaction with the way the judiciary was carrying 

out its responsibilities. Soon afterwards, however, rumblings of discontent began 

to be heard. At a meeting of the Judicial Conference in March 2004, 

Representative F. James Sensenbrenner of Wisconsin, the chairman of the House 

Judiciary Committee, lectured the judges about what he viewed as the “decidedly 

mixed record” of the judiciary in investigating alleged misconduct in its ranks. He 

warned that if the judiciary did not do a better job, “Congress will begin assessing 

 

7 Administrative Office of the United States Courts, Illustrative Rules Governing 

Complaints of Judicial Misconduct and Disability (2000) [hereinafter Illustrative Rules].

8 The legislation was enacted as part of the 21st Century Department of Justice 

Appropriations Authorization Act, Pub. L. No. 107-273. The standalone version was passed by 

the House in July 2002 as H.R. 3892. For the legislative history, see H.R. Rep. 107-459 (2002). 

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

265 (1993) [hereinafter National Commission Report].
Hellman – Judicial Conduct Rules – Page 5

D8 November 3, 3014

whether the disciplinary authority delegated to the Judiciary has been responsibly 

exercised and ought to continue.”10

In response to the Sensenbrenner remarks, Chief Justice William H. 

Rehnquist announced that he had appointed a committee to evaluate “the way in 

which the [1980 Act] is being implemented.”11 The committee was chaired by 

Justice Stephen G. Breyer; the other members were four experienced federal 

judges and the administrative assistant to the Chief Justice.

The Breyer Committee issued its report in September 2006.12 The 

Committee reached two major conclusions. First, it found that “chief circuit 

judges and judicial councils are doing a very good overall job in handling 

complaints filed under the Act.”13 Second, in separately assessing a set of “highvisibility cases,” the Committee found an “error rate” that was “far too high.”14

Drawing on its findings, the Committee provided extensive commentary on 

key statutory terms; it also made recommendations to all of the judiciary’s 

institutional actors in the misconduct process. Although the report does not have 

the status of law, it is treated in many respects as a primary document; chief 

judges and circuit councils look to its analysis for guidance in handling misconduct 

complaints.

The Judicial Conference acted quickly to follow up on the Breyer 

Committee’s recommendations. In March 2007, the Conference issued a series of 

directives to its newly renamed Committee on Judicial Conduct and Disability 

(Conduct Committee). The Conduct Committee responded with even greater 

celerity. In July 2007 the Committee published a draft of a comprehensive set of 

“Rules Governing Judicial Conduct and Disability Proceedings.”15 The draft drew 

 

10 F. James Sensenbrenner Jr., Remarks Before the U.S. Judicial Conference Regarding 

Congressional Oversight Responsibility of the Judiciary (March 16, 2004) (transcript available at

http://www.tulanelink.com/tulanelink/judicialoversight_box.htm).

11 Chief Justice Appoints Committee To Evaluate Judicial Discipline System, Third Branch, 

May 2004, at 8. 

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

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

[hereinafter Breyer Committee Report].

13 Id. at 206.

14 Id. at 123.

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

Proceedings Undertaken Pursuant to 28 U.S.C. §§ 351-364 – Draft for Public Comment 
Hellman – Judicial Conduct Rules – Page 6

D8 November 3, 3014

heavily on the Breyer Committee report, adopting much of its language in the 

rules and, even more, in the commentaries. The committee invited public 

comments on the draft and heard testimony at a public hearing. A revised draft 

was published in December 2007; further revisions were made in January and 

February 2008. 

The February draft was approved at the Conference’s regular meeting in 

March 2008.16 Unlike the Illustrative Rules, the 2008 rules “provide mandatory 

and nationally uniform provisions” that govern all misconduct proceedings in the 

circuits. Consistent with this directive, all of the circuits immediately adopted the 

Rules as their own. Now, for the first time since 2008, the Committee is 

considering possible amendments to those Rules. 

D. Looking Ahead

Two observations are suggested by this history. First, the evolution of the 

current system has been characterized by frequent, generally harmonious (but 

occasionally tense) interactions between Congress and the judiciary. For 

example, early in the process, Chief Judge Browning noted that the Ninth 

Circuit’s rules had been formulated “in the midst of the controversy” over the 

Senate bill and that they formed a basis for a “legislative alternative” to the 

centralized and “strictly adjudicatory” approach that had already been approved 

by the Senate. In 2002, when Congress revised the 1980 Act, it drew upon the 

rules and practices in the circuits. More recently, Chief Justice Rehnquist 

explicitly acknowledged that he had appointed the Breyer Committee in response 

to Chairman Sensenbrenner’s warnings. 

There is every reason to believe that this interaction will continue. As 

already mentioned, in April 2013 the House Judiciary Committee held a hearing 

on “An Examination of the Judicial Conduct and Disability System.” Members of 

the Judiciary Committee expressed great interest in assuring that the statute and 

the rules find the right balance between judicial independence and judicial 

accountability. 

 

(6/13/2007). Although the draft bears the date of June 13, 2007, it was not made available for 

public comment until July 16.

16 Rules for Judicial-Conduct and Judicial-Disability Proceedings (Mar. 11. 2008), available at 

http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/RulesAndPolicies/Misconduct/jud_conduct

_and_disability_308_app_B_rev.pdf [hereinafter 2008 Rules].
Hellman – Judicial Conduct Rules – Page 7

D8 November 3, 3014

Second, the 2008 Rules were drafted and put into final form within a very 

short time frame. Less than a year elapsed between the Judicial Conference 

directive that started the drafting process and the publication of the final version 

that the Conference adopted. It would not be surprising if there were room for 

improvement. 

The July 23 draft is a step in the right direction, but more can be done. 

Your Committee – following up on a recommendation by the Breyer Committee 

– has taken on a more robust role in overseeing the operation of the complaint 

process in the circuits. That oversight role should also include ongoing review of 

the Rules themselves, with amendments when the review reveals deficiencies. If 

some of the issues raised in this statement cannot be addressed as part of the 

current set of amendments, I ask that the Committee consider them in the next 

round of review. And I hope that that next round will begin sooner rather than 

later.

II. Policy Changes in the July 23 Draft

As already noted, most of the amendments in the July 23 draft involve 

clarification or emphasis. But I have identified six revisions that do reflect changes 

of policy from the 2008 Rules. Five of the six reflect sound policy; they will serve 

to enhance transparency and strengthen procedural regularity. Those 

amendments should be adopted by the Judicial Conference (some with additional 

modest changes suggested below). One proposed policy change – an amendment 

that would allow tie votes in the Conduct Committee on petitions for review – is 

unwise. I urge the Committee to reconsider it.

One amendment in the July 23 draft does not quite rise to the level of a 

policy change, but it involves more than clarification. This proposal deals with the 

procedures for review of judicial-council decisions by the Conduct Committee. 

The revision would amend Rule 22(c) to shorten the time for filing a petition 

from 63 to 42 days. I think that this change makes sense. In the general run of 

cases, six weeks is enough time for a complainant or judge to decide whether to 

seek review and to prepare the petition. And if review is not sought, the 

amendment will make the council’s decision available to the public that much 

sooner. However, it may be desirable to allow additional time in extraordinary 

circumstances – for example, when the proceeding involves a voluminous record. 
Hellman – Judicial Conduct Rules – Page 8

D8 November 3, 3014

A. Filling Gaps in the Availability of Review of Chief-Judge and Judicial-Council Orders

The 1980 Act and the 2008 rules established an elaborate system for review 

of final orders issued by chief judges and judicial councils. But experience has 

revealed two gaps in these arrangements. First, when a misconduct proceeding is 

initiated by action of the chief judge “identifying” a complaint rather than by the 

filing of a complaint, there is no provision for review of the final orders (save in 

the rare circumstance where the person aggrieved by the order is the judge who 

is the subject of the proceeding). This gap is especially troubling because these 

“identified” complaints can often involve “high-visibility” cases like those 

discussed by the Breyer Committee. Second, if, after accusations have surfaced in 

the news media, the accused judge (other than the chief judge of the circuit) files 

a complaint against himself or herself, there might not be an independent 

complainant who could file a petition for review.

The proposed amendments fill both of these gaps. A new sentence in Rule 

11(g)(3) provides that if a chief judge issues a final order on a complaint that was 

identified by the chief judge or filed by the subject judge, “the chief judge must 

transmit the order and supporting memorandum ... to the judicial council of the 

circuit for review in accordance with [the rules governing judicial council review 

when a petition is filed].” Similarly, a new sentence in Rule 20(f) provides that 

when the judicial council of the circuit takes action on a special committee report 

dealing with a complaint that was identified by the chief judge or filed by the 

subject judge, the council “must transmit the order and supporting memorandum 

to [the Conduct Committee] for review in accordance with [the rules governing 

Conduct Committee review when a petition is filed].”

These amendments codify a procedure adopted by then-Chief Judge 

Dolores Sloviter of the Third Circuit more than 20 years ago.17 Judge Sloviter 

received an anonymous complaint alleging that a judge allowed close relatives to 

practice before him and failed to disqualify himself when required to do so. She 

found that the allegations “would state a cognizable claim” under the Act, but she 

concluded the proceeding based on intervening events. She then noted that 

because the complainant was anonymous, the ordinary review process “may be 

pretermitted.” She therefore “invoke[d] a sua sponte petition for review” and 

directed the deputy clerk to send the relevant materials “to the members of the 

 

17 Anonymous v. Hon. [Name Redacted], J.C. No. 92-03 (3rd Cir. Judicial Council Mar. 4, 

1992) (on file with the author).
Hellman – Judicial Conduct Rules – Page 9

D8 November 3, 3014

Judicial Council with the request that they follow the ordinary review 

procedure.” The Judicial Council did as she requested. 

