Introduction

Our primary concern on this website is judicial misconduct in (American) civil court actions/cases. We focus mainly on the (American) federal court system, which has a normalizing/standardizing influence on state/local systems. Thus, much of what is said in the federal context carries over, mutatis mutandis, to state/local arenas. Similarly, most of what is said about civil cases carries over to criminal.

On this page we review various concepts and terminology used throughout.

Statutes

Statutory (federal) laws are enacted by the Legislative branch of government, the Congress (Senate and House of Representatives). https://www.usa.gov/how-laws-are-made; https://en.wikipedia.org/wiki/Law_of_the_United_States. Non-statutory laws originating elsewhere (for example Executive Orders and Administrative Regulations) are of lesser (though non-vacuous) importance for our purposes here (e.g., administrative law judges).

Statutes are ultimately (following preliminary publication) compiled into the United States Code (USC). https://en.wikipedia.org/wiki/United_States_Code; http://uscode.house.gov/; https://www.law.cornell.edu/uscode/text.

The criteria by which the Department of Justice (https://www.justice.gov/; https://en.wikipedia.org/wiki/United_States_Department_of_Justice) — including the Federal Bureau of Investigation (FBI) (https://www.fbi.gov/; https://en.wikipedia.org/wiki/Federal_Bureau_of_Investigation) and Public Integrity Section (PIN) (https://www.justice.gov/criminal/pin; https://en.wikipedia.org/wiki/Public_Integrity_Section), the latter having “exclusive jurisdiction over allegations of criminal misconduct on the part of federal judges” — analyzes cases is given in the United States Attorney’s Manual (USAM). https://www.justice.gov/usam/united-states-attorneys-manual; https://www.justice.gov/usam/criminal-resource-manual.

Rules of Court

Civil (federal) cases are, in the first instance (District court level), conducted according to the rules of court promulgated by the Federal Rules of Civil Procedure (FRCP). http://www.uscourts.gov/rules-policies/current-rules-practice-procedure; https://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure; https://www.law.cornell.edu/rules/frcp; 28 USC Appendix.  Criminal cases are governed by the Federal Rules of Criminal Procedure (FRCrP). http://www.uscourts.gov/rules-policies/current-rules-practice-procedure; https://www.law.cornell.edu/rules/frcrmp; 28 USC Appendix. In addition, individual Districts are empowered (by FRCP 83) to establish Local Rules (LR) (e.g., D.Mass.). These are the “basic rules of the game” — all courts (judges) and all litigants (plaintiffs and defendants) are bound by these rules of court.

Going beyond the District courts to the U.S. Courts of Appeals (USCA), proceedings are subject to the Federal Rules of Appellate Procedure (FRAP). http://www.uscourts.gov/rules-policies/current-rules-practice-procedure; https://www.law.cornell.edu/rules/frap; 28 USC Appendix. Local Rules are permitted here too (FRAP 47) (e.g., First Circuit).

Finally, the Supreme Court establishes its own set of Supreme Court Rules (SupCtR). https://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf; https://www.law.cornell.edu/rules/supct.

Dismissals

The FRCP supports many types of dismissals of litigation (termination of cases other than via resolution by full-blown jury trial). See for example FRCP 41 (http://www.uscourts.gov/sites/default/files/fr_import/14-CV-D-suggestion.pdf) and FRCP 50 (Judgment as a Matter of Law, JMOL). Dismissals, especially early/pretrial dismissals (before empaneling a jury, “in the interests of just and economical disposition of cases,” and so forth, and so on), merit special attention here, because they are widely/realistically viewed as anti-plaintiff (decreasing litigants’ access to courts and juries), and are frequently the basis of accusations of judicial misconduct. Theodore Eisenberg and Kevin M. Clermont, Plantiphobia in the Supreme Court, Cornell Law Review ʋ100 №1 (Nov 2014) . Two kinds of pretrial dismissal are of primary interest. The first, failure to state a claim, occurs at the very earliest pretrial stage of litigation (pleading stage, immediately after filing of complaint). The second, summary judgment, occurs at the very latest pretrial stage (after discovery and deposition practice, immediately before trial). Each is characterized by a “trilogy” of three landmark Supreme Court decisions.

