CHAPTER I

FILING A COMPLAINT

(a) Purpose of the procedure. The purpose of the complaint procedure is to improve the administration of justice in the federal courts by taking action when judges have engaged in conduct that does not meet the standards expected of federal judicial officers or are physically or mentally unable to perform their duties. The law’s purpose is essentially forward-looking and not punitive. The emphasis is on correction of conditions that interfere with the proper administration of justice in the courts.

(b) What may be complained about. The law authorizes complaints about United States circuit judges, district judges, bankruptcy judges or magistrate judges who have "engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" or who are "unable to discharge all the duties of office by reason of mental or physical disability."

"Conduct prejudicial to the effective and expeditious administration of the business of the courts" is not a precise term. It includes such things as use of the judge’s office to obtain special treatment for friends and relatives, acceptance of bribes, improperly engaging in discussions with lawyers or parties to cases in the absence of representatives of opposing parties, and other abuses of judicial office. It does not include making wrong decisions—even very wrong decisions—in cases. The law provides that a complaint may be dismissed if it is "directly related to the merits of a decision or procedural ruling."

"Mental or physical disability" may include temporary conditions as well as permanent disability.

(c) Who may be complained about. The complaint procedure applies to judges of the United States courts of appeals, judges of United States district courts, judges of United States bankruptcy courts, and United States magistrate judges. These rules apply, in particular, only to judges of the court of Appeals for the Sixth Circuit and to district judges, bankruptcy judges, and magistrate judges of federal courts within the Sixth Circuit. The circuit includes the states of Michigan, Ohio, Kentucky and Tennessee.

Complaints about other officials of federal courts should be made to their supervisors in the various courts. If such a complaint cannot be satisfactorily resolved at lower levels, it may be referred to the chief judge of the court in which the official is employed. The circuit executive, whose address is 503 U.S. Post Office and Courthouse, Cincinnati, Ohio 45202, is sometimes able to provide assistance in resolving such complaints.

(d) Time for filing complaints. A complaint may be filed at any time. However, complaints should be filed promptly. A complaint may be dismissed if it is filed so long after the events in question that the delay will make fair consideration of the matter impossible. A complaint may also be dismissed if it does not indicate the existence of a current problem with the administration of the business of the courts.

(e) Limitations on use of the procedure. The complaint procedure is not intended to provide a means of obtaining review of a judge’s decision or ruling in a case. The judicial council of the circuit, the body that takes action under the complaint procedure does not have the power to change a decision or ruling. Only a court can do that.

The complaint procedure may not be used to have a judge disqualified from sitting on a particular case. A motion for disqualification should be made in the case.

Also, the complaint procedure may not be used to force a ruling on a particular motion or other matter that has been before the judge too long. A petition for mandamus can sometimes be used for that purpose.

COMMENTARY ON RULE 1

As at least some members of Congress anticipated, a great many of the complaints that have been filed under section 372(c) have been filed by litigants disappointed in the outcomes of their cases. Some complaints allege nothing more than that the decision was in violation of established legal principles. Many of them allege that the judges are members of conspiracies to deprive the complainants of their rights, and offer the substance of judicial decision as the only evidence of the conspiratorial behavior. A great many of the complaints seek various forms of relief in the underlying litigation.

Rule 1 is intended to provide prospective complainants with guidance about the appropriate uses of the complaint procedure. Paragraph (b) discusses cognizable subject matters, and paragraph (c) discusses cognizable persons. Paragraph (e) discusses remedies, and attempts to make it clear that the circuit council will not provide relief from a ruling or judgment of a court. It is hoped that such guidance will reduce the number of complaints filed that seek relief that cannot be given under the statute or deal with matters that are plainly not cognizable.

The last paragraph in rule 1(e), deals with complaints alleging undue delay. Habitual failure to decide matters in a timely fashion may be the proper subject of a complaint where it is demonstrated that, over a period of years, the judge has persistently and unreasonably neglected to act on a substantial number of cases before him.

