Public Hearing: Proposed Changes to Judges’ Code of Conduct & Judicial Conduct and Disability Rules


>>GOOD MORNING, LADIES AND
GENTLEMEN, I’M ON THE CHAIR .
I WANT TO WELCOME EVERYONE FOR THE HEARING TODAY WHERE WE .
>>THE RULES ARE THAT WE’RE TALKING ABOUT.
AND I’M NOT GOING TO GO THROUGH THOSE IN ANY GREAT DETAIL, BUT
SUFFICE IT TO SAY THAT THIS IS A PART OF A MULTI FACETTED
APPROACH TO DEAL WITH CONDUCT IN THE WORKPLACE ISSUES.
THE ITEMS THAT ARE CURRENTLY IN PLAY ARE BEING PLANNED ARE THE
WORKING GROUP THAT I’VE REFERRED TO. THE PROPOSED OFFICE OF JUDICIAL
INTEGRITY IN THE ADMINISTRATIVE OFFICE THAT IS IN THE WORKS.
AND IT REALLY CHANGES ON CONDUCT AND DISABILITY AND TO THE CODE
OF CONDUCT FOR UNITED STATES JUDGES AND THE CODE OF CONDUCT
FOR JUDICIAL EMPLOYEES.
NOW, THIS IS NOT A FACT FINDING HEARING.
THIS IS PROPOSED AMENDMENTS TO THE RULES.
THE THING THAT I WOULD LIKE ALL TO BEAR IN MIND THAT THE TIME
LIMITS AND TIME CONSTRAINTS PUT ON THE WITNESSES, PARTICULARLY,
WITNESSES THIS AFTERNOON ARE CON CONSTRAINED.
AS A RESULT, IT IS REALLY IMPORTANT THAT WE STAY FOCUSED
ON THE RULES AS WE GO ABOUT THIS HEARING.
AND I DON’T WANT TO GET TOO MUCH
INTO, BUT ONE OF THE THINGS I WOULD LIKE US TO BEAR IN MIND.
IT WILL BE HELD OPEN UNTIL NOVEMBER 13TH.
ANY WITNESS WHO WANTS TO PUT FACTUAL STATEMENTS THAT THEY
WANT TO PUT IN THE RECORD, IF THEY WANT TO CREATE FACTUAL
DEVELOPMENTS THAT THEY WANT IN THE RULES AMENDMENT, THEY WILL
BE SEND US TO. AND THEN THEY’LL BE SENT TO THE
APPROPRIATE COMMITTEES, THE WORKING GROUP, AND THEY WILL BE
CONSIDERED. NOW ONLY VERY, VERY RARELY HAVE
THE COMMITTEES CONDUCTED FACT- FACT-FINDING HEARINGS.
ONE OF THE THINGS THAT I WOULD LIKE ALL OF YOU TO BEAR IN MIND
IS THAT IF THERE COMES A TIME WHEN WE NEED TO HOLD A FACT-FIND
FACT-FINDING HEARING IN ORDER TO DEVELOP THE FACTS THAT WE NEED
TO KNOW IN ORDER TO AMEND THE RULES, WE WILL DO THAT, BUT
ORDINARYILY, WE DEFER DEFER TO OTHER
BODIES TO CONDUCT THOSE INQUIRY INQUIRIES FOR US.
THE WORKING GROUP IS A PRIME EXAMPLE OF A GROUP THAT TOOK
FACTUAL EVIDENCE AND THEN MADE SOME DECISIONS AND THE
RECOMMENDATIONS ARE THEN MADE TO THE COMMITTEES.
SO THAT’S GENERALLY HOW WE WORK. THE OTHER THING I JUST WANT TO
NOTE FOR EVERYONE’S UNDERSTAND
UNDERSTANDING OF HOW THE COMMITTEES WORK, WE ARE, IN FACT
FACT, BODIES OF THE JUDICIAL CONFERENCE OF THE UNITED STATES.
WE DO OUR WORK AND REPORT TO THE JUDICIAL CONFERENCE OF THE
UNITED STATES. WE DO NOT ORDINARYILY HOLD PRESS
CONFERENCES, MAKE PRESS STATEMENTS OR OTHERWISE COMMENT
ON ANY OF THE WORK THAT WE DO BECAUSE IN THE END THE WORK
PRODUCT IS NOT OUR PRODUCT AS A COMMITTEE.
THE WORK PRODUCT IS THE PRODUCT OF THE CONFERENCE OF THE UNITED
STATES. FOR THOSE MEMBERS OF THE MEDIA
WHO HAVE ANY QUESTIONS THAT THEY WOULD LIKE TO RAISE, IT WOULD BE
MOST APPROPRIATE IF THOSE QUESTIONS BE RAISED AND DIRECTED
TO THE USUAL PUBLIC AFFAIRS PERSONNEL WITH ANY
ADMINISTRATIVE OFFICE, RATHER TO US AS INDIVIDUAL JUDGES BECAUSE
WE FRANKLY ARE NOT AUTHORIZEED TO
SPEAK ON BEHALF OF EITHER THE COMMITTEE OR THE CONFERENCE.
SO IT WOULD BE BEST IF THOSE INQUIRYIES WERE MADE IN THAT
MANNER. THAT BRINGS US TO THE LAST ISSUE
WHICH I TRUST IS NOT REALLY A SIGNIFICANT ISSUE.
AND THAT IS WE’RE JUDGES, AND WE’RE PRETTY MUCH COMFORTABLE IN
APPROACHING THE WAY THAT WE CONDUCT HEARINGS IN A FORMALIZE
ED WAY.