Failure to State a Claim (FRCP 12(b)(6))

The initial pleading phase of a civil action is dominated by the “liberal/broad/loose/plaintiff-friendly” (as opposed to “conservative/narrow/strict/defendant-friendly”) notice pleading standard (FRCP 78, https://en.wikipedia.org/wiki/Pleading_(United_States)). That is, the initial complaint submitted to court by complainant (plaintiff) need merely be detailed enough to put complainee (defendant) “on fair notice” of the behavior complained-of: a “short and plain” statement, sufficient merely to afford defendant with enough information to formulate an informed Answer. If the Complaint fails this criterion, FRCP 12(b)(6) empowers the court to dismiss the case, on the basis of “failure to state a claim upon which relief may be granted.”

The benchmark case interpreting FRCP 12(b)(6) is (i) Conley v. Gibson, 355 U.S. 41 (1957), which provides the guidelines to which judges must adhere when appraising sufficiency of the Complaint:

  • Even under the presumption that plaintiff’s statements of facts are all true;
  • and even construing all reasonable conclusions therefrom in favor of the plaintiff (just as the most plaintiff-leaning jury is permitted to do);
  • the court may/must dismiss the case if and only if it appears beyond doubt that the plaintiff can (given sufficient time and resources to develop evidence, such as discovery and depositions) show (to the judge’s discretionary satisfaction) no set of facts in support of his claims which would entitle him to relief under the prevailing/relevant laws.

Yoichiro Hamabe, Functions of Rule 12(b)(6) in the Federal Rules of Civil Procedure: A Categorization Approach, Campbell Law Review ʋ15 №2 (Jan 1993) .

The notice pleading standard stood inviolate for 50 years, until it was (arguably) supplanted by the “stricter” (less “liberal”) plausibility pleading standard, following a duo of cases ((ii) Bell Atlantic v. Twombly, 550 U.S. 544 (2007); (iii) Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) — jointly referred to as “Twiqbal”), which (appears to) endow the judge with a new discretionary power to (potentially) filter out “weak” (and not just “hopeless”) cases:

  • Only a complaint that states a plausible (in the judge’s view(!)) claim for relief survives a motion to dismiss.

It must be noted, however, that this area of procedural law is currently quite unsettled: a great deal of uncertainty now shrouds the interpretation of Twiqbal, and its long-term import/impact remains to be determined. Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play On the Federal Rules of Civil Procedure, Duke Law Journal ʋ60 №1 (Oct 2010) ; Adam N. Steinman, The Rise and Fall of Plausibility Pleading?, 69 Vanderbilt Law Review 333–399 (2016) .

Summary Judgment (FRCP 56)

In contrast to the present flux in notice/plausibility standards at initial pleading time, the situation at summary judgment time has been utterly stable, at least since 1986, when it was “set in stone” by the famous trilogy of cases: (i) Matsushita v. Zenith, 475 U.S. 574 (1986); (ii) Anderson v. Liberty Lobby, 477 U.S. 242 (1986); (iii) Celotex v. Catrett, 477 U.S. 317 (1986). Notably, as opposed to the post-Twiqbal “plausibility” standard at motion-to-dismiss-time (supra), the motion-for-summary-judgment process admits no discretion on the part of the judge, as we now explain.

To a first approximation, FRCP 56 may be paraphrased as a command to judges that, upon adjudicating a motion for summary judgment, and after sufficient allowance for development of the theories arising from Complaint and Answer (discovery, depositions, etc.): “Thou shalt dismiss if and only if (i) nonmovant can show/articulate/proffer the existence of no disputed genuine issue of material fact (DGIMF), and (ii) movant is entitled to judgment as a matter of law” (second sentence of FRCP 56(a), paraphrased).  Here:

  • An issue of (purported) fact is a (potential) event that the factfinder at trial (jury, or judge in the case of a bench trial) is charged with crediting (determining what "really happened," according to the credibility of witnesses/experts/etc. at trial).
  • Disputed means “movant claims one thing, while nonmovant makes a different (conflicting/contradictory) claim.”
  • Genuine issue means “can be resolved in favor by either party, by some rational/reasonable jury.”
  • Material [purported] fact means “has the potential to affect the outcome of the issue in dispute.”

Of cardinal importance here is that, by design: the judge had no discretion at summary judgment time: all fact-finding (determining what is “true” and “false”) is done by the jury at trial, not by the judge at summary judgment (the judge only looks for the existence of disputed “facts” to be “found”).

