|
June 6, 2005
The Honorable Stephen G. Breyer
United States Supreme Court
One First Street, NE
Washington, DC 20543
Dear Justice Breyer:
I write, respectfully, to bring to your attention the enclosed
opinion dismissing an ethics complaint seeking the resignation
of a federal judge from the board of directors of an organization
that takes money from corporations and groups with litigation
agendas and provides judges with expense-paid trips to Montana
resorts for seminars on environmental topics. Chief Judge
James B. Loken's opinion uses the wrong legal standard to
reach the wrong result. I believe it is a perfect example
of the problems that must be addressed by the panel you are
chairing to improve the judiciary's implementation of "The
Conduct and Disability Act of 1980," codified at 28 U.S.C.
Section 351 et seq.
As you know, the statistics regarding the disposition of
Section 351 complaints are startling. Between September 2002
and September 2003, 682 complaints were resolved by the judiciary;
only one of these cases resulted in any action against a judge.
Between 1998 and 2003, 3,673 complaints were closed by the
judiciary, with action against a judge in only six cases.
These statistics led House Judiciary Committee Chairman James
Sensenbrenner (R-WI) to warn the Judicial Conference that
he would have to assess "whether the disciplinary authority
delegated to the judiciary has been responsibly exercised
and ought to continue." Increasing public concern over
the issue of corporations and other interested parties funding
trips for judges led Senator Patrick Leahy to ask you in May
2004 to include this topic in your panel's deliberations.
There is a way to reform the ethics complaint system that
addresses both the concern about whether the judiciary is
sufficiently aggressive in policing itself, and the uneasiness
about permitting private funding of judicial education. As
Judge Loken's opinion illustrates, there is currently no fixed
benchmark against which ethics complaints are judged. It is
not sufficient to demonstrate that a judge's behavior runs
afoul of the judiciary's Code of Conduct; action is reserved
for the most "serious judicial transgressions,"
a standard which is in the eye of the beholder and is almost
never met in practice. Thus Judge Loken declined to act, despite
intense public concern over privately-funded trips and equal
concern from prominent ethics experts, such as NYU's Vice
Dean Stephen Gillers, who has stated that a judge's service
on the Board of Directors of the Foundation for Research on
Economics and the Environment (FREE) "compromises the
public's view of the impartiality of panels on which [the
judge] sits in every case of interest to FREE's members."
The Conduct and Disability Act is not limited to the most
serious transgressions. Rather it speaks of conduct that is
"prejudicial to the effective and expeditious administration
of the business of the courts." The Act plainly authorizes
a reviewing judge to take a wide range of actions (many short
of judicial discipline) whenever conduct by a judge breaches
the judiciary's Code of Conduct. The Conduct and Disability
Act would be far more effective in protecting public confidence
in the judicial branch if the judiciary used the statute to
interpret and enforce the Code of Conduct in cases where a
member of the public has used a Section 351 complaint to raise
serious questions about a judge's conduct. The statute should
not be viewed as primarily about judicial discipline, it is
primarily about maintaining public confidence in the judicial
branch.
Judge Loken's opinion also highlights (on page 11) a second
major problem with the functioning of the current system.
Judge Loken notes that questions about a judge's impartiality
in a particular case must be addressed in a recusal motion,
not a Section 351 complaint. There are, of course, sound reasons
for limiting the ability of unhappy litigants to reopen a
case through a Section 351 complaint. But there is no basis
in the statute for a blanket prohibition on the filing of
a Section 351 complaint with respect to a judge's conduct
in a particular case. As I explain more thoroughly in the
attached Legal Times article,
recusal motions are a deeply flawed mechanism for enforcing
judicial ethics. The bar on the use of Section 351 complaints
to police ethics in the context of individual cases leaves
a considerable gap in the coverage of the judicial ethics
system.
The judiciary needs and the public deserves a better process
for reviewing Section 351 complaints and ensuring judicial
compliance with ethical requirements. The country needs your
leadership in this important matter.
Sincerely,
Douglas T. Kendall
Executive Director
Enclosures
|
