By JOE STEPHENS - Staff Writer
Date: 04/05/98 23:30
If you fear that the judge handling your federal lawsuit has a hidden conflict of interest, the law gives you a way to find out.
Just scan the investments listed on his annual disclosure statement, a public document designed for that very purpose. Sounds easy, right?
Court rules make reviewing the forms impractical. And by the time you see the first sheet, the judge will know you are snooping into his finances.
When someone does discover a bona fide conflict, the judge need not fear punishment. Litigants file hundreds of complaints against judges each year, but they almost never produce so much as a reprimand. And district judges get their six-figure salaries for life, misconduct or not.
"The lack of any meaningful oversight over federal judges is one of the gaping loopholes in our legal system," said lawyer James C. Turner, a Washington-based consumer advocate.
"It cries out for reform."
U.S. law requires federal judges to withdraw from any case in which they know they have a financial interest, however small. Yet, The Kansas City Star reported Sunday, judges repeatedly have presided over lawsuits against companies in which they own stock.
Most judges said they made honest mistakes that, while regrettable, did not hurt anyone. Many litigants, however, were shocked and embittered by the judges' lapses.
The newspaper began its study by collecting disclosure statements from judges in four states. Individuals might find it difficult to make the same comparisons.
The reports are not available in Kansas City -- or even in the Midwest. Instead, authorities keep them 1,100 miles away at the Administrative Office of the U.S. Courts in Washington, D.C.
You must request copies in writing, not over the phone. And a simple letter will not suffice. Authorities consider only requests made on Form AO-10a, available only from the office in Washington.
You must list your name, address and occupation. Then you must disclose the "organizations or persons on whose behalf this request is made." The form warns that lying could lead to a $10,000 fine and five years in prison.
All mail requests must be notarized. The White House and Congress make no such demand when handing out their reports.
Furthermore, the courts charge 50 cents a page, payable in advance. A copy of U.S. District Judge Kathryn H. Vratil's reports for the last two years costs $50.
But critics call those impediments small compared to the final hurdle: Court workers send each judge a photocopy of your request, including your name. The president, senators and members of the House do not get similar warnings.
Court administrators described the notifications as a security precaution.
However, they could not identify a single instance where someone used the reports to harm a judge.
Critics said the policy puts a litigant at risk of infuriating the very official who will determine the destiny of his lawsuit. Lawyers are in an even more precarious position because they must appear repeatedly before the judges, who have lifetime appointments.
"The last thing a lawyer wants to do is anger a judge," said Washington attorney William Fry, who specializes in consumer issues. "It's almost a total barrier to a lawyer making a request" for a report.
Court officials described such fears as unreasonable. Yet experts pointed out that lawyers could be disciplined or disbarred for challenging a judge's integrity.
Fry argues that the financial reports should be available for free review at local courthouses. The names of litigants who look at them should be confidential, he said, to forestall retaliation.
Some litigants, angry about their judges' stock holdings, went even further.
"It should be posted outside the judge's courtroom," litigant Nancy Powell said of the forms. "It should be on a plaque on the door."
That is unlikely. But beginning today, local judges' investments are available for free and anonymous review on The Star's Internet site. Anyone with a home computer or access to a public library can see the reports for district judges on the World Wide Web at http://www.kcstar.com/judges/.
Form AO-10a, needed to order reports from Washington, also is on the Web site.
Local lawyers and public-interest advocates called that a step in the right direction.
"People want to know whether their judge has a conflict," Fry said. The judiciary's reluctance to make the reports more available on its own, he added, "is shocking."
Discovering a stock conflict might give you grounds to remove a judge from your lawsuit. But it would not mean the judge is in trouble.
"What would happen, at most, would be that the chief judge of the circuit would have a full and frank discussion with the district judge to ensure that he knows what his obligations are," said Stephen Gillers, a judicial ethicist at New York University Law School.
"And it will end there. There will be no formal discipline, public or private."
That illustrates a central feature of the federal court system: Although judicial ethics laws are strict, enforcement is not.
The system trusts judges to police themselves. Unlike the executive branch, with its inspectors general, no one in the court system is empowered to ferret out violations.
To be sure, a judge can be tried and convicted of pocketing a bribe or some other crime. Unlike other convicts, however, the judge would keep his salary while in prison. The U.S. Constitution guarantees that as long as a judge retains his title, no one -- even the president -- can reduce his pay for any reason.
Yet when someone catches a judge flouting ethics laws, there is no set penalty. In a nod to the separation of powers, Congress left matters of discipline to the judiciary itself.
The courts do accept complaints of misconduct, which in theory can lead to an official reprimand or even a paid suspension. But lawyers who stumble across judicial wrongdoing tend to keep their complaints to themselves.
"Lawyers are not going to criticize judges in their own districts," Gillers said. "It's just suicide. Federal judges are simply too powerful."
A litigant can file his own complaint with the chief judge of his judicial circuit. The chances of eliciting even a private rebuke, however, are slim.