VENUE

Rule 1(c) states that the complaint procedure applies to judges "of federal courts within the circuit." This language is intended to make it clear that the circuit in which a judge holds office is the appropriate circuit in which to file a complaint, regardless of where the alleged misconduct occurred.

COMPLAINTS AGAINST OTHER OFFICIALS

The second paragraph of rule l(c) reflects a concern that the public be given some guidance about how to pursue grievances about court officials other than judges.

TIME LIMITATION

These rules do not contain a time limit for the filing of a complaint. However, rule l(d) indicates that a complaint may be dismissed, for reasons analogous to laches, if the delay in filing the complaint would prejudice the ability of the judicial council to give fair consideration to the matter.

RULE 2. HOW TO FILE A COMPLAINT

(a) Form. Complaints should be filed on the official form for filing complaints in the Sixth Circuit, which is reproduced in the appendix to these rules. Forms may be obtained by writing or telephoning the Office of the Circuit Executive for the Sixth Circuit, 503 U.S. Post Office and Courthouse Building, Cincinnati, Ohio 45202. Telephone (513) 684-3161. Forms also may be picked up in person at the office of the clerk of the court of appeals or any district court or bankruptcy court within the circuit.

(b) Statement of facts. A statement should be attached to the complaint form, setting forth with particularity the facts that the claim of misconduct or disability is based on. The statement should not be longer than five pages (five sides), and the paper size should not be larger than the paper the form is printed on. Normally, the statement of facts will include –

1. A statement of what occurred;

2. The time and place of the occurrence or occurrences;

3. Any other information that would assist an investigator in checking the facts such as the presence of a court reporter or other witness and their names and addresses.

(c) Legibility. Complaints should be typewritten if possible. If not typewritten, they must be legible.

(d) Submission of documents. Documents such as excerpts from transcripts may be submitted as evidence of the behavior complained about; if they are, the statement of facts should refer to the specific pages in the documents on which relevant material appears.

(e) Number of copies. If the complaint is about a single judge of the court of appeals, three copies of the complaint form, the statement of facts, and any documents submitted must be filed. If it is about a single district judge or magistrate judge, four copies must be filed; if about a single bankruptcy judge, five copies. If the complaint is about more than one judge, enough copies must be filed to provide one for the circuit executive, one for the chief judge of the circuit, one for each judge complained about, and one for each judge to whom the circuit executive must send a copy under rule 3(a)(2).

(f) Signature and oath. The form must be signed and the truth of the statements verified in writing under oath. As an alternative to taking an oath, the complainant may declare under penalty of perjury that the statements are true. The complainant’s address must also be provided.

(g) Anonymous complaints. Anonymous complaints are not handled under these rules. See rule 20.

(h) Where to file. Complaints should be sent to the Office of the Circuit Executive, 503 U.S. Post Office and Courthouse Building, Cincinnati, Ohio 45202. The envelope should be marked "Complaint of Misconduct" or "Complaint of Disability." The name of the judge complained about should not appear on the envelope.

(i) Identification of complaints by chief judge. In the interest 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 the reasons therefore, identify a complaint as authorized by 28 U.S.C. § 372(c)(1) and thereby dispense with filing of a written complaint. A chief judge who has identified a complaint under this rule will not be considered a complainant and, subject to the second sentence of Rule 18(a), will perform all functions assigned to the chief judge under these rules for the determination of complaints filed by a complainant.

COMMENTARY ON RULE 2

USE OF COMPLAINT FORM

Paragraph (a) of rule 2 provides that complaints be filed on a form. Use of a complaint form provides a simple means of eliciting some fairly standard information that is helpful in administering the act. The use of a complaint form also will resolve ambiguities that sometimes arise about whether the author of a complaining letter intends to invoke the procedures of section 372(c). With the use of the form, the 372(c) procedure will be used only if the complainant clearly invokes it.

LIMITATION ON LENGTH OF COMPLAINT

Paragraph (b) of rule 2 provides a five-page limit on the statement of facts. Paragraph (d), however, does not restrict the volume of documents that may be submitted as evidence of the behavior complained about.

