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08/13/85 the Honorable Alcee L. v. Judicial Conference of the

August 13, 1985




Before EDWARDS and BORK, Circuit Judges, and MCGOWAN, Senior Circuit Judge.



Opinion for the Court filed by Senior Circuit Judge McGOWAN.

Opinion concurring in part filed by Circuit Judge EDWARDS.

Appellant, United States District Judge Alcee L. Hastings, seeks reversal of a judgment by the District Court dismissing his suit to enjoin the continuation of an investigation of his judicial conduct by an investigative committee of the Judicial Council of the Eleventh Circuit. The investigation was initiated pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 331, 332, 372(c), 604 (1982) [hereinafter, "the Act"]. Appellees are the Judicial Conference of the United States; the Chief Justice of the United States, in his capacity as presiding officer of the Conference; the Standing Committee of the Judicial Conference; the Judicial Council of the Eleventh Circuit; the Chief Judge of the Eleventh Circuit; the member-judges of the Investigating Committee; and the Attorney General of the United States.

Appellant's complaint contains four counts. The first alleges that the Act is unconstitutional on separation-of-powers and due process grounds. Count Two asserts that the application of the Act to appellant violates the same constitutional principles. Count Three alleges that the Committee's investigation of Judge Hastings is the result of a conspiracy among judges of the Eleventh Circuit to violate Hastings' constitutional rights. The final count claims that appellant's rights under the Privacy Act of 1974, 5 U.S.C. § 552a (1982), have been violated in connection with the investigation. On cross-motions for summary judgment, the District Court rejected the challenge in Count One to the facial validity of the Act. The Court dismissed Counts Two and Three as unreviewable under the explicit terms of the Act. Finally, the Count dismissed the Privacy Act count for failure to state a cognizable claim.

For the reasons hereinafter appearing, we hold that, at the time the District Court rendered its decision, adjudication of Counts One and Two was premature. We therefore vacate the District Court's grant of summary judgment to appellees on Count One and affirm the District Court's dismissal of Count Two. We also affirm the District Court's dismissal of Counts Three and Four, although, as with Count Two, our reasons for holding these counts properly dismissed differ from those offered by the District Court. I

The Act established a formal mechanism by which federal judges could be disciplined by fellow judges for "conduct prejudicial to the effective and expeditious administration of the business of the courts." 28 U.S.C. § 372(c)(1). "Any person" alleging such conduct on the part of a judge may set that mechanism in motion by filing with the clerk of the circuit in which the judge sits a complaint containing a "brief statement of the facts constituting such conduct." Id. The clerk of the court must then transmit the complaint to the chief judge of the circuit (or to the next most senior active service judge of that circuit, if the chief judge is the subject of the complaint), as well as to the judge who has been named in the complaint. The chief judge, after "expeditiously reviewing a complaint," id. § 372(c) (3), may take any of several courses of action. He may dismiss the complaint if it either (1) fails to conform with the requirements for a complaint stated above, or (2) directly relates to the merits of a decision or procedural ruling, or (3) is frivolous. Id. § 372(c) (3) . The chief judge may also conclude the proceeding if he finds that "appropriate corrective action has been taken." Id. § 372(c) (3) .

If the chief judge neither dismisses the complaint nor concludes the action, he must appoint a special committee, consisting of himself plus equal members of circuit and district judges of the circuit, to investigate the facts and allegations contained in the complaint. Id. 372(c) (4). The Act grants the committee the power to conduct an investigation "as extensive as it considers necessary." Id. § 372(c)(5).

When the committee has completed its investigation, it is required to file with the judicial council of the circuit *fn1 "a comprehensive written report . . . present[ing] both the findings of the investigation and the committee's recommendations for necessary and appropriate action by the judicial council of the circuit." Id. § 372(a) (5). Upon receiving the committee's report, the circuit judicial council may conduct any additional investigation it considers necessary. In addition, the judicial council "shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit." Id. § 372(a) (6) . Such action may include requesting that the judge voluntarily retire; ordering that, "on a temporary basis for a time certain," no further cases be assigned to the judge; and public or private censuring of the judge. Id.

