Public Comments on Committee's Draft Rules

Coalition for Judicial Accountability


October 15, 2007


The Honorable Circuit Judge Ralph Winter
Chair, Committee on Judicial Conduct and Disability
Office of the General Counsel
Administrative Office of the U.S. Courts
Washington, D.C. 20544
Sent as Directed by Email to:
JudicialConductRules@ao.uscourts.gov

RE: PUBLIC COMMENTS to the
Draft Rules Governing Judicial Conduct and Disability Proceedings

Proposed by the Committee on Judicial Conduct and Disability
of the Judicial Conference of the United States

Ladies and Gentlemen of the Committee:

On July 16, 2007, your Committee requested public comment upon the Draft Rules Governing Judicial Conduct and Disability Proceedings, which are being considered for promulgation by the Judicial Branch under the legislative authority delegated to the U.S. Supreme Court by Act of Congress to implement the Judicial Conduct and Disability Act, 28 U.S.C. §§ 351-364.

The organizations and individuals signing below hereby submit these comments jointly and ask you to seriously consider them. These organizations regularly work for the legal rights of citizens and reform of the legal system.

The “Coalition for Judicial Accountability” is an umbrella project created to facilitate the joint submission of the individual (actual) organizations named below, each of which join in this submission together, along with individuals who have also affixed their name.

The individual organizations signing below may also submit further, individual comments separately. Each of these organizations has a broad range of concerns about the availability of legal services and the fairness and justice of the legal system to Americans, but they join here on areas of agreement to attempt to emphasize the importance of these matters and to ask for your very serious consideration of these joint comments.

Of course, for those in the legal profession, it is an ethical responsibility to work for the improvement of the legal system and to encourage the continuing development of a reliable, fair, and accessible legal system to benefit the public and a society maintained by the rule of law. We are pleased to assist the Committee by this response to the Committee’s request.

We applaud not only the value of good governance in this public comment period provided by the Committee, but also the Committee’s wisdom in accessing the broadest range of experiences, ideas, perspectives, and insights possible during this process to arrive at the best possible rules governing the Federal Courts across the nation.


SUMMARY

We submit that (a) conflicts of interest among judges presiding over a case (refusal to recuse) create some of the most serious examples of judicial misconduct, (b) the Draft Rules Governing Judicial Conduct and Disability Proceedings must be changed to define a failure to recuse (proceeding under a conflict of interest or appearance) as a very serious category of misconduct, (c) the Court’s Rules must require automatic recusal, whenever an alternate judge is available and the motion is made in a way that will not cause disruption or dilatory delay, (d) the Committee’s Rules must aggressively regulate, enforce, and prosecute requirements of judges to avoid not only the reality but also the appearance of a conflict of interest. In short:

CONFLICTS OF INTEREST AMONG JUDGES PRESIDING OVER A CASE ARE NOT ACCEPTABLE and must never be tolerated.

Therefore, proposed Rule 3(b)(A) “EXCLUSIONS” as currently drafted is wholly unacceptable and inadvertently confirms the worst suspicions of a cynical public and of critics of the Judiciary. Rule 3(b)(A) as drafted reinforces and confirms everything that cynics and critics believe is wrong with our nation’s courts.

Draft Rule 3(b)(A) currently provides that no substantive decision can be counted as “misconduct” by a Federal judge – including a failure to recuse (which would be relevant only if actual grounds for recusal had in fact existed, otherwise there would be no failure to act).

In other words, the Draft Rules provide that a failure to recuse can never be misconduct. A failure to recuse could only be considered as wrongful – and potentially misconduct – if the judge in fact had a conflict of interest in hearing the case. Thus, when placed in context, the Draft Rules effectively provide that a Federal Judge may hear a case in which the judge has a direct financial or personal interest – and yet this will not be considered as misconduct.

Thus, the Draft Rules actually provide that it is not misconduct for a Federal Judge to preside over and decide a case in which the Judge has a direct personal or financial interest, or perhaps the appearance of a conflict. Under the Draft Rules, a Judge could actually be an owner of a company involved in a case, and preside over the case, and this could never be misconduct.

STATEMENTS OF PRINCIPLE

We arrive at the comments below based on the following beliefs:

· The tasks and duties of judges, particularly in the Federal Judiciary, are of enormous mportance to the nation and to American society, including promoting a society governed by fairness, public safety, and the peaceful resolution of disputes.

