[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2713 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2713

To amend title 28, United States Code, to make certain modifications in 
      the judicial discipline procedures, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              July 9, 2002

Mr. Leahy (for himself and Mr. Thompson) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To amend title 28, United States Code, to make certain modifications in 
      the judicial discipline procedures, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Judicial Improvements Act of 2002''.

SEC. 2. JUDICIAL DISCIPLINE PROCEDURES.

    (a) In General.--Part I of title 28, United States Code, is amended 
by inserting after chapter 15 the following new chapter:

    ``CHAPTER 16--COMPLAINTS AGAINST JUDGES AND JUDICIAL DISCIPLINE

``Sec.
``351. Complaints; judge defined.
``352. Review of complaint by chief judge.
``353. Special committees.
``354. Action by judicial council.
``355. Action by Judicial Conference.
``356. Subpoena power.
``357. Review of orders and actions.
``358. Rules.
``359. Restrictions.
``360. Disclosure of information.
``361. Reimbursement of expenses.
``362. Other provisions and rules not affected.
``363. Court of Federal Claims, Court of International Trade, Court of 
                            Appeals for the Federal Circuit.
``364. Effect of felony conviction.
``Sec. 351. Complaints; judge defined
    ``(a) Filing of Complaint by Any Person.--Any person alleging that 
a judge has engaged in conduct prejudicial to the effective and 
expeditious administration of the business of the courts, or alleging 
that such judge is unable to discharge all the duties of office by 
reason of mental or physical disability, 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.
    ``(b) Identifying Complaint by Chief Judge.--In the interests of 
the effective and expeditious administration of the business of the 
courts and on the basis of information available to the chief judge of 
the circuit, the chief judge may, by written order stating reasons 
therefor, identify a complaint for purposes of this chapter and thereby 
dispense with filing of a written complaint.
    ``(c) Transmittal of Complaint.--Upon receipt of a complaint filed 
under subsection (a), the clerk shall promptly transmit the complaint 
to the chief judge of the circuit, or, if the conduct complained of is 
that of the chief judge, to that circuit judge in regular active 
service next senior in date of commission (hereafter, for purposes of 
this chapter only, included in the term `chief judge'). The clerk shall 
simultaneously transmit a copy of the complaint to the judge whose 
conduct is the subject of the complaint. The clerk shall also transmit 
a copy of any complaint identified under subsection (b) to the judge 
whose conduct is the subject of the complaint.
    ``(d) Definitions.--In this chapter--
            ``(1) the term `judge' means a circuit judge, district 
        judge, bankruptcy judge, or magistrate judge; and
            ``(2) the term `complainant' means the person filing a 
        complaint under subsection (a) of this section.
``Sec. 352. Review of complaint by chief judge
    ``(a) Expeditious Review; Limited Inquiry.--The chief judge shall 
expeditiously review any complaint received under section 351(a) or 
identified under section 351(b). In determining what action to take, 
the chief judge may conduct a limited inquiry for the purpose of 
determining--
            ``(1) whether appropriate corrective action has been or can 
        be taken without the necessity for a formal investigation; and
            ``(2) whether the facts stated in the complaint are either 
        plainly untrue or are incapable of being established through 
        investigation.
For this purpose, the chief judge may request the judge whose conduct 
is complained of to file a written response to the complaint. Such 
response shall not be made available to the complainant unless 
authorized by the judge filing the response. The chief judge or his or 
her designee may also communicate orally or in writing with the 
complainant, the judge whose conduct is complained of, and any other 
person who may have knowledge of the matter, and may review any 
transcripts or other relevant documents. The chief judge shall not 
undertake to make findings of fact about any matter that is reasonably 
in dispute.
    ``(b) Action by Chief Judge Following Review.--After expeditiously 
reviewing a complaint under subsection (a), the chief judge, by written 
order stating his or her reasons, may--
            ``(1) dismiss the complaint--
                    ``(A) if the chief judge finds the complaint to 
                be--
                            ``(i) not in conformity with section 
                        351(a);
                            ``(ii) directly related to the merits of a 
                        decision or procedural ruling; or
                            ``(iii) frivolous, lacking sufficient 
                        evidence to raise an inference that misconduct 
                        has occurred, or containing allegations which 
                        are incapable of being established through 
                        investigation; or
                    ``(B) when a limited inquiry conducted under 
                subsection (a) demonstrates that the allegations in the 
                complaint lack any factual foundation or are 
                conclusively refuted by objective evidence; or
            ``(2) conclude the proceeding if the chief judge finds that 
        appropriate corrective action has been taken or that action on 
        the complaint is no longer necessary because of intervening 
        events.