As far as I am aware, Chief Judge Sloviter’s order has never been published, 

nor has any other chief judge or circuit council “invoke[d] a sua sponte petition 

for review.” As a consequence, at least two high-visibility orders issued by circuit 

judicial councils escaped review by the Conduct Committee. One case involved 

Ninth Circuit Chief Judge Alex Kozinski; the other, Nevada District Judge James 

Mahan.18 If the proposed amendment is adopted, orders like these will be 

assured of review. The proposed amendment should be adopted by the Judicial 

Conference. 

B. Expanding Conduct Committee Review in “Track One” Cases

Like the model adopted by the Ninth Circuit in 1978, the 1980 Act and the 

2008 Rules create what is, in essence, a two-track system for handling complaints 

of judicial misconduct.19 In Track-One cases, the chief judge dismisses the 

complaint or concludes the proceeding, and the dissatisfied complainant can 

obtain review by the judicial council of the circuit. “Track Two” is a shorthand 

for cases in which the chief judge does not dismiss the complaint or conclude the 

proceeding. In Track-Two cases, the chief judge appoints a special committee; the 

judicial council takes action based on the special committee report; and the 

judicial council order is subject to review by the Conduct Committee.20

The overwhelming majority of cases are disposed of on Track One, with 

the judicial council affirming the chief judge’s order dismissing the complaint or 

concluding the proceeding. Rule 21(b) of the 2008 Rules authorizes a petition for 

review of these affirmance orders, but only when “one or more members of the 

judicial council dissented from the order on the ground that a special committee 

should be appointed.” Further, the Committee’s review is limited “to the issue of 

whether a special committee should be appointed.”

The July 23 redlined draft makes two small but not insignificant changes in 

this provision. Review would now be authorized whenever one or more 

 

18 For discussion of these cases, see Hellman, Unfinished Business, supra note 3, at 25-26.

19 Of course the Act and the Rules also govern complaints alleging disability on the part of 

a judge. In this statement, references to “misconduct” also encompass “disability” unless the 

context suggests otherwise. 

20 In the alternative, one might refer to the “chief judge track” and the “special committee 

track.” 
Hellman – Judicial Conduct Rules – Page 10

D8 November 3, 3014

members of the judicial council dissent from the affirmance order, whatever the 

ground of the dissent. Further, the Committee’s review would no longer be 

limited “to the issue of whether a special committee should be appointed.”

These are sensible changes. The fact that even one Article III judge has 

expressed dissatisfaction with the status quo created by a circuit council decision 

is surely sufficient to justify a second look by the Conduct Committee, 

irrespective of the grounds of the dissent. Nor is there any reason to constrain 

the Conduct Committee’s discretion to decide what kind of directive is most 

appropriate. 

So I support the proposed amendments. But I continue to believe that the 

review provisions initially adopted by the 2008 Rules, while sound as a matter of 

policy, cannot be reconciled with express prohibitions of review in the 1980 Act. 

I discussed this point in my statement at the April 2013 House Judiciary 

Committee hearing and will not repeat that discussion here.21

C. Allowing Tie Votes in the Conduct Committee

The Conduct Committee consists of seven members. But when the 

Committee considers a petition for review of a judicial-council order, Rule 21(c) 

provides that any member from the same circuit as the subject judge is 

disqualified from participation. Committee members may also recuse themselves 

for other reasons. Disqualifications can thus reduce the number of participating 

members to six or four, creating the possibility that the remaining members will 

divide equally in their vote. 

The 2008 Rules include two provisions designed to avoid tie votes. First, if 

only six members are qualified, the Committee will decide petitions for review by 

rotating panels of five. Second, if only four members are qualified, the Chief 

Justice must appoint an additional judge to consider that petition for review. 

The July 23 draft retains the second provision (with different language) but 

not the first. Instead, the draft would add this new provision: “If the qualified 

members are equally divided in their vote on a petition for review, the order of 

the judicial council will remain in force as though affirmed.”

In my view, this new provision is unwise, and I urge the Committee to 

reconsider it. Almost by definition, cases in which the six participating 

Committee members are divided three to three will be the most difficult and 

 

21 See Hellman, Unfinished Business, supra note 3, at 22-25.
Hellman – Judicial Conduct Rules – Page 11

D8 November 3, 3014

contentious cases brought for review. They are the cases in which a Conduct 

Committee ruling is most needed. Moreover, affirmance by operation of law 

(presumably without a Committee opinion) is likely to leave the public 

dissatisfied; depending on the nature of the judicial-council order, the subject 

judge may also feel a sense of incompleteness.22

In the federal judicial system, affirmance by an equally divided tribunal is 

used at the United States Supreme Court and by courts of appeals sitting en 

banc. But those are settings where there is no possibility of substituting another 

decision-maker for a judge who is recused. That is not true of the Conduct 

Committee, and there is no reason to adopt the practice. 

I can understand why the Committee might be dissatisfied with the current 

approach – rotating panels of five. Under that approach, one member, although 

not recused, is excluded from the committee’s deliberations in the particular 

case. And – unnecessarily – the exclusion breaks the continuity of deliberations 

between cases. 

The simplest solution is to provide that if only six members are qualified to 

vote, the Chief Justice must appoint a seventh judge (preferably a former member 

of the Committee) to consider that petition for review. The appointment should 

be made as soon as the disqualification becomes known. Waiting until an equal 

division materializes would require the temporarily assigned judge to join 

deliberations that are already in progress and – even worse – to break the 

deadlock between the two groups of three judges. 

Finally, although I have generally not commented on matters of drafting, two 

phrases in the proposed amendments to Rule 21(c) may cause confusion, and in 

the footnote I suggest some rewording.23

 

22 When a circuit council divided evenly on whether to enter an order of reprimand 

recommended by a special committee, the Conduct Committee said that because of the even 

split “the procedure [enacted by Congress] has broken down.” Phelps v. Kelly, No. 87-372-001 

(U.S. Jud. Conf. Comm. to Review Circuit Council Conduct & Disability Orders Aug. 4, 1987).

23 The draft amendments to Rule 21(c) include this sentence: “If the number of members 

qualified to consider a petition is not more than four, the Chief Justice must name a panel of five 

United States judges, including the qualified Committee members, to consider it.” To avoid 

negative phrasing, “not more than four” should be replaced by “four or fewer.” Also, I assume 

that the term “United States judges” is a reference to the term “judge of the United States” as 

defined in section 451 of Title 28 (“judges of the courts of appeals, district courts, Court of 

International Trade and any other court created by act of Congress, the judges of which are 

entitled to hold office during good behavior”). Because it is not a familiar term, I suggest using 
Hellman – Judicial Conduct Rules – Page 12

D8 November 3, 3014

D. Requiring Electronic Posting of Final Orders

Rule 24(b) of the 2008 Rules provides that final orders disposing of a 

complaint “must be made public by placing them in a publicly accessible file in the 

office of the circuit clerk or by placing such orders on the court’s public website.” 

(Emphasis added.) The July 23 redlined draft replaces “or” with “and.”

This change is long overdue.24 The ubiquity of the Internet has changed the 

popular understanding of document availability; in today’s world, availability 

usually means “available online.” Yet today, only seven of the 13 federal circuits 

post all final misconduct orders on their websites.

Comprehensive posting has one drawback, however: orders of general 

public interest (e.g. those that interpret the Code of Conduct or resolve a highvisibility complaint) are buried among the routine ones. The simple solution, as 

Russell Wheeler has suggested, is that chief judges and circuit councils should 

“identify which orders [they believe] to have precedential value as well as those 

that are otherwise unusual.”25 In his statement to this Committee, Mr. Wheeler 

has proposed that these orders should be designated with an asterisk. While that 

would accomplish the purpose, I think the preferable approach is to post the 

non-routine orders under a separate heading or on a separate page within the 

website. That is the system used by most of the federal courts of appeals for 

distinguishing between precedential and non-precedential opinions, and I think it 

would work equally well in this context. 

This suggestion can be implemented by revising the second sentence of Rule 

24(b). That sentence now provides: “If [misconduct] orders appear to have 

precedential value, the chief judge may cause them to be published.” But what 

would “publication” mean if all misconduct orders are posted on the circuit’s 

public website? Again, the court of appeals model provides the answer. Nonroutine orders would be designated as “for publication.” Such orders would then 

be posted under the separate heading or on the separate page. 

 

the term as it appears in section 451 and including a cross reference to that section, lest some 

read it to include magistrate judges and bankruptcy judges.

24 In his statement to this Committee, Russell Wheeler has recommended reversing the 

order in which the Rule directs website posting and hard-copy availability. I agree with that 

suggestion for the reasons Mr. Wheeler gives.

25 Russell Wheeler, A Primer on Regulating Federal Judicial Ethics, 56 Ariz. L. Rev. 479, 514 

(2014).
Hellman – Judicial Conduct Rules – Page 13

D8 November 3, 3014

Designating an order as “for publication” also means that the order will be 

published in the Federal Reporter and will be available in on-line databases like 

Westlaw and Lexis.26 That will promote Rule 24(b)’s goal of “provid[ing] ... 

information to the public on how complaints are addressed under the Act.” 

