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. It’s intended as a “crash course” for the layperson (for example: How to Read a Legal Opinion ⌥), but everything is accurate for even the most discerning legalist (if you don’t think so, contact me and we can discuss it!).

Sources of Laws

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.

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 (DOJ) (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.

Common (or case) law is non-statutory law originating from the Judicial branch.

Non-statutory laws can also originate from the Executive branch (for example Executive Orders and Administrative Regulations, see administrative law judges).

And, oh yes: Rules of Court (next section, infra) also count as “laws” too (Rules Enabling Act (REA), 28 USC §2071–2077).

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.supremecourt.gov/filingandrules/2017RulesoftheCourt.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 (mentioned infra). 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 7–8, 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 (failure to state a claim, FRCP 12(b)(6)) of procedural law is currently rather unsettled: namely a great deal of uncertainty now shrouds the exact 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, Specifically 56(a,c))

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 first “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 (i.e., paraphrase), FRCP 56 is a command to judges that, upon adjudicating a motion for summary judgment, and after sufficient allowance for development of the theories/evidence arising from Complaint and Answer (discovery, depositions, etc.): “Thou shalt dismiss if and only if: (i) nonmovant cannot show/articulate/proffer/prove even the mere ‘existence of evidence’ (without deciding/determining ‘who wins’) supporting any ‘Disputed Genuine Issues of Material Fact’ (DGIMFs)α; and (ii) movant is entitled to judgment as a matter of law.” 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) will be charged with crediting (determining what “really happened,” according to the credibility of record/witnesses/experts/etc.).
  • 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.” (For a (controversial) example of the contrary — non-genuine — see Scott v. Harris ⌥, Wolff on the Future of Summary Judgment ⌥, and Harvard Law Review ⌥.)
  • Material [purported] fact means “has the potential to affect the outcome of the issue in dispute.”

α･ This abbreviation (cf. also variations such as “DIF,” “DIMF” and “GIMF”) was coined by us, but it turns out to be common amongst lawyers (see e.g., here ⌥ and here ⌥).

Of cardinal importance here is that, by design: the judge has 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 Tenetsβ of Review (SJTOR) (https://en.wikipedia.org/wiki/Summary_judgment), where the emphasized must-words highlight the lack of judicial discretion permitted:

β･ Sometimes called “Standards of Review,” but improperly so, because that terminology means something somewhat different. See https://en.wikipedia.org/wiki/Standard_of_review.

The Six Summary Judgment Tenets of Review (SJTOR)
T1 All-Issues/Facts — All (“each/every,” not just “some”) factual issues must be considered/discussed — especially, all disputed/contested genuine issues of material facts.
T2 Whole-Record — The entire record (“whole set/totality of circumstances,” not just a “subset”), must be considered, regarding each/every issue.
T3 In-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.
T4 Nonmovant-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 frequently languaged “who wins the dispute,” though either interpretation unambiguously satisfies the only question at Summary Judgment, which is whether or not a “dispute exists”).
T5 All-Inferences — All reasonable/justifiable logical/legal inferences/implications from tenets T1–T3 must also be interpreted favorably to nonmovant, and credit awarded thereto.
T6 Light-Burden — For tenets T4–T5, nonmovant bears the undemanding requirement of production only of favorable facts (and law) — i.e., de minimus proof/persuasion (that a rational/reasonable jury could find for nonmovant). (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. Regarding which — i.e., “Judicial Notice” of adjudicative facts which are not subject to rational/reasonable dispute — see FRE 201.) All fact/credibility-finding must be reserved for the jury at trial, none for the judge at summary judgment.

Finally, these SJTOR tenets are choreographed by the following rule (FRCP 56(c)(1), paraphrase):

  • Allocation-and-Weight-of-Burden: (i) Movant bears/shoulders the initial burden/duty/responsibility of proffering “absence/nonexistence of (‘relevant,’ ‘admissible,’ in the sense of the Federal Rules of Evidence (FRE) ⌥ 401–402) evidence supporting nonmovant’s case.” (ii) If movant discharges/satisfies that burden, then the burden shifts to nonmovant, who must proffer “presence/existence of (relevant, admissible) evidence supporting nonmovant’s case.”
    • Thus: the key distinction between Failure-to-State-a-Claim (FRCP 12(b)(6), supra) and Summary-Judgment (FRCP 56, locus situs) is precisely the distinction between “claim/pleading” versus “proof/evidence:” between the “weight/pressure” of “‘naked/ephemeral/conclusory’ pleading/claim/assertions/allegations” versus “‘solid/relevant/admissible’ demonstration/confirmation/proof/evidence”.

