In re Complaint of Judicial Misconduct

747 F.3d 869, 2014 U.S. App. LEXIS 6126, 2014 WL 1256064
CourtJudicial Council of The Second Circuit
DecidedJanuary 17, 2014
DocketNo. 13-02
StatusPublished

This text of 747 F.3d 869 (In re Complaint of Judicial Misconduct) is published on Counsel Stack Legal Research, covering Judicial Council of The Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Complaint of Judicial Misconduct, 747 F.3d 869, 2014 U.S. App. LEXIS 6126, 2014 WL 1256064 (judcoun2 2014).

Opinion

MEMORANDUM OF DECISION

This matter is before the Committee on a petition for review filed by now-retired Judge Boyce F. Martin, Jr., on August 20, 2013, regarding a complaint against him under the Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351-364 (“Act”) and Rules for Judicial-Conduct and Judicial-Disability Proceedings, 248 F.R.D. 674 (U.S.Jud.Conf.2008) (“JCD Rules”). On July 31, 2012, when Judge Martin was still a member of the federal judiciary, the Chief Judge of the Court of Appeals for the Sixth Circuit initiated this matter by identifying the underlying complaint. See JCD Rule 5. At the Sixth Circuit chief judge’s request, the Chief Justice transferred all proceedings on the complaint to the Second Circuit Judicial Council. See JCD Rule 26. On June 20, 2013, the Second Circuit Judicial Council issued'an order dismissing the complaint based on the “intervening event” of Judge Martin’s retirement. In his petition, which we review under 28 U.S.C. § 357(a) and JCD Rules 21(a) and 21(b)(1)(A), Judge Martin takes issue with two elements of the order: its statement that it would be referred to the [870]*870Department of Justice, and its disclosure of Judge Martin’s name.2 He also contends that the complaint’s resolution should have hinged on what he describes as his voluntary corrective action. For reasons we explain, the petition is denied.

The June 20 Second Circuit Judicial Council order recounts this matter’s procedural history. According to the order, the complaint involved what were “characterized as ‘questionable travel expenses.’ ” The Circuit Judicial Council convened a special committee, which conducted an investigation. On May 14, 2013 — eight days after the special committee sent Judge Martin a “Notice of Potential Areas of Inquiry” for a May 20 hearing to take his testimony under oath — Judge Martin notified the President that, on August 16, 2013, he would retire. Based on this notification, the Second Circuit Judicial Council concluded the complaint proceeding under JCD Rule 20(b)(1)(B) because, as explained in the June 20 order, the retirement was an intervening event that had made further proceedings unnecessary. The special committee’s investigation was therefore discontinued without a formal report to the Circuit Judicial Council, and the complaint was dismissed under 28 U.S.C. § 354(a)(1)(B).

After Judge Martin submitted his resignation letter, but before the Circuit Council issued its order, Judge Martin “offered to repay the federal government all travel reimbursements he had received from January 1, 2008, to August 2, 2012, approximately $138,500.” According to the order, “[t]hese dates bracketed the period under investigation, ending with the date of the Chief Justice’s transfer of the proceeding.” Staff at the Administrative Office of the United States Courts were advised by Second Circuit staff to expect Judge Martin’s repayment in three equal installments, to be submitted on June 16, July 16, and August 16, 2013. Only the first two installments have been received.

The Second Circuit Judicial Council order predicates its disclosure of Judge Martin’s name on JCD Rule 24(a)(2), which provides that for complaints “concluded because of intervening events, or dismissed at any time after a special committee is appointed, the Judicial Council must determine whether the name of the subject judge should be disclosed,” and on the rule’s Commentary, which points out that “[i]n such a case, no final decision has been rendered on the merits, but it may be in the public interest — particularly if a judicial officer resigns in the course of an investigation — to make the identity of the judge known.” “Pursuant to these provisions,” the order states, “the Judicial Council has determined that it is in the public interest to disclose the name of the subject judge.” The order further provides that “this order shall be referred to the Public Integrity Section of the Department of Justice for such action, if any, as may be appropriate.”

In his petition for review, Judge Martin objects to the Second Circuit Judicial Council’s determination that its order would disclose his name, be referred to the Department of Justice, and announce the referral. Seeking “an order preserving the confidentiality of these proceedings,” he argues that any decision by the Second Circuit Judicial Council to identify him as the subject of the complaint is inconsistent with the Act and the JCD Rules, and that the Judicial Council fails to credit what he describes as his voluntary corrective actions in this matter. The Judicial Council, he notes, did not specify the “public inter[871]*871est” warranting disclosure of his name under JCD Rule 24(a)(2). Judge Martin maintains that he took voluntary and complete corrective action in this matter, and that the complaint proceeding should have been concluded on that basis.

Regarding the travel reimbursement requests at issue, Judge Martin alludes in his petition to “internal chambers administrative errors.” He states that “he and his administrative staff had made several administrative mistakes,” although, he adds, “some expenses were contested,” including reimbursements he maintained were permitted under a letter from the Administrative Office. He also claims that he was advised, through “informal contacts” between his counsel and the special committee’s counsel, that this matter would remain confidential, with no “referral” to the Department of Justice, if he resigned before the scheduled hearing and repaid his travel reimbursements.

Judge Martin argues that the Second Circuit Judicial Council “should not refer the Order to the Department of Justice,” because, he contends, such a referral would be unprecedented, would unfairly prejudice him, is not warranted on the facts, and is not supported by any finding of misconduct. Also unfair, Judge Martin argues, is that the referral would be “publicly announced” in an order that discloses his name.

The Judicial Conduct and Disability Act provides that “[e]ach written order to implement any action under section 354(a)(1)(C), which is issued by a judicial council ... shall be made available to the public....” 28 U.S.C. 860(b). When a complaint is dismissed because of intervening events, “the judicial council must determine whether the name of the subject judge should be disclosed.” JCD Rule 24(a)(2). The Commentary on JCD Rule 24 explains that it may be in the public interest to disclose the name of the subject judge, “particularly if a judicial officer resigns in the course of an investigation.”

We find no error in the Second Circuit Judicial Council’s disposition of this matter. Under JCD Rule 24(a)(2), the Judicial Council has discretion to disclose the subject judge’s identity when a complaint is concluded for intervening events. Such disclosure is appropriate in this circumstance because Judge Martin resigned during the: course of the special committee’s investigation. See JCD Rule 24 cmt. Accordingly, the Second Circuit Judicial Council did not abuse its discretion in disclosing Judge Martin’s identity.

A Circuit Judicial Council may, but need not, conclude a proceeding for “appropriate” corrective action. See JCD Rule 20(b)(1)(B).

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Related

Complaints; judge defined
28 U.S.C. § 351(a)
§ 351-364
28 U.S.C. § 351-364
Action by judicial council
28 U.S.C. § 354(a)(1)(B)
Review of orders and actions
28 U.S.C. § 357(a)

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Bluebook (online)
747 F.3d 869, 2014 U.S. App. LEXIS 6126, 2014 WL 1256064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-complaint-of-judicial-misconduct-judcoun2-2014.