The Rules should also expand upon the criteria for designating orders as 

“for publication.” There are three kinds of circumstances in which publication will 

be desirable. First, of course, is precedential value. An order has value as 

precedent if it interprets the Judicial Code, the Rules, or the Code of Conduct 

for United States Judges. Second, publication is desirable if the complaint has 

been the subject of public reports.27 Third, an order will generally warrant 

publication if the procedural posture departs from the routine. This would 

include cases in which a special committee was appointed or the chief judge 

concluded the proceeding rather than dismissing the complaint. 

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

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

appropriateness of the disposition.28

E. Assuring Independent Review of Chief-Judge Final Orders

The pre-2008 Illustrative Rules contained a very strong prohibition against 

any participation by a chief judge in judicial council review of final orders issued 

by that chief judge under § 352. Rule 18(c) provided: 

If a petition for review of a chief judge’s order dismissing a complaint or 

concluding a proceeding is filed with the judicial council pursuant to [§ 352(c)], 

the chief judge who entered the order will not participate in the council’s 

consideration of the petition. In such a case, the chief judge may address a 

written communication to all of the members of the judicial council, with 

 

26 From 2008 to the present, about 50 misconduct orders have been published in the 

Federal Reporter; they are also available on Westlaw. All but a handful of these are from the 

Ninth Circuit. 

27 For discussion of what constitutes a “public report” in this context, see infra Part III-A. 

28 For an example of an order that does not meet this standard, see In re Complaint 

Against a Judicial Officer, No. 07-7-352-55 (7th Cir. Judicial Council Sept. 30, 2008). The twoparagraph order informs us that the chief judge appointed a special committee, and the 

committee carried out an investigation. The committee recommended that complaint be 

“dismissed as factually unsubstantiated and/or concluded based on voluntary corrective actions.” 

The circuit council accepted the recommendation. But the order gives no clue as to the 

substance of the allegations or what the special committee investigated. 
Hellman – Judicial Conduct Rules – Page 14

D8 November 3, 3014

copies provided to the complainant and to the judge complained about. The 

chief judge may not communicate with individual council members about the 

matter, either orally or in writing.

The commentary acknowledged that the question of chief judge participation had 

“engendered some disagreement,” but it explained why the mandatory

disqualification rule had been chosen: “We believe that such a policy is best 

calculated to assure complainants that their petitions will receive fair 

consideration.” 

Surprisingly, in the 2008 national Rules, this policy was reversed. Current 

Rule 25(c) provides that when a petition for review is filed, “the chief judge is not

disqualified from participating in the council's consideration of the petition.” 

(Emphasis added.) The commentary gives no explanation for the change.29

The July 23 draft would restore the pre-2008 policy by deleting the word 

“not” from the current Rule. I strongly endorse this change. Congress decided 

that a complainant dissatisfied with a chief judge’s final order should have one 

level of review as of right. Prohibiting the chief judge from participating in that 

review preserves the independence – and the appearance of independence – of

that second look. The proposed new policy also has the benefit of encouraging 

the chief judge to make sure that all relevant information is part of the formal 

written record.30

The July 23 draft does not include the provisions in the Illustrative Rules 

(quoted above) that defined and limited the methods by which the chief judge can 

communicate with the members of the judicial council in connection with the 

review process. I think the clarification was helpful, and I suggest that similar 

language be included in the revised Rule 25(c).

 

29 The initial draft of the national Rules, circulated for public comment in June 2007, 

retained the disqualification policy of the Illustrative Rules. The December 2007 draft, circulated 

after the public comment period, reversed the policy without explanation. Indeed, the 

commentary states (as it does in the final adopted version) that “Rule 25 is adapted from the 

Illustrative Rules.” 

30 The proposed amendment – unlike the current Rule – is also consistent with a 

Congressional directive whose substance has been part of the Judicial Code for more than a 

century: “No judge shall hear or determine an appeal from the decision of a case or issue tried

by him.” 28 U.S.C. § 47. I do not suggest that this provision applies of its own force to 

misconduct proceedings, but I think that the underlying rationale does. 
Hellman – Judicial Conduct Rules – Page 15

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F. Mandating Disqualification of Circuit Chief Judge who is Under Investigation

Rule 25(e) defines the scope of disqualification for judges who are the 

subject of an investigation by a special committee. The current rule disqualifies 

such judges only from participation in misconduct proceedings “as a member of 

any special committee, the judicial council of the circuit, the Judicial Conference 

of the United States, and the [Conduct Committee].” In contrast, the July 23 

draft rule states that a judge who is under investigation is disqualified from 

“participating in the identification or consideration of any complaint ... under the

Act or these Rules.” The draft commentary spells out the consequences of this 

broader prohibition: “the subject judge cannot initiate complaints by 

identification, conduct limited inquiries, or choose between dismissal and specialcommittee investigation as the threshold disposition of a complaint.”

These three functions are, of course, the functions performed by the chief 

judge (or acting chief judge). Thus, although the proposed revision never uses the 

term “chief judge,” its effect is to adopt a rule that a circuit chief judge should not 

be permitted to carry out his or her responsibilities under Chapter 16 while he 

or she is the subject of a special committee investigation under § 353.

I support this change. First, it is unseemly for a judge whose own conduct is 

under investigation for possible violation of ethical norms to be passing judgment 

on other judges who have been accused of misconduct. Second, as the 

commentary to the 2008 Rule states, “participation in proceedings arising under 

the Act ... by a judge who is the subject of a special committee investigation may 

lead to an appearance of self-interest in creating substantive and procedural 

precedents governing such proceedings.” This rationale is fully applicable to the 

chief judge’s unique responsibilities under the Act. And there is no way of telling 

in advance whether a particular misconduct complaint will raise issues that bear 

upon those involved in the chief judge’s own case.

So the proposed amendment to Rule 25(e) is an improvement over the 

current version. However, both versions fall short of what Title 28 requires. 

Section 359(a) states unequivocally that a judge who is the subject of a special 

committee investigation shall not “serve ... upon a judicial council, [or] upon the 

Judicial Conference.” The disqualification is not limited to the subject judge’s 

participation in misconduct proceedings.31 That, indeed, was the position taken in 

the pre-2008 Illustrative Rules. 

 

31 The House Report – the authoritative legislative history of the 1980 Act – is even more 

explicit on this point. It states: “The paragraph is clear in its mandate. ... [Its language] means 
Hellman – Judicial Conduct Rules – Page 16

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On the policy question, I agree with the position of the 2008 Rules: a judge 

who is under investigation should not be disqualified from participating in 

activities of the circuit council and the Judicial Conference that are unrelated to 

misconduct proceedings. But until the statute is amended, I see no escape from 

the broader disqualification rule. 

III. Dealing with the “High-Visibility” Complaint

As the Breyer Committee pointed out, public perceptions of the judiciary’s 

implementation of the 1980 Act are shaped almost entirely by the judiciary’s 

handling of “high-visibility” complaints – complaints that have “received national 

or regional press coverage” or have “brought public and legislative attention to 

the Act.”32 So it is vitally important to avoid slighting these complaints through 

conscious or unconscious “guild favoritism” (to use the Breyer Committee’s 

phrase).33 But concern about public perception of “guild favoritism” can carry its 

own risks. The danger is that the judiciary’s institutional actors, seeking to 

reassure the public that misconduct has not been swept under the rug, will act 

too swiftly or too severely in dealing with allegations that have received public 

attention.

The 2008 Rules include two provisions designed to address high-visibility 

situations. But these are not part of a comprehensive scheme, nor do they 

respond adequately to the exigencies of our 24-hour-news-cycle world. The July 

23 draft is unchanged in this respect.34

To some extent, this deficiency may be the consequence of constraints 

imposed by the 1980 Act. For that reason I would encourage the Committee to 

 

that during consideration and investigation of the complaint, any judge or magistrate whose 

misbehavior or disability is complained about cannot sit on the council or conference for any 

purpose whatsoever until the complaints have been definitely dealt with.” H.R. Rep. 96-1313 at14 

(1980) (emphasis added).

32 Breyer Committee Report, supra note 12, at 123, 173. The Breyer Committee described 

these “high-visibility” complaints in various ways. For discussion of how the relevant category 

should be identified, see infra section III-A. 

33 See Breyer Committee Report, supra note 12, at 119.

34 The July 23 draft includes two amendments that were apparently prompted by the highvisibility proceeding involving misconduct by former District Judge Richard E. Cebull. One 

amendment deals with circuit council authority to conclude a proceeding; the other, with 

publication of orders that have been vacated or modified. But the new provisions do not 

purport to address high-visibility situations, nor are they so limited. They are discussed infra Part 

IV-E and IV-F respectively. 
Hellman – Judicial Conduct Rules – Page 17

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support a modest package of amendments to Title 28.35 Here I will address the 

substance of measures that would enable chief judges and circuit councils to 

respond more effectively when allegations of possible misconduct surface in the 

media. The measures involve three possible actions: identifying a complaint, 

disclosing the steps that have been taken, and suspending the subject judge from 

his or her judicial duties. 