Rather than take such action itself, however, the judicial council has the option of referring a complaint, along with the record of any proceedings undertaken to that point and the council's recommendations for appropriate action, to the Judicial Conference of the United States. Id. § 372(c) (7) . *fn2 The Act also requires transfer to the Judicial Conference of any case in which the circuit judicial council determines, on the basis of a complaint and an investigation under this subsection, or on the basis of "information otherwise available to the council," id. § 372(c)(7), that a judge has engaged in conduct that either (1) might constitute one or more grounds for impeachment under Article I of the Constitution, or (2) "in the interest of justice, is not amenable to resolution by the judicial council." Id.

Having had proceedings transferred to it from a circuit judicial council via either of the above paths, the Judicial Conference, "after consideration of the prior proceedings and such additional investigation as it considers appropriate," id. § 372(c) (8), shall by majority vote, take any of the courses of action, described above, that were open to the judicial council. In addition, if the Conference determines -- either on its own or upon review of the judicial council's determination -- that consideration of impeachment may be warranted, it shall transmit its determination to the United States House of Representatives "for whatever action the House of Representatives considers to be necessary." Id.

In any investigation undertaken pursuant to the Act, the investigating body, be it the special committee, the circuit judicial council, or the Conference, is vested with full subpoena powers. Id. § 372(c)(9), ; see id. § § 331, 332(d). The Act also gives each such body the power to prescribe rules for the conduct of its proceedings, although such rules must provide certain minimum procedural safeguards. *fn3

The Act expressly limits the availability of review of orders and determinations made under the Act. See 5 U.S.C. § 372(c)(10). A petition for review may be filed with the circuit judicial council by a complainant or judge aggrieved by an order of the chief judge, pursuant to § 372(c)(3), dismissing a complaint or concluding a proceeding, see infra pp. 3-4. An aggrieved complainant or judge may also petition the Judicial Conference for review of action taken by the judicial council pursuant to § 372(c)(6). With these two exceptions, "all orders and determinations, including denials of petitions for review, shall be final and conclusive and shall not be judicially reviewable on appeal or otherwise." Id. at § 372(c)(10). II

As a description of the proceedings so far will reveal, little of the Act has as yet come into play. On December 29, 1981, a federal grand jury indicted appellant, a district judge in the Southern District of Florida since 1979. The indictment charged appellant with conspiracy to solicit and accept money in return for being influenced in his performance of official acts as a United States district judge. The indictment further alleged that appellant had informed his co-conspirator, one William Borders, of the substance and date of issue of a forthcoming judicial order and that Borders had in turn passed the information on to a person he believed to be a defendant in the case involved.

After an unsuccessful motion to quash to indictment on the ground that the sole means of punishing a judge for high crimes and misdemeanors is impeachment by Congress, appellant was brought to trial. His co-conspirator had already been convicted of the conspiracy counts in a separate trial, and his conviction had been upheld against an attack on sufficiency grounds in an opinion that detailed the evidence against appellant as well as Borders. Appellant's trial, however, ended in acquittal.

On March 17, 1983, two federal district judges filed with the Eleventh Circuit a complaint under § 372 of the Act, charging that appellant had engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts and had violated several Canons of the Code of Judicial Conduct for United States Judges. The specific allegations referred both to the conduct on which the indictment rested and to other conduct and statements by appellant occurring in the course of the criminal proceedings against him. *fn4

On March 29, 1983, the Honorable John C. Godbold, Chief Judge of the Eleventh Circuit, appointed an investigative committee consisting of himself, two federal circuit judges, and two federal district judges. The Committee in turn appointed a private attorney as its counsel. The Committee began its investigations on June 3, 1983, with the filing of a petition in the Southern District of Florida for access to the materials of the grand jury that had indicted appellant and his co-conspirator. The petition was granted over appellant's objections, and the order granting the petition was affirmed by a panel of the Eleventh Circuit. In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d 1261 (11th Cir.), cert. denied, 469 U.S. 884, 105 S. Ct. 254, 83 L. Ed. 2d 191 (1984). *fn5