References: Samuel Issacharoff and George Loewenstein, Second Thoughts about Summary Judgment, Yale Law Journal, ʋ100 №1 (Oct 1990) ⌥; James Duane, The Four Greatest Myths About Summary Judgment (Jan 1996) ⌥; 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) ⌥; Schneider, Pretrial Practice in Employment Discrimination Cases ⌥; Haramati, History and Development of Summary Judgment (2010) ⌥; Thomas, Reforming Summary Judgment ⌥ (giving renewed currency to the concept/phrase of “judges ‘massaging’ the facts” at Summary Judgment, euphemistically speaking — i.e., really meaning manipulate/obfuscate/“cherry-pick”/distort/falsify!).

Judges adjudicating a Motion for Summary Judgment will, in their published Decision, typically (correctly) summarize (often in surprising detail) the authorities they rely upon. For example, a (federal) judge in (say) the Fifth Cir. will list Fifth Cir. (and/or Supreme Court) authorities. A good example of this “detailed summarization” phenomenon occurs in the District Court decision Tolan v. Cotton, 854 F.Supp.2d, 444 (2012), ⌥ ⌥ (making it all the more remarkable that in that particular case, the District Judge applied the Summary Judgment principles wrongly(!) — see our Case Study, Tolan v. Cotton).

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” ≈ “intent to deceive”) “‘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 (which “just so happens” to be the subject of Tuvell v. IBM); 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 (REA), 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.

JMOL; JNOV; Jury Nullification

Another type of “dismissal” available to trial judges, in a jury trial (as opposed to bench trial), is to actively ignore the jury altogether, by deciding that any rational/reasonable jury can come to only one “obvious”/distinguished outcome, and to unilaterally impose that outcome on the proceeding. FRCP 50: Judgment as a Matter of Law (JMOL), including Judgment Notwithstanding the Verdict (JNOV).

This opens up an opportunity for Judicial Misconduct, of course. But it is very rarely applied, and so not belabored here. It may even be appropriately exercised, in (exceedingly rare) cases of Jury Nullification (Sheflin, van Dyke; Creagan; Bissell; McKnight).

Fraud Upon the Court (FUTC); Relief From Judgment

The question inevitably arises: “Well, but suppose the judge/court ‘got it wrong’ in some manner (ranging from ‘simple/inadvertent slip-up’ to ‘outright intentional obstruction-of-justice’), what happens then?”

That contingency is handled by FRCP 60, which delineates various ways that a (District) Court final ruling/judgment/order can be invalidated/negated/reverted/“relieved” — i.e., a closed case (with a final judgment) can be re-opened. In particular: if the District Judge is found to be guilty of Obstruction of Justice via Fraud Upon the Court (FUTC), then FRCP 60(d)(3)γ applies (though that Rule uses the language “Fraud on the Court,” nomenclature introduced in the 1946 amendment to the Rules, which we avoid because of collision with the abbreviation FOTC = Friend of the Court) — with the result that an (illegally) closed case can/should/must be re-opened (upon an appropriate motion, either by the wronged party or sua sponte, or by opening a new case). There is no time limit on motions/actions taken under FRCP 60(d)(3). Brownstein, FRCP 60 Suitability for Sua Sponte Motion ⌥; Bruhl, When is Finality Final? ⌥ ⌥ ⌥; Lazarus, (Non)Finality of Supreme Court Opinions ⌥‍.

γ･ We are not interested here in the much more common/vanilla “relief from judgment” provisions of FRCP 60 (notably 60(b)(3,6)), because only 60(d)(3) is applicable to our specific concern of FUTC.

Since FUTC is a particularly egregious — but sadly prevalent — aspect of Judicial Misconduct, we make the effort here to document some “inspiring” words about it (these are direct quotations/citations from the cases/sources):