WE WOULD APPRECIATE IT IF EVERYONE WOULD FOLLOW ORDINARY
COURTROOM DECORUM. WHAT THAT MEANS IS APPLAUSE ARE
NOT APPROPRIATE. OUTBURSTS ARE NOT APPROPRIATE.
WE HAVE VERY LIMITED TIME FOR EACH OF THE WITNESSES, AND WE
JUST WANTED TO MAKE SURE THAT EVERYONE HAS AN OPPORTUNITY TO
BE HEARD BEFORE WE ADJOURN. SO WHAT WILL HAPPEN IS THERE ARE
THOSE KINDS OF OUTBURSTS, THEN YOU’LL BE GIVEN ONE WARNING, AND
THEN YOU’RE ASKED TO BE REMOVEED .
WE WOULD APPRECIATE IT IF NONE OF THAT HAPPENED BECAUSE WE
REALLY WANT TO HEAR FROM THE WITNESSES.
EVERY MINUTE WE SPEND DOING SOMETHING OTHER THAN HEARING
FROM THE WITNESSES TAKES AWAY TIME FROM THIS ONE-DAY HEARING
THAT WE’VE SET ASIDE. WITH THAT, I WANT TO SAY WELCOME
WELCOME. WE’RE REALLY LOOKING FORWARD TO
HEARING FROM EACH OF THE WITNESSES.
WE READ FROM THE STATEMENTS, AND THEY’RE PROFOUND, MOVING, AND
THOUGHT-PROVOKEING. WITH THAT, I’LL PASS IT TO JUDGE
SCIRICA.>>THANK YOU VERY MUCH.
A LITTLE BACKGROUND IN THE YEAR- YEAR-END REPORT OF THE FEDERAL
JUDICIARY, THE CHIEF JUSTICE SAID THAT EVENTS IN RECENT MONTH
MONTHS HAVE ILLUMINATEED THE PROBLEM OF ABUSE AND SEXUAL
HARASSMENT IN THE WORKPLACE. THE JUDICIARY WILL UNDERTAKE A
CAREFUL EVALUATION, WHETHER IT’S STANDARDS OF CONDUCT AND IT’S
PROCEDURES FOR INVESTIGATING INAPPROPRIATE BEHAVIOR ARE
ADEQUATE TO INSURE AN EXEMPLARY WORKPLACE FOR EVERY JUDGE, FOR
EVERY SUPERVISOR, AND FOR EVERY COURT EMPLOYEE.
HE ASKED THE DIRECTOR OF THE ADMINISTRATIVE OFFICE TO
ASSEMBLE A WORKING GROUP TO EXAMINE OUR PRACTICES AND TO
ADDRESS THESE ISSUES. AND HE EXPECTED THE WORKING
GROUP TO CONSIDER WHETHER CHANGES ARE NEEDED IN OUR CODES
OF CONDUCT, IN OUR GUIDANCE TO JUDICIAL EMPLOYEES, ON MATTERS
INVOLVING CONFIDENTTY ON CONFIDENTIALITY,
RECORDING MISCONDUCT, ON EDUCATIONAL TRAINING PROGRAMS,
AND ON RULES OF INVESTIGATING AND PROCESSING MISCONDUCT
COMPLAINTS. THESE CONCERNS WARRANT SERIOUS
ATTENTION FROM ALL QUARTERS OF THE JUDICIAL BRANCH.
THE STANDARD OF MISCONDUCT AND DISABILITY WAS SET FORTH BY THE
CONGRESS IN THE ACT OF 1980.
THE STANDARD ADOPTED BY CONGRESS CONGRESS, CONDUCT, PREJUDICIAL
TO THE THE EFFECTIVE ADMINISTRATION
BUSINESS OF THE COURTS, AND THE INABILITY OF DISCHARGING DUTYIES
OF OFFICE BECAUSE OF MENTAL OR PHYSICAL DISABILITY, GLOBALLY
COVER EVERY PROBE. BUT IT IS NECESSARILY BROAD AND
SO REQUIRES DEFINITION. THE KIND OF MISCONDUCT AND
DISABILITY RULES INITIALLY ADOPT ADOPTED IN 2008 CARRIED OVER
MANY OF THE DEFINITIONS OF THE FORMER ILLUSTRITIVE RULES AND
CREATING EXPERIENCE IN COMPLAINTS AND RECOMMENDATIONS OF THE BREYER COMMITTEE
ESTABLISHED-LAST JANUARY IT BECAME APPARENT THAT WE SHOULD
MAKE EXPLICIT THAT WHICH WAS IMPLICIT, AND WE SHOULD CLARIFY
CERTAIN AMBIGUITYIES.
SO LAST WINTER WE BEGAN TO DELIBERATE ON POSSIBLE CHANGES,
RECOGNIZING THAT THE WORKING GROUP WOULD BE CONDUCTING AN
IN-DEPTH REVIEW OF ALL OF THE RELATEED AND INTERCONNECTED
PROBLEMS. LAST JUNE THE WORKING GROUP
ISSUEED A COMPREHENSIVE REPORT TOGETHER WITH CERTAIN
RECOMMENDATIONS FOR ACTION, INCLUDING AMENDMENTS TO THE CODE
OF CONDUCT AND THE RULES ON CONDUCT AND DISABILITY.
BOTH THE CODE OF CONDUCT AND JUDICIAL CONDUCT DISABILITY
COMMITTEE HAVE RESPONDED TO THE CAREFUL RECOMMENDATIONS PROVIDED
BY THE WORKING GROUP. SOME OF THE PROPOSED AMENDMENTS
ARE NEW. SOME EXPAND OR CLARIFY THE RULES
ALREADY IN PLACE. TODAY WE SEEK YOUR VIEWS ON THE
PROPOSED CHANGES. I’M .
I WILL INTRODUCE THOSE WHO ARE PRESENT.