Approximately six months after the investigation began, appellant filed this action in the United States District Court for the District of Columbia, seeking a declaration that the Act is void and an injunction against continuation of the proceedings taken against him pursuant to the Act. As stated earlier, his complaint contains four counts. The first count challenges the facial constitutionality of the Act on separation-of-powers and due process grounds. The second count attacks the constitutionality of the Act as applied to Judge Hastings. Count Three alleges that the complaint filed against Judge Hastings under 372(c)(1) of the Act, and the proceedings thereafter initiated, are the product of a conspiracy to violate his constitutional rights. The fourth count alleges a violation of appellant's rights under the Privacy Act, 5 U.S.C. § 552a (1982).

As of the date of the District Court's decision in this case, the Investigative Committee was still at work. No report had issued from the Committee with recommendations for disposition of the complaint. III

In the District Court, appellant had set forth three grounds for his Count One allegation that the Act is facially unconstitutional, each of which grounds were rejected by the Court. First, appellant argued that Congress lacks the power to provide the judiciary with the means to discipline Article III judges. Under the separation-of-powers doctrine, Congress alone, through the impeachment power, may discipline judges for misconduct in office. The Act's provisions, appellant contended, represent an unlawful delegation of Congressional authority to a branch -- the judiciary -- constitutionally incapable of disciplining itself.

The District Court held that the Act does not violate the separation-of-powers doctrine because it is precisely "in order to assure the integrity and independence of the judicial branch" that these, and earlier, limitations have been placed on the independence of an individual federal judge. 593 F. Supp. at 1379. The Court stated: "The independence of the judiciary depends both on the courage and integrity of individual judges and on the public perception of the institution as fair, impartial and efficient. The judiciary has the inherent power to govern itself in a manner that will achieve these ends." Id. at 1380. The Act, the Court concluded, "represents a legitimate exercise of Congress's 'necessary and proper' power to effectuate that judicial power." Id. Rather than intrude upon judicial independence, Congress "was simply recognizing the need to give the courts reasonable means to put the judiciary's own house in order." Id. The court also held that the impeachment provisions of Article II neither preclude the Judicial Conference from recommending to the House that particular judges be impeached nor preempts the judicial councils or the Judicial Conference from invoking the various disciplinary measures open to them under the Act.

Appellant also argued that the Act's standards of misconduct are constitutionally vague and overboard and impermissibly chill his and all other federal judges' constitutionally guaranteed judicial independence. The District Court disagreed.According to the court, the standard set forth in § 372(e)(7)(i) -- i.e., "conduct which might constitute one or more grounds for impeachment" -- gave clear notice to Judge Hastings that his alleged conduct was proscribed. With respect to the alleged bribe and obstruction of justice, the Court stated that "it is difficult to imagine any conduct by a judge, if it occurred, more worthy of impeachment," 593 F. Supp. at 1382, and that "'[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.'" Id. (quoting Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974)). As to the standard set forth in 372(c)(1) -- (.e., "conduct prejudicial to the effective and expeditious administration of the business of the court" -- the court noted that it was "necessarily broad" and, when read in the light shed by its legislative history, was not vague. 593 F. Supp. at 1382.

Finally, appellant asserted that the procedures authorized by the Act violate his fifth amendment rights to due process of law. Specifically, he contended that the Act (1) prevents him from confronting the evidence against him, and (2) impermissibly combines investigative and adjudicatory powers, so as to render impossible a fair adjudication. The court found no merit to either of Judge Hastings' due process claims. The court read the Act to require a judge under inquiry to have the right to confront all the evidence against him, although not to give the judge the right "to re-confront old evidence at every stage where it is considered." Id. at 1383. As to the combination of investigative and adjudicatory functions, the court held that not to constitute a due process violation in itself, id. at 1384 (citing Withrow v. Larkin, 421 U.S. 35, 58, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975)), and found Judge Hastings to have failed to make the requisite showing of unfair risk in this instance.