It is hoped that a five-page limit will get rid of the long, rambling complaints that do not clearly identify the conduct complained of without unduly restricting the ability to communicate the facts supporting a complaint.

The provision allowing submission of documentary evidence is partly motivated by the concern that a complainant not be unduly restricted in presenting the factual basis of the complaint, but also reflects a sense that prohibiting the submission of documents with the complaint tends to make the procedure unnecessarily complex. In many cases, a chief judge will have to ask for documents if they haven’t been submitted.

COMPLAINTS AGAINST MORE THAN ONE JUDICIAL OFFICER

A SEPARATE COMPLAINT FOR EACH JUDICIAL OFFICER COMPLAINED ABOUT IS NOT REQUIRED UNDER THESE RULES.

OATH OR DECLARATION

Rule 2(f) includes a requirement that complaints be signed and verified under oath or declaration. This requirement may deter occasional abuse of the complaint process. In view of the ease with which a complainant can make a declaration under penalty of perjury, the requirement should not be burdensome.

Under 28 U.S.C. § 1746, any statement required by rule to be made under an oath in writing may be subscribed instead with a written declaration under penalty of perjury that the statement is true and correct. 18 U.S.C. § 1621 includes in the definition of perjury a willfully false statement subscribed pursuant to 28 U.S.C. § 1746. Rule 2(f) prescribes an oath but informs prospective complainants of the availability of the alternative. The complaint form permits either method.

ANONYMOUS COMPLAINTS

Whether an anonymous complaint should be accepted is a question of some difficulty. On the one hand, section 372(c) clearly contemplates a complainant whose identity and address are known and who therefore can receive notice of decisions taken, be offered the opportunity to appear at proceedings of a special committee, and be accorded the opportunity to petition for review if dissatisfied with the disposition of the complaint. On the other hand, a prohibition against anonymous complaints may effectively bar complaints from the two groups of citizens most likely to have knowledge of serious problems in the administration of justice: lawyers and court employees.

The resolution reflected in rule 2(g) is to require that complaints under section 372(c) be signed. Nevertheless, the chief judge, as chairman of the circuit judicial council, can consider information from any source, anonymous or otherwise. This solution is consistent with congressional expressions of intention that informal methods of resolving problems, traditionally used under section 332, should continue to be used in many cases. Hence, under these rules, the formalities of the statute would not be invoked by an anonymous complaint, but the chief judge and the circuit council may nevertheless consider it. Information obtained from an anonymous complaint could also provide a basis for identification of a complaint by the chief judge under rule 2(j).

IDENTIFICATION OF COMPLAINTS BY CHIEF JUDGE

Rule 2(j) is a new section added to conform to Section 402(a) of Judicial Discipline and Removal Reform Act of 1990. The section authorizes the chief judge to initiate the complaint process on the basis of information available to the chief judge without the filing of a written complaint by another party.

Congress has expressed the intention that "[I]n exercising this discretion [to identify a complaint], the chief judge must enter a written order explaining the reasons for waiving the written complaint requirement and must further identify the complaint." Because the identification of a complaint is within the discretion of the chief judge, it is anticipated that a chief judge’s failure to identify a complaint will not ordinarily constitute a proper basis for the filing of a complaint of misconduct against the chief judge under section 372.

Rule 2(j) provides that once the chief judge has identified a complaint, the chief judge (subject to the disqualification provisions of rule 18(a)) will perform all functions assigned to the chief judge for the determination of complaints filed by a complainant. Rule 2(j) contemplates, therefore, that the identification of a complaint by the chief judge will advance the process no further than would the filing of a complaint by a complainant. Once a complaint has been identified, it will be treated in a manner identical to a filed complaint under these rules. Thus, for example, under rule 4(e) a special committee ordinarily will not be appointed to investigate an identified complaint until the judge who is the subject of the complaint has been invited to respond to the complaint and has been allowed a reasonable time to do so. Similarly, under rule 4, the chief judge has the same options in the investigation and determination of an identified complaint that the chief judge would have had if the complaint had been filed.

RULE 3. ACTION BY CIRCUIT EXECUTIVE UPON RECEIPT OF A

COMPLAINT