AJS Comments on Draft Rules Governing Judicial Conduct and Disability Proceedings

Cynthia Gray, Director, AJS Center for Judicial Ethics, contributed to this article. 

The American Judicature Society submitted comments on the Draft Rules Governing Judicial Conduct and Disability Proceedings Undertaken Pursuant to 28 U.S.C. §§ 351-364, promulgated by the U.S. Judicial Conference Committee on Judicial Conduct and Disability. The Society believes the draft Rules demonstrate the federal judiciary’s commitment to implementing effectively and consistently the Judicial Conduct and Disability Act and applauds the Committee’s impressive work on this important effort.   

The Judicial Conference Committee released draft Rules for public comment in July. If the Judicial Conference adopts the Rules, they will serve as binding guidance for federal chief judges, circuit judicial councils, and circuit staff for handing complaints filed against federal judges. The Judicial Conference Committee was convened in response to the September 2006 report of the Judicial Conduct and Disability Act Study Committee (the “Breyer Committee”), chaired by United States Supreme Court Justice Stephen Breyer. The Judicial Conference Committee released the draft Rules in response to the Breyer Committee’s report, “Implementation of Judicial Conduct and Disability Act of 1980.” The Breyer Committee had been created at the behest of Chief Justice William H. Rehnquist, who in 2004 noted Congressional criticism “about the way in which the Judicial Conduct and Disability Act of 1980 is being implemented.”

The Judicial Conduct and Disability Act, as the Breyer Committee noted, “authorizes any person to file a complaint alleging that a federal judge has engaged in conduct ‘prejudicial to the effective and expeditious administration of the business of the courts.’ The Act also permits any person to allege conduct reflecting a judge’s inability to perform his or her duties because of ‘mental or physical disability.’”

Most of the AJS proposals were designed to clarify or emphasize particular provisions of the draft Rules, in several examples, by moving language from the comment to the text of the rule.  In addition, AJS recommended two new express exceptions to confidentiality that would allow disclosure when the subject of a complaint has become public through independent sources or when there is evidence of a crime, violation of the code of professional responsibility, or threat to someone’s safety, insofar as such an exception would be consistent with the Act.  AJS proposed two amendments to ensure that the handling of complaints regarding delay and disqualification promote the purposes of the Act. 

The AJS comments were prepared by a committee comprising Professor Stephen Burbank (University of Pennsylvania Law School), Judge Avern Cohn (Senior Judge, U.S. District Court, Eastern District of Michigan), Gordon Doerfer (former Associate Justice of the Massachusetts Appeals Court), Judge Cara Lee Neville (District Court of Minnesota for Hennepin County), Judge John Tunheim (U.S. District Judge for the District of Minnesota), and Cynthia Gray (Director, Center for Judicial Ethics).  The comments are available on the AJS web-site at http://www.ajs.org/ethics/pdfs/AJScommentsondraftrules.pdf.