COMMUNITY RIGHTS COUNSEL
CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
October 14, 2003
Office of the Circuit Executive
United States Courts for the Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
Re: Melanie Sloan and Douglas Kendall v.
District Judge Clarence Brimmer
Judicial Misconduct Complaint No. 2003-10-372-32
To Whom It May Concern:
We hereby petition the judicial council for
review of the chief judge's order of dismissal in the above
referenced matter pursuant to 28 U.S.C. § 352(c) and
the Rules Governing Complaints of Judicial Misconduct and
Disability issued by the Judicial Council of the Tenth Circuit.
Our complaint seeks specific disciplinary
sanctions against District Judge Clarence A. Brimmer for
violating 28 U.S.C. § 455, which prohibits judges from
presiding over cases where their financial holdings are
at stake. Specifically, we document in our complaint that
Judge Brimmer presided over a case that affects the management
of 58.5 million acres of public lands - two percent of the
landmass of the United States - and access to an estimated
10 trillion cubic feet of natural gas and 500 million to
1.2 billion barrels of oil despite having almost half of
his assets tied to oil and gas stock and royalty interests.
Judge Brimmer never disclosed his financial holdings to
the parties to allow them to seek his recusal. Stephen Gillers,
perhaps the nation's preeminent expert in judicial ethics,
has stated: "I don't think a judge who has half of
his wealth tied up in oil and gas exploration should be
sitting in cases that could substantially affect the value
of the exploration that his companies want to undertake."
Theo Stein, Forest Case Draws Ethics Challenge, Denver Post,
8/6/03, A1.
Without addressing the merits of our complaint,
Chief Judge Tacha dismissed our petition finding that "the
only valid avenue available for examining alleged partiality
lies within the context of a particular case." Order
at 4. Chief Judge Tacha argues that by seeking discipline
under 28 U.S.C. § 351 for a bias or prejudice issue
we seek to "subvert th[e] process" for recusing
a judge. Order at 6. Respectfully, it is the chief judge's
order that subverts the process Congress established to
protect public confidence in the judicial branch and to
ensure that violations of federal law and judicial ethics
have consequences.
Congress passed 28 U.S.C. § 351 to allow
"any person" to challenge conduct that is "prejudicial
to the effective and expeditious administration of the business
of the courts." Congress permitted the chief judge
of each circuit to dismiss a complaint of judicial misconduct
only in the limited circumstances where the complaint is
(1)"frivolous," (2) "not in conformity with
Section 351(a), or (3) "directly related to the merits
of a decision or a procedural ruling." 28 U.S.C. 352(b)(1).
Chief Judge Tacha based her dismissal of our
complaint entirely on this final ground, contending that
our complaint challenges Judge Brimmer's "decision"
not to recuse himself in U.S. v. Wyoming, No. 01-CV-860B
(July 14, 2003). See Order at 2-3. This is erroneous for
the simple reason that there is no evidence in the record
to suggest that Judge Brimmer ever considered whether or
not to recuse himself from the case. He certainly never
made a decision on the record, subject to appeal, and with
a disclosure of the facts which could have formed the basis
for a recusal motion.
Judge Brimmer had the obligation to "disclose
on the record any information that a judge believes the
parties or their lawyers might consider relevant to the
issue of disqualification, even if the judge believes there
is no real basis for disqualification." See ABA Model
Code of Judicial Conduct, Canon 3(E)(1) cmt. (2000); see
also American Textile Mfrs. Inst. v. The Limited, 190 F.3d
729, 742 (5th Cir. 1999) ("judges have an ethical duty
to 'disclose on the record information which the judge believes
the parties or their lawyers might consider relevant to
the question of disqualification.'" (quoting Porter
v. Singletary, 49 F.3d 1483, 1489 (11th Cir. 1995)). This
obligation is designed to protect judges from investigations
into their personal and financial interests. American Textile
Mfrs. Inst. v. The Limited, 190 F.3d at 742 ("litigants
(and, of course, their attorneys) should assume the impartiality
of the presiding judge, rather than pore through the judge's
private affairs and financial matters * * * litigants and
counsel should be able to rely upon judges to comply with
their own Canons of Ethics.").
By failing to inform the parties of his financial
holdings, Judge Brimmer effectively prevented the parties
from filing a timely recusal motion and preserving the issue
on appeal. See Liljeberg v. Health Servs. Acquisition Corp.
(HSA), 486 U.S. 847, 866 (1988) ("by his silence, Judge
Collins deprived respondent of a basis for making a timely
motion for a new trial and also deprived it of an issue
on direct appeal"). Under Chief Judge Tacha's ruling,
Judge Brimmer's inappropriate silence while the case was
before him would prevent any examination of his conduct.
This cannot be right.
While it is theoretically possible that one
of the parties could still move to recuse Judge Brimmer,
see Order at 4, n1, the case is out of Judge Brimmer's court
and, because he issued a final decision order on the merits,
it is unlikely to come back to his court. With the case
decided and already noticed for appeal, there is (and was
at the time our complaint was filed) very little incentive,
even for the losing party, to seek recusal. For repeat litigants
before a particular court, it is a significant litigation
risk to review a judge's financial disclosure form and to
seek a judge's recusal based on a judge's financial holdings.
See Liljeberg, 486 U.S. at 864 n.11 (explaining that it
is an "unusual step" for a litigant to review
a "judge's financial disclosure form."). That
is precisely why 28 U.S.C. § 351 was enacted. The chief
judge's ruling would absolve judges of violations of 28
U.S.C. § 455 any time a judge effectively hides a disqualifying
conflict long enough that the parties no longer have sufficient
incentive to take the litigation risk and commit the resources
necessary to file a recusal motion.
Congress gave the chief judge of each circuit
the discretion to dismiss a Section 351 complaint that is
"directly related to the merits of a decision"
to prevent litigants or other interested parties from relitigating
a settled decision through a Section 351 complaint. Section
352(b) does not permit dismissal of an ethics complaint
where a judge's failure to disclose a potentially disqualifying
financial interest prevents the parties from filing a timely
motion for recusal.
Our complaint seeks only those remedies that
Congress specifically allowed us to seek under 28 U.S.C.
§ 351 and that Congress directed the Judicial Council
to consider under 28 U.S.C. § 354(a)(2). It is important
to note that these remedies are not available pursuant to
a motion for recusal. The chief judge's ruling, which prohibits
punishment for violations of 28 U.S.C. § 455 via Section
351 complaints, means that a judge can never be formally
disciplined for violating 28 U.S.C. § 455.
This is the first Section 351 complaint that
either of our organizations have filed. We took this extraordinary
step because we believe that Judge Brimmer's conduct in
U.S. v. Wyoming is extremely prejudicial to the effective
and expeditious administration of the business of the courts.
If the Judicial Council dismisses our complaint without
addressing the merits it will gravely undermine the process
Congress established to promote public confidence in the
federal courts.
For these reasons, we ask that the Judicial
Council review and reverse the Order of Dismissal of the
above referenced complaint.
Sincerely,
Douglas T. Kendall
Executive Director
Community Rights Counsel
Melanie Sloan
Executive Director
Citizens for Responsibility and Ethics in Washington
