By Emma Donahue, FTC law clerk

Fix the Court has recently been doing a deep dive into federal judicial misconduct complaints (see our filing guide published in March).

One of the primary issues we found with the current regime is the lack of timelines to guide the process once complaints are filed.

This is all the more true given that misconduct may continue unabated during the pendency of the protracted process.

As a result, complainants essentially send their complaint into a black box without knowing when it will be reviewed.

The Judicial Conference makes and enforces the Rules for Judicial-Conduct and Judicial-Disability Proceedings, which govern proceedings under the Judicial Conduct and Disability Act. The Rules outline the general life of the complaint process but provide no time constraints on the judges (and their staffs) who review complaints.

Here’s how the complaint process typically proceeds

First, someone — and this can be anyone — files a complaint against a subject judge. Sometimes, a chief judge “identifies” a complaint against another judge, which has the same effect.) Then, the circuit clerk who receives the complaint opens a file, assigns a docket number, acknowledges the complaint’s receipt and distributes copies to the chief judge and the subject judge under no time constraint.

Then, the chief judge reviews the complaint and decides whether it should be 1) dismissed (for several possible reasons, but the most frequent one is that the complaint relates to a merits decision, and under the JCDA, that can’t be grounds for a complaint), 2) concluded on the ground that voluntary corrective action has been taken, 3) concluded because intervening events (like a subject judge’s retirement) have made action unnecessary, or 4) referred to a “special committee,” typically comprising between three and seven judges, for further review (again, under no time constraint).

Disposal without special committee review

If the chief judge disposes of a complaint without referring it to a special committee, they must prepare a memorandum accompanying their order setting forth the reasons for their disposition. This must be sent to the complainant and the subject judge, and in certain cases, the judicial council of a circuit.

The subject judge and complainant then have 42 days after the chief judge issues this order to file a petition for review by the judicial council of the circuit. This is a rare instance where a timeline exists, but it does not constrain the decision-makers.

After considering the petition for review, the council may 1) affirm the chief judge’s disposition, 2) return the matter to the chief judge with instructions to conduct further inquiry, 3) return the matter to the chief judge with directions to refer to a special committee, or 4) take other appropriate action in “exceptional circumstances.”

The council’s final order and corresponding memoranda must be distributed to the complainant, the subject judge and the Judicial Conference’s Committee on
Judicial Conduct and Disability. If the ruling is unanimously adverse to the complainant, they have no right to further review. If there was a dissent in favor of the complainant, they can file another petition.

Referral to a special committee

If the chief judge decides to appoint a special committee, the chief judge must invite the subject judge to respond orally or in writing if they did not do so already during the initial review period. The chief judge must also notify the complainant that the matter has been referred to a committee.

Once the matter is in the hands of the special committee, they conduct a full inquiry into the complaint. This investigation can include hearings, receipt of evidence, use of experts/other professionals, additional staff and the issuance of subpoenas. This investigation is (surprise!) subject to no statutory and rules-based time constraint.

Following their investigation, the special committee must file their final report including findings and recommendations with the judicial council. Copies must be sent to the subject judge and the CJCD, but not the complainant. Within 21 days of the filing of this report, the subject judge may send a written response to the judicial council and must be given the opportunity to present an argument before the council.

The council may then 1) dismiss the complaint, 2) conclude the proceeding due to corrective actions or other intervening events that make the proceeding unnecessary, 3) refer the complaint to the Judicial Conference with its recommendations for action, 4) take remedial disciplinary action against the subject judge or 5) take a combination of such actions.

The council must refer a complaint to the Judicial Conference if it determines the subject judge may have engaged in conduct that creates grounds for impeachment or is otherwise not amenable to resolution by the council. If the council finds an inadequate basis for a decision, it can refer the matter back to the special committee or conduct further investigation on its own.

The subject judge or complainant may seek review of the council’s final order by filing a petition with the CJCD. Except in extraordinary circumstances, the Committee will not conduct an additional investigation, but may return the matter to the judicial council with instructions to do so. The Committee’s decision must be transmitted to the Judicial Conference, which has final power of review.

So, where are the timelines?

The Rules do not hold the reviewing judge, special committee or judicial council to specific timelines for completing their respective complaint reviews. This is problematic as it leaves complainants in the dark for too long about when their complaints might be resolved, or if the subject judge will face discipline.

Most other federal employee misconduct complaint regimes include timelines to hold the reviewers of such complaints accountable to a certain level of expedience, which makes it even more stark that the federal judiciary lacks comparable procedures.