The chief judge shall transmit copies of the written order to the 
complainant and to the judge whose conduct is the subject of the 
complaint.
    ``(c) Review of Orders of Chief Judge.--A complainant or judge 
aggrieved by a final order of the chief judge under this section may 
petition the judicial council of the circuit for review thereof. The 
denial of a petition for review of the chief judge's order shall be 
final and conclusive and shall not be judicially reviewable on appeal 
or otherwise.
    ``(d) Referral of Petitions for Review to Panels of the Judicial 
Council.--Each judicial council may, pursuant to rules prescribed under 
section 358, refer a petition for review filed under subsection (c) to 
a panel of no fewer than 5 members of the council, at least 2 of whom 
shall be district judges.
``Sec. 353. Special committees
    ``(a) Appointment.--If the chief judge does not enter an order 
under section 352(b), the chief judge shall promptly--
            ``(1) appoint himself or herself and equal numbers of 
        circuit and district judges of the circuit to a special 
        committee to investigate the facts and allegations contained in 
        the complaint;
            ``(2) certify the complaint and any other documents 
        pertaining thereto to each member of such committee; and
            ``(3) provide written notice to the complainant and the 
        judge whose conduct is the subject of the complaint of the 
        action taken under this subsection.
    ``(b) Change in Status or Death of Judges.--A judge appointed to a 
special committee under subsection (a) may continue to serve on that 
committee after becoming a senior judge or, in the case of the chief 
judge of the circuit, after his or her term as chief judge terminates 
under subsection (a)(3) or (c) of section 45. If a judge appointed to a 
committee under subsection (a) dies, or retires from office under 
section 371(a), while serving on the committee, the chief judge of the 
circuit may appoint another circuit or district judge, as the case may 
be, to the committee.
    ``(c) Investigation by Special Committee.--Each committee appointed 
under subsection (a) shall conduct an investigation as extensive as it 
considers necessary, and shall expeditiously file a comprehensive 
written report thereon with the judicial council of the circuit. Such 
report shall present both the findings of the investigation and the 
committee's recommendations for necessary and appropriate action by the 
judicial council of the circuit.
``Sec. 354. Action by judicial council
    ``(a) Actions Upon Receipt of Report.--
            ``(1) Actions.--The judicial council of a circuit, upon 
        receipt of a report filed under section 353(c)--
                    ``(A) may conduct any additional investigation 
                which it considers to be necessary;
                    ``(B) may dismiss the complaint; and
                    ``(C) if the complaint is not dismissed, shall take 
                such action as is appropriate to assure the effective 
                and expeditious administration of the business of the 
                courts within the circuit.
            ``(2) Description of possible actions if complaint not 
        dismissed.--
                    ``(A) In general.--Action by the judicial council 
                under paragraph (1)(C) may include--
                            ``(i) ordering that, on a temporary basis 
                        for a time certain, no further cases be 
                        assigned to the judge whose conduct is the 
                        subject of a complaint;
                            ``(ii) censuring or reprimanding such judge 
                        by means of private communication; and
                            ``(iii) censuring or reprimanding such 
                        judge by means of public announcement.
                    ``(B) For article iii judges.--If the conduct of a 
                judge appointed to hold office during good behavior is 
                the subject of the complaint, action by the judicial 
                council under paragraph (1)(C) may include--
                            ``(i) certifying disability of the judge 
                        pursuant to the procedures and standards 
                        provided under section 372(b); and
                            ``(ii) requesting that the judge 
                        voluntarily retire, with the provision that the 
                        length of service requirements under section 
                        371 of this title shall not apply.
                    ``(C) For magistrate judges.--If the conduct of a 
                magistrate judge is the subject of the complaint, 
                action by the judicial council under paragraph (1)(C) 
                may include directing the chief judge of the district 
                of the magistrate judge to take such action as the 
                judicial council considers appropriate.
            ``(3) Limitations on judicial council regarding removals.--
                    ``(A) Article iii judges.--Under no circumstances 
                may the judicial council order removal from office of 
                any judge appointed to hold office during good 
                behavior.
                    ``(B) Magistrate and bankruptcy judges.--Any 
                removal of a magistrate judge under this subsection 
                shall be in accordance with section 631 and any removal 
                of a bankruptcy judge shall be in accordance with 
                section 152.
            ``(4) Notice of action to judge.--The judicial council 
        shall immediately provide written notice to the complainant and 