DARK BARKERJUDGE BARKER, JUDGE DUBINA,
JUDGE RATTLE, AND JUDGE GRITZNER GRITZNER.
THANK YOU VERY MUCH.>>THE FIRST PANEL FOR THIS
MORNING IS CHIEF JUDGE LAWRENCE O’NEILL, THE CHIEF JUDGE OF
EASTERN DISTRICT DISTRICT OF CALIFORNIA.
WELCOME, JUDGE, AND I’LL NOTE FOR YOUR EDIFICATION THAT WE
HAVE YOU DOWN FOR NO TIME LIMIT BUT WE HAVE YOU ON THE CALENDAR
FOR 30 MINUTES. YOU’RE FREE TO EXPEND THAT TIME
IF YOU WILL.>>THANK YOU.
FIRST OF ALL, LET ME THANK ALL OF YOU FOR TWO THINGS: ONE FOR
PUTTING YOURSELF OUT NOT JUST PROFESSIONALLY BUT PERSONALLY.
EVERY ONE OF US WHO HAVE DEALT WITH A MATTER OF THIS SENSITIVE
SENSITIVITY AND IMPORT KNOWS FULL WELL WHAT YOU DO WILL BE
IMPORTANT, SIGNIFICANT, LONG- LONG-LASTING, BUT IT’S ALSO
GOING TO BE SUBJECT TO CRITICISM CRITICISM.
YOU’RE GOING TO BE CRITICIZEED NOT JUST FOR THE END PRODUCT BUT
CRITICIZED FOR THE PROCESS. YOU’LL BE CRITICIZEED WHETHER OR
NOT PEOPLE BELIEVE YOU REALLY MEAN THIS, WHETHER OR NOT THIS
IS JUST SIMPLY RUNNING SHELTER FOR OTHER JUDGES.
THOSE OF US WITHIN THE SYSTEM KNOW BETTER.
I’VE BEEN A JUDGE STARTING IN JANUARY, MY 30TH YEAR AS A JUDGE
JUDGE. I WILL TELL YOU THAT I DEALT
WITH MANY PERSONNEL MATTERS. AND THEY’RE ALL IMPORTANT.
AND THEY’RE ALL SIGNIFICANT. AND THERE IS NOBODY WHO IS
INVOLVED IN THE MIDDLE OF IT WHO DOESN’T KNOW ITS LIFE CHANGING
FOR SOME PEOPLE. THAT’S WHY IT’S SO IMPORTANT
THAT YOU’RE HERE. SECONDLY.
I WANT TO THANK YOU FOR INVITE ING
ME AND INVITEING THE PUBLIC IN GENERAL BECAUSE OFTENTIMES WE
ALL KNOW AS JUDGES WE SOMETIMES GET PERHAPS A MYOPIC MYOPIC VIEW
OF LIFE AND STAND POINTS.
WHEN WE’RE MAKING DECISIONS AND PEOPLE ARE TRYING TO GRASP
ISSUES AND PRESENT THEM, IT CAN BE VERY DIFFICULT FOR PEOPLE TO
DO THAT. THANK YOU FOR DOING THAT.
IT MAY OPEN YOU UP TO CRITICISM, BUT THE GOOD NEWS IS THAT IT’S
NOT GOING TO BE FOR ME. MY PURPOSE HERE IS TO PROVIDE A
LITTLE PERSPECTIVE, AND I WILL DO THAT IN AN EEFFICIENT MANNER
SO THAT YOU CAN MOVE ON TO OTHER WITNESSES AND MOVE ON TO
ULTIMATELY THE PRODUCT. I, LIKE EVERY OTHER PRESENTER,
GAVE YOU A WRITTEN STATEMENT, AND THERE HAS BEEN COMMENT ABOUT
THEM THAT YOU’VE RECEIVED THEM AND READ THEM.
IT IS NOT INTENT TO REHASH THE STATEMENT, BUT I WANT TO
EMPHASIZE JUST A COUPLE OF THINGS.
THEN I’LL MOVE ON AND THEN MOVE OUT.
MY FOCUS TODAY IS GOING TO BE ON NOT JUST THE THINGS THAT WERE
MENTIONED IN THE SUBMISSION SUCH AS THE ISSUES OF RETROACTIVEITY,
WHETHER THESE RULES APPLY RETROACTIVELY, ASKING FOR
CLARIFICATION WHETHER IT’S INVOLVING DESPERATE TREATMENT
VERSUS DESPERATE IMPACT WHICH IS GENERALLY UNINTENTIONAL CONDUCT.
I’M REFERRING TO RULE 4 A-3. CONCEPT OF APPLICATION OF THE
HOSTILE WORK ENVIRONMENT .
WE ALSO, AND I SAY WE. WE’RE REPRESENTING NOT JUST THE
CHIEF JUDGE NINTH CIRCUIT, JUDGE THOMAS, BUT THE CONFERENCE OF
THE NINTH CIRCUIT. WE’VE ADDRESSED IN THE
SUBMISSION THE MANDATORY REPORTING AS IT REFLECTS THE
WILLINGNESS TO REPORT ACROSS THE BOARD.
I’M NOT TALKING JUST ABOUT COLLEGIATETY OF THE COURT SYSTEM
WITH OUR EMPLOYEES, EVERY SINGLE ONE OF THEM AND THE CONCERN OF
OVER REPORTING OUT OF FEAR OF DISCIPLINE.
THOSE HAVE BEEN COVERED. THEY’RE IMPORTANT BUT THERE IS
ONE THING THAT I WANT TO FAMILY SIZE EVEN MORE THAN THAT, AND
THAT IS THE ISSUE OF LOCAL DISCRETION. I WILL PRESENT TWO VERY SHORT
SCENARIOS, BOTH OF WHICH OCCUR OCCURRED.