  • [T]ampering with the administration of justice in the manner indisputably shown here [referring to FUTC] involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud. — Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) ⌥.
  • The question [regarding FUTC], then, is not whether relief can be granted, but which court can grant it. [¶] Equitable relief against fraudulent judgments is not of statutory creation. It is a judicially devised remedy fashioned to relieve hardships which, from time to time, arise from a hard and fast adherence to another court-made rule, the general rule that judgments should not be disturbed after the term of their entry has expired. Created to avert the evils of archaic rigidity, this equitable procedure has always been characterized by flexibility which enables it to meet new situations which demand equitable intervention, and to accord all the relief necessary to correct the particular injustices involved in these situations. It was this flexibility which enabled courts to meet the problem raised when leave to file a bill of review was sought in a court of original jurisdiction for the purpose of impeaching a judgment which had been acted upon by an appellate court. Such a judgment, it was said, was not subject to impeachment in such a proceeding because a trial court lacks the power to deviate from the mandate of an appellate court. The solution evolved by the courts is a procedure whereby permission to file the bill is sought in the appellate court. The hearing conducted by the appellate court on the petition, which may be filed many years after the entry of the challenged judgment, is not just a ceremonial gesture. The petition must contain the necessary averments, supported by affidavits or other acceptable evidence; and the appellate court may in the exercise of a proper discretion reject the petition, in which case a bill of review cannot be filed in the lower court. National Brake Co. v. Christensen, 254 U.S. 425, 430—433, 41 S.Ct. 154, 156, 157, 65 L.Ed. 341 [(1921) ⌥]. [¶] We think that when this Court, a century ago, approved this practice and held that federal appellate courts have the power to pass upon, and hence to grant or deny, petitions for bills of review even though the petitions be presented long after the term of the challenged judgment has expired, it settled the procedural question here involved. Southard v. Russell, 16 How. 547, 14 L.Ed. 1052 [(1853) ⌥; see also Russell v. Southard, 53 U.S. 12 How. 139 (1851) ⌥]. To reason otherwise would be to say that although the Circuit Court has the power to act after the term finally to deny relief, it has not the power to act after the term finally to grant relief. It would, moreover, be to say that even in a case where the alleged fraud was on the Circuit Court itself, the relevant facts as to the fraud were agreed upon by the litigants, and the Circuit Court concluded relief must be granted, that Court nevertheless must send the case to the District Court for decision. Nothing in reason or precedent requires such a cumbersome and dilatory procedure. Indeed the whole history of equitable procedure, with the traditional flexibility which has enabled the courts to grant all the relief against judgments which the equities require, argues against it. We hold, therefore, that the Circuit Court on the record here presented had both the duty and the power to vacate its own judgment and to give the District Court appropriate directions. — Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944) ⌥.
  • Although the tax “court” is an independent agency in the executive branch its powers and business are judicial in nature. … [¶] We think, however, that it can be reasoned that a decision produced by fraud on the court is not in essence a decision at all, and never becomes final. It is most difficult to assume that Congress intended that a decision procured by fraud on the tax court could not be reached by any procedure in any tribunal, once the possibilities of direct review were exhausted. If a convincing case of palpable fraud on the court were presented, it is hard to justify a holding that it could not be considered. We conclude that the tax court has power to inquire into the integrity of its own decision even when such decision has become final and immutable in all other respects as a result of exhaustion of direct review or expiration of the time allowed for seeking review. [¶] “‘Fraud upon the court’ should, we believe, embrace only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. [7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23]” — Kenner v. C.I.R., 387 F.3d 689 (7th Cir., 1968) ⌥.
  • As a general proposition, jurisdiction is vested in the courts, not in judges. [Hence, “fraud on the court by a judge” is not a “contradiction in terms;” “a judge” is not “the court.”] — People v. Zajic, 88 Ill. App.3d 412, 410 N.E.2d 626 (1980) ⌥.
  • It is beyond question that a federal court may investigate a question as to whether there was fraud in the procurement of a judgment. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 66 S.Ct. 1176, 90 L.Ed. 1447 [(1946) ⌥]. This is to be done in adversary proceedings as in the case before us. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 [(1944) ⌥]; Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 [(1939) ⌥]; and United States v. Throckmorton, 98 U.S. (8 Otto) 61, 25 L.Ed. 93 [(1878) ⌥]. [¶] Fraud on the court (other than fraud as to jurisdiction) is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is thus fraud where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted. [¶] The basic decisions of the Supreme Court are Throckmorton, Hazel-Atlas, and Universal Oil Products, cited above. These cases considered the basic issues raised in cases to set aside judgments and demonstrate with Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870 [(1891) ⌥], the nature of the fraud and the proof required for relief as set out in the preceding paragraph. — Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985) ⌥.
  • A “fraud on the court” occurs where it can be demonstrated, clearly and convincingly, that a party [or an officer of the court, especially a judge] has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the [judge/]trier or unfairly hampering the presentation of [a] party’s claim or defense. — Aoude v. Mobil Oil,892 F.2d 1115 (1st Cir., 1989) ⌥; see also Aoude v. Mobil Oil, 862 F.2d 890 (1st Cir., 1988) ⌥.

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 (apart from Supreme Court Justices(!)) 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 (USCC, CodCon) ⌥. Also of relevance is the ABA Model Code of Judicial Conduct (ABAMC) ⌥ (2007 version). See Lievense, Cohn, Federal Judiciary and ABA Model Code.

