This represents the policy of the American College of Trial Lawyers on this subject and we ask that it be included in the record of the hearings of your committee. Sincerely yours, THOMAS E. DEACY, JR., in the Administration of Justice. RESOLUTION ADOPTED BY THE BOARD OF REGENTS OF THE AMERICAN COLLEGE OF TRIAL LAWYERS AT ITS Meeting MarcH 11-14, 1980 The subject of judicial discipline in the Federal system has for some time attracted the attention of Congress, the Bar and of the judicial establishment. On October 30, 1979, the United States Senate, in response to this public concern, passed S. 1873, a revised version of an earlier bill introduced by Senator DeConcini. The bill combined, in a single measure, procedures to be followed in relieving the Federal courts of its disabled members and imposing sanctions upon its misbehaving members. Because the bill included amongst its sanctions the removal of the offending judge from office, many judges and lawyers expressed very grave doubts of its constitutionality. The opponents of such a proposal argued that impeachment was the only route to removal of a Federal judge; the advocates found in the "during good behavior" clause of the Constitution authority for removal. The machinery proposed was multilayered and cumbersome. In the House, a Subcommittee of the Judiciary, chaired by Representative Robert Kastenmeier, produced another bill, H.R. 6330. It was very much simpler in structure, concentrated responsibility in the judicial councils and it excluded removal as one of its sanctions. After discussion and after a presentation made to the Board of Regents by Judge Clifford Wallace, it was, Resolved, That the College approve in principle the enactment of the Kastenmeier Bill H.R. 6330, amended, however, by the addition of the following enumerated powers: "(A) certify disability pursuant to the procedures and standard provided under Subsection (b); (B) request that the judge voluntarily retire with the provision that the length of service requirements under section 371 of this title shall not apply; (C) order that, on a temporary basis for a time certain, no further cases be assigned to the judge; (D) censure or reprimand the judge by means of private communication; (E) censure or reprimand the judge by means of public announcement; or (F) order such other action as it considers appropriate under the circumstances, but in no circumstances may the council order removal from office." MICHAEL REMINGTON, Esquire, AMERICAN JUDICATURE SOCIETY, Subcommittee on Courts, Civil Liberties and the Administration of Justice, House of Representatives, Rayburn Office Building, Washington, D.C. DEAR MR. REMINGTON: I know you have been in touch with my colleague, Larry Berkson, concerning Society interest in testifying before the Subcommittee with reference to federal judicial conduct legislation. The enclosed resolution of our Board of Directors at their February 2, 1980 meeting, will therefore be of interest. Our President, Robert MacCrate of New York would welcome the opportunity to testify before the Subcommittee for as you know, the Society has a deep interest in matters relating to judicial conduct and considerable acquaintence with the state experience through our Center for Judicial Conduct Organizations. I look forward to hearing from you. Sincerely yours, Enclosure. GEORGE H. WILLIAMS. AMERICAN JUDicature Society Executive Committee, ActION ON FEDERAL JUDICIAL CONDUCT LEGISLATION RESOLUTION The American Judicature Society has long held that the public has a right to judges who are fit to serve and has long supported the creation of procedures for the discipline and removal of judges for improper judicial conduct or disability. It is the Society's basic position that all judges are entitled to a rational and effective process for determining whether complaints of judicial misconduct are well founded or whether disability in fact exists. The Society's experience at the state level through its Center for Judicial Conduct Organizations emphasizes the importance of independent bodies to receive and consider complaints of judicial misconduct or disability. This notwithstanding, Congress having chosen to proceed at this time with legislation addressing this historic concern of the Society by using the Judicial Council, in accordance with the recommendation of the Judicial Conference, as the body for receiving and considering complaints, it is Resolved, That the American Judicature Society supports the Judicial Conduct and Disability Act of 1979 (S. 1873), added to S. 1477, the Senate's Omnibus Court Reform Legislation; it is Further resolved, That the American Judicature Society urges that Congress, in its present deliberation involving the discipline and disability of federal judges, give high priority to: 1. the development of uniform rules of procedure by the Judicial Conference to be applied by all Judicial Councils; 2. the inclusion of public members with the Judicial Councils for purposes of screening and considering complaints; 3. the establishment of adequate staffing to assure the effective operation of a discipline system; and 4. the development of procedures to screen out frivolous complaints. The Officers of the Society are instructed to communicate this