I WILL LEAVE OUT NAMES BECAUSE I RESPECT CONFIDENTIALITY, BUT
THEY ARE INDICATIVE AND ILLUSTRI
ILLUSTRITIVE OF WHAT I’M TRYING TO ACHIEVE TODAY, THAT IS
DISCRETION LEFT INTACT. ONE INVOLVED I WAS SITTING IN MY
CHAMBERS. MY DOOR IS ALWAYS OPEN UNLESS
I’M DEALLING WITH DEALLING WITH SOMETHING
CONFIDENTIAL. ONE OF OUR LONG-TERM LAW CLERKS,
NOT IN MY CHAMBERS, BUT IN THE COURTHOUSE, KNOCKED ON THE DOOR.
I LOOKED UP, AND SHE SAID, GOT A MINUTE?
THAT’S USUALLY NOT SOMETHING THAT YOU’RE GOING TO WANT TO
HEAR. BUT THE ANSWER IS ALWAYS, OF
COURSE. THEN THE CONFIRMATION.
SHE SAID, CAN I CLOSE THE DOOR? I SAID, OF COURSE.
SHE CAME IN AND SAT DOWN AND WAS VISIBLY PHYSICAL LY UNCOMFORTABLE
UNCOMFORTABLE, TO SAY THE LEAST. SHE SAID, JUDGE SO AND SO JUST
MADE WHAT I CONSIDER TO BE A LEWD REMARK TO ME.
AND I CAN’T BELIEVE IT. AND BASED ON WHO SHE WAS TALKING
ABOUT, I WAS SHOCKED, STUNNED, AND I SAID, LET ME ASK FOR
CLARIFICATION. ARE YOU SAYING THAT HE SAID IT
TO YOU? OR ARE YOU SAYING THAT IT SAID
IT ABOUT YOU AND SOMEONE TOLD YOU ABOUT IT?
SHE SAID, JUDGE, HE SAID IT TO ME. AND I SAID, MAY I ASK YOU FOR A
FAVOR? GIVE ME NO MORE THAN ONE DAY.
I WILL GET TO THE BOTTOM OF THIS THIS.
AND I WILL GET BACK TO YOU PERSONALLY.
AS SOON AS SHE LEFT I WENT TO THIS JUDGE’S LONG-TERM SENIOR
STAFF ATTORNEY, CLOSEED THE DOOR ,
AND SAID, DO WE NEED TO TALK ABOUT SOMETHING? SHE STARTED TO CRY.
SHE SAID, HOW DID YOU FIND OUT? I SAID, WELL WHAT DO YOU THINK
I’M TALKING ABOUT? LET’S MAKE SURE THAT WE’RE ON
THE SAME TRACK. SHE SAID, HE’S LOSEING HIS MIND. AND I TALKED TO HER ABOUT IT FOR
A LITTLE BIT, REALIZEING THAT THE
EXAMPLE SHE WAS GIVING ME CONFIRMED THAT THERE WAS
SOMETHING TERRIBLY WRONG. SO I WENT BACK TO MY CHAMBERS,
AND I CALLED THE JUDGE’S WIFE, AND I SAID–WHO I KNEW AND I HAD
KNOWN FOR YEARS. I SAID, CAN I COME OVER TO THE
HOUSE NOW? SHE SAID, YES.
SO I GOT IN MY CAR, AND I DROVE TO HIS HOME, AND I WENT IN, AND
I SAID, I NEED TO KNOW WHAT’S GOING ON. SHE SAID, I THINK HE’S GOT THE
BEGINNING OF DEMENTIA. I THINK HE’S GOT ALZHEIMER’S.
I SAID, WE HAVE SEVERAL THINGS TO DEAL WITH HERE.
ONE IS SERIOUS, SERIOUS COMPLAINT BASED ON A COMMENT
THAT CANNOT BE IGNORED. SECONDLY, HE HAS A LONG-TERM
STELLAR, SPOTLESS REPUTATION TO DEAL WITH, TOO.
SHE SAID, WHAT DO YOU WANT? I SAID, I WANT TO COME BY
TONIGHT. YOU TELL ME WHAT TIME, AND YOU
JUST TELL ME WHETHER OR NOT YOU WANT TO BE HERE.
THAT NIGHT I WENT OVER AT THE DESIGNATED TIME, AND I WALKED IN
IN. SHE SAID SHE WANTED TO BE THERE,
BUT NOT IN THE ROOM. I WALKED INTO THE LIVING ROOM
WITH HIM, AND SAID, WE’VE KNOWN EACH OTHER FOR A LONG TIME.
IF YOU WANT ME TO LEAVE YOUR HOME, JUST TELL ME, AND I WILL
NOT BE INSULTED. I WILL LEAVE.
HE LOOKED AT ME WITH TEARS IN HIS EYES AND SAID, I WOULD NEVER
DO THAT TO YOU. AND WE HAD ONE OF THE MOST
DIFFICULT CONVERSATIONS OF MY JUDICIAL CAREER.
IN 30 YEARS I DON’T THINK I’VE EVER HAD TO DO SOMETHING QUITE
AS DIFFICULT AS THAT. THE NEXT DAY HE RESIGNED.
AS A SENIOR JUDGE HE RESIGNED. TWO YEARS LATER HE DIED OF
ALZHEIMER’S COMPLICATIONS. SECOND ISSUE.
A SECOND LAW CLERK CAME IN. IT WAS ALMOST SCRIPT.
GOT A MINUTE? CAN I CLOSE THE DOOR?
ABOUT THEN I WANT TO TAKE THE DOOR OFF THE HINGES, FRANKLY.