· The Federal courts have the power to improve or destroy the lives of individuals, including – through precedents – the lives of millions of Americans.

· One who serves well as a Federal judge deserves enormous honor and respect.

· Public confidence that the nation is governed impartially and well by the rule of law, in which all persons are under the same law, is crucial to the preservation of civil society.

· Public confidence in the Judiciary can only be produced by the actual reality of fairness, respect, consistency, impartiality, and effectiveness in the Courts. It can never be ‘faked’ by public relations efforts or attempts to limit information to the public. As demonstrated by the recent crisis within the Catholic Church, hiding problems can prove catastrophic.

· Even the appearance of bias or conflicts of interest among judges can be as poisonous to society as the reality. Those who fervently believe that judges are impartial and fair should desire transparency to clearly demonstrate to the public that courts are fair.

· The great importance of the courts and judges to American society demands that only those who are very successful and highly qualified as judges should wield tremendous power over fellow citizens and the ability to preserve order or create chaos and ruin lives.

· Public confidence in the courts has in fact reached crisis proportions. In our interactions with the public, most people who have been to court tell us they are extremely dissatis-fied and disappointed. Nearly everyone complaining about their court experience insists that the judge was overtly biased and judged recklessly in disregard of the evidence.

· Addressing and resolving problems within the courts or inadequate performance of a judge is essential because of the great importance of the courts in society. The Committee should never permit the idea that the courts are too important to have real problems fixed.

· Performing successfully as a judge requires extraordinary mental concentration and attention to detail, enormous patience suited to a saint, a judicial temperament able to show respect to a vast diversity of individuals who may often be difficult or even unpleasant themselves, and the unusual psychological ability to set aside personal opinions and beliefs in favor of impartially applying governing laws and rules.

· As a result, those suited to the post of judge are rare and few, and the Court system must assertively detect and remove anyone who is not successful in the position of judge.

· Meanwhile, any attorney at such a level enjoys many wonderful professional opportunities far more profitable than serving as a judge. American life affords a variety of opportunities to suit the personalities and abilities of different types of individuals. To serve in a different occupation cannot be considered a loss. The Committee should consider only the needs of the country and should never consider a judgeship to be the personal property or right of any individual person.

RECOMMENDATIONS AND PUBLIC COMMENT

#1 RULE 3(b)(A) FAILS TO REGULATE SERIOUS AND MOST FREQUENT INCIDENTS OF JUDICIAL MISCONDUCT – CONFLICTS OF INTEREST

An impartial decision-maker is the heart and soul of due process. Indeed, the very symbol of the courts in the United States is a statue of a blind-folded woman, meant to signify that law and justice are applied equally and impartially to all persons regardless of whom they are.

A conflict of interest, real or perceived, strikes at the very heart of the legal system of the United States, and threatens to destroy public confidence in the government of the nation and of the states and the rule of law which preserves a modern civilization.

The proposed Draft Rule 3(b)(A) is wholly unacceptable.

Draft Rule 3(b)(A) would define “misconduct” to exclude a judge’s failure to recuse himself or herself upon an allegation of a conflict of interest

Thus, the Committee proposes to announce to the entire nation that presiding over a case in Federal court when the judge has a conflict of interest is not “misconduct” in the eyes of the Committee or the Federal Judiciary.

This message will be regarded as nothing short of shocking to the average American who looks to the Federal Courts as the guardians of his rights and liberties.

It will be sensational that any agency of the Judiciary would suggest that hearing a case while having a conflict of interest is not “misconduct.”

Therefore, the phrase in Rule 3(b)(A) must be modified so that misconduct includes an improper refusal or failure to recuse including for actual or perceived conflicts of interest.

#2 RECUSAL SHOULD BE AUTOMATICALLY GRANTED ON REQUEST

Every Court has a process for assigning various cases to different judges. Thus, it is no burden for a court to assign a judge without a conflict of interest, because the Court must already go through a process of case allocation.

The Draft Rules should be modified so that every Federal Judge is obligated to recuse herself or himself upon the slightest showing of even the appearance of a conflict of interest…. unless (a) an alternative judge is not available, (b) the recusal motion is brought at a time that is disruptive or (c) the motion is interposed purely for delay such as the week before the trial.

