I
105TH CONGRESS
1ST SESSION
H. R. 2739
To amend title 28, United States Code, to create a Judicial Conduct Board
and a Court of Judicial Discipline to investigate and make determinations
with respect to complaints regarding judicial discipline.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 24, 1997
Mr. MCDADE introduced the following bill; which was referred to the
Committee on the Judiciary
A BILL
To amend title 28, United States Code, to create a Judicial
Conduct Board and a Court of Judicial Discipline to
investigate and make determinations with respect to com-
plaints regarding judicial discipline.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Judicial Conduct Re-
form Act of 1997’’.
SEC. 2. REFORM OF JUDICIAL DISCIPLINE SYSTEM.
(a) CREATION OF JUDICIAL CONDUCT BOARD AND
COURT OF JUDICIAL DISCIPLINE.—
(1) IN GENERAL.—Chapter 17 of title 28, Unit-
ed States Code, is amended by adding at the end the
following:
‘‘§ 378. Judicial Conduct Board
‘‘(a) ESTABLISHMENT AND COMPOSITION.—There is
established in the judicial branch a Judicial Conduct
Board (hereafter in this section referred to as the
‘Board’).
‘‘(b) FUNCTIONS.—The Board shall perform the
functions vested in it under section 372(c).
‘‘(c) COMPOSITION AND TERMS.—
‘‘(1) COMPOSITION.—The Board shall be com-
posed of 12 members as follows:
‘‘(A) 3 judges, other than senior judges, as
follows:
‘‘(i) 1 circuit judge, and 1 bankruptcy
judge or magistrate judge, each of whom
shall be appointed by the Chief Justice.
‘‘(ii) 1 district judge who shall be ap-
pointed by the President.
‘‘(B) 3 members of the bar of the Supreme
Court, other than justices or judges, 2 of whom
shall be appointed by the Chief Justice, and 1
of whom shall be appointed by the President.
‘‘(C) 6 persons, other than lawyers, 3 of
whom shall be appointed by the Chief Justice,
and 3 of whom shall be appointed by the Presi-
dent.
‘‘(2) TERMS.—The members of the Board shall
serve for terms of 4 years, except that of the mem-
bers first appointed—
‘‘(A) 1 member appointed by the Chief
Justice and 2 members appointed by the Presi-
dent shall each be appointed for a term of 1
year,
‘‘(B) 2 members appointed by the Chief
Justice and 1 member appointed by the Presi-
dent shall each be appointed for a term of 2
years, and
‘‘(C) 1 member appointed by the Chief
Justice and 2 members appointed by the Presi-
dent shall each be appointed for a term of 3
years,
as designated at the time of their appointment.
‘‘(3) CONDITIONS.—Membership of a judge on
the Board shall terminate if the member ceases to
hold the judicial position that qualified the member
for the appointment. Membership on the Board shall
terminate if the member attains a position that
would have rendered the member ineligible for ap-
pointment at the time of appointment. A vacancy on
the Board shall be filled in the manner in which the
original appointment was made. No member of the
Board may serve for more than 4 consecutive years
but may be reappointed after a lapse of 1 year. No
member of the Board may serve on the Court of Ju-
dicial Discipline at the same time.
‘‘(d) MEETINGS.—The President shall convene the
first meeting of the Board. At that meeting and annually
thereafter, the Board shall elect a chairperson. The Board
shall act only with the concurrence of a majority of its
members.
‘‘(e) COMPENSATION.—
‘‘(1) BASIC PAY.—
‘‘(A) RATES OF PAY.—Except as provided
in subparagraph (B), members of the Board
shall each be entitled to receive the daily equiv-
alent of the annual rate of basic pay payable for
level IV of the Executive Schedule for each day
(including travel time) during which they are
engaged in the actual performance of duties
vested in the Board.
‘‘(B) PROHIBITION OF COMPENSATION OF
FEDERAL EMPLOYEES.—Members of the Board
who are full-time officers or employees of the
United States may not receive additional pay,
allowances, or benefits by reason of their service
on the Board.
‘‘(2) TRAVEL EXPENSES.—Each member shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with sections 5702 and
5703 of title 5.
‘‘(f) PERSONNEL.—The Board may appoint such per-
sonnel as may be necessary to carry out its functions.
‘‘(g) ADMINISTRATIVE SERVICES.—The Director of
the Administrative Office of the United States Courts
shall provide to the Board such administrative services as
the Board requires to carry out its functions.
‘‘§ 379. Court of Judicial Discipline
‘‘(a) ESTABLISHMENT AND COMPOSITION.—There is
established a Court of Judicial Discipline (hereafter in this
section referred to as the ‘Court’).