I SAID YES AND YES. SHE SAID, I DON’T KNOW HOW TO
TELL YOU THIS, BUT MY JUDGE HAS BECOME A COMPLETE JERK, AND I
DON’T KNOW WHAT TO DO ABOUT IT. IT’S OUT OF CHARACTER–I DON’T
KNOW WHAT TO DO ABOUT IT. I ASKED FOR EXAMPLE.
SHE GAVE ME SOME. SO I SAID, ALMOST THE SAME THING
. GIVE ME A BIT OF TIME, AND I’LL
GET BACK TO YOU DIRECTLY. SO I WENT DOWN TO THE CHAMBERS
OF THE JUDGE INVOLVED, CLOSEED THE DOOR.
I GUESS I SAID THE SAME THING. GOT A MINUTE?
CAN I CLOSE THE DOOR? AND DID.
I SAID, YOU WANT TO TELL ME WHAT’S GOING ON?
SOMETHING GOING ON IN YOUR LIFE? SHE, WITH TOTAL GENUINE–SHE WAS
TOTALLY GENUINE, SHE SAID, WHAT ARE YOU TALKING ABOUT?
I EXPLAINED THE COMMENT , AND I
REMEMBER–I CAN SEE IT. SHE HUNG HER HEAD, AND SHE SAID,
SAID,–AND I THOUGHT I WAS DOING SUCH A GOOD JOB OF HIDING IT.
I SAID WHAT IS THE “IT”.”
WHAT ARE YOU HIDING? SHE SAID, A DOMESTIC PROBLEM
THAT THAT IS ENCOMPASSING MY LIFE.
BUT SHE SAID, NOW THAT I–I HONESTLY AM SHOCKED THAT I DID
NOT REALIZE I WAS DOING IT. I THOUGHT I WAS COVERING THIS UP
UP. I THOUGHT IT WAS PERSONAL.
I WANT TO KEEP IT PERSONAL. BUT I GUESS I IT’S COMING OUT
SOMEWHERE, AND THIS IS ONE OF THE PLACES IT’S COMING OUT.
WE AGREEED ON COUNSELING, THAT SHE WOULD VOLTAIRELY VOLUNTARYILY GET THE
COUNSELING SHE NEEDED. TO THIS DAY, NOT ANOTHER
COMPLAINT FROM ANYONE. THOSE ARE TWO EXAMPLES THAT I
BELIEVE THAT IF I WERE FACEED WITH THEM, IF YOU PASSED THE
RULES EXACTLY HOW THEY ARE NOW, I WOULD BE OBLIGATEED TO GO TO
THE CHIEF JUDGE OF THE CIRCUIT. I WOULD BE OBLIGATEED TO GO TO
POSSIBLY THE NEXT LEVEL OF THE NATIONAL PERSON WHO IS GOING TO
BE DEALLING WITH COMPLAINTS, BUT THE WAY IT WAS DEALT, IT WAS
DEALT WITH ON A LOCAL LEVEL. IT WAS DEALT DIRECTLY.
IT WAS DEALT HONESTLY. IT WAS DEALT SERIOUSLY.
ULTIMATELY, IT WAS DEALT WITH CORRECTLY.
THE RESULTS WERE PERFECT. SO I ASK THAT YOU GIVE SOME
DISCRETION AT THE LOWER LEVEL, THE LOCAL LEVEL BECAUSE WE KNOW
THE PERSONALITYIES. NOW, YOU MIGHT SAY, WELL, WAIT A
MINUTE. IT DEPENDS ON THE PERSONALITY
THAT IT IS THAT THE JUDGE IS BEING TOLD, COMPLAINED TO, WHAT
THAT JUDGE’S ABILITY TO DEAL WITH THESE TYPES OF PROBLEMS IS .
WHAT HAPPENS IF THE JUDGE DOES NOTHING AND RUNS FOR COVER?
THAT’S WHY I SUGGEST WE GIVE IT THE
DISCRETION AT THE LOCAL LEVEL UNLESS ONE OR TWO TWO OR BOTH OF
THESE THINGS EXIST. ONE, THAT THE JUDGE–THE CHIEF
JUDGE OF THE DISTRICT SAYS THIS IS SOMETHING OF SUCH A MAGNITUDE
THAT I CANNOT AND SHOULD NOT LEAVE IT AT THIS LEVEL.
OR THE LOCAL JUDGE SAYS I DON’T BELIEVE I CAN HANDLE THIS
APPROPRIATELY, EFFECTIVELY. OR TWO, AND THIS IS AN ENORMOUS
EXCEPTION, IF THE PERSON COMPLAINING SAYS, I WANT TO GO
TO THE NEXT LEVEL, OR I’M NOT SATISFYIED WITH THE RESULTS.
THAT PERSON SHOULD ALWAYS HAVE THE OPTION OF GOING TO THE NEXT
LEVEL. I BELIEVE THAT’S A FAIR PROCESS,
AND I THINK IT’S ALSO IN COMPLIANCE WITH THE PHRASE FROM
CANON 2-B-6 WHICH SAYS SUGGEST SINKLY THAT APPROPRIATE ACTION
DEPENDS ON THE CIRCUMSTANCES. IT DOES.
THERE IS NO QUESTION THAT IT DOES, AND SHOULD.
THE COMMENTARY ON RULE 4, AND I’M GETTING TO THE END SO I
DON’T WANT YOU TO WORRY THAT I’M GOING ON, I’M NOT.
COMMENTARY ON RULE 4 PARAGRAPH 10, AND IT’S GOT ABOUT EIGHT
LINES. I WOULD LIKE TO READ THEM.
