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An independent and honorable judiciary is indispensable to justice in our society. A Judge should participate in establishing, maintaining and enforcing, and should himself observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.

What is at stake, I think, is the independence of the judiciary: For the stuff that holds a democratic society together is in the end the consent of our people. Congress exercises legislative power because the people have given it that right to exercise. The judiciary resolves cases and controversies binding on the people because the people have agreed to be bound.

Public confidence in the executive, legislative, and judicial branches is essential to the continuity of our system. Public confidence in the judiciary, I believe, is eroded by the irresponsible and improper conduct of a particular judge. A judge cannot expect to compel compliance with the law if he himself is a lawbreaker.

It is not my province, Mr. Chairman, to advise this committee whether it should or should not adopt articles of impeachment charging Judge Claiborne with high crimes and misdemeanors. I do recommend that this committee not charge Judge Claiborne with misbehavior in office as a separate impeachable offense. Although the power to do so may exist, it is not necessary in this case, given the facts before the committee.

However, I believe this committee may properly consider evidence of a lack of good behavior in the exercise of its prosecutorial discretion to impeach or not. In my view, a lack of good behavior has been demonstrated in this case.

That concludes my prepared testimony, Mr. Chairman, and I should be pleased to respond to any questions the committee may have of me.

The written statement of Judge Wiggins follows:]

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I offer my testimony today at the request of the Committee.

I

have not volunteered as a witness, nor have I been assigned this responsibility by my court or by any other judicial officer. appear solely because the Congress has requested that I do so.

I

To my knowledge, I have never met Judge Claiborne. I have no direct knowledge of the acts or omissions that resulted in his

indictment and subsequent conviction of a federal crime.

The case

of United States Veclaiborne which was tried in the District Court

in Nevada was appealed to the Ninth Circuit while I was a member of

that court. The issues on appeal were purely legal in nature and did not give me any special insight into the underlying facts of the

Claiborne case.

For the information of the Committee, the direct appeal of

Judge Claiborne from his conviction is now final.

It is my

understanding that the Judge is pursuing a collateral attack on his conviction and confinement. If so, that issue has not yet been

considered by a merits panel of our court.

Because Members of this Committee have expressed concern about

the failure of the Ninth Circuit to invoke the procedure of the Judicial Councils Reform and Judicial Conduct and Disability Act of

1980 in this case, let me begin my testimony by expla ining our

actions.

Quite simply, following the conviction of Judge Claiborne and

the exhaustion of his rights of direct review of that conviction,

there was no acute awareness that any action was required under the Act. This legislation is new, and, fortunately, our Circuit does not have much experience in its use. The perception existed that the Act was intended to deal with lawyer and litigant comp la ints against a judge. Such compla ints might reveal impeachable misconduct, in which case referral to Congress would be appropriate. However, I believe the legislation anticipated that most compla ints would be of a lesser magnitude, would be investigated by the Judiciary itself, and if corrective action were necessary, it would take it at that level. The conviction of a federal judge of a felony, and his sentence to prison, is an entirely different matter.

In any event, Chief Judge Browning ordered a study of the Act to be undertaken on behalf of the Judicial Council following Judge

Claiborne's confinement. That study revealed that a citizen

complaint against Judge Claiborne was not necessary in order to

trigger action by the Council. Accordingly, it is my understanding

that the Council intends to certify to the Judicial Conference its

determination that one or more grounds for impeachment for Judge Claiborne might exist, and may have already done so.1 The Judicial

Conference of the United States will doubt less certify to the House

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The Act incorrectly refers to Article I of the Constitution in
S 372 (c) (7) (B) (i).

of Representatives its determination that impeachment may be warranted, as provided in Section 372 (c) (8) of the Act.

All of the foregoing occurred within weeks of Judge Claiborne's sentence. Perhaps the Circuit is justly to be critized for not acting more promptly. Personally, I believe the Circuit has acted with all deliberate speed under the circumstances.

In my view, this is a case in which the House of

Representatives should exercise its independent and sole power of

impeachment and should not defer, even pre forma to any other

branch If it were to do so, the House would be deferring to the operation of a statutory scheme which provides an intricate mechanism for the investigation of charges and a right to limited

review, both at the Circuit Council and Judicial Conference level.

In an

Such a procedure, and the process it provides to Judges facing comp la ints, may be wholly appropriate in a routine case. extraordinary case, however, like the present one, Congress should not await the exhaustion of that administrative process before

tak ing action on its own.

Such deference skews a carefully crafted

system of constitutional checks and balances.

Mr. Chariman, it is my understanding that the committee wishes me to testify concerning the question of whether Judge Claiborne has served with "good Behaviour" as that term is used in Article III of

the Constitution.

Obviously, therefore, the Committee seeks my

opinion rather than any facts known to me.

Judges of the United States "shall hold their offices during

good Behaviour

Article III, Section 1, United States

Constitution.

The framers of the Constitution were determined to establish an

independent judiciary.

Article III reflects that concern.

They had

observed the domination of judges in the colonies by the arbitrary

reduction of their compensation and withdrawal of judicial commissions, as retaliation for decisions unpopular with the King

and his Ministers.

The term "good Behaviour" was included in the

Constitution primarily to insure judicial independence from arbitrary removal from office. As such, it is a term defining

tenure rather than a course of conduct, a deviation from which would

justify removal from office.

The impeachment power is found in Article II.

Unlike the good

behavior clause, it specifies the conduct that justifies removal

.

from office:

Treason, Bribery, or other high Crimes and Misdemeanors" Article II, Section 4. This section applies to all civil officers including United States judges.

Many distinguished commentators have expressed the view that impeachment of a federal judge does not lie for non-criminal, "misbehavior" a lone. This body of opinion relies upon the judicial impeachment precedents, particularly in this century. Each such impeachment that resulted in a conviction alleged misconduct that was arguably criminal in nature; however, it is also true that the

Archibald and Ritter impeachment alleged misbehavior that was

clearly non-criminal as well.

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