In long-form format, the standard for the judge to grant a motion for summary judgment is circumscribed by six core Summary Judgment Tenets of Review (SJTOR) (https://en.wikipedia.org/wiki/Summary_judgment), where the emphasized must-words highlight the lack of judicial discretion permitted:

  • T1All-Issues/Facts — All (“each/every,” not just “some”) factual issues must be considered/discussed — especially, all disputed/contested genuine issues of material facts.
  • T2Whole-Record — The entire record (“whole set/totality of circumstances,” not just a “subset”), must be considered, regarding each/every issue.
  • T3In-Context — All issues must be considered in holistic relationship with one another, within the whole-record environment (not “context-free line-by-line isolation”); patterns may emerge.
  • T4Nonmovant-Trumps-Movant — Tenets T1–T3 must be interpreted/construed in the light most favorable/advantageous to nonmovant (never to movant), and belief/credit awarded thereto (as to whether a “dispute exists,” not as to “who wins the dispute,” though either interpretation unambiguously satisfies the only question at Summary Judgment, which is whether or not a “dispute exists”).
  • T5All-Inferences — All reasonable/justifiable logical/legal inferences/implications from tenets T1–T3 must also be interpreted favorably to nonmovant, and credit awarded thereto.
  • T6Light-Burden — For tenets T4–T5, nonmovant bears the undemanding requirement of production only of favorable facts (and law) — i.e., de minimus proof/persuasion. (This de minimus clause is the only piece of the SJTOR that comes even close to permitting “judicial discretion” — but it’s not really all that close … or shouldn’t be.) All fact/credibility-finding must be reserved for the jury at trial, none for the judge at summary judgment.

References: Samuel Issacharoff and George Loewenstein, Second Thoughts about Summary Judgment, Yale Law Journal, ʋ100 №1 (Oct 1990) ; Suja A. Thomas, Keynote: Before and After the Summary Judgment Trilogy, Loyola University Chicago Law Journal, ʋ43 №3 (Spring 2012) ; Linda S. Mullenix, The 25th Anniversary of the Summary Judgment Trilogy: Much Ado About Very Little, Loyola University Chicago Law Journal, ʋ43 №3 (Spring 2012) ; Hilell Y. Levin, Iqbal, Twombly, and the Lessons of the Celotex Trilogy, Lewis & Clark Law Review, ʋ14:1 (2010) .

Even though the theory controlling summary judgment is well-understood, the practice is rife with judicial misconduct — by judges falsely (mala fide, in bad faith) “‘finding’ no disputed genuine issue of material fact.” The existence/prevalence of this phenomenon is not in dispute, especially within the realm of federal employment discrimination cases; see, esp., the Symposium, Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination , and the book Unequal: How America’s Courts Undermine Discrimination Law. The latter contains (and proves) this key quote (℘85, emphasis added), contravening the SJTOR, supra:

These [“court-created,” that is, in absence/defiance/contradiction of statutory authority] rules and inferences allow judges to make determinations about the facts [which is impermissible/illegal — the judge may rule only on the law, not the facts (factual matters are the province of the jury)] in a particular case. They often make judgment calls about who is telling the truth [impermissible/illegal] and about how to weigh competing evidence [impermissible/illegal]. Although the procedural rules [FRCP, FRAP, which are statutory (Rules Enabling Act, 28 USC §2071–2077), prescribed/promulgated by the Supreme Court, not the lower courts] that apply to all lawsuits [so-called “transsubstantivity”] require judges to let factual questions go to juries, the legal [that is, court-created, non-statutory, impermissible/illegal] rules and inferences discussed in this chapter allow judges to do the opposite.

Judicial Oath & Ethics

Federal judges are required by law to pledge an oath of office. 28 USC §453. This oath augments the oath federal employees generally are required to pledge. 5 USC §3331.

Federal judges must abide by a set of ethical principles and guidelines adopted by the Judicial Conference of the United States: The Code of Conduct for United States Judges (CodCon) .

An accompanying publication furnishes guidelines in the form of Advisory Opinions. http://www.uscourts.gov/rules-policies/judiciary-policies/code-conduct/published-advisory-opinions.