action to the Congress and other appropriate bodies concerned with questions of judicial perform ance. COMMITTEE FOR EQUALITY OF CITIZENS BEFORE THE COURTS (CO-EQUAL) Re Judicial tenure/discipline bills, especially S. 1873 and H.R. 4641. Hon. PETER W. RODINO, Jr., DEAR CONGRESSMAN RODINO: The quality of federal administration of justice has become a key concern of press and public. If judicial tenure/discipline legislation is to be effective, constitutional, and keeping with public policy, there are three minimal requirements: (1) Investigations must be a function of the Congress as well as a function of the Justice Department; (2) Investigations must be open to press and public, without any gag rules intended to shield a supposed sanctity of court office; (3) Scope of the legislation must be expanded to include all court officers, such as clerks and attorneys. Accordingly, we oppose Š. 1873 and H.R. 4641 in their present form, as we opposed S. 522, S. 678 and S. 295. We urge the House of Representatives to preserve Congressional initiative by forming a permanent House Judiciary Subcommittee on Judicial and Court Officer Conduct. Our earier effort to incorporate circuit judicial councils in the evaluation of judges and other court officers (our suggested amendment to S. 678) was in error and undoubtedly unconstitutional. Judicial behavior is clearly the concern of Congress. A corollary of separation of powers is external accountability. There is no intention, in the Constitution, of shielding one branch of government from examination by another branch. In legislation, as in science, the simplest approach is often the best: While the jurisdiction of a House Judiciary Subcommittee on Judicial and Court Officer Conduct would be unlimited (allowing it to consider charges of misconduct against any judge, justice or court officer) and it would have the right to issue an amicus to a court or an information to a grand jury, as a legislative organ the proposed Subcommittee would have no power to interfere with the appellate process. Were the 56-982 0 - 80 - 13 Congress at the same time to enact legislation setting money limits on expenditures for court offices. establishing a federal code of responsibility for lawyers with provision for federal disbarment modifying court procedures to open them to press, broadcasters and the public .. eliminating the power of individual circuits and districts to draw up their own rules and to consider their own case law as superior to the case law of other circuits and districts . . . we believe this entire Gordian knot would be efficiently cut. Our suggested amendment to S. 678 was sent to you in October. If you would like to review its several provisions, with the realization that we now feel any use of judicial councils or special courts in the area of judicial tenure and discipline to be wrongful, we will be happy to send you another copy. Sincerely, DAVID M. JOHNSTONE, Committee For Equality of Citizens Before The Courts (Co-Equal) 3401 West Division Street Chicago, Illinois 60651 • 312/252-1817 To The Members of the 96th Congress: Several bills on judicial tenure/discipline are now in the Senate Judiciary. No such legislation Of the bills in the Senate, S.295 would create a special court with special privileges to try S.678-PART E would place investigation of complaints against judges in circuit judicial We understand there is an attempt to reach a compromise between S.678-PART E and Accordingly we have drawn a suggested amendment to S.678-PART E which strives to We ask you to give our suggestions your earnest consideration, in the belief that this entire subject is critical to the quality of the American democracy. SUGGESTED AMENDMENT TO S.678-PART E The purpose of this amendment is three-fold: 1) To bring judicial and court officer conduct under the rule of law, providing channels for the receipt and processing of complaints, and under the control of the Congress, which is where the Constitution places the subject; 2) To open up the federal legal processes to the press and broadcasters and to the public for the purpose of safeguarding good behavior; and 3) To protect judicial independence by providing those Congressional and public oversights and controls required to fulfill the due process, equal protection, and accountability clauses of the Constitution and to keep the legal process free of malign influence. (LINE IDENTIFICATION OF THIS AMENDMENT, STARTING ON PAGE 15 OF THE BILL AS INTRODUCED MARCH 15, 1979) 1 3 PART E-JUDICIAL AND COURT OFFICER DISCIPLINE Sec. 141. (a) Section 372 of title 28, is amended by (1) amending the section heading to read as follows: 4 "Section 372. Retirement for disability; substitute judge on 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 (2) adding the following new subsections at the end of the section: "(c) There is established as a standing subcommittee of the 20 The Judicial and Court Officer Conduct Subcommittee shall appoint of necessary funds for operation through the balance of the fiscal 23 24 25 26 27 28 29 "(d) Any person may file a written complaint against a district 30 judicial council of the circuit, the judicial council shall forward 31 a certified copy of the complaint to the Judicial and Court Officer |