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Dan Levine

The Recorder

11-02-2007

When it comes to proposed new rules for disciplining wayward federal judges, circuit chiefs from around the country haven't exactly been falling over themselves to publicly air their thoughts.

Indeed, the national committee in charge of fashioning those rules has decided to withhold the chiefs' critiques -- including those from a 9th Circuit committee convened by Chief Judge Mary Schroeder to weigh in.

And while Schroeder said Tuesday that she will abide by that edict and not disclose her committee's specific comments, she did highlight a concern that she said the 9th Circuit shares with others across the country.

"We have always been concerned in the 9th Circuit about maintaining the ability of our circuit to handle the issues relating to the West, and to try to avoid undue centralization in Washington," Schroeder said. "That is kind of a theme -- a tension between the role of circuit councils and the administrative office."

The raft of proposed rules comes from a committee headed by 2nd Circuit Judge Ralph Winter. The rules, issued in June as a draft, follow a report last year from a group led by U.S. Supreme Court Justice Stephen Breyer, which found that the circuit councils' handling of 5 of 17 "high visibility" misconduct cases had been "problematic."

The proposals would remove some of the discretion each circuit now has over whether and when to initiate formal proceedings against a judge accused of misconduct.

One of the biggest disciplinary cases in the 9th Circuit involved Los Angeles federal judge Manuel Real. Interestingly, the proposed new rules bear a distinct mark of the Real proceedings, says Arthur Hellman, a professor at the University of Pittsburgh School of Law and 9th Circuit watcher.

Attorney Stephen Yagman accused Real of improperly interfering in a bankruptcy case to protect a probationer he supervised. In 2004 Schroeder dismissed the complaint without appointing a special committee to investigate. A divided 9th Circuit council confirmed her decision.

In the spring of 2006, the national conduct committee decided by a 3-2 vote that it didn't have the authority to review the 9th Circuit's Real finding because Schroeder never formed a special committee. Winter wrote the dissent. With Congress weighing impeachment proceedings, Schroeder appointed a committee to investigate; the committee's recommendation that Real be censured is pending before the national Judicial Conference.

Under the proposed rules, a national conduct panel would have new authority to review cases like these, in which chief circuit judges decline to appoint a special committee to investigate a complaint. Thus it appears Winter may have the last laugh.

"You can directly trace the exercise of [national] authority in the proposed rules to the dissenting opinion in the Real case," Hellman said.

Schroeder declined to comment on how the new rules would have affected the Real proceeding.

The new rules will also rob circuit chiefs of some discretion for appointing special committees to investigate complaints. Under the proposal, the chief judge must not "make findings of fact about any matter that is reasonably in dispute." Some judges fear that this language could lead to an overly formal process for complaints that have little or no merit. And since these special committees require outside counsel, the costs could add up.

But Hellman supports the concept behind this new rule. In testimony to Winter's committee, the professor noted that a "recurring theme" in problematic high-visibility cases examined by Breyer was the failure of circuit chiefs to convene special committees when there were clear factual disputes.

Yet another possible source of contention is a requirement for the circuits to forward every complaint -- and every document gathered in the investigation of a complaint -- to the conduct committee in Washington.

On top of any policy concerns, Schroeder said the proposed rules just aren't well drafted. She hopes Winter's committee will issue a new draft for feedback before making its recommendation to the national judicial conference.

The 9th Circuit chief said the original time frame would have called for a finished draft to be ready for a conference meeting in March. But given the comments from across the country, Schroeder said she now doubts whether that date can be met.