        to the judge whose conduct is the subject of the complaint of 
        the action taken under this subsection.
    ``(b) Referral to Judicial Conference.--
            ``(1) In general.--In addition to the authority granted 
        under subsection (a), the judicial council may, in its 
        discretion, refer any complaint under section 351, together 
        with the record of any associated proceedings and its 
        recommendations for appropriate action, to the Judicial 
        Conference of the United States.
            ``(2) Special circumstances.--In any case in which the 
        judicial council determines, on the basis of a complaint and an 
        investigation under this chapter, or on the basis of 
        information otherwise available to the judicial council, that a 
        judge appointed to hold office during good behavior may have 
        engaged in conduct--
                    ``(A) which might constitute one or more grounds 
                for impeachment under article II of the Constitution, 
                or
                    ``(B) which, in the interest of justice, is not 
                amenable to resolution by the judicial council,
        the judicial council shall promptly certify such determination, 
        together with any complaint and a record of any associated 
        proceedings, to the Judicial Conference of the United States.
            ``(3) Notice to complainant and judge.--A judicial council 
        acting under authority of this subsection shall, unless 
        contrary to the interests of justice, immediately submit 
        written notice to the complainant and to the judge whose 
        conduct is the subject of the action taken under this 
        subsection.
``Sec. 355. Action by Judicial Conference
    ``(a) In General.--Upon referral or certification of any matter 
under section 354(b), the Judicial Conference, after consideration of 
the prior proceedings and such additional investigation as it considers 
appropriate, shall by majority vote take such action, as described in 
section 354(a)(1)(C) and (2), as it considers appropriate.
    ``(b) If Impeachment Warranted.--
            ``(1) In general.--If the Judicial Conference concurs in 
        the determination of the judicial council, or makes its own 
        determination, that consideration of impeachment may be 
        warranted, it shall so certify and transmit the determination 
        and the record of proceedings to the House of Representatives 
        for whatever action the House of Representatives considers to 
        be necessary. Upon receipt of the determination and record of 
        proceedings in the House of Representatives, the Clerk of the 
        House of Representatives shall make available to the public the 
        determination and any reasons for the determination.
            ``(2) In case of felony conviction.--If a judge has been 
        convicted of a felony under State or Federal law and has 
        exhausted all means of obtaining direct review of the 
        conviction, or the time for seeking further direct review of 
        the conviction has passed and no such review has been sought, 
        the Judicial Conference may, by majority vote and without 
        referral or certification under section 354(b), transmit to the 
        House of Representatives a determination that consideration of 
        impeachment may be warranted, together with appropriate court 
        records, for whatever action the House of Representatives 
        considers to be necessary.
``Sec. 356. Subpoena power
    ``(a) Judicial Councils and Special Committees.--In conducting any 
investigation under this chapter, the judicial council, or a special 
committee appointed under section 353, shall have full subpoena powers 
as provided in section 332(d).
    ``(b) Judicial Conference and Standing Committees.--In conducting 
any investigation under this chapter, the Judicial Conference, or a 
standing committee appointed by the Chief Justice under section 331, 
shall have full subpoena powers as provided in that section.
``Sec. 357. Review of orders and actions
    ``(a) Review of Action of Judicial Council.--A complainant or judge 
aggrieved by an action of the judicial council under section 354 may 
petition the Judicial Conference of the United States for review 
thereof.
    ``(b) Action of Judicial Conference.--The Judicial Conference, or 
the standing committee established under section 331, may grant a 
petition filed by a complainant or judge under subsection (a).
    ``(c) No Judicial Review.--Except as expressly provided in this 
section and section 352(c), 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.
``Sec. 358. Rules
    ``(a) In General.--Each judicial council and the Judicial 
Conference may prescribe such rules for the conduct of proceedings 
under this chapter, including the processing of petitions for review, 
as each considers to be appropriate.
    ``(b) Required Provisions.--Rules prescribed under subsection (a) 
shall contain provisions requiring that--
            ``(1) adequate prior notice of any investigation be given 
        in writing to the judge whose conduct is the subject of a 
        complaint under this chapter;
            ``(2) the judge whose conduct is the subject of a complaint 
        under this chapter be afforded an opportunity to appear (in 
        person or by counsel) at proceedings conducted by the 
        investigating panel, to present oral and documentary evidence, 
        to compel the attendance of witnesses or the production of 
        documents, to cross-examine witnesses, and to present argument 
        orally or in writing; and
            ``(3) the complainant be afforded an opportunity to appear 