An accompanying publication to the CodCon 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.δ 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 subjective appearance/perception [as distinguished from, and in addition to, the objective actuality/reality/evidence/proof] of justice [to a reasonable/neutral observer].” ε [] Offutt v. United States, 348 U.S. 11, 14 [(1954)].ζ

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

δ･ “Due process” (modern formulation/refinement of the ancient Audi et Alteram Partem, “Hear the Other Side”) is a Constitutional Right (Fifth and Fourteenth Amendments), encompassing both procedural and substantive due process (and more, including administrative law, as well as investigative/inquisitorial/regulatory/etc. proceedings, mutatis mutandis [McCarthy hearings, anyone?]). Judge Henry Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267 (1975) ⌥ provides a classic introduction. See also Judge Julian Mann, Due Process; A Detached Judge; And Enemy Combatants, 28 J. Nat’l Ass’n Admin. L. Judiciary Iss. 1 (2008) ⌥.

ε･ See R v. Sussex. Some law review articles on appearance of justice (and judicial recusal/disqualification) include: Bam ⌥; Blanck ⌥; Blanck, Rosenthal, Cordell ⌥; Slate, Harris ⌥.

ζ･ Some constitutional rights are “so basic to a fair trial that their infraction can never be treated as harmless.”† The right to an impartial adjudicator is such a fundamental right.‡ {†・ Chapman v. California, 386 U.S. 18, 22 (1967).} {‡・ Gray v. Mississippi, 481 U.S. 648, 668 (1987).}

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 (against Federal Judges, again apart from Supreme Court Justices(!)) are authorized under both law and rule:

η･ One very important/significant difference in the versions is found in Rule 21(a), where the following language has been added: “[The Judicial Conference (in the guise of its Committee on Judicial Conduct and Disability, JCCJCD)]’s review of judicial-council orders is for errors of law, clear errors of fact, or abuse of discretion.” Previously (before this language was added), the Judicial Conference could (presumably) ignore faults like these in the Judicial Council’s findings if it so deigned (!).

At the highest level, regularizing/unifying prior practice, the JCDA/JCDR specify a two-tier combination of multi-judge committees: (i) per-Circuit Judicial Councils; (ii) one overarching Judicial Conference (whose membership is listed here ⌥) (— and, within each of these two tiers, there are sub-tiers, involving individual judges, panels/committees, and the plenary en banc). These groups also have other administrative duties, beyond just judicial misconduct oversight (http://www.uscourts.gov/about-federal-courts/governance-judicial-conference); in particular, the subcommittee of the Judicial Conference of mostly interest to us is its JCCJCD (Committee on Judicial Conduct and Disability). For “how-to” file Judicial Misconduct Complaints, see this webpage ⌥, and this one ⌥. For actual real-life examples, see our Case Study Tuvell v. IBM.

This Judicial Council/Conference system is not without its critics: Peter Fish, The Circuit Councils (1970) ⌥, The Politics of Federal Judicial Administration (1973); Monroe Freedman, Judicial Impartiality in the Supreme Court, 30 Okla. City U. L. Rev. 513 (2005); Breyer Committee Report (2006) ⌥; Center for Judicial Accountability, Critique of Breyer Report (2008), ⌥; Arthur Hellman, Judges Judging Judges (2007) ⌥, Peek Behind Closed Doors (2007), When Judges Are Accused (2008), Unfinished Business (2014); Lara Bazelon, Putting Mice in Charge of Cheese (2009); Dana Remus, Institutional Politics (2012); Judicial Conference Public Hearings. Abel, Judicial Misconduct Commissions. (State/local courts have their own similar-but-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),θ 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”/forward/suggest/propose/recommend 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).

θ･ ⁠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 ⌥.

All Writs

Just when you thought all avenues for relief have been exhausted in the Judicial Branch (as opposed to Legislative Branch impeachment supra, or Executive Branch criminality infra), it turns out there is yet one more back-alley (as opposed to “avenue”) remaining to be explored. This is the catch-all/backstop/“Hail Mary” known as the All Writs Act(/Statute) (AWA) of 1789, codified as 28 USC §1651, and recognized by the Supreme Court in SupCtR 20 (and by the appellate courts in FRAP 21).

Some refs: Griffin Bell, The Federal Appellate Courts and the All Writs Act, SMU Law Review, ʋ23 İ5 Å3 (1969) ⌥; Brent Ward, Can the Federal Courts Keep Order in Their Own House? Appellate Supervision Through Mandamus and Orders of Judicial Councils, BYU Law Review ʋ1980 İ2 Å2 (1980) ⌥; Dimitri Portnoi, NYU Law Review, Resorting To Extraordinary Writs: How the All Writs Act Rises to Fill the Gaps in the Rights of Enemy Combatants (2008) ⌥; Amy Sorkin, The Dangerous All Writs Act Precedent in the Apple Encryption Case, The New Yorker (Feb 19 2016) ⌥.