It must be a bedrock principle of the Federal Judiciary that ANY judge hearing the same case would produce the same result.

If Judges hearing the evidence and applying the law produce the “correct” result, then it must necessarily be true that every Judge would produce exactly the same result in a case.

Therefore, there can be no valid reason for opposing a motion for recusal. The Judiciary should never suggest that which Judge hears a case will change the outcome of the case!

Because – as a matter of public policy and law – it could not make any difference which Judge hears a case, the great need for public confidence in the courts requires that the public be assured that any Judge with the slightest appearance of any conflict will always recuse himself or herself to reassure all parties and the public that the courts will be fair.

For the Federal Judiciary to admit that a different Judge would produce a different result in the case is to admit that Judges do not apply the law to the facts impartially and accurately. For the Federal Judiciary to oppose automatic recusal is to admit that Judges decide cases based upon personal opinions, personal biases, and individual views. This would be an intolerable message to send to the American people. It must be made clear that all Judges are equal.

Of course, there may be occasions when an exception is necessary. (a) A party calling for recusal must do so promptly, before a particular judge has invested significant time and effort in a case (unless the cause for recusal arises during the case). (b) A motion for recusal should not be heard so as to create an excuse for delay, such as waiting to file the motion before a scheduled trial. (c) In extremely rare occasions, there may be no other judge available.


#3 AVOIDING THE PROBLEM IN ADVANCE – AUTOMATIC DISCLOSURE

As mentioned above, every Court must already go through a process of allocating cases to various judges. Public confidence in the Courts should be upheld by avoiding the problem before it arises. Once a question of a conflict of interest arises, some of the damage is done.

The Committee should address the clear misconduct of deciding a case under a conflict of interest by defining measures necessary to avoid the offense of misconduct, perhaps in the form of a safe harbor. Again, we believe that the Committee is authorized to – and should – implement the Act by making it practical and effective in the real circumstances of the Court system, even if that means adding on further methods and procedures consistent with the Act.

Avoiding the misconduct of a conflict of interest should be addressed in two parts:

First, every Judge and the Judge’s law clerk(s) should place on file with the Clerk disclosures that will assist in allocating cases to Judges while avoiding any conflicts of interest arising in the first place, including (a) former law clerks practicing in law firms in the region, (b) relatives practicing law or serving as paralegals in law firms in the region, (c) companies in which the Judge or law clerk (including a spouse) has a financial interest, other than through a blind trust or mutual fund, (d) any organization or official who lobbied or assisted in the Judge’s appointment or confirmation to the bench, [1][1] (e) the Judge’s former employers or business associates, (f) relatives living in the region who are owners or managers of companies in the region, (g) organizations or clubs of which the Judge is a member (excluding in his or her official capacity as a Judge), and (h) the Judge’s and law clerk’s alma mater(s).

Second, the local rules of some circuits should be made universal and expanded: Upon assignment of a case, the parties should file a form with the initial pleadings to be reviewed by the judge, his deputy, his law clerks, his staff, that requires full disclosure as to any connection that the Judge or judge’s staff has to any of the litigants and/or their counsel directly or indirectly as a result of a family member and/or business associate to the named parties and their counsel. That completed form should then be sent to the parties in the litigation stating that a connection exists or doesn’t. At the initial stages, the litigants should be given the opportunity to challenge whether the disclosure form filed by opponents provides full disclosure and to raise any objections. To avoid the case progressing and wasting efforts before discovering a conflict, a fair hearing should be obligatory at the outset of a case.

#4 CONFLICTS OF INTEREST SHOULD BE BROADENED

The Draft Rules should be modified to recognize the full range of concerns held by a highly cynical and skeptical public. The narrow range of circumstances that the Courts officially recognize as conflicts of interest bear little or no relationship to the actual concerns of real people. It ought to be obvious to everyone that conflicts of interest include cases in which (a) a member of the Judge’s family works for one of the law firms in the case (except perhaps with large multi-city law firms) or for a company who is a party in the case, (b) a Judge’s former law clerk is one of the attorneys in the case or works for a small law firm in the case, (c) the Judge is a personal friend, neighbor, or fellow club or church member with one of the attorneys, or (d) a litigant is a lobbying organization or person with influence over whether the Judge is nominated or confirmed for a higher Judgeship (assuming an appointment is under active consideration), or actually did influence the Judge’s appointment or confirmation.