        at proceedings conducted by the investigating panel, if the 
        panel concludes that the complainant could offer substantial 
        information.
    ``(c) Procedures.--Any rule prescribed under this section shall be 
made or amended only after giving appropriate public notice and an 
opportunity for comment. Any such rule shall be a matter of public 
record, and any such rule promulgated by a judicial council may be 
modified by the Judicial Conference. No rule promulgated under this 
section may limit the period of time within which a person may file a 
complaint under this chapter.
``Sec. 359. Restrictions
    ``(a) Restriction on Individuals Who Are Subject of 
Investigation.--No judge whose conduct is the subject of an 
investigation under this chapter shall serve upon a special committee 
appointed under section 353, upon a judicial council, upon the Judicial 
Conference, or upon the standing committee established under section 
331, until all proceedings under this chapter relating to such 
investigation have been finally terminated.
    ``(b) Amicus Curiae.--No person shall be granted the right to 
intervene or to appear as amicus curiae in any proceeding before a 
judicial council or the Judicial Conference under this chapter.
``Sec. 360. Disclosure of information
    ``(a) Confidentiality of Proceedings.--Except as provided in 
section 355, all papers, documents, and records of proceedings related 
to investigations conducted under this chapter shall be confidential 
and shall not be disclosed by any person in any proceeding except to 
the extent that--
            ``(1) the judicial council of the circuit in its discretion 
        releases a copy of a report of a special committee under 
        section 353(c) to the complainant whose complaint initiated the 
        investigation by that special committee and to the judge whose 
        conduct is the subject of the complaint;
            ``(2) the judicial council of the circuit, the Judicial 
        Conference of the United States, or the Senate or the House of 
        Representatives by resolution, releases any such material which 
        is believed necessary to an impeachment investigation or trial 
        of a judge under article I of the Constitution; or
            ``(3) such disclosure is authorized in writing by the judge 
        who is the subject of the complaint and by the chief judge of 
        the circuit, the Chief Justice, or the chairman of the standing 
        committee established under section 331.
    ``(b) Public Availability of Written Orders.--Each written order to 
implement any action under section 354(a)(1)(C), which is issued by a 
judicial council, the Judicial Conference, or the standing committee 
established under section 331, shall be made available to the public 
through the appropriate clerk's office of the court of appeals for the 
circuit. Unless contrary to the interests of justice, each such order 
shall be accompanied by written reasons therefor.
``Sec. 361. Reimbursement of expenses
    ``Upon the request of a judge whose conduct is the subject of a 
complaint under this chapter, the judicial council may, if the 
complaint has been finally dismissed under section 354(a)(1)(B), 
recommend that the Director of the Administrative Office of the United 
States Courts award reimbursement, from funds appropriated to the 
Federal judiciary, for those reasonable expenses, including attorneys' 
fees, incurred by that judge during the investigation which would not 
have been incurred but for the requirements of this chapter.
``Sec. 362. Other provisions and rules not affected
    ``Except as expressly provided in this chapter, nothing in this 
chapter shall be construed to affect any other provision of this title, 
the Federal Rules of Civil Procedure, the Federal Rules of Criminal 
Procedure, the Federal Rules of Appellate Procedure, or the Federal 
Rules of Evidence.
``Sec. 363. Court of Federal Claims, Court of International Trade, 
              Court of Appeals for the Federal Circuit
    ``The United States Court of Federal Claims, the Court of 
International Trade, and the Court of Appeals for the Federal Circuit 
shall each prescribe rules, consistent with the provisions of this 
chapter, establishing procedures for the filing of complaints with 
respect to the conduct of any judge of such court and for the 
investigation and resolution of such complaints. In investigating and 
taking action with respect to any such complaint, each such court shall 
have the powers granted to a judicial council under this chapter.
``Sec. 364. Effect of felony conviction
    ``In the case of any judge or judge of a court referred to in 
section 363 who is convicted of a felony under State or Federal law and 
has exhausted all means of obtaining direct review of the conviction, 
or the time for seeking further direct review of the conviction has 
passed and no such review has been sought, the following shall apply:
            ``(1) The judge shall not hear or decide cases unless the 
        judicial council of the circuit (or, in the case of a judge of 
        a court referred to in section 363, that court) determines 
        otherwise.
            ``(2) Any service as such judge or judge of a court 
        referred to in section 363, after the conviction is final and 
        all time for filing appeals thereof has expired, shall not be 
        included for purposes of determining years of service under 
        section 371(c), 377, or 178 of this title or creditable service 
        under subchapter III of chapter 83, or chapter 84, of title 
        5.''.
    (b) Conforming Amendment.--The table of chapters for part I of 
title 28, United States Code, is amended by inserting after the item 
relating to chapter 15 the following new item:

