The Doctrine of Judicial Entitlement

In an attempt to propagate a relatively new concept of judicial privilege, the U.S. Fifth Circuit Court of Appeals ruled in 2016 that it is no longer necessary to investigate past impeachable offenses of judges who simply retire before being convicted.  Retirement not only exempts them from having past crimes investigated, it also entitles them to receive their full salaries (now "annuities") for the rest of their lives.

This ruling, which protects fellow "brothers or sisters of the robe" from being disciplined for past breaches of "good behavior" or worse, grew out of a complaint of judicial misconduct brought against U.S. District Judge Walter S. Smith, Jr. for stalking and making sexual advances in his chambers against a staff member of the court.  The complaint was filed by attorney Ty Clevenger on behalf of the victim whose health was threatened, and who was driven to leave her deputy clerk's position at the courthouse.

Chief Judge of the U.S. Fifth Circuit Court of Appeals Carl E. Stewart penned the ruling based largely on the following argument:

A judge who retires from office under § 371(a) is “no longer a judicial officer”, and is “no longer subject to the disciplinary procedures of Section 372(c) [now 28 U.S.C. § 351 et seq.] and the remedies they prescribe.”  In re Charge of Judicial Misconduct, 91 F.3d 90, 91 (9th Cir. Judicial Council 1996), citing In re Complaint of Judicial Misconduct, 10 F.3d 99, 100 (3d Cir. Judicial Council 1994); see also In re Complaint of Judicial Misconduct, No. 13-02 (Judicial Conference of the United States 2014) (noting that after Judge Boyce Martin’s retirement from office, the Second Circuit Judicial Council found that “the retirement was an intervening event that had made further proceedings unnecessary” per Rules for Judicial-Conduct and Judicial- Disability Proceedings Rule 20(b)(1)(B)).*

-- From:  IN RE: Complaint of Judicial Misconduct Against United States District
Judge Walter S. Smith, Jr., Under the Judicial Improvements Act of 2002
DOCKET NO. 05-14-90120,  Sept. 28, 2016

From the title of the above Order, the Judicial Council recognized that the Judicial Improvements Act of 2002 had replaced the Judicial Conduct and Disability Act of 1980 (as amended), which had been codifed into law as the former 28 U.S.C. § 372(c).  The new Act of 2002, now codifed into law as 28 U.S.C. §§ 351-364, superceded the earlier law and rendered it obsolete.

The authority that is cited in 91 F.3d 90 by the Fifth Circuit in 2016 is derived from a primary source, 10 F.3d 99, in which Third Circuit Chief Judge Dolores K. Sloviter, in 1993, states in pertinent part:

I find that this complaint is not cognizable under 28 U.S.C. Sec. 372(c).  We need not decide in this case whether the claims of complainant adequately allege that respondent "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" or "is unable to discharge all the duties of office by reason of mental or physical disability," within the meaning of 28 U.S.C. Sec. 372(c)(1).  Instead, I believe that 28 U.S.C. Sec. 372(c)(3)(B) is dispositive, because that provides that a Chief Judge may conclude the proceeding if [s]he finds that appropriate corrective action has been taken or that action on the complaint is no longer necessary because of intervening events.

This complaint raises the question of the effect of a judge's retirement after the conduct that serves as the subject matter of the complaint. The language of section 372(c)(3)(B) underlined above was added in 1990.  It codified what has been reported to be the general practice of circuit chief judges to dismiss complaints under section 372(c) on the ground that a judge had left the bench, whether by death, retirement, or, in the case of a magistrate judge or bankruptcy judge, because not reappointed.  See Jeffrey N. Barr & Thomas E. Willging, Federal Judicial Center, Administration of the Federal Judicial Conduct and Disability Act of 1980, Final Report 48 (1993).  The statutory change reflects congressional approval of past practice.  Inasmuch as a judge who retired under 28 U.S.C. Sec. 371(a) by giving up his or her judicial office is no longer exercising judicial duties, he or she can no longer prejudice the "effective and expeditious administration of the business of the courts.

-- From:  IN RE: Complaint of Judicial Misconduct
10 F.3d 99, DOCKET NO. 93-53, Oct. 27, 1993

Judge Sloviter begins by stating that the complaint of judicial misconduct is "not cognizable under [now obsolete] 28 U.S.C. Sec. 372(c)", then proceeds to say that [now obsolete] subsection 28 U.S.C. Sec. 372(c)(3)(b), from which she derives her authority, is based on what merely "...has been reported to be the general practice of circuit chief judges...".

This is among the shakiest of foundations upon which to build an argument that justifies exempting judges from being prosecuted for past crimes — let alone rewarding them with lifetime annuities.  All a miscreant judge need do is simply retire from the bench once they are exposed, but before being indicted.

Nevertheless, Judge Sloviter's opinion is what the Fifth Circuit relied upon when it ruled that Judge Walter Smith's past felonious conduct is exempt from being further investigated or prosecuted because of his retirement from the bench.  Furthermore, because he was neither impeached nor forced to resign, Judge Smith remains entitled to an annuity for the remainder of his life, and he will never have to account for his serious past acts of misconduct.

Thus, the Fifth Circuit's Judicial Council would have us accept its dictum as established law which, if not challenged, is expected to become increasingly accepted and universally defended by judges.

This dictum is manifestly unconstitutional, and the practice of exempting judges from prior offenses that would be considered felonies if committed by ordinary citizens is one that begs to be deliberated by Congress, whose duty it is to create laws that regulate the operation of the Judicial Branch.  In the words of Ty Clevenger, "Congress: Wake up and pay attention!"


*Rule 20(b)1(B) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings states:

Subject to the subject judge's rights set forth in subsection (a), the judicial council may conclude the proceeding because appropriate corrective action has been taken or intervening events have made the proceeding unnecessary.

Undefined are "intervening events", which ordinarily are restricted to death, imprisonment, or other major life-altering events.  Nowhere is simple retirement specified as an "intervening event".

In 2015, the U.S. Judicial Conference indicated a willingness to take a hard line approach toward judicial misconduct, even against judges who have left the bench.  This conflicts sharply with the Fifth Circuit's ruling above that holds harmless judges who are guilty of crimes but who retire before being investigated for misconduct.  In 2017, Fifth Circuit Chief Judge Carl E. Stewart was appointed to a seat on the U.S. Judicial Conference.