‘‘(b) FUNCTIONS.—The Court shall perform the func-
tions vested in it under section 372(c). The Court shall
prescribe rules for the conduct of its proceedings.
‘‘(c) COMPOSITION AND TERMS.—
‘‘(1) COMPOSITION.—The Court shall be com-
posed of 8 members as follows:
‘‘(A) 4 judges, other than senior judges, as
follows:
‘‘(i) 1 circuit judge and 1 bankruptcy
judge, each of whom shall be appointed by
the Chief Justice.
‘‘(ii) 1 district judge and 1 magistrate
judge, each of whom shall be appointed by
the President.
‘‘(B) 2 members of the bar of the Supreme
Court, other than justices or judges, 1 of whom
shall be appointed by the Chief Justice, and 1
of whom shall be appointed by the President.
‘‘(C) 2 persons, other than lawyers, 1 of
whom shall be appointed by the Chief Justice,
and 1 of whom shall be appointed by the Presi-
dent.
‘‘(2) TERMS.—The members of the Court shall
serve for terms of 4 years, except that of the mem-
bers first appointed—
‘‘(A) 1 member appointed by the Chief
Justice and 1 member appointed by the Presi-
dent shall be appointed for a term of 1 year,
‘‘(B) 1 member appointed by the Chief
Justice and 1 member appointed by the Presi-
dent shall be appointed for a term of 2 years,
and
‘‘(C) 1 member appointed by the Chief
Justice and 1 member appointed by the Presi-
dent shall be appointed for a term of 3 years,
as designated at the time of their appointment.
‘‘(3) CONDITIONS.—Membership of a judge on
the Court shall terminate if the member ceases to
hold the judicial position that qualified the member
for the appointment. Membership on the Court shall
terminate if the member attains a position that
would have rendered the member ineligible for ap-
pointment at the time of appointment. A vacancy on
the Court shall be filled in the manner in which the
original appointment was made. No member of the
Court may serve for more than 4 consecutive years
but may be reappointed after a lapse of 1 year. No
member of the Court may serve on the Judicial Con-
duct Board at the same time.
‘‘(d) COMPENSATION.—
‘‘(1) BASIC PAY.—
‘‘(A) RATES OF PAY.—Except as provided
in subparagraph (B), members of the Court
shall each be entitled to receive the daily equiv-
alent of the annual rate of basic pay payable for
level IV of the Executive Schedule for each day
(including travel time) during which they are
engaged in the actual performance of duties
vested in the Court.
‘‘(B) PROHIBITION OF COMPENSATION OF
FEDERAL EMPLOYEES.—Members of the Court
who are full-time officers or employees of the
United States may not receive additional pay,
allowances, or benefits by reason of their service
on the Court.
‘‘(2) TRAVEL EXPENSES.—Each member shall
receive travel expenses, including per diem in lieu of
subsistence, in accordance with sections 5702 and
5703 of title 5.
‘‘(f) PERSONNEL.—The Court may appoint such per-
sonnel as may be necessary to carry out its functions.
‘‘(g) ADMINISTRATIVE SERVICES.—The Director of
the Administrative Office of the United States Courts
shall provide to the Court such administrative services as
the Court requires to carry out its functions.’’.
(2) CONFORMING AMENDMENT.—The table of
sections for chapter 17 of title 28, United States
Code, is amended by adding at the end the following
new items:
‘‘378.
Judicial Conduct Board.
‘‘379.
Court of Judicial Discipline.’’.
(b) JUDICIAL DISCIPLINE PROCEDURE.—(1) Sub-
section (c) of section 372 of title 28, United States Code,
is amended to read as follows:
‘‘(c)(1) Any person alleging that a circuit, district,
bankruptcy, or magistrate judge, or a judge of the Court
of Federal Claims or of the Court of International Trade
has engaged in conduct prejudicial to the effective and ef-
ficient administration of the business of the courts, or al-
leging that such a judge is unable to discharge all the du-
ties of the office by reason of mental or physical disability,
may file with the Judicial Conduct Board established in
section 378 (hereafter in this subsection referred to as the
‘Board’) a written complaint containing a brief statement
of the facts constituting such conduct. The Board may,
on the basis of information available to the Board, initiate
a complaint for purposes of this subsection. The Board
shall promptly transmit a copy of the complaint to the
judge whose conduct is the subject of the complaint.