The Committee may wish to place these provisions in a separate Rule that 

specifies the obligations of chief judges and circuit councils when allegations of 

possible misconduct become public. Corporations today have plans and protocols 

in place to deal with public accusations of misconduct by their executives. I 

believe that the judiciary should be similarly proactive. 

A. Identifying Complaints Based on Public Reports

The Breyer Committee report encourages chief judges to make greater use 

of “their statutory authority to identify complaints when accusations become 

public.”36 This is a sound recommendation. If there is substance to the 

allegations, the public will be reassured that the judiciary is truly committed to 

policing misconduct in its ranks. If the allegations are without merit, the process 

will help to remove the cloud that would otherwise hang over the judge’s 

reputation.

But “accusations” is too narrow a word. Sometimes – as when a federal 

judge is arrested – there will be an actual “accusation.” More commonly, there 

will be only a report of conduct that the chief judge recognizes as possibly falling 

within the ambit of the Act. For example, in 2009 Chief Judge Frank H. 

Easterbrook of the Seventh Circuit “learned from a newspaper report” that a 

district judge had allowed live broadcasting of a civil proceeding. This action 

violated a judicial council resolution and a local rule, so Judge Easterbrook 

identified a complaint and initiated a proceeding under the Act.37

Rule 5 of the 2008 Rules defines the circumstances under which a chief 

judge may or must identify a complaint. But the Rule itself has no provisions that 

specifically address situations where “accusations become public.” And the 

 

35 Proposals for amending the statute are discussed in Hellman, Unfinished Business, supra 

note 3. 

36 Breyer Committee Report, supra note 12, at 245-46.

37 See In re Complaint Against District Judge Joe Billy McDade, No. 07-09-90083 (7th Cir. 

Jud. Council Sept. 28, 2009) (Easterbrook, C.J.).
Hellman – Judicial Conduct Rules – Page 18

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commentary has only a brief paragraph on “high-visibility situations,” saying that 

“it may be desirable for the chief judge to identify a complaint without first 

seeking an informal resolution ... in order to assure the public that the 

allegations have not been ignored.” (Emphasis added.) 

I believe that this point should be treated in the Rules, not just the 

commentary. Specifically: when allegations or reports of possible misconduct 

have become public, the chief judge should be required to identify a complaint, 

even if it seems clear that the complaint will be dismissed. This situation will not 

occur frequently, but when it does, there is nothing to be gained by leaving the 

assertions unrefuted, and much to be lost. That was the conclusion reached by 

the Breyer Committee, and I think that the Rules should be amended to reflect 

the Breyer Committee’s judgment. 

Questions will arise about when an allegation or report has become 

“public” in a way that should trigger the obligation to identify a complaint. Today, 

any individual with a grudge can start a website – or simply post comments on 

someone else’s blog. Does that make a report “public”? Not for this purpose. 

The Rules should adopt a functional approach: a report is “public” if it is 

published or posted in a print or electronic source in a way that could reasonably 

be expected to influence public perceptions of the regulation of ethics by the 

federal judiciary.

B. Disclosure of Proceedings

Except in the rare case where the Judicial Conference determines that 

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

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

or by the Judicial Conference to implement disciplinary action must be made 

available to the public. But unless the judge who is the subject of the accusation 

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

related to investigations conducted under [Chapter 16] shall be confidential and 

shall not be disclosed by any person in any proceeding.”38

Notwithstanding this language, the last sentence of Rule 23(a) now provides: 

“In extraordinary circumstances, a chief judge may disclose the existence of a 

proceeding under these Rules when necessary to maintain public confidence in 

 

38 28 U.S.C. § 360(a). As noted in the text, there is also a narrow exception for situations 

involving actual or potential impeachment proceedings. 
Hellman – Judicial Conduct Rules – Page 19

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the federal judiciary’s ability to redress misconduct or disability.”39 The policy 

underlying this provision is sound, and (preferably supported by an amendment to 

Title 28) it points the way to rules that would provide more specific guidance to 

chief judges. 

Preliminarily, I think the language just quoted sets too high a bar. There is 

no need to require “extraordinary circumstances.” And the Rule should 

authorize disclosures when “necessary or appropriate to maintain public 

confidence in the federal judiciary’s ability to redress misconduct or disability.” 

Specifically: when the chief judge identifies a complaint based on public 

allegations or reports of misconduct, the chief judge should announce that fact. If 

the chief judge appoints a special committee to consider the complaint, that 

decision too should be announced.40 There should also be an announcement 

when the filing of a complaint has become the subject of a public report and the 

chief judge appoints a special committee to consider the matter. These 

announcements will necessarily disclose two other important pieces of 

information – whether an acting chief judge is handling the matter and whether 

the complaint has been referred to another circuit under Rule 26.41

I see no need to mandate further disclosures beyond those already 

required. What would be useful, however, is for the Committee to provide 

guidelines to chief judges on other disclosures that are permitted under the Rules 

– for example, in response to media or Congressional inquiries about the status 

of an investigation that has been pending for an unusually long period of time. 

This prompts a further suggestion. The Rules – and court websites – should 

include introductory commentary that will provide some context for public 

disclosures in high-visibility cases. Currently, the commentary on court websites 

is aimed almost exclusively at discouraging the filing of frivolous complaints. That 

is important, but it is also important to explain how the system operates when a 

 

39 This provision was not included in the draft Rules that were circulated for public 

comment in July 2007. It was added in the December 2007 draft.

40 When Chief Justice Roberts transferred a complaint against Ninth Circuit Chief Judge 

Alex Kozinski to the Third Circuit Judicial Council, Chief Judge Anthony Scirica immediately 

announced the appointment of a special committee. The announcement identified the members 

of the committee. In contrast, in the Mark Fuller matter (discussed infra Part III-C), the public 

learned of the appointment of a special committee from comments to the media by the judge’s 

lawyer.

41 Implementing these suggestions would require modification of one of the proposed 

amendments in the July 23 draft. See infra Part IV-F-2.
Hellman – Judicial Conduct Rules – Page 20

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non-frivolous complaint is filed. Of course, no commentary can anticipate – let 

alone deflect – all possible misunderstandings. But when allegations of misconduct 

become the subject of public discussion, it will be helpful if there is a readily 

available source of information about the purposes and functions of the system, 

with emphasis on the importance of protecting judicial independence.

Finally, in his statement to this Committee, Russell Wheeler has suggested 

that when a judicial-branch body issues an order that reasonable observers might 

regard as related to a complaint of misconduct or disability, the order should 

specify who is taking action and what the authority for that action is. A 

requirement along those lines would be particularly valuable in high-visibility 

cases, and I agree that it should be incorporated into the Rules.

C. Temporary Suspension from Judicial Duties

Early in the morning of Sunday August 10, 2014, Judge Mark E. Fuller of the 

Middle District of Alabama was arrested in Atlanta on a misdemeanor battery 

charge involving domestic violence. Two days later, a notice appeared on the 

website of the Eleventh Circuit Court of Appeals announcing that all of Judge

Fuller’s cases had been reassigned to other judges, and that no legal matters 

would be assigned to him until further notice. The effect of this announcement 

was to suspend Judge Fuller from his judicial duties for an indefinite period of 

time. The announcement made clear that the suspension was linked to the arrest.

The lack of any explanation in the announcement leaves open the possibility 

that Judge Fuller was relieved of his judicial responsibilities at his own request.42

But it is also possible that the judicial council of the circuit imposed the 

suspension over Judge Fuller’s objection.43 And even if the judge took the 

initiative, the cryptic announcement could easily leave the impression that the 

suspension was disciplinary in nature. 

 

42 He might have made the request for a number of reasons. He may have felt that he 

could not carry out his judicial duties effectively with the stigma of the arrest hanging over him. 

He may have needed time to prepare fully for the criminal proceedings which he then 

anticipated. Or he may have believed that his actions that led to the arrest were the product of 

an illness or psychological disability that required treatment.

43 The announcement bears the letterhead of the Eleventh Circuit Court of Appeals, not 

the Judicial Council, but I am confident that no provision of law authorizes a court of appeals to 

suspend a district judge. I therefore assume that if the suspension resulted from an order, the 

order was issued by the Judicial Council, probably under the authority of 28 U.S.C. § 332. 
Hellman – Judicial Conduct Rules – Page 21

D8 November 3, 3014

Whatever the circumstances of this particular episode, suspending an 

Article III judge based on an arrest or accusation raises serious issues of authority 

and transparency that should not be left to improvisation by chief judges and 

circuit councils. If Article III judges are to face the possibility of suspension from 

judicial duties based on an arrest or an accusation, the Rules should specify, in as 

much detail as possible, the kind of misconduct that will justify a suspension, the 

evidentiary burden that must be satisfied, and the procedures to be followed.44 

Drafting those rules will be no easy task. At this early stage, I will suggest, 

tentatively, that a judge should be involuntarily stripped of his cases only if there 

is good reason to believe that the judge has engaged in conduct that could be 

grounds for impeachment. The decision should be made by the judicial council of 

the circuit, with immediate review available by the Conduct Committee. The 

chief judge should immediately appoint a special committee to investigate the 

accusations.

