In Re Charges of Judicial Misconduct

Citations: 404 F.3d 688; 2005 U.S. App. LEXIS 10666; 2005 WL 826085Docket: 04-8529

Court: Court of Appeals for the Second Circuit; April 8, 2005; Federal Appellate Court

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Five complaints of judicial misconduct were filed against a circuit judge in June to September 2004, as per 28 U.S.C. 351 and the Judicial Council of the Second Circuit's local rules. Following the recusal of Chief Judge John M. Walker, Jr., Acting Chief Judge Dennis Jacobs appointed a special committee to investigate the allegations. This committee included Acting Chief Judge Jacobs, Circuit Judge Joseph M. McLaughlin, and District Judge Carol B. Amon, with Michael Zachary serving as counsel. The committee conducted a thorough review of the complaints, evidence from both the complainants and the judge, relevant canons, and the judge's responses. All five complaints centered on the judge's remarks made on June 19, 2004, at an American Constitutional Society event, with one alleging that the judge’s participation constituted prohibited political activity and another inferring misconduct from statements made by the judge's wife at a political demonstration on May 23, 2004. The committee submitted its report to the Judicial Council based on this investigation.

The Judge made controversial remarks during a panel discussion titled "The Election: What's at Stake for American Law and Policy," expressing concerns about the legitimacy of political power transitions in the U.S., particularly referencing the Supreme Court's decision in Bush v. Gore. He compared this situation to historical instances where leaders were appointed without electoral victories, specifically mentioning Mussolini and Hitler, while clarifying he was not equating Bush to those figures. The Judge articulated a belief that such unusual ascensions to power require a reassertion of democratic principles, regardless of policy implications.

On June 24, 2004, the Judge sent a letter to Chief Judge Walker, expressing profound regret for his comments, stating they were unintendedly perceived as partisan. He emphasized his disapproval of judicial politicization and acknowledged that his attempt to present a complex academic argument was misinterpreted. The Judge apologized for any embarrassment caused to the court and his colleagues, recognizing that his remarks should have been framed within a non-partisan context.

Chief Judge Walker communicated to the Second Circuit Court of Appeals regarding a Judge's remarks made at an ACS event, emphasizing that the remarks, although framed as academic, could be perceived as partisan political comments, which would violate the Code of Judicial Conduct. The Judge acknowledged that his statements could be interpreted as partisan and recognized the need for caution, especially during election years, to avoid any appearance of political endorsement. 

The concerns raised include whether the Judge's participation in the ACS event constitutes a breach of ethics, specifically regarding Canon 7's prohibition on judges making speeches for political organizations. The complaint argues that the ACS is inherently left-leaning, citing its self-description as a "progressive legal organization." However, the ACS also claims to be a non-partisan, non-profit educational entity that does not engage in lobbying or taking positions on specific issues.

The analysis concludes that speaking at an ACS event does not violate Canon 7, as the term "political organization" likely refers to groups primarily focused on political activities, such as political parties, rather than those aimed at legal education and debate. Canon 4 supports this view, allowing judges to engage in activities that improve the law and the legal system, including speaking and participating in educational forums.

Canon 4 encourages judges to engage in activities aimed at improving the law and the legal system. Judges are uniquely positioned to contribute to legal reform and the administration of justice, and they may participate in such activities either independently or through professional organizations, as long as these activities focus on legal improvement rather than social or political agendas. Participation in Canon 4 activities is welcomed, granting judges more flexibility in their extrajudicial engagements. However, activities with a political orientation are interpreted narrowly, requiring a direct connection to legal processes. Judges may attend or speak at events hosted by politically oriented groups without implying endorsement of those groups' views, provided they do not publicly engage in political debates or votes.

Membership in controversial bar associations is permissible, provided judges abstain from public participation in policy discussions. The American Constitution Society (ACS) is cited as an example where various justices have engaged without alignment to the organization's controversial positions. While balanced representation of views at events can be advantageous, it is not mandatory; judges can attend events that may favor specific perspectives, as their training allows them to analyze diverse opinions. Nonetheless, judges must evaluate each invitation individually to ensure compliance with the Code of Conduct.

The Judge's attendance at the ACS event does not imply support for its mission or the speakers involved, as his educational efforts span a variety of groups, not exclusively those aligned with the left. His impartiality is not reasonably questioned, even considering a past lecture to a police/prosecutor drug enforcement task force. This lecture included criticisms of prosecutors and participation in defense lawyer programs, reinforcing his impartiality. Claims regarding the Judge's remarks at the ACS include: 1) Advocacy against the President's reelection, made explicit in one complaint and implied in others; 2) A comparison of the President to Hitler and Mussolini, stated in one complaint; 3) Allegations of political bias or advocacy, with concerns about the Judge's 'bigotry' raised in four complaints; 4) A claim of incompetence related to disagreement with the Bush v. Gore decision. The claims of political advocacy will be addressed alongside the reelection claim due to their overlap. Canon 7 prohibits judges from political activities, including endorsing or opposing candidates. The Judge acknowledged that his remarks could be construed as opposing a candidate and apologized, committing to avoid similar incidents in the future. Judicial misconduct can lead to various actions by the Judicial Council, including temporary case reassignment, censure, or referrals for further action if the behavior warrants impeachment considerations.