Judicial Civil Immunity (Generally at Least) …

In the United States, judicial power is vested exclusively in the courts. The judges administer justice therein for the people, and are responsible to the people alone for the manner in which they perform their duties. If faithless, if corrupt, if dishonest, if partial, if oppressive or arbitrary, they may be called to account by impeachment, and removed from office. … But responsible they are not to private parties in civil actions for the judicial acts, however injurious may be those acts, and however much they may deserve condemnation, unless perhaps where the acts are palpably in excess of the jurisdiction of the judges, and are done maliciously or corruptly. … [Judicial immunity] is a general principle of the highest importance to the proper administration of justice … Liability … would destroy that independence without which no judiciary can be either respectable or useful. … Nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed.

— Randall v. Brigham, 74 U.S. 523, 537 (1868); Bradley v. Fisher, 80 U.S. 335, 347 (1871)
The Court also qualified their Randall v. Brigham holding by saying in Bradley v. Fisher at 351 that the phrase beginning “unless, perhaps“ was “not necessary to a correct statement of the law, and … judges … are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter,” with judges subject to liability only in the latter instance.

Generally speaking (under common law, noting that the Supreme Court has not elevated judicial immunity to a constitutional principle, nor has Congress passed statutory law guaranteeing it), the doctrine of immunity (said to be “absolute” in the case of judges, but only “relative/qualified” in the case of “law prosecution/enforcement officers”) prevents judges from being sued by the public, for any/all acts properly arising from their official duties within their jurisdiction — at civil litigation (as opposed to criminal proceedings, from which judges are not exempt, see infra). There are exceptions, the most notable being 42 USC 1983 ⌥; but all this is very legistically tricky/technical (e.g., §1983 by its terms only exempts injunctive relief (later extended to damages relief), but not declaratory relief, yadda yadda …). Barth, Immunity of Federal and State Judges from Civil Suit — Time for a Qualified Immunity ⌥ (1977); J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, Duke L. J., ʋ1980 №5 (Nov 1980) ⌥; Romagnoli, What Constitutes a Judicial Act for Purposes of Judicial Immunity? ⌥ (1985); Cohen, Loss of Absolute Judicial Immunity ⌥ (1990); 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) ⌥; Amicus, Against Qualified Immunity ⌥ (2018).

… But Criminal Liability

Judges do not however, by general right, statue, or custom, enjoy immunity from criminal liability (nor is anyone else “above the law,” not even the President ⌥; see, famously, the “Nixon tapes case,” U.S. v. Nixon, 418 U.S. 683 (1974)). See the law review articles by Haley, and by Shaman ⌥, the latter of which states (℘18,20,28, citations omitted, emphasis added): “But for one narrow exception [namely, so-called “‘good-faith’ judicial errors/misfeasance/malfeasance,” which is the rebuttable presumption that prevents criminal charges from being brought against judges during in-process (not-yet-“finalized”) judicial proceedings], judicial immunity does not exempt judges from criminal liability. Courts have stated unequivocally that the judicial title does not render its holder immune from responsibility even when the criminal act is committed behind the shield of judicial office. … Judges need not be impeached before being indicted and tried on criminal charges. Even federal judges … may be criminally prosecuted while still in office. … No one ought to be exempt from the criminal law, and it has been consistently recognized that judges should not be able to hide behind their office as shelter for criminal behavior that harms society.”

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. Conviction for any single one of these crimes could/should/would constitute grounds for impeachment.

ι･ ⁠This 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.”

The Congressional Research Service has published a nice Obstruction of Justice Study ⌥. See also the online U.S.A. Justice Manual, JM (formerly known as the U.S. Attorney’s Manual USAM), for example its Principles of Federal Prosecution ⌥.

If presented with sworn charges of criminal behavior such as the above, a U.S. Attorney must present it to a (“special”) grand jury:

κ･ Though, this law might not mean much, because as is well-known, prosecutors hold grand juries in the palm of their hands, to the extent they can “get an indictment against a ham sandwich” ⌥ if they want it — and, contrariwise, they can prevent an indictment (a.k.a. “no-bill”) against Al Capone if they want that.

A good example of an 18 USC §3332(a) Petition (though, making no claims whatsoever as to the substantive merits of the case, which frankly seems completely off-the-wall — see Wikipedia ⌥) is the Lawyer’s Committee for 9/11 Inquiry ⌥ ⌥ ⌥, with Exhibits.