What Is The Burden Of Proof In Judicial-Council Factfinding?

I wrote about Chief Judge Sutton’s decision dismissing the judicial misconduct complaints (plural) against Judge Boasberg. Judge Sutton applied the clear and convincing evidence standard in the context of whether Judge Boasberg followed Supreme Court precedent in the airplane case.

An allegation that a judge did not follow “prevailing law or the directions of a court of appeals in [a] particular case[],” it is true, may in extreme cases constitute cognizable misconduct. In re Judicial Conduct & Disability, 517 F.3d 558, 562 (U.S. Jud. Conf. 2008). But because “the characterization of such behavior as misconduct is fraught with dangers to judicial independence,” the complainant must clear a high bar to maintain such a claim. Id. The complainant “must identify clear and convincing evidence of willfulness,” which is to say “clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.” Id. The complaint does not meet this standard.

Sutton cites a 2008 opinion by the Judicial Conference of the United States Committee on Judicial Conduct and Disability, which addressed this issue in the context of a judge disregarding legal standards. (I wrote about this opinion in this post.)

We agree that a judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law. In re Memorandum of Decision of Jud. Conf. Comm. on Jud. Conduct & Disability, 517 F.3d 558, 562 (U.S. Jud. Conf. 2008)

Yet, there seems to be some division of authority about the appropriate standard. In 2014, the Judicial Council of the D.C. Circuit explained that the rule does not provide a particular burden of proof:

Neither the Judicial Conduct and Disability Act, nor the Judicial–Conduct Rules, nor the Code of Conduct expressly indicates what burden of proof a judicial council should apply in its factfinding in a judicial misconduct proceeding. The Judicial–Conduct Rules state that a judicial council may dismiss a complaint because “the facts on which the complaint is based have not been established,” Judicial–Conduct Rule 20(b)(1)(A)(iii) (emphasis added), *767 **6 suggesting that the standard must at least be preponderance of the evidence. In the analogous context of attorney disciplinary proceedings, the American Bar Association’s Model Rules and most state and federal jurisdictions that have addressed the question require complainants (or disciplinary counsel) to establish misconduct by clear and convincing evidence,4 ALTHOUGH A SIZAble minority require only a preponderance of the evidence.5 None applies a lesser standard.6 This Circuit has never determined what burden of proof applies in judicial misconduct proceedings.7 Nor need we do so here. Our disposition would be the same regardless of whether a preponderance or clear-and-convincing standard applies. In re Charges of Jud. Misconduct, 769 F.3d 762, 766–67 (D.C. Cir. 2014).

What is the right answer? Arthur Hellman, a leading scholar on legal ethics, wrote about this issue in a 2019 article in the Georgetown Journal of Legal Ethics. Hellman says the answer is “not obvious.”

Policy arguments can be made on both sides. On the one hand, a finding of misconduct is a serious stain on a judge’s reputation.411 One can argue that a judge should not be stigmatized in that way on the basis of a mere preponderance of the evidence. On the other hand, it might also be troubling to see a judicial council saying that even if it is more likely than not that a judge engaged in misconduct, the complaint will be dismissed because the evidence is not clear and convincing

Arthur cites a 1993 decision from the Sixth Circuit Judicial Council by Chief Judge Gill Merritt, which applies the clean and convincing standard, though this case arose in the context of alleged sexual harassment off the bench. This precedent does not match how Sutton used it–whether the judge followed the law.

The petition for review by CASA notes that Sutton’s application of the clear and convincing standard has no bearing on Judge Boasberg’s alleged misconduct at the Judicial Conference.

As I said, there are some procedural issues that the Sixth Circuit Judicial Council will have to iron out.