There are also corresponding codes of conduct for other judicial employees, and for law clerks. http://www.uscourts.gov/rules-policies/judiciary-policies/code-conduct/code-conduct-judicial-employees; https://oscar.uscourts.gov/assets/Maintaining_the_Public_Trust__Ethics_for_Federal_Judicial_Law_Clerks_2011.pdf. And, for lawyers in general. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.html.

A fair trial in a fair tribunal is a basic requirement of due process. Fairness, of course, requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end, no man can be judge in his own cause [https://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua], and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that “Every procedure which would offer a possible temptation to the average man as a judge … not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.” Tumey v. Ohio, 273 U.S. 510, 273 U. S. 532 [(1927)]. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But, to perform its high function in the best way, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 348 U.S. 14 [(1954)].

In re Murchison, 349 U.S. 133 (1955) (emphasis added)

Pursuant thereto (fairness/appearance of justice), the legal profession prides itself (falsely, it turns out — they “talk the talk,” but don’t “walk the walk”) on self-regulation, by imposing a Duty to Report upon “officers of the court” (emphasis added):

A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority.

ABA Model Rule 8.3(b) of Professional Conduct

A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that a judge’s conduct contravened this Code … Appropriate action may include direct communication with the judge or lawyer, other direct action if available, reporting the conduct to the appropriate authorities …

CodCon Canon 3(b)(5) and its Commentary

Judicial Misconduct (& Impeachment)

Complaints of judicial misconduct are authorized under both law and rule:

The JCDA/JCDR specify a two-tier combination of multi-judge committees: (i) per-Circuit Judicial Councils; (ii) one overarching Judicial Conference. These groups also have other administrative duties, beyond just judicial misconduct oversight. http://www.uscourts.gov/about-federal-courts/governance-judicial-conference. The system is not without its critics. Peter Fish, The Circuit Councils (1970) ; Breyer Committee Report (2006) ; Arthur Hellman, Judges Judging Judges (2007) , Peek Behind Closed Doors (2007), When Judges Are Accused (2008), Unfinished Business (2014); Dana Remus, Institutional Politics (2012). (State/local courts have their own similar/separate judicial discipline commissions, going under various names.)

The JCDA itself nowhere formally defines the term “misconduct.” Rather, its definition (or “meaning”) is imputed, by the JCDR §3(h)(1) , from the following phrase in the leading provision of the JCDA:

  • Any person alleging that a judge has engaged in [“mis”]conduct prejudicial to the effective and expeditious administration of the business of the courts … may file with the clerk of the court of appeals for the circuit a written complaint containing a brief statement of the facts constituting such conduct. — JCDA §351(a) , relevant part, emphasis added.

The JCDR (Commentary on Rule 3, CommR3 ) acknowledges that this (or any other) phrase used to deduce the meaning of “misconduct” “is not subject to precise definition.” For example, it does not address the question: What is the relationship between judicial ethics (CodCon supra) and judicial misconduct (JCDA/JCDR) (after all, both “code of conduct and “misconduct share the common stem conduct)? For that reason, the JCDR provides various examples and dialectic to adumbrate the meaning of “misconduct.” For our purposes here, we cite to the following points (emphasis added throughout):

  • CommR3  indirectly states: “[T]he CodCon  may be informative ...”. And reciprocally, the CodCon indirectly affirms (CodCon Commentary to Canon 1 ): “Th[is] Code ... may also provide standards of conduct for application in proceedings under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980” (28 USC §332(d)(1),351-364 ). Anent, the CodCon directly provides:
    • A judge should uphold the integrity and independence of the judiciary. An independent and honorable judiciary is indispensable to justice in our society. — CodCon Canon 1 .
    • Respect for Law [Including Judicial Rules]. A judge should ... act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. ... An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all [actual] impropriety and [even] appearance of impropriety. This prohibition applies to both professional and personal conduct. — CodCon Canon 2A and its Commentary .
    • A judge should Perform the Duties of the Office [Which Includes Judicial Rules] Fairly, Impartially and Diligently ... A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism. ... A judge should accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law.CodCon Canons 3,3A(1,4) .
  • The JCDR (§3(h)(3)(A) CommR3 ) excludes from the definition of “misconduct” those allegations which are “[d]irectly related to the merits of a decision or procedural ruling. ... Any allegation that calls into question the correctness of an official action of a judge — without more — is merits-related.” But, the JCDR then helpfully proceeds to explore the boundaries of “official actions” that are ‘more’;” i.e., that “are not ‘merits-related’;” i.e., that are eligible for a finding of misconduct:
    • An allegation that a judge ruled against the complainant because the complainant is a member of a particular ... group [such as, for example, the plaintiff in an employment discrimination suit] ... is ... not merits-related. Such an allegation attacks the propriety of arriving at rulings with an illicit or improper motive [e.g., ignoring Rules of Court!]. — CommR3 .
    • An allegation that a judge treated litigants or attorneys in a demonstrably egregious and hostile manner [such as, ignoring Rules of Court!] while on the bench [which means “acting in the official capacity of a judge,” not necessarily “behavior in a courtroom”] is also not merits-related. — JCDR 3(h)(1)(D) CommR3 .