D. Conclusion: Striking the Proper Balance

Public reports alleging serious misconduct by a federal judge pose a unique 

challenge for the institutional judiciary. Justice Oliver Wendell Holmes famously 

warned about the “kind of hydraulic pressure” exerted by “some accident of 

immediate overwhelming interest which appeals to the feelings and distorts the 

judgment.” An allegation of misconduct by a public official or a public figure can 

readily generate the “kind of hydraulic pressure” to which Holmes referred. If 

political-branch officials or corporate boards succumb to such pressure, there 

may be unfairness to the individual involved, but there is no threat to an essential 

element of our governmental system. However, if the judicial branch allows itself 

to be swayed by the popular clamor aroused by a single “accident of immediate 

overwhelming interest,” there is a risk of eroding the independence of the 

judiciary in the longer term. 

At the same time, it is also important to avoid the appearance of 

“institutional favoritism” and to maintain “public confidence in the courts among 

reasonable people.” There is no magic formula for striking the proper balance, 

but the task will be made easier if the judiciary has adopted rules that constrain 

the discretion of chief judges and circuit councils. These rules should promote 

transparency and procedural regularity; they should be accompanied by 

 

44 Depending on the circumstances, there may well be a need for amendments to Title 

28. But this is not the forum to address questions of statutory authority.
Hellman – Judicial Conduct Rules – Page 22

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commentary that explicitly addresses the competing imperatives of independence 

and accountability. 

IV. Other Suggestions for Amendments to the Rules

As discussed in Part II, the proposed amendments in the July 23 draft 

include five policy changes that will enhance transparency and strengthen 

procedural regularity. But in my view the draft does not do all that it could – and 

should – to improve the administration of the 1980 Act. Here I suggest some 

additional amendments, applicable to complaints generally. I recognize that the 

Committee will not be able to consider all of these suggestions as part of the 

current round of revisions. But as stated earlier, I think the Committee should 

undertake an ongoing review of the Rules, and the issues raised here can serve as 

a useful starting-point for the next stage of that process. 45

A. Chief Judge’s Duty to Investigate Non-Public Allegations

For reasons discussed in Part III-A, the authority of the chief judge to 

identify a complaint plays a particularly important role when allegations of 

misconduct become public. But the utility of early intervention by the chief judge 

is not limited to “high-visibility” situations. On the contrary, when the chief judge 

receives private information suggesting that a judge has engaged in questionable 

behavior, responsive action may avoid the embarrassment and awkwardness of a 

public controversy. 

The current provisions of Rule 5 deal adequately with these non-public 

situations – with one exception. The Rule now states: “When a chief judge has 

 

45 The pending proceeding involving District Judge Mark E. Fuller, discussed supra Part IIIC, raises the question: when does off-the-bench activity fall within the ambit of the 1980 Act? 

Rule 3(h)(2) of the 2008 Rules states that “conduct occurring outside the performance of official 

duties” can justify discipline “if the conduct might [result in] a substantial and widespread 

lowering of public confidence in the courts among reasonable people.” But there is some 

evidence that the Act was not intended to cover extrajudicial conduct at all. For example, Judge 

J. Clifford Wallace of the Ninth Circuit, who was deeply involved in the development of the Act, 

see supra note 5, wrote in a 1995 order that “a judge’s personal conduct” is not within the 

scope of the Act. In re Charge of Judicial Misconduct, 62 F.3d 320, 322 (9th Cir. Judicial Council 

1995). A decade later, the Breyer Committee assumed that off-bench activity could “meet the 

statutory standard,” but it cited no authority. See Breyer Committee Report, supra note 12, at 

241. I do not pursue the matter here, but I think it is worth some attention from the 

Committee. For a useful discussion, with citations, see In re Charge of Judicial Misconduct, No. 

06-9056-jm (2nd Cir. Judicial Council Dec. 14, 2007) (Jacobs, C.J.), 

http://www.ca2.uscourts.gov/Docs/CE/06-9056-jm.pdf.
Hellman – Judicial Conduct Rules – Page 23

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information constituting reasonable grounds for inquiry into whether a covered 

judge has engaged in misconduct or has a disability, the chief judge may conduct 

an inquiry, as he or she deems appropriate, into the accuracy of the information 

even if no related complaint has been filed.” (Emphasis added.)

In my view, this language makes it too easy for the chief judge to do nothing 

in the face of evidence pointing to possible misconduct or disability. It is 

important to emphasize that we are not dealing here with the standard for 

identifying a complaint and thus initiating the formal process under Chapter 16. 

The Commentary to the Rule explains persuasively why a chief judge should be 

accorded some discretion at that stage: “[t]he matter may be trivial and isolated, 

based on marginal evidence, or otherwise highly unlikely to lead to a [finding of 

misconduct].”

But that rationale does not apply at this earlier stage. On the contrary, in 

order to determine whether any of the specified circumstances exist, the chief 

judge must conduct some sort of inquiry. (For example, the chief judge might 

informally ask the district chief judge to look into the matter.) Thus, I would 

replace the “may” in the opening sentence of the Rule with “must” or “should.” I 

would also make clear that the inquiry should encompass not only “the accuracy 

of the information,” but also whether that information could lead a reasonable 

observer to think that misconduct might have occurred.

In offering this suggestion, I do not minimize the value of informal measures, 

particularly when the allegations point to disability rather than misconduct. This 

point was made by Chief Judge Browning in 1979 when the House Judiciary 

Committee was considering the legislation that ultimately became the 1980 Act, 

and it remains valid today. But informal measures require that someone take the 

initiative, and under the Act that responsibility falls to the circuit chief judge. 

B. Judicial-Council Authority to Sanction Abusive Complainants

Rule 10(a) provides that a complainant who has “abused the complaint 

procedure” (for example, by filing repetitive or frivolous complaints) may be 

restricted or even prohibited from filing further complaints.46 In at least three 

instances, however, the Judicial Council of the Ninth Circuit has gone further 

than restricting the right to file. On two occasions, the council issued a “public 

 

46 Before restricting the right to file, the circuit council must give the complainant an 

“opportunity to show cause” why the limitation should not be imposed.
Hellman – Judicial Conduct Rules – Page 24

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reprimand” of a lawyer complainant.47 These reprimands were published in 

West’s Federal Reporter. In another case, the council imposed a fine of $1,000 

on a non-lawyer complainant.48

Some abuses of the complaint process may perhaps be so egregious that 

sanctions more severe than filing restrictions are warranted. If that is the view of 

the Conduct Committee and the Judicial Conference, the Rules should be 

amended to provide explicit authorization for such sanctions. I also suggest that 

when a judicial council imposes sanctions that go beyond a filing restriction, the 

complainant should have a right of review by the Conduct Committee. This 

added level of scrutiny – by a group of judges outside the circuit of the accused 

judge – will provide some assurance that the sanctions are not excessive and 

were imposed through fair procedures.

On the other hand, if the Conduct Committee and the Judicial Conference 

believe that the sanctions now specified in Rule 10(a) are sufficient, the Rule 

should be amended to make clear that no other sanctions may be imposed on 

abusive complainants. 

I incline towards this latter view. In part, this is because it is not clear that 

circuit councils have statutory authority to impose sanctions such as a monetary 

fine.49 The Ninth Circuit Judicial Council, in the orders mentioned above, did not 

cite any statutory authority.50 Section 332 authorizes circuit councils to make “all 

necessary and appropriate orders for the effective and expeditious administration 

of justice within [the] circuit,” but the statute goes on to say that “[a]ll judicial 

officers and employees of the circuit” must “promptly carry into effect” the council’s 

orders; there is no mention of orders directed to anyone else. Federal courts

have “inherent powers,” including the power to impose sanctions, but judicial 

councils are not “courts.”51 In the absence of clear statutory authority, it would 

 

47 See In re Complaint of Judicial Misconduct, 550 F.3d 769 (9th Cir. Jud. Council 2008); In 

re Complaint of Judicial Misconduct, 623 F.3d 1101, 1102-03 (9th Cir. Jud. Council 2010).

48 In re Complaint of Judicial Misconduct, 601 F.3d 1005 (9th Cir. Jud. Council 2010).

49 I am indebted to Russell Wheeler for calling this point to my attention. 

50 In the “order to show cause” that preceded the levy of the fine, Chief Judge Kozinski 

cited one Ninth Circuit Judicial Council order, but that order imposed only a pre-filing 

restriction. In re Complaint of Judicial Misconduct, 579 F.3d 1062, 1065 (9th Cir. Judicial 

Council 2009).

51 See Chambers v. Nasco, Inc., 501 U.S. 32, 42-51 (1991) (referring repeatedly to “courts” 

and “Courts of justice”).
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be preferable to amend Rule 10 to make clear that the sanctions now listed are 

the only ones that may be imposed. 

C. Chief Judge’s Obligation to Appoint a Special Committee

If there is any single defect that has marred the judiciary’s record in 

administering the 1980 Act, it is the failure of chief judges to appoint special 

committees in the face of genuine disputes over facts or their interpretation. 

Both Congress and the judiciary have taken steps to address this problem. The 

2002 revision of the Act added a provision, drawn from the Illustrative Rules, 

stating: “The chief judge shall not undertake to make findings of fact about any 

matter that is reasonably in dispute.” The 2008 Rules added a provision, already 

discussed, that authorizes limited review by the Conduct Committee when the 

circuit council affirms a chief judge’s order dismissing a complaint or concluding 

the proceeding rather than appointing a special committee.52

The July 23 draft adds some language by way of emphasis to Rule 11(b), and 

that is a step in the right direction. But the draft does not otherwise seek to 

clarify or delineate the limitations on the chief judge’s authority to dismiss a 

complaint or conclude a proceeding. I think more is needed. For example, the 

Rule should make clear that the chief judge may not dismiss a complaint on the 

ground of insufficient evidence without communicating with all persons who 

might reasonably be thought to have knowledge of – or evidence about – the

matter.53 In addition, the Rule itself – not simply the commentary – should 

remind the chief judge that even if the facts are undisputed, a special committee is 

required as long as there are “reasonably disputed issues as to whether [those 

facts] constitute misconduct or disability.”