To name a few, state judicial misconduct complaint investigations, army regulations concerning missing or stolen property reports and sexual assault complaint investigations in the military at large are all governed by specific timelines.

State judicial misconduct

Most states have judicial conduct commissions tasked with reviewing complaints and recommending discipline.

As with the federal regime, most complaints are dismissed without action and public access to these proceedings is minimal. However, the timelines incorporated by some states to govern these proceedings at least provide more transparency to complainants navigating the process.

In our opinion, Massachusetts has the best system because its rules include timelines governing both the informal and formal stage of complaint proceedings. In cases where formal charges are brought against judges, the proceedings can last nearly a year:

• Within 90 days after the initiation of proceedings, the Executive Director shall recommend to the Commission whether there is adequate reason to proceed to the preparation of a Sworn Complaint or Statement of Allegations.
• Within 21 days after the service of the Sworn Complaint or the Statement of Allegations, the judge may file a written answer with the Executive Director and may request a personal appearance before the Commission.
• Following the expiration of the 21 days allowed for the judge’s response, the Commission shall thereafter hold a formal meeting which shall be conducted in private if they decide not to dismiss.
• If after the hearing the Commission decides to issue formal charges, they shall serve them promptly on the judge, and the judge will have 10 days to respond.
• The Supreme Judicial Court will appoint a hearing officer, after which the commission will schedule a hearing to take place between 30-60 days.
• Within 30 days of receiving formal charges, the judge can request additional information/records from the Commission, and vice versa.
• Within 30 days of the conclusion of the hearing, the hearing officer submits a report with proposed findings and recommendations.
• Within 20 days after the hearing officer’s report is filed, both parties can submit written objections. Within this same period, the judge and the complainant may file a request to be heard before the Commission.
• If an additional hearing is granted, the commission shall give the parties 7 days notice of the hearing.
• Unless good cause for delay, the Commission shall make its decision within 90 days after the additional hearing, or else within 90 days of the filing of the hearing officer’s report.

The military

The U.S. Army regulations are filled with deadlines surrounding the process of investigating reports of missing or stolen property. To summarize, they have 15 calendar days to initiate the investigation, 40 days to complete the investigation, 20 days for the commander to consider the results, and up to 30 days for the defendant to submit a rebuttal. There is also a timeline governing the defendant’s rights to additional response/reviews after the investigating officer makes his recommendation.

As for investigating reports of sexual misconduct and assault within the military, this is a very complex and bureaucratic process that varies across the branches. Generally, service members can file anonymous “restricted” reports that basically allows them to formally record the event and gain access to victim services, or they can file an “unrestricted” report that triggers a formal investigation which is governed by regulatory timelines.

A formal investigation, or Criminal Investigation Division investigation, is conducted by military law enforcement to determine whether a service member has violated the UCMJ. Army Regulation 600-52 governs this process for the Army. Notably, this process requires that monthly updates be given to complainants until a final decision is rendered, as well as a follow-up assessment following the conclusion of the matter. The general timeline is as follows:

• Absent a written exception from the general court-martial convening authority (GCMCA), the investigation will be completed within 14 calendar days of receipt.
• If the investigation is not completed within 14 days, the commander will submit a report on the progress 20 days after the commencement of the investigation to the GCMCA and every 14 calendar days after that until the investigation is completed.
• An administrative finding concerning a complaint resolved through the formal Army process may be appealed by the victim or the subject within 30 duty days of receiving notice of the finding.
• Commanders should conduct a follow-up assessment of all formal sexual harassment complaints (substantiated and unsubstantiated) 30 to 45 calendar days following the final action rendered on the investigation of the complaint. They should present findings and recommendations to the subject’s brigade commander for further consideration or action within 15 calendar days of the start of the assessment.
• Ensure the victim’s commander provides the victim monthly updates regarding the status of the sexual assault investigation from the date the investigation was initiated until there is a final disposition of the case and initiates follow-up with the victim within 45 calendar days after disposition of the case.

The federal judiciary should take stock of these examples.

The Judicial Conference should amend the Rules to include a timeline for the complaint review process (with Massachusetts as an ideal model).

This would not only provide complainants more transparency into the process, but would also hold judges accountable to review and handle complaints in a more expeditious manner.

If a judge is ultimately subject to sanctions or potential impeachment, an enforceable timeline would minimize the time that judge remains on the bench despite their misconduct, which may well be ongoing.

If the Judicial Conference refuses to act, Congress should consider amending the JDCA to force the judiciary’s hand in the matter.

Fix the Court thanks Stetson Law Prof. Nino Monea for jumpstarting our thinking that led to this piece.