QUOTE, IN PRACTICE, HOWEVER, NOT ALL ALLEGATIONS OF MISCONDUCT OR
DISABILITY WILL WARRANT RESORT TO THE FORMAL PROCEDURES OUT
OUTLINED IN THESE RULES BECAUSE THEY APPEAR LIKELY TO YIELD TO
AN EFFECTIVE , PROMPT, RESOLUTION
RESOLUTION, THROUGH INFORMAL CORRECTIVE ALLEGATION.
IN SUCH CASES ALLEGATIONS MAY BE INITIALLY ADDRESSED TO THE CHIEF
DISTRICT JUDGE OR THE CHIEF CIRCUIT JUDGE TO DETERMINE
WHETHER INFORMAL CORRECTIVE ACTION WILL SUFFICIENTFIES AND
INITIATE SUCH. STEPS AS ARE REASONABLE UNDER
THE CIRCUMSTANCES. SO THAT IS MY REQUEST.
THAT IS MY EMPHASIS. AND I THINK IT IS ENORMOUS IN
PRACTICE AND I’M SURE THAT MOST OF YOU REALIZE THAT SINCE YOU’VE
BEEN MUCH MORE DIRECTLY INVOLVED WITH THIS THAN I HAVE, THIS IS
ONLY A VERY SMALL PART OF WHAT YOU’VE BEEN ADDRESSING, BUT IT
IS, AS I SUBMIT, IT IS AN ENORMOUS PART.
I THANK YOU FOR LISTENING. I THANK YOU AGAIN FOR DOING YOUR
JOB THAT’S UNPLEASANT AND UN UNDIFFICULT AS IT IS, AND I
WOULD BE GLAD TO ANSWER ANY QUESTION THAT ANY ONE OF YOU
MIGHT HAVE. OTHERWISE, I’M DONE, YOU CAN GO
ON TO THE NEXT WITNESS AND MOVE ON TOWARDS THE END OF THE DAY.
>>ANY QUESTIONS?>>JUDGE O’NEILL, THANK YOU VERY
MUCH. YOU’VE DONE THIS IN YOUR
STATEMENT, BUT IF YOU COULD TELL US WHAT YOU THINK THE RULES
SHOULD–HOW THE RULES SHOULD READ THAT WOULD ACCOMPLISH EXACT
EXACTLY WHAT –SORRY. YOU’VE ALREADY PRESENTED A
STATEMENT TO US, AND I WOULD LIKE YOU TO TELL US HOW YOU
DRAFT THE RULE THAT WOULD ACCOMPLISH WHAT YOU HAVE JUST
TOLD US.>>I THINK IT WOULD ALMOST BE,
RATHER THAN A RULE, IT WOULD BE IN A PREFACE.
HOWEVER, IT WOULD AFFECT RULES. THE RULES, AS I READ THEM,
INDICATE THE REPORTING REQUIREMENT TO BE TO THE CHIEF
DISTRICT JUDGE AND THE CHIEF CIRCUIT JUDGE.
I SUBMIT THAT THE “AND” SHOULD BE CHANGED TO “OR” WITH THE
PROVISO IN THE PREFACE OR IN ADDITION TO ANY RULE THAT UNDER
EITHER OF THE CIRCUMSTANCES THAT I INDICATEED, ONE, THAT THE
CHIEF DISTRICT JUDGE TO WHOM A MATTER
IS REPORTED, BELIEVES THAT IT IS MORE APPROPRIATE FOR ANY REASON
TO GO UP TO THE NEXT LEVEL OR AT LEAST BE SHARED WITH THE NEXT
LEVEL. OR THE COMPLAINANT WISHES IT TO
BE REVIEWED AT THE NEXT LEVEL. AND THEY NEED NOT GIVE A REASON,
THE COMPLAINANT NEED NOT GIVE A REASON FOR THAT.
I THINK THAT WOULD DO IT.>>I HAVE JUST A BRIEF QUESTION.
GOOD MORNING.>>GOOD MORNING.
>>THE FIRST STORY YOU TOLD US ABOUT THE JUDGE WHO WAS SHOWING
SIGNS OF DEMENTIA, CAUSES ME TO
LOOK BACK AT YOUR STATEMENT ON PAGE 4 WHERE YOU SAY THAT IT
CONCERNS THE NINTH CIRCUIT COUNCIL, THAT DISABILITY WOULD
BE INCLUDEED IN THE REPORTING REQUIREMENT.
I’M NOT SURE I UNDERSTAND EXACT EXACTLY WHY IT SHOULDN’T BE IN
THE REPORTING REQUIREMENT. THERE ARE DISABILITY CONDITIONS
THAT WORK, REALLY NOT UNDERSTOOD
OR PERCEIVED BY BEHAVIORS THAT ARE TROUBLESOME.
YOU SAID THAT THIS WOULD REQUIRE JUDGES REPORT EVERY CASE OF
ILLNESS THAT KEPT THE JUDGE OFF THE BENCH.
WELL, YES, KEEPING THE JUDGE OFF THE BENCH, IT’S INTERFEREING
WITH THE JUDGE’S ABILITY TO DO THE
WORK. SO WHY SHOULDN’T A DISABILITY
FALL INTO THE REQUIREMENTS OF REPORTING LIKE MISCONDUCT?