‘‘(2) The Board shall conduct an investigation of the
charges in each complaint and determine whether there
is probable cause to file formal charges against the judge
whose conduct is the subject of the complaint. If the
Board finds probable cause, the Board shall present the
case in support of the charges with the Court of Judicial
Discipline established in section 379 (hereafter in this sub-
dence, to compel the attendance of witnesses or the
production of documents, to cross-examine witnesses,
and to present argument orally or in writing; and
‘‘(B) the complainant be afforded an oppor-
tunity to appear at proceedings conducted by the
Board, if the Board concludes that the complainant
could offer substantial information.
‘‘(6) The Board shall issue a report on its determina-
tion on each complaint under this subsection, together
with a description of its investigation.
‘‘(7) Upon the filing with the Court by the Board of
formal charges against a judge, the Court shall promptly
schedule a hearing or hearings to determine whether a
sanction should be imposed on the judge under this sub-
section. Formal charges filed with the Court shall be avail-
able to the public. All hearings conducted by the Court
shall be public proceedings conducted pursuant to the
rules adopted by the Court and in accordance with the
principles of due process and the rules of evidence. Parties
appearing before the Court shall have a right to discovery
pursuant to the rules adopted by the Court and shall have
the right to subpoena witnesses and to compel the produc-
tion of documents, accounts, records, and other records
that are relevant to the proceedings. The Board shall have
the burden of proving the charges by clear and convincing
evidence. All decisions of the Court shall be in writing and
shall contain findings of fact and conclusions of law.
‘‘(8) A decision of the Court may order such action
to be taken with respect to the judge whose conduct is
the subject of the Court proceedings as is appropriate to
assure the effective and expeditious administration of the
business of the courts, including, but not limited to, the
following:
‘‘(A) In the case of a magistrate judge, direct-
ing the chief judge of the district of the magistrate
judge to take such action as the Court considers ap-
propriate.
‘‘(B) In the case of a judge appointed to hold
office during good behavior, certifying disability of
the judge pursuant to the procedures and standards
provided under subsection (b) of this section.
‘‘(C) Requesting that any such judge appointed
to hold office during good behavior voluntarily retire,
with the provision that the length of service require-
ments under section 371 do not apply.
‘‘(D) In the case of a judge other than a judge
appointed to hold office during good behavior, order-
ing that, on a temporary basis for a time certain, no
further cases be assigned to that judge.
‘‘(E) Censuring or reprimanding the judge by
means of private communication or public pro-
nouncement.
‘‘(F) Ordering such other action as the Court
considers appropriate under the circumstances, ex-
cept that under no circumstances may the Court
order the removal of a judge appointed to hold office
during good behavior.
Each decision of the Court shall be made available to the
public.
‘‘(9) A judge who is the subject of proceedings under
this subsection who is adversely affected by an order of
the Court shall have the right to appeal that order to the
Supreme Court of the United States. On appeal, the Su-
preme Court may set aside the order of the Court only
if—
‘‘(A) the order is not in accordance with law;
‘‘(B) the findings of fact are clearly erroneous;
or
‘‘(C) any sanction imposed by the order is un-
lawful.
‘‘(10) An order of the Court that dismisses a com-
plaint against a judge may be appealed by the Board to
the Supreme Court, but the appeal shall be limited to
questions of law.
‘‘(11) In any case in which the Court determines, on
the basis of a complaint and any investigation under this
subsection, or on the basis of information otherwise avail-
able to the Court, that a judge appointed to hold office
during good behavior may have engaged in conduct which
might constitute 1 or more grounds for impeachment, the
Court shall so certify and transmit the determination and
the record of proceedings to the House of Representatives
for whatever action the House of Representatives consid-
ers to be necessary. Upon receipt of the determination in
the House of Representatives, the Clerk of the House of
Representatives shall make the determination available to
the public.
‘‘(12) No judge whose conduct is the subject of an
investigation or proceeding under this subsection shall
serve on the Board, on the Court, on a judicial council,
or on the Judicial Conference established under section
331 of this title, until all related proceedings under this
subsection have been finally terminated.
‘‘(13) No person shall be granted the right to inter-
vene as amicus curiae in any proceeding before the Board
or the Court under this subsection.
‘‘(14) Upon the request of a judge whose conduct is
the subject of a complaint under this subsection, the
Board may, if it dismisses the complaint, recommend that
the Director of the Administrative Office of the United
States Courts award reimbursement, from the funds ap-
propriated to the Federal Judiciary, for those reasonable
expenses, including attorneys’ fees, incurred by that judge
during the investigation which would not have been in-
curred but for the requirements of this subsection.’’.
SEC. 3. CONFORMING AMENDMENT.
Section 331 of title 28, United States Code, is
amended in the fourth paragraph by striking ‘‘The Con-
ference is authorized to exercise the authority provided in
section 372(c)’’ and all that follows through the end of
the paragraph.
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