#5 PUBLIC DISCLOSURE OF ALL COMPLAINTS ESSSENTIAL

One of the most damaging injuries to public confidence in the courts is secrecy concerning complaints against Judges. While the Judiciary expects that confidentiality protects the reputation of Judges, precisely the opposite is true. Confidentiality and secrecy casts an air of suspicion and accusation upon all of the Judiciary and severely injures public confidence.

Of course, when a complaint is publicized months or years before the results of the investigation, incomplete disclosure can be unfair, leaving a false impression. Postponing disclosure until the final results can be disclosed with the complaint is fair. However, when the results are never disclosed, the public will assume that allegations are true but hushed up.

Rules 23 and 24 of the Draft Rules attempt to create confidentiality, until a final decision has been reached, followed by mandatory disclosure.

However, Rule 24 should be modified to remove the exceptions and to require disclosure of all information relating to a complaint (perhaps with private identities redacted). Disclosure that a complaint has been fully investigated and the facts found to be untrue would be more protective of the Judiciary than throwing a cloak of secrecy over complaints.

Even where complaints are resolved with minor reprimands or warnings, or on a summary basis, confidentiality is still not appropriate. A Judgeship is a position of public trust, not personal property. The public has a right to be aware of even minor transgressions and be vigilant of relapses. Although there is a danger of copy cat complaints, this should be carefully considered when reviewing any subsequent complaints. A condition of reprimand or warning is avoiding relapses, and therefore public knowledge and vigilance is appropriate.

#6 COVERING UP KNOWLEDGE OF MISCONDUCT

We believe that the Committee has authority to provide for mechanisms necessary to implement the rules. The Committee should define misconduct to include concealing or failing to report evidence of suspicious circumstances or possible misconduct by any judge. It should be obvious that the person so reporting will not necessarily know all of the facts nor be aware if any misconduct has occurred. Because such information may not necessarily form an actual complaint, a method of reviewing irregularities may be required. The Congress might be asked to explicitly provide for such a rule.


#7 BROADER DEFINITION OF DISABILITY

Proposed Draft Rule 3(c) defines “Disability” but the Committee might consider a slightly broader definition. The tasks of a Judge are primarily intellectual. The benefits of wisdom, learning, and perspective for a Judge’s duties have traditionally favored Judges continuing to serve at very advanced ages, when they can still contribute a lifetime of valuable experience. However, medical science has also uncovered medical conditions such as Alzheimers which sometimes have implications for the ability of a Judge to remember, reason, and remain balanced. Emotional irritability and intermittent memory loss can be symptoms.

Curiously, Draft Rule 3(c) explicitly includes an inability to stay awake during proceedings as a disability under the Rule, but fails to include as a recognized disability an inability to remember the facts of the case, such as due to a stroke or Alzheimers, emotional imbalance and irritability (which can be a symptom of the early onset of even undiagnosed Alzheimers) impacting a Judge’s required judicial temperament , etc.

RESPECTFULLY SUBMITTED,
THE FOREGOING IS SIGNED JOINTLY BY THE FOLLOWING ORGANIZATIONS AND INDIVIDUALS WORKING FOR THE REFORM OF THE LEGAL SYSTEM

Unless Specially Noted, all the signers below are not employees of the Judiciary or attorneys, but are private citizens working for the reform of the courts and the legal system and advocating for the rights of litigants, parents, and others affected by the law.

Jonathon Moseley, Esq.
Attorney at Law
Executive Director
Legal Affairs Council
3601 Jean Street, Fairfax, Virginia 22030
(703) 850-3733 Fax (703) 783-0449
Representing 14,000 Members.
LAC has frequently operated legal defense funds for the defense of police officers, public officials, and others in landmark or potentially precedent-setting prosecutions.

Meryl M. Lanson
Victims of the System and
Legal Victim Assistance Project
Post Office Box 880401
Boca Raton, Florida 33488-0401
(561) 488-7678 Fax: (561) 488-2861
E-mail: mlanson@bellsouth.net

http://www.fraudonthecourt.blogspot.com/

http://www.victimsofthesystem.org/

Note that appearing pro se, Meryl Lanson was successful in re-opening a multi-million dollar bankruptcy proceeding on related issues and is maintaining a related multi-million dollar legal malpractice case.