>>WHAT I MEAN BY THAT IS LET’S ADJUST THAT SCENARIO THAT I GAVE
YOU THAT ACTUALLY HAPPENED. LET’S ASSUME, INSTEAD OF WHAT
HAPPENED THE NEXT DAY WITH HIS RETIREMENT NOTICE, HE SAID THERE
IS NOTHING WRONG WITH ME. GO AWAY. THAT CHANGES EVERYTHING, AND
THAT WOULD GO DIRECTLY AND SQUARELY TO THE FIRST SUGGESTION
I WAS SUGGESTING, AND THAT IS THE CHIEF DISTRICT JUDGE WOULD
REALIZE THIS ISN’T WORKING. THIS IS NOT GOING TO HAVE AN
EFFECTIVE OR A JUST RESULT. AND AT THAT POINT IT WOULD BE
REQUIRED. SO AGAIN, IT DEPENDS ON THE
CIRCUMSTANCES. ON THE CIRCUMSTANCE I PRESENTED
IT CLEARLY DID NOT. BUT IN THE CHANGED CIRCUMSTANCE
IT CLEARLY WOULD. SO I’M NOT SAYING THAT EVER, AT
ALL, BECAUSE THOSE TWO EXCEPTION EXCEPTIONS THAT I’M PROPOSEING
WOULD BOTH BE IN EFFECT, I HOPE, AND THEY WOULD TAKE CARE OF A
CONCERN THAT YOU’RE VOICING.>>RIGHT.
>>OKAY.>>THANK YOU VERY MUCH, JUDGE.
HAVE A SAFE TRIP HOME. WE APPRECIATE YOUR TESTIMONY.
AND WE WILL GIVE IT LONG AND THOUGHTFUL CONSIDERATION.
>>OKAY, THANK YOU VERY MUCH FOR LISTENING. I’M GOING TO STAY FOR A WHILE.
MY PLANE DOES NOT LEAVE QUITE YET.>>PROFESSOR GEYH.
WELCOME TO OUR HEARING. YOU’VE BEEN A SERVEER OF THE
JUDICIAL FUNCTION FOR A LONG TIME, AND WE’RE DELIGHTED TO
HAVE YOU BEFORE US THIS MORNING.>>MY PRIVILEGE AND I APOLOGIZE
IN ADVANCE I HAVE TO RUN FROM THE ROOM AFTER I’M THROUGH.
I NEED TO MAKE IT BACK TO A MEETING, BUT I CERTAINLY
APPRECIATE THE TIME. SO I’VE BEEN WAITING ACTIVELY IN
THE AREA OF JUDICIAL CONDUCT FOR 25 YEARS.
BOTH STATE AND FEDERAL SYSTEMS. I THINK THE STATE SYSTEMS, THERE
ARE JUST SO MANY OF THEM AND SO MUCH MORE ACTIVITY THAT IT GIVES
ME A DEEPER INSIGHT. ONE YOU CAN TALK ABOUT FEDERAL
JUDICIARY EXCEPTIONALISM, BUT IT ONLY JUST GOES SO FAR.
THERE ARE CERTAIN BEHAVIORS THAT GO TO BOTH, AND GENDER BIAS
PROBLEMS GO TO STATE AND FEDERAL ALIKE.
AND THOSE RUN THE GAMUT FROM JUDGE WHO IS MAKE ISOLATEED
REMARKS TO ABUSIVE JUDGES WHO EXPLOIT THE POWER OF THEIR
POSITION TO COMMIT SEXUAL ASSAULT.
WHEN IT COMES TOMORROW POLICING SEXUAL HARASSMENT.
THERE IS A PUBLISHED THOUGHTFUL MONOGRAF.
AND IT FEATURES THE DESCRIPTION OF THE KEY ELEMENTS THAT
EFFECTIVE SEXUAL HARASSMENT POLICY SHOULD INCLUDE, THAT IN
THE CASE OF THE JUDICIARY PROTECTS CLERKS, STAFF, AS WELL
AS PARTIES, LAWYERS, ADMINISTRATORS FROM SEXUAL MIS
MISCONDUCT AND NOT ONE THAT PROTECTS FROM CRITICISM.
TO THAT END I THINK IT IS USEFUL TO IDENTIFY SOME OF THOSE KEY
ELEMENTS BY SAYING ON THE WHOLE I CONGRATULATE THE COMMITTEE FOR
A TERRIFIC START HERE. I THINK THEY’VE DONE AN
EXCELLENT JOB AND IT’S REFLECTED IN THE WAYS OF WHICH THE CHANGES
THAT YOU’VE PROPOSED CAN LAP ON TO THE ESSENTIAL ELEMENTS THAT
THE ABA HAS RECOMMENDED. FOR EXAMPLE, THE ABA REPORT
RECOMMENDS THAT THE POLICY RECOMMENDS, ONE, A STRONG
STATEMENT THAT THE ORGANIZATION WILL NOT TOLERATE HARASSMENT.
TWO, IT SHOULD IDENTIFY THE INDIVIDUALS COVERED BY THE
POLICY. THREE, IT SHOULD INCLUDE
PROCEDURES THAT AFFORD THE MAXIMUM FEASIBLE CONFIDENTTY.
FOUR, IT SHOULD STATE THAT THE ORGANIZATION WILL TAKE IMMEDIATE
AND CORRECTED ACTION FOR POLICY VIOLATIONS.
FIVE, IT SHOULD STATE THAT, QUOTE, EMPLOYEES WILL BE
PROTECTED FROM RETALIATION AND THE RETALIATION WILL BE
SANCTIONS. SIX, IT SHOULD CAMPAIGNS THE
APPEALS PROCESS. SEVEN, IT SHOULD PROVIDE THE
MEANS OF KNOWING OFF KNOWING HARASSMENT.
AND EIGHT, IT SHOULD PROVIDE TO I AM APPROPRIATE THE POLICY.
I THINK WE SHOULD TAKE STRIDES TO GIVE EACH OF THESE ELEMENTS.