Judicial misconduct proceedings (complaints, reports, decisions, opinions, orders) are only partially published (that is, only to the extent authorized),α per-Circuit: http://www.uscourts.gov/judges-judgeships/judicial-conduct-disability (e.g., First Circuit). The Judicial Councils and Judicial Conference themselves are limited in their powers to discipline judges, but they are empowered to refer considerations of impeachment to the U.S. House of Representatives. JCDR 20(b)(2)(A) , 23(f) . Judicial criminality of any sort could/should/must/would, of course, constitute grounds for impeachment (and subsequent conviction, removal, fines, incarceration).

α・ ⁠Unfortunately, the operative meaning of “extent authorized” in this context is grossly deficient/lacking (due to ill-advised strict/deplorable confidentiality/secrecy rules imposed by the process on investigating committees [not on complainants themselves]), as can be seen by perusing the published proceedings — which are grossly redacted, omitting the names of complaining parties and complained-of judges, thereby preventing outside parties (such as this author) from checking-up on the authenticity/veracity of the published proceedings themselves (noting that this author’s own published order , is not yet published online, presumably because it’s still in-process/on-appeal).

For “more than you ever want to know” about Judicial Conduct and Ethics, see the treatise by Charles Gardner Geyh, James J. Alfini, Steven Lubet and Jeffrey M. Shaman, Judicial Conduct and Ethics, Fifth Ed. (2013), or Fourth Ed. (2010) (largely online). For more on Judicial Impeachment, see: Overview of Impeachment Process ; Removing Federal Judges ; Impeachment and Removal .

Judicial Criminality

Judges generally enjoy absolute immunity from civil liability, for any/all acts properly arising from their official duties. J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, Duke L. J., ʋ1980 №5 (Nov 1980) ; Erwin Cherminsky, Absolute Immunity: General Principles and Recent Developments, Touro L. Rev., ʋ24 №3 #1 (2008) ; Brittney Kern, Giving New Meaning to “Justice for All”: Crafting an Exception to Absolute Judicial Immunity, Michigan St. L. Rev. (2014) ; 42 USC §1983.

Judges do not (nor does anyone else, not even the President , by general statue, right or custom) enjoy immunity from criminal liability. The following is a (non-exhaustive) list of crimes that may be attributed to judges, provided the necessary causes-of-action present themselves. For details, see the Judicial Twilight Zone Essay, ℘3–10. Any single one of these crimes could/should/would constitute grounds for impeachment.

β・ ⁠This first item is here newly added to this list (that is, it was not addressed in the original Judicial Twilight Zone Essay; the principals were notified of the addition in a timely manner). See, e.g., McFarland v. State of Neb., 172 Neb. 251, 109 N.W.2d 897 (1961) . In that case, a judge was imprisoned for contempt when he issued a writ of habeas corpus, “outside the realm of judicial action,” lacking the authority to do so. The decision: (i) cited with approval Braatelien v. United States, 147 F.2d 888, 895 (8th Cir., 1945): “Judicial title [of judge Braatelien] does not render its holder immune to crime even when committed behind the shield of judicial office”; and it further (ii) held that: “[A] disclaimer of intention, disrespect, or design to embarrass the due administration of justice is not a defense. … With respect to defendant’s contention that he intended no harm, it may be said that in the commission of the acts charged, it will be presumed that he intended the results attained and their natural probable consequences. The test of guilt in a prosecution such as this is not necessarily found in the mental processes by which the defendant attempts to justify his acts. The motive of the defendant and the effect intended are subjects of judicial scrutiny, and evidence, as here, may be sufficient to refute oral testimony of innocence and the asserted intention to exercise a legal right.”