I have discussed this point in greater detail elsewhere.54 Here I will add that 

the Committee’s experience in carrying out its oversight role over the last few 

years may help the Committee to formulate other directives that would further 

define the “limited inquiry” contemplated by Chapter 16. For example, in 2012 

the Committee suggested to the chief judge of the Tenth Circuit that she reopen 

 

52 See supra Part II-B.

53 The Commentary does say (in the course of presenting a lengthy example) that “if 

potential witnesses who are reasonably accessible have not been questioned, then the matter

remains reasonably in dispute.” 2008 Rules, supra note 16, at 15 (cmt). But the point is 

important enough that it should be part of the Rule itself.

54 See Hellman, Misconduct Rules, supra note 2, at 351-55.
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a complaint alleging disability on the part of a judge.55 What was there about the 

record of the initial proceeding that alerted the Committee to the desirability of 

additional investigation?

D. Burden of Proof in Judicial-Council Factfinding

In a decision made public this month, the Judicial Council of the District of 

Columbia Circuit noted that neither the 1980 Act nor the 2008 Rules “expressly 

indicates what burden of proof a judicial council should apply in its factfinding in a 

judicial misconduct proceeding.”56 The Council found one provision in the Rules 

suggesting indirectly that “the standard must at least be preponderance of the 

evidence.”57 But the opinion pointed out that in the “analogous context of 

attorney disciplinary proceedings,” most jurisdictions require that misconduct be 

established “by clear and convincing evidence.” The Council found no need to 

choose between the two standards, because the disposition would be the same 

under either one. But sooner or later a case will arise where the burden of proof 

does make a difference. 

The answer is not obvious. Although the D.C. Circuit Council looked for 

guidance in rules governing attorney disciplinary proceedings, it did not consider 

what would seem to be a closer analogy: judicial disciplinary proceedings in the 

states. Unfortunately, no clear answer can be found there either. As the leading 

treatise comments, “many courts base their decisions on whether or not the 

proceeding is of a criminal nature.”58 That is a rather abstract way of approaching 

the problem.

Policy arguments can be made on both sides. On the one hand, a finding of 

misconduct is a serious stain on a judge’s reputation.59 One can argue that a 

 

55 See In Re Complaint Under the Judicial Conduct and Disability Act, No. 10-10-90056 

(10th Cir. Judicial Council Jan. 15, 2014). 

56 In re Charges of Judicial Misconduct, No. DC-13-90021 at 9 (D.C. Cir. Judicial Council 

Aug. 12, 2014) (Special Committee report). 

57 The Council cited Rule 20(b)(1)(A)(iii), which states that a judicial council may dismiss a 

complaint because “the facts on which the complaint is based have not been established.” 

(Emphasis added by the council.) 

58 Geyh et al., Judicial Conduct and Ethics § 12.08 (5th ed. 2013).

59 I vividly remember that when the House Judiciary Committee held a hearing to consider 

the possible impeachment of Judge Manuel Real, Judge Real proudly told the Committee, “I have 

never been sanctioned for any type of judicial misconduct.” He could not say that today. See In 

re Committee on Judicial Conduct and Disability, 517 F.3d 563 (U.S. Jud. Conf. 2008). 
Hellman – Judicial Conduct Rules – Page 27

D8 November 3, 3014

judge should not be stigmatized in that way on the basis of a mere 

preponderance of the evidence. On the other hand, it might also be troubling to 

see a judicial council saying that even if it is more likely than not that a judge 

engaged in misconduct, the complaint will be dismissed because the evidence is 

not clear and convincing. 

At least one judicial council, without discussing the burden of proof, has 

dismissed a complaint upon finding that the allegations “were not supported by 

clear and convincing evidence.”60 Now that the D.C. Circuit Council has flagged 

the issue publicly, I think the Committee should include it on its agenda for 

review of the Rules. 

The D.C. Circuit Council decision also illustrates why it is a good idea for 

the Conduct Committee to make available, as Rule 24(b) contemplates, a 

compilation of “illustrative orders” that will demonstrate “how complaints are 

addressed under the Act.” Even if the Conduct Committee adopts a rule on 

burden of proof (and certainly until it does), councils will benefit from a readily 

available assemblage of orders of other circuits that develop and apply burden of 

proof standards.61

E. Judicial-Council Authority to Conclude a Proceeding

Rule 20(b)(1) lists the actions that a judicial council may take after 

considering the report of a special committee. Among other possibilities, the 

judicial council may “conclude the proceeding because appropriate corrective 

action has been taken or intervening events have made the proceeding 

unnecessary.” The July 23 draft adds new language – Rule 20 (b)(3) – whose 

import is to preclude the council from concluding the proceeding after “it has 

issued a final decision on the merits” following the appointment of a special 

committee. 

I assume that the purpose of this new language is to codify the 

interpretation of current law that the Conduct Committee applied in its ruling on 

the complaint against District Judge Richard Cebull.62 But even assuming the 

 

60 In re Complaint of Judicial Misconduct, No. 93-6-372-14 (6th Cir. Judicial Council Nov. 

10, 1993) (on file with the author). 

61 For discussion of the compilation described in Rule 24(b), see infra Part IV-G.

62 For that reason, I do not treat the language (or the amendment to Rule 24(a) discussed 

immediately below) as a change of policy. See In re Complaint of Judicial Misconduct, 751 F.3d 

611, 617 (U.S. Jud. Conf. Comm. on Judicial Conduct & Disability 2014).
Hellman – Judicial Conduct Rules – Page 28

D8 November 3, 3014

soundness of that ruling, I do not think it is a good idea to impose an absolute 

prohibition against concluding a proceeding after the circuit council has issued a 

final decision on the merits.

Consider this hypothetical. The circuit chief judge receives a private 

communication alleging that District Judge Smith is behaving erratically and that 

this may be the consequence of medication the judge is taking for a chronic pain 

condition. The chief judge identifies a complaint and appoints a special committee, 

which finds that Judge Smith is indeed impaired in the performance of his judicial 

duties by reason of the medication. The chief judge urges Judge Smith to accept 

voluntary retirement under 28 U.S.C. § 354(a)(2)(B)(ii), but Judge Smith insists 

that his condition is only temporary. Reluctantly, the circuit council issues an 

order certifying disability under § 354(a)(2)(B)(i). But the order is not made 

public, because Judge Smith can seek review. Two weeks later – before the time 

for appeal has passed – Judge Smith changes his mind and accepts voluntary 

retirement. 

I think that in that situation the circuit council should be able to vacate its 

order, conclude the proceeding, and allow Judge Smith a quiet exit. The 

commentary to Rule 20 can make clear that “intervening events” that justify 

concluding a proceeding will ordinarily involve events that occur before the circuit 

council issues its order, but the rule should not be absolute. I therefore suggest 

that the proposed new paragraph should be rewritten along the following lines: 

A Unless it has issued a final decision on the merits, a judicial council may, 

at any time after the appointment of a special committee but before a petition

for review of the council’s decision has been filed or the time for filing a 

petition has elapsed, conclude the proceeding because appropriate corrective 

action has been taken or intervening events have made the proceeding 

unnecessary.63

Even with this Rule change, however, Judge Smith will still not have a quiet 

exit if the initial order certifying disability must be made public after the 

conclusion of review, with the judge’s name disclosed. That question is addressed 

by a separate amendment in the July 23 draft. I now turn to that amendment. 

 

63 Events that occur after a petition has been filed fall within the domain of the Conduct 

Committee. See infra Part IV-F.
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F. Disclosure of Vacated or Modified Orders

The July 23 draft includes another amendment that appears to codify the 

Conduct Committee’s interpretation of existing law in the Cebull matter. 

Currently, Rule 24(a) provides that when final action has been taken on a 

complaint, “all orders entered by the chief judge and judicial council ... must be 

made public.” The July 23 draft would amend the Rule to require that when an 

order has been vacated or modified, that order must be made public “as originally 

issued.” 

As with the amendment dealing with judicial-council authority to conclude a 

proceeding, I think that the absolute rule proposed by the Committee goes too 

far. The July 23 draft itself exempts two kinds of orders from the generally 

applicable disclosure requirement: chief-judge orders identifying a complaint and 

orders appointing a special committee. These exemptions can readily be justified 

on the ground that such orders are interlocutory; they are intermediate steps in 

a continuing process.64 Orders that have been vacated or modified may also be 

interlocutory, and when they are, they too should be excluded from the 

disclosure requirement. 

That said, I think that the proposed amendments present difficult questions 

of policy and of drafting. Both require attention. 