National Coalition for Family Justice
Coalition for Family Justice
821 Broadway
Irvington on Hudson, New York 10533
Contact: Renee Robertson or
Paula Cornacchia, Operations Coordinator
At least 10,000 members
Office: (914) 591-5753 Fax: (914) 591-6981
E-mail: cfjmailbox@aol.com

Dorothy Mataras
Legal Reform Activist
4342 Loveland Drive
Liverpool, New York 13090
Founder & Publisher of Victims-of-Law, Inc.
A New York non-profit corporation
http://victimsoflaw.net/
email: justice96@msn.com

Betsy Combier
"ParentAdvocates.org"The E-Accountability Foundation 315 East 65th Street, Suite 4CNew York, New York 10021
E-mail: Betsy
http://www.parentadvocates.org/
http://www.parentadvocates.org/index.cfm?fuseaction=article&articleID=488

Thomas M. Saunders
Bill of Attainder Project
4360 Platter Road
Calera, Oklahoma 74730
Advisor to the National Judicial Conduct Disability Law Project

Dale Nathan, Esq.
Author, Minnesota Injustice, and representing:
(1) The Justice Committee; (2) Judge Our Courts; and (3) The Truth About America Coalition, (4) Minnesota Court Reform
Post Office Box 211284Eagan, Minnesota 55121
(651) 454-0505 Fax: (651) 454-0507
E-mail: DaleNathan@USFamily.net
http://www.mncourtreform.org/about.html
Note that one of Dale Nathan's lawsuits was chosen by Law & Politics Magazine as one of the eleven lawsuits of the year for 2000.

Krstafer Pinkerton
Post Office Box 1643
Koloa, Kauai, Hawaii 96756
(808) 742 6827
http://www.kpinkerton.com/
http://k-pinkerton.livejournal.com/
Victim of Prosecutorial Misconduct/Non-Attorney

Frank Simard
Past President, New England Coalition for Family Justice
Post Office Box 1546
Plaistow, New Hampshire 03865
Email: SimardRxImages@earthlink.net

Karin Huffer, M.S., M.F.T.
Legal Abuse Syndrome
(702) 528-9588
E-mail: mailto:legalabusesyndrome@adelphia.net

http://www.legalabusesyndrome.com/

Ms. Huffer is author of the book “Overcoming the Devastation of Legal Abuse Syndrome.”

Mark A. Adams, Esquire JD/MBA
P.O. Box 1078
Valrico, Florida 33595
E-mail: markadamsjdmba@hotmail.com


Caroline Douglas, Esq.
Attorney and Author, Sneaky Judge Tricks and Lexis-Nexis’ Family Law (Equity Pub. Co.)
Email: oxford92748@mindspring.com


Mr. Mike Blodgett
Paralegal, private law firm
Philadelphia, Pennsylvania
E-mail: lawview_inc@yahoo.com
(215) 290.8038

Mr. Lesley Winston
13095 Biscayne Island Terrace
North Miami, Florida 33181
E-mail: lwinston@winifs.com


Mr. Martin Salazar
1341 Freeman Harris Road
Harlem, Georgia 30814
Legal Reform Activist (not employed by Judiciary or attorney)

Meredith Taggart
Miami Shores, Florida
Email:

Mr. Laser Haas
Delmar, Delaware

Mary Alice Gwynn, Esq.
Delray Beach, Florida

Norman Lanson
Boca Raton, Florida

Carol Reeth
Westhampton, New York

Sid Soloway
Boca Raton, Florida

Stephanie Ricottone
Oceanside, New York

Christine Carlile and Brian Carlile
Wyckoff, New Jersey

Roseanne Mauro
Frank Mauro
Lake Worth, Florida

Frederick Nielsen
Nielsen & Associates
Tampa, Florida 33606
(813) 251-1620
E-mail: nielsenassoc@aol.com

Jenny Johnson
Creative Funding Solutions
Houston, Texas
[1][1] Not those carrying out their official duties, such as the President or his staff nominating a Judge or Senators voting on the nomination, but those actually advocating for or promoting the Judge’s nomination or confirmation.