In fiscal 1996 and 1997, chief judges looked into more than 1,000 formal complaints against federal judges nationwide. The chief judges decided that not one required official discipline, according to reports from the Administrative Office of the U.S. Courts.
The reports show chief judges failed to send even a single complaint on to the next level in the complaint process: investigation by a committee of judges.
In 461 instances, complainants appealed the dismissals up the line to a judicial council. The councils threw out every single appeal.
Although some court officials questioned whether the numbers were complete, the Administrative Office could not explain any omissions.
In fact, officials in Washington could not identify the last time a judicial council publicly disciplined a judge. They are sure, however, it hasn't happened in the last five years.
"It makes you suspicious," said U.S. Rep. Ed Bryant, a Tennessee Republican who wants to beef up the complaint process.
"You would believe that out of that number there would be a handful or so that would have some merit."
If so, it would be impossible for anyone outside the judiciary to tell. Officials keep all complaints, and the judges they name, secret from the public.
"It's disturbing to think none of those complaints can be reviewed by any public group," Fry said.
A judge, however, knows the names of his accusers, receiving a copy of a complaint as soon as it is filed. Critics and supporters of the system alike acknowledge that it ensures few complaints are filed by lawyers, who are in the best position to spot misconduct.
Court officials said the rules protect judges' reputations from unfounded attacks. And they argued that no one meant for the complaint system to be adversarial or punitive.
Instead, it is an administrative tool to help chief judges correct the behavior of wayward colleagues, said appeals court Judge Henry A. Politz of Louisiana.
"The most effective way to do that," he told a congressional committee last year, "is by informal pressure and persuasion brought to bear by other judges -- not by any formal complaint process."
On occasion, the informal method prompts judges to correct their behavior before the complaint process begins, he said. In some cases, chief judges also may take "corrective action" outside the process.
Critics contend that judges simply balk at facing the sort of adversarial battle that they subject other folks to daily. And they ridicule the notion that a public official, armed with a lifetime appointment and training as a professional advocate, needs to hide behind secrecy rules.
"Our federal judiciary is virtually immune to attack," New York lawyer Thomas Liotti wrote in a letter published in the National Law Journal. "This situation threatens the system of checks and balances necessary to the democratic functioning of government."
Reformers point out that judges often do not consider unethical behavior alone to be grounds for a reprimand. A recent misconduct complaint illustrates the point.
A Nevada state prosecutor filed a complaint against an unidentified magistrate judge from the Tenth Circuit, which includes Kansas. The prosecutor accused the magistrate of improperly seeking the release of a man jailed on a warrant issued in Nevada. The prisoner's sister worked for the magistrate as a secretary.
A committee of judges investigated and told Stephanie Seymour, chief judge of the circuit, that they thought the magistrate may have violated the judicial Code of Conduct. But Seymour said in court documents that was not enough to trigger a reprimand.
"The fact that a judge's conduct violates the Canons," Seymour wrote, "does not necessarily mean that it constitutes judicial misconduct.
"The complaint is therefore dismissed."
Turner argues that it is time to open up the process. He is executive director of a Washington-based group named HALT -- an Organization of Americans for Legal Reform.
"Sunshine is the best disinfectant," he said. "While it's messy and it may cause individuals some discomfort to have matters considered in public, in a democracy that is the way things are done. There is no better way."
Turner's organization recommends sprinkling ordinary citizens among the judges on disciplinary boards. And it calls for public censure, even when judges lapse inadvertently.
For example, Turner recommends public reprimands for judges who preside over lawsuits while owning stock in a litigant. That, he said, would put all judges on notice that such problems are serious.
"Even if you have the most honest jurist in history," he said, "that guy every now and then needs a wake-up call that he has got to be careful.
"The wake-up calls are not coming."
The disciplinary system also is under fire in Congress, where some legislators are calling for greater accountability.
Recently proposed legislation would require that judges undergo congressional confirmation every 10 years and that judges convicted of serious crimes be banned from the bench.
Bryant and other Republican lawmakers are backing another bill that would bar chief judges from deciding the outcome of complaints against judges in their own circuits. Instead, complaints would be referred to chief judges in another region of the country.
"This whole process is being conducted by colleagues," Bryant complained. "They play golf together and drink together."
With the proposed reforms, he said, "at least we avoid the appearance of a conflict of interest."
Bryant's bill passed out of the judiciary committee last month and awaits consideration by the full House. It faces stiff opposition.
The U.S. Judicial Conference argues that there is no evidence of lax enforcement. And many legislators are reluctant to tamper with the hallowed principle of judicial independence.
Even if Bryant's bill passes, however, the U.S. Constitution ensures the only substantial penalty judges face will remain the same: removal from the bench.
That can be accomplished only through impeachment by the House and conviction by the Senate. And in the 222-year history of the United States, federal judges have met that fate only seven times.
That's an average of once every 32 years.