1. Policy Considerations

In my view, until final action has been taken on a complaint, circuit councils 

(and indeed the Conduct Committee itself) should have leeway to adjust 

disclosure obligations in light of changing circumstances. Thus, in the hypothetical 

Smith matter discussed above, the circuit council should be able to replace the 

order certifying disability with an order concluding the proceeding based on 

voluntary retirement, without having to publish the earlier order. And the 

replacement order would not identify Judge Smith.65

The proposed amendment to Rule 24 would deny the council that flexibility.

In some instances, the amendment would also limit the discretion of the Conduct 

Committee itself. For example, the Committee might want to replace a public 

 

64 Even so, disclosure will be warranted if the complaint involves conduct that has become 

the subject of a public report. See supra Part III-B; infra Part IV-F-2. 

65 Nothing in the statute forecloses this approach. Section 360(b) requires the public 

release of written orders that “implement any action under section 354 (a)(1)(C).” If the revised 

order modifies the disposition, the action contemplated by the earlier version is no longer being 

implemented. 
Hellman – Judicial Conduct Rules – Page 30

D8 November 3, 3014

reprimand of a judge with a private reprimand. But that option would be 

effectively foreclosed if the circuit council order with the public reprimand had to 

be made public “as initially issued.” Similarly, if the Rules are amended to provide 

for Conduct Committee review when a judicial council orders a public reprimand 

of a lawyer who has abused the complaint process, the review could not serve its 

full purpose if the order as originally issued had to be made public. The Conduct 

Committee might overturn the reprimand, but the public availability of the 

council order would cause some injury to the lawyer’s reputation.66

The kind of flexibility I am suggesting is most obviously desirable when the 

council is dealing with a complaint that has not come to public attention at all. 

But it could also be helpful in high-visibility matters like the one involving Judge 

Cebull. I can understand why the Conduct Committee was troubled by the Ninth 

Circuit Judicial Council’s pervasive sanitizing of its initial (March 15, 2013) order. 

But in other situations it may be appropriate to allow small modifications of the 

council’s original text. For example, a judge who has engaged in misconduct may 

be willing to retire if the council’s order is revised to omit a few sentences or 

phrases that the judge especially does not want publicized. As long as the 

published order identifies the judge and retains the substance of the findings, the 

council cannot credibly be accused of giving in to “institutional favoritism.” And if 

the consequence is that a judge who has engaged in serious misconduct can be 

removed from the bench without impeachment, the public interest is fully 

served.67

2. Drafting Considerations

If the Committee agrees with this approach, the next question is how to 

incorporate it into Rule 24(a). Preliminarily, there is one ambiguity in that Rule 

that deserves attention apart from the issue addressed by the proposed 

amendment. The current language implies that no order is to be made public until 

“final action has been taken on a complaint and it is no longer subject to 

review.”68 But chief-judge orders dismissing a complaint or concluding a 

proceeding are routinely made public when issued, even though they are subject 

to review by the judicial council under 28 U.S.C. § 352(c) and Rule 18(a). As far 

 

66 See supra Part IV-B for discussion of sanctioning abusive complainants. 

67 Again, section 360(b) does not stand in the way. Given the plenary authority of the 

Judicial Conference, it is reasonable to treat judicial-council orders as provisional until the time 

for review by the Conference’s Conduct Committee has expired. 

68 The July 23 draft would specify “review as of right.” 
Hellman – Judicial Conduct Rules – Page 31

D8 November 3, 3014

as I am aware, this practice has not given rise to any problems, and I would codify 

it with a new sentence in Rule 24(a) along these lines: “Chief-judge orders 

dismissing a complaint or concluding a proceeding and judicial-council decisions 

affirming such orders must be made public when issued.”69

That brings us to the focus of the proposed amendment – orders issued by 

circuit councils in cases where a special committee has been appointed. The 

proposed amendment addresses three questions: (a) When must orders be made 

public? (b) Which orders must be made public? (c) If an order has been modified 

before it is made public, must the text as initially issued also be made public? 

There does not seem to be any dispute over the first question: the orders 

must be made public only “[w]hen final action has been taken on [the] complaint 

and it is no longer subject to review.” This means that if a petition for review is 

filed, the circuit council order will not be made public until the Conduct 

Committee has issued its decision. 

That is the practice that has generally been followed. For example, the 

Second Circuit Judicial Council’s order in the transferred proceeding involving 

Sixth Circuit Judge Boyce Martin was issued on June 20, 2013, but it was not 

made public until January 17, 2014, when the Conduct Committee issued its 

decision rejecting Judge Martin’s petition for review.70

If no petition for review is filed, the import of the Rule is that the council 

decision should be made public when the complaint “is no longer subject to 

review.” This means that the council would withhold disclosure until the deadline 

for filing a petition for review has passed – 63 days under the current rule, 42 

days under the proposed amendment. Based on available materials, I cannot 

ascertain whether this practice has been followed. I suggest that when a judicial 

council issues an order in a special-committee case, the order should specify the 

date on which the order will be made public if no petition is filed.71

 

69 A conforming change would be required in the commentary (page 39, lines 30-32 of the 

July 23 draft). 

70 An exception is the order issued by the D.C. Circuit Council in the transferred 

proceeding involving Fifth Circuit Judge Edith Jones. Because the complainants made the order 

available to the public when they filed a petition for review, the D.C. Circuit Council did so also. 

71 The Ninth Circuit Judicial Council followed this practice in its Cebull orders, but the 

Second Circuit did not when it issued its order involving Judge Martin. 
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Which orders must be made public? Rule 24(a) now says: “all orders 

entered by the chief judge and judicial council.”72 (Emphasis added.) The July 23 

draft would amend the Rule to specify two exceptions: orders under Rule 5 

(identifying a complaint) and orders under Rule 11(f) (appointing a special 

committee). I agree with those exceptions for the general run of cases; however, 

for reasons given earlier, those orders should be made public when the complaint 

involves conduct that has become the subject of a public report.73

The “policy” discussion above suggests another exception to the general 

rule. Judicial-council orders that have been vacated should not be made public

unless the circuit council or the Conduct Committee determines that disclosure 

is necessary “to maintain public confidence in the federal judiciary’s ability to 

redress misconduct or disability.”74 Thus, in the Smith hypothetical discussed in 

the preceding section, the initial circuit council order certifying disability would 

not be made public – only the final order concluding the proceeding based on 

voluntary retirement.75 On the other hand, in the Cebull matter, the initial 

(March 15, 2013) order would be made public because only that order contains

sufficient detail to show that the council had faithfully carried out its obligation to 

investigate allegations of misconduct that threatened to impair public confidence 

in the courts.76

The final question raised by the proposed amendments is whether judicialcouncil orders subject to the disclosure requirement must be made public as 

initially issued or in the form finally adopted by the council. In accordance with 

the discussion above, I think that council orders should be made public in the 

form finally adopted by the council, except when such publication would be 

 

72 Rule 24(a) includes a series of “exceptions,” but these exceptions involve the identity of 

the judge, the identity of the complainant, and the text of a private reprimand, not the orders 

themselves.

73 See supra Part III-B.

74 This language is, of course, taken from current Rule 23(a).

75 I am assuming that no public disclosure of the proceedings has occurred. If Judge Smith’s 

disability is a matter of public knowledge, Judge Smith will not have a quiet exit in any event. In 

that situation, there is no great harm in making the initial order public, but perhaps no great 

benefit either. 

76 In the alternative, the circuit council might have modified only the remedial section of 

the order while retaining the factual findings and legal conclusions. Disclosure of the order as 

modified would then fully serve the interest in “maintain[ing] public confidence in the federal 

judiciary’s ability to redress misconduct or disability.”
Hellman – Judicial Conduct Rules – Page 33

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inconsistent with the Conduct Committee’s disposition of the complaint. For 

example, if the Conduct Committee replaces a public reprimand with a private 

reprimand, the council order (if published at all) would be redacted so that 

judge’s identity would not be disclosed. 

Thus far I have not mentioned the requirement in Rule 24(a) that when 

orders are made public in accordance with the Rule, “any supporting memoranda 

and any dissenting opinions or separate statements by members of the judicial 

council” must also be made public. This requirement is retained in slightly 

different form in the July 23 draft, but neither version makes any mention of 

reports by special committees. The reference to “supporting memoranda” could 

be read to include such reports; however, the practice has generally been not to 

make those reports public.

I think the Rule should be amended to make clear that special-committee

reports need not be made public. These reports may contain sensitive facts, 

identification of witnesses and what they said, etc., and the judicial council should 

have discretion to summarize the contents of a report without making the 

document itself public. 

One scenario remains to be considered. Suppose that in the Smith 

hypothetical discussed above, Judge Smith – unwilling to accept voluntary 

retirement – petitions the Conduct Committee for review of the order certifying 

disability. Before the Committee has completed its review, Judge Smith changes 

his mind and agrees to take voluntary retirement. I think the Committee should 

be able to allow the retirement and conclude the proceeding without making 

public the circuit council order. 

It would be possible to add a specific provision to the Rules to deal with 

this situation, but I do not think it is necessary. Rather, I suggest adding language 

to Rule 21 to make clear that the Conduct Committee, on review of a judicialcouncil decision, can take any action that the council could have taken. 

To summarize, I suggest that Rule 24(a) should be rewritten to incorporate 

the following precepts:

(1) Chief-judge orders dismissing a complaint or concluding a 

proceeding and judicial-council decisions affirming such orders should be 

made public when issued.