Local Rule 14 allows the Judicial Council to dismiss misconduct claims that fail to meet statutory requirements, conclude proceedings when corrective action is taken, or order corrective action. There is no clear definition of "censure" or "reprimand" in the misconduct statutes or local rules, but terms used in the ethics rules of Congress offer some guidance. The Judicial Council determined that the Judge violated Canon 7 by making partisan statements regarding the President's reelection and agreed with Chief Judge Walker's prior admonition. The Council concluded that the Judge's public apology and the dissemination of the admonition, alongside its concurrence, served as adequate sanction and corrective action. 

The Commentary to Canon 1 suggests that the appropriateness and degree of disciplinary action depend on factors such as the seriousness of the violation, the judge's intent, any prior patterns of misbehavior, and the impact on the judicial system. In this case, the violation was serious and public, warranting some sanction. However, mitigating factors included the Judge's acknowledgment of the violation, his lack of intent to engage in partisan advocacy, his apology, and the public nature of the admonition. Comparatively, past cases of censure or suspension involved more egregious behavior, with similar allegations often resolved through corrective actions like apologies. The Judicial Council concluded that the Judge's actions, including the apology and public release of the admonition, sufficiently addressed the misconduct and served the interests of accountability and public confidence in the judiciary.

On June 24, 2004, a letter from the Judge to Chief Judge Walker suggested his earlier remarks were only contextually inappropriate and suited for an academic seminar. However, following the Committee's report, the Judge admitted that such remarks would also be inappropriate in an academic setting, leading the Judicial Council to conclude that no further action was required regarding this issue. 

The Judge made controversial comparisons between President Bush and historical figures Hitler and Mussolini, asserting a similarity in how power was gained. He acknowledged that referencing Hitler and Mussolini directly was a mistake and stated he should have limited his examples to American history. The Judge clarified that his intent was to compare the Supreme Court's power to that of Victor Emmanuel III and Hindenburg, not to equate President Bush with dictators. He expressed his profound apology for the misunderstanding.

Despite the inflammatory nature of the comparisons, the Judicial Council determined that they did not constitute judicial misconduct. Although some argued that the remarks violated Canon 1, which mandates high standards of conduct for judges, there is insufficient guidance on when off-court comments cross the line into misconduct. Previous cases have typically addressed misconduct related to inappropriate courtroom remarks or more egregious out-of-court comments. Therefore, no additional actions were deemed necessary.

Federal judges who made controversial remarks outside the courtroom often faced corrective actions, but it remains unclear whether these actions were accompanied by any formal findings of misconduct. References include discussions on federal misconduct proceedings and disciplinary actions related to abusive language or conduct toward court personnel. A notable case involved a federal judge's public statement about President Reagan, which raised questions about ethical violations. Opinions from law professors indicated that while some comments could violate ethical canons, the judge's acknowledgment of mistakes and subsequent apology mitigated the need for further action, especially since there was no clear precedent for classifying the remarks as misconduct. 

The Judicial Council found that general allegations of political bias did not constitute claims under Canon 7, allowing judges to hold personal political preferences as long as they do not advocate publicly. Claims suggesting a judge's political bias would impair their ability to preside over cases were deemed premature. Moreover, concerns regarding a judge's disagreement with the Bush v. Gore decision were dismissed; although incompetence could theoretically be classified as misconduct, the wide range of opinions surrounding that case indicated that the judge's views did not reflect incompetence. Thus, all claims regarding political bias and disagreement with the Bush v. Gore ruling were ultimately found to be meritless.

On May 23, 2004, the Judge's wife participated in a protest against the President and the Iraq war, claiming she was protesting on behalf of herself and her husband. The complainant alleged that the Judge failed to publicly correct this impression, suggesting he holds partisan political views, in violation of Canon 7. Both the Judge and his wife denied that she ever claimed to protest on his behalf, with the Judge stating he did not authorize any such comments. They emphasized her awareness of his obligation to remain politically neutral, and she was unaware of the comments until a newspaper article published on June 25, 2004. The Judge noted he would have corrected the article had he known about it earlier but felt it was too late to address it meaningfully. The critical issue was whether the Judge authorized his wife’s comments, which evidence indicated he did not. It was concluded that he had no ethical duty to correct the story after becoming aware of it a month later. Regarding another matter, the Judicial Council found that the Judge’s remarks about the President's reelection violated Canon 7 and concurred with Chief Judge Walker's admonition, considering it sufficient sanction. All other complaints were dismissed.

The complainants' reliance on Canon 7, which prohibits judges from making speeches for a political organization, is misplaced as the Judge did not represent or solicit support for the ACS. The terms 'censure' and 'reprimand' are identified as more serious sanctions than 'admonishment' based on their definitions and the context of Senate and House ethics rules. The Senate rules classify sanctions from most to least severe as: expulsion, censure, restitution, and changes in seniority; followed by reprimand and restitution, with admonitions being the least severe. Similarly, the House rules indicate that reprimands are for serious violations, censure for more serious violations, and expulsion for the most serious, with a public admonition being more severe than a private letter of reproval.