``16. Complaints against judges and judicial discipline.....     351''.

SEC. 3. TECHNICAL AMENDMENTS.

    (a) Retirement for Disability.--(1) Section 372 of title 28, United 
States Code, is amended--
            (A) in the section caption by striking ``; judicial 
        discipline''; and
            (B) by striking subsection (c).
    (2) The item relating to section 372 in the table of sections for 
chapter 17 of title 28, United States Code, is amended by striking ``; 
judicial discipline''.
    (b) Judicial Conference.--Section 331 of title 28, United States 
Code, is amended in the fourth undesignated paragraph by striking 
``section 372(c)'' each place it appears and inserting ``chapter 16''.
    (c) Judicial Councils.--Section 332 of title 28, United States 
Code, is amended--
            (1) in subsection (d)(2)--
                    (A) by striking ``section 372(c) of this title'' 
                and inserting ``chapter 16 of this title''; and
                    (B) by striking ``372(c)(4)'' and inserting 
                ``353''; and
            (2) by striking the second subsection designated as 
        subsection (h).
    (d) Recall of Bankruptcy Judges and Magistrate Judges.--Section 
375(d) of title 28, United States Code, is amended by striking 
``section 372(c)'' and inserting ``chapter 16''.
    (e) Director of the Administrative Office of the United States 
Courts.--Section 604 of title 28, United States Code, is amended--
            (1) in subsection (a)(20)--
                    (A) in subparagraph (B), by striking ``372(c)(11)'' 
                and inserting ``358''; and
                    (B) in subparagraph (C), by striking ``372(c)(15)'' 
                and inserting ``360(b)''; and
            (2) in subsection (h)--
                    (A) in paragraph (1), by striking ``section 372'' 
                each place it appears and inserting ``chapter 16''; and
                    (B) in paragraph (2), by striking ``section 
                372(c)'' and inserting ``chapter 16''.
    (f) Court of Appeals for Veterans Claims.--Section 7253(g) of title 
38, United States Code, is amended--
            (1) in paragraph (1)--
                    (A) by striking ``section 372(c)'' and inserting 
                ``chapter 16''; and
                    (B) by striking ``such section'' and inserting 
                ``such chapter'';
            (2) in paragraph (2)--
                    (A) in the first sentence, by striking ``paragraphs 
                (7) through (15) of section 372(c)'' and inserting 
                ``sections 354(b) through 360''; and
                    (B) in the second sentence, by striking ``paragraph 
                (7) or (8) of section 372(c)'' and inserting ``section 
                354(b) or 355''; and
            (3) in paragraph (3)(B), by striking ``372(c)(16)'' and 
        inserting ``361''.

SEC. 4. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act, 
the amendments made by this Act, and the application of the provisions 
of such to any person or circumstance shall not be affected thereby.
                                 <all>