(2) Chief-judge orders identifying a complaint or appointing a special 

committee should not be made public unless the complaint involves conduct 
Hellman – Judicial Conduct Rules – Page 34

D8 November 3, 3014

that has become the subject of a public report; in that situation, the orders 

should be made public when issued. 

(3) Subject to the exceptions noted below, orders issued by a judicial 

council following the appointment of a special committee should be made 

public when final action has been taken on the complaint and the complaint 

is no longer subject to review. 

(4) Judicial-council orders that have been vacated should not be made 

public unless the circuit council or the Conduct Committee determines that 

disclosure is necessary to maintain public confidence in the federal 

judiciary’s ability to redress misconduct or disability. 

(5) Judicial-council orders that have been modified should be made 

public in the form finally adopted by the council, except when such 

publication would be inconsistent with the Conduct Committee’s 

disposition of the complaint.

(6) When orders are made public under this Rule, any supporting 

memoranda, dissenting opinions, and council members’ separate statements 

should also be made public. Special-committee reports may be made public 

at the discretion of the judicial council. 

If Rule 24(a) is rewritten along these lines, items (1) through (5) in current 

Rule 24(a) could be placed in subsection (b), with current (b) through (d) 

redesignated as (c) through (e). The revised Rule could also incorporate Russell 

Wheeler’s suggestion, noted in Part III-B, that when a judicial-branch body issues 

an order that reasonable observers might regard as related to a complaint of 

misconduct or disability, the order should specify who is taking action and what 

the authority for that action is.

G. Developing a Body of Interpretive Precedent

Two decades ago, the National Commission on Judicial Discipline and 

Removal, chaired by former Rep. Robert W. Kastenmeier, recommended that 

the judiciary develop “a body of interpretative precedents” that would guide 

judges in administering the Act and also enhance “judicial and public education 

about judicial discipline and judicial ethics.”77 The Breyer Committee renewed 

and elaborated upon this recommendation.78 But no such compilation has been 

 

77 National Commission Report, supra note 9, at 352. 

78 Breyer Committee Report, supra note 12, at 216-17.
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made available on the federal judiciary’s public website. I believe that chief judges, 

circuit councils, and the Conduct Committee can all play a role in developing the 

“body of interpretive precedents” that has long been lacking.

First, as already discussed, Rule 24(b) should be revised to require chief 

judges to identify and separately post orders that appear to have precedential 

value.79

But circuit-by-circuit publication is not enough. Rule 24(b) recognizes this, 

stating that the Conduct Committee “will make available on the Federal 

Judiciary’s website ... selected illustrative orders, appropriately redacted, to 

provide additional information to the public on how complaints are addressed 

under the Act.” But the only orders published on the website are seven opinions 

of the Conduct Committee.80

The Breyer Committee recommended that illustrative orders should be 

“published in broad categories keyed to the Act’s provisions, and ... with brief 

headnotes.” I would add that the categories should also be keyed to provisions of 

the Code of Conduct for United States Judges. Finally, it would be useful to 

include an introductory statement making clear that the orders are posted on the 

Judiciary website as a matter of historical record and that they do not necessarily 

reflect the view of the Judicial Conference or the Conduct Committee on how 

the complaints should have been handled.

H. Disqualification of Judges from Chapter 16 Proceedings: the General Rule

As discussed above in Parts II-D and II-E, the July 23 draft proposes 

amendments to some of the specific disqualification provisions in Rule 25. But it 

does not change the general rule stated in Rule 25(a): “Any judge is disqualified 

from participating in any proceeding under these Rules if the judge, in his or her 

discretion, concludes that circumstances warrant disqualification.” (Emphasis 

added.)

This subjective, discretionary standard for misconduct proceedings 

contrasts sharply with the standard that Congress enacted in 28 U.S.C. § 455(a) 

for “litigation”: a judge “shall disqualify himself in any proceeding in which his 

impartiality might reasonably be questioned.” The courts have held that § 455(a) 

 

79 See supra Part II-C.

80 I am aware that the Committee is developing a compilation for posting on the Federal 

Judiciary website. I applaud the Committee for undertaking the task and look forward to seeing 

the result. 
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“adopts the objective standard of a reasonable observer” who is “fully informed 

of the underlying facts.”81 In addition, § 455(b) specifies several particular 

circumstances in which disqualification is required (e.g. financial interest) and 

which are non-waivable.

Given the commands of § 455, it seems anomalous to say that a judge, when 

deciding whether to participate in considering a misconduct complaint against a 

fellow judge, should look only to “his or her discretion.” One would think that, if 

anything, the bar to participation would be higher than it is in the context of 

litigation. This is so for two reasons. First, as the Breyer Committee recognized, 

the Act’s system of self-regulation necessarily raises concerns about “guild 

favoritism.”82 Judges should therefore be especially vigilant to avoid the 

appearance of conflict. Second, a refusal to recuse in the context of litigation is 

generally subject to appellate review, while a refusal to recuse in a misconduct 

proceeding is generally not reviewable at all.

I do not think it is necessary to elevate the bar above that of § 455(a), but I 

do believe that the standard of § 455(a) should be applied in misconduct 

proceedings.83 I therefore suggest that the sentence quoted above from Rule 25 

should be replaced with language drawn from § 455(a).84

I. Availability of Rules and Forms

The Breyer Committee recommended that every federal court should 

display the complaint form and the governing rules “prominently” on its website 

– “that is, with a link on the homepage.”85 (Emphasis added.) But when I canvassed 

district court websites in mid-June 2011, I found that more than one-third of the 

courts had failed to take this modest step toward greater visibility. In his 

statement to this Committee, Russell Wheeler reports on a comprehensive 

 

81 United States v. Bayless, 201 F.3d 116, 126 (2nd Cir. 2000).

82 Breyer Committee Report, supra note 12, at 119.

83 In the past, the Conduct Committee has taken the position that § 455 is “not a template 

for recusals in misconduct proceedings” because the latter “are administrative, and not judicial, 

in nature.” In re Complaint of Judicial Misconduct, 591 F.3d 638, 647 (U.S. Jud. Conf. Comm. on 

Judicial Conduct & Disability 2009). I do not think the “administrative” characterization 

responds to the points made above in the text.

84 Section (e) of § 455 allows waiver by “the parties” of disqualification otherwise required 

under section (a). I see no need for a waiver provision here. 

85 Breyer Committee Report, supra note 12, at 218.
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canvass of all federal court websites that he carried out this month. He found 

that 45% of all courts did not make the material available on the homepage. 

Rule 28 now requires only that each court make the Rules and the 

complaint form available “on the court’s [own] website” or provide an Internet 

link to the court of appeals website. The July 25 draft adds the option of 

providing a link to the Federal Judiciary website. But neither version of the Rule 

incorporates the Breyer Committee recommendation that the link should be 

displayed on the court’s homepage.

Based on his research, Mr. Wheeler suggests that Rule 28 should be 

amended to require all federal courts to follow the Breyer Committee’s 

preferred approach, with the further requirement that the materials should be 

prominently available on the homepage. (In the alternative, there should be a 

prominent link on the homepage to the materials on the court of appeals website.) 

I agree with this suggestion. 

But there is a further problem: courts revamp their websites from time to 

time, and a directive contained in the Rules on Judicial-Conduct and JudicialDisability Proceedings may be lost in the welter of instructions that will be given 

to the website developer. The Conduct Committee should ask its staff to check 

all court websites once a year so that the Committee can send out reminders to 

the courts that are not in compliance. 

J. Making the Rules More User-Friendly

In their current form, the Rules for Judicial-Conduct and Judicial-Disability 

Proceedings are anything but user-friendly. Key concepts are buried within 

lengthy multi-part Rules. Commentaries can extend over several single-spaced 

pages, without subdivisions or internal headings. Cross-references sometimes 

resemble those in the Internal Revenue Code. 

I suggest that, in the next phase of its review, the Committee should 

reorganize and restyle the Rules to make them easier to use by judges, 

journalists, and citizens generally. This is not the place go into detail, but, at a 

minimum, lengthy multi-part rules (including Rule 3, Rule 11, and Rule 20) should 

be broken up, so that key elements are defined in separate rules. This will also 

facilitate cross-references. Lengthy commentaries should be divided into sections, 

each with a descriptive heading. (The Illustrative Rules offer a model.)

An example may be useful. The final sentence of current Rule 11(a) would 

become something like: “After reviewing the complaint, the chief judge must 
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determine whether it should be (1) dismissed under Rule 12, (2) concluded under 

Rule 13, or (3) referred to a special committee under Rule 14.” Separate rules –

each with its own commentary – would delineate the grounds for dismissing a 

complaint and for concluding a proceeding. This reorganization would also help 

to emphasize and clarify the distinction between the two forms of disposition.

Just this month, a judicial council released an order dismissing a complaint on the 

basis of a “voluntary ... apology” – but citing Rule 11(d)(2), which specifies the 

circumstances under which a chief judge (or circuit council) may conclude a 

proceeding.86

A reorganization could also highlight the distinction between a dismissal 

under 28 U.S.C. § 352(b)(1)(A), which is analogous to a dismissal for failure to 

state a claim on which relief can be granted, and a dismissal under §352(b)(1)(B), 

which is analogous to the summary judgment that the commentary invokes. 

 

86 See In re Charges of Judicial Misconduct, No. DC-13-90021 at 14 (D.C. Cir. Judicial 

Council Aug. 12, 2014) (Special Committee report).