As to Count Two, the challenge to the constitutionality of the Act as applied to appellant, and Count Three, the conspiracy claim, the District Court held that adjudication was barred by § 372(c)(10) of the Act, which precludes judicial review of "orders and determinations" made with respect to individual judges. Regarding Count Two, the Court stated:

While there is always a basic presumption of judicial review and a Congressional intent to preclude review must be explicit, the language of the Act and its legislative history plainly show that Congress intended to establish an absolute bar against judges under inquiry seeking judicial review of actions taken against them pursuant to the Act. Congress's power to preclude such judicial review is well established. Accordingly, this Court must conclude it has no jurisdiction over Judge Hastings' Count Two claims concerning the present and possible future application of the Act to him. 593 F. Supp. at 1377-78 (citations and footnotes omitted). The same reasoning applies, the Court held, to review of the Chief Judge's order to initiate that investigation, "even if Judge Hastings seeks to clothe his request for review in the language of conspiracy." 593 F. Supp. at 1384.

Addressing Count Four, the Privacy Act claim, the District Court simply found no violation of the relevant statutory provisions:

Count Four states on its face no Privacy Act claim in regard to past actions by the Justice Department, since the Act requires neither that Judge Hastings be notified nor approve of any disclosures made. See 5 U.S.C. § 552a(b)(7), (e)(8). The Justice Department memorandum mentioned in paragraph 57 of the amended complaint merely states in most general terms matters already of public record. No violation of the regulations cited emerges. As for future cooperation between the Justice Department and the Investigating Committee, that has been resolved by In re Petition, 576 F. Supp. 1275 (S.D. Fla. 1983), aff'd, 735 F.2d 1261 (11th Cir. 1984). Finally, the due process allegations against the Investigating Committee defendants in Count Four represent yet another attempt by Judge Hastings to short-circuit the exclusive review process vested by the Act in the judicial councils and the Conference, and this Court cannot consider them. See 28 U.S.C. § 372(c)(10). Thus no cause of action is stated in Count Four.

593 F. Supp. at 1385.

In support of his appeal from the District Court's ruling against his Count One claim that the Act is facially unconstitutional, Judge Hastings raises the same three arguments rejected by the District Court. Judge Hastings also appeals the District Court's unfavorable ruling on Counts Two through Four. We hold that adjudication of both Counts One and Two is premature. We affirm the dismissal of Counts Three and Four, although for reasons different from those stated by the District Court. IV

Count One of appellant's complaint touches matters of profound importance for the federal judicial system. The need for some means by which federal judges might "put their own house in order," Chandler v. Judicial Council, 398 U.S. 74, 85, 26 L. Ed. 2d 100, 90 S. Ct. 1648 (1970), has been recognized since 1939, when a committee of distinguished jurists chaired by Chief Justice Hughes successfully proposed the statutory organization of the judicial councils and the Judicial Conference. See id. That those bodies could constitutionally be vested with some powers by which to effect the goals of the 1939 Act seems also to be established. See id. at 86 n.7 ("We see no constitutional obstacle preventing Congress from vesting in the Circuit Judicial Council's as administrative bodies, authority to make 'all necessary orders for the effective and expeditious administration of the business of the courts within [each] circuits.'") Nevertheless, the precise limits to the powers that could constitutionally be exercised by the judicial councils and the Judicial Conference have yet to be judicially defined. Indeed, before the 1978 Act, no particular powers were statutorily conferred; the assumption seems to have been that the self-administrative power of the judiciary was implicit in the very structure of the judicial councils and the Judicial Conference. The Supreme Court, however, expressed discomfort with such a vague scheme in Chandler, supra, *fn6 and Congress, in the 1980 Act, responded by vesting specific investigative and disciplinary powers in the judicial councils and the Judicial Conference.

As to each of the investigatory and disciplinary powers conferred by the Act, there may be a question of whether Congress may lawfully vest such powers in an administrative organ of the federal judiciary composed of Article III judges. Regardless whether such a question may be asked, however, ...

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