BUT I HAVE SUGGESTIONS. THE FIRST HAS TO DO WITH RULE 4-
4-A-2 GOVERNING HARASSMENT. A SOUND SEXUAL HARASSMENT POLICY
SHOULD INCLUDE EXAMPLES OF IN INWROTE BEHAVIOR
APPROPRIATE BEHAVIOR. IT DOES NOT INCLUDE EXAMPLES OF
EXAMPLES THAT ARE HELPFUL IN ORDER TO AVOID SQUABBLES AND
MISUNDERSTANDINGS AND I’VE GIVEN A LIST OF EXAMPLES DRAWN FROM
THE ADA ADMISSION REPORT. I’VE DRAWN FROM BIAS DRAWN FROM
THE MODEL CODE OF JUDICIAL CONDUCT WHICH I WAS CO-REPORTER.
INCLUDE COMMENTARY AMENDED CANON THREE.
I’M REALLY VERY PLEASEED THAT THE
COMMITTEE HAS SEEN FIT TO INCLUDE BIAS AND PREJUDICE
WITHIN THE SCOPE OF THE CODE OF CONDUCT ITSELF.
THAT’S BEEN IN THE CODE SINCE 1990.
I THINK IT REALLY BELONGS THERE, BUT IT DOES GIVE RISE TO A
CONCERN THAT I HAVE, AND THAT HAS TO DO WITH–SORT OF
DOVETAILS THE INCLUSION OF DISCRIMINATION AS A FORM OF
RECOGNIZEABLE CONDUCT. I’M NOT SURE WHAT KIND OF
CONDUCT WE’RE DRIVING AT HERE. THERE IS NO UNDERLYING
EXPLANATION FOR IT. I INCLUDEED IN MY COMMENTS THAT
MAYBE YOU SHOULD LOOK AT DISCRIMINATIONS THAT ARE BASED
ON GENDER AND SO FORTH THAT WE’RE NOT POKEING AT.
WHAT ARE WE POKEING AT? WHAT WE SHOULD BE POKEING AT IS
GENDER BIAS AND PREJUDICE. THERE SHOULD AN COROLLARY
BETWEEN THE NEW LANGUAGE AND THE CODE THAT THOU SHALL NOT ACT
WITH BIAS AND PREJUDICE AND RECOGNIZEABLE CONDUCT.
IN WHICH CASE THE DEFINITIONS OF BIAS THAT I INCLUDE MIGHT
LOGICALLY ALSO BE INCLUDEED IN THE RULES AS EXPLAIN TORE EXPLANATORY OF WHAT
WE’RE TALKING ABOUT WHEN TALKING ABOUT DISCRIMINATION.
ARE WE TALKING ABOUT INTENT, DISCRIMINATORY IMPACT, TO MY WAY
OF THINKING IT REALLY HAS TO DO WITH QUESTIONS AND THE FOCUS
OUGHT TO BE QUESTIONS OF BIAS. A THIRD ISSUE THAT I HAVE THAT I
WANT TO BRING UP HAS TO DO WITH RULE 4-A-6 CONCERNING
CONFIDENTIALITY, AND IN THIS CASE I WANT TO GO ON BOARD AS
SAYING I SUPPORT QUITE LITERALLY EVERYTHING THAT JUDGE O’NEILL
SAID IN HIS ORAL REMARKS. I HAVE NOT READ HIS WRITTEN
STATEMENT, BUT IN HIS ORAL REMARKS, I’M COMPLETELY ON BOARD
WITH THAT. I SHOULD SAY THAT IN MY EARLIEST
YEARS MY FIRST PIECE WAS WRITTEN AS A CONSEQUENCE OF MY WORK ON
THE NATIONAL COMMISSION FOR JUDICIAL REMOVAL.
I DID SOME EMPIRICAL WORK LOOKING AT INFORMAL MECHANISMS,
AND HAD QUESTIONNAIRES RESPONDED TO BY EVERY CIRCUIT RECEIVE
JUDGE IN THE COUNTRY. AND THEY, I THINK, ECHO JUDGE
O’NEILL’S POINT, THAT THE INFORMAL HE CAN MINIMUMS
AVAILABLE ARE EXTRAORDINARYILY VALUABLE, AND REALLY SOMETHING
THAT WE DON’T WANT TO LOSE. SO I DO WANT TO UNDERSTAND THE
TENSION THAT THE COMMITTEE IS TRYING TO POKE WITH.
ON THE ONE HAND YOU WANT TO ENCOURAGE PEOPLE TO COME FORWARD
AND IN CONFIDENCE.
ON THE OTHER HAND THERE COMES A POINT WHERE YOU NEED TO TAKE
ACTION DESPITE THE PERSON’S DESIRE FOR CONFIDENTTY.
BUT I WILL SAY ONE THING THAT IT DOES, AS A LAWYER, IT GIVES ME
THE CREEPS BEING IN A SITUATION WHERE I CAN’T TREAT A CONFIDENT
COMMUNICATION IN CONFIDENCE. AND ONE THING I WOULD SUGGEST IN
THE COMMENTARY THAT INSTEAD OF SPEAKING IN TERMS OF WHEN A
JUDGE MUST BREAK A PROMISE, BUT ADMONISH JUDGES THEY SHOULDN’T
MAKE PROMISES THEY CAN’T KEEP. I THINK THE BUSINESS OF A JUDGE
SHOULD BE TOLD WHEN ASKED, AND I KEEP IT IN CONFIDENCE.
THE FIRST MESSAGE IS WELL, LET’S TALK.
AND IT WILL NOT LEAVE THE REAR VIEW MIRROR BETWEEN YOU AND THE
DISTRICT CHIEF OR, AND I THINK ” “OR” IS A GOOD CHANGE, OR THE
CHIEF CIRCUIT, BUT I CAN’T COMMIT TO MORE THAN THAT, AND I
WANT TO BE ABLE TO HELP WOULD BE ANY EFFECTIVE WAY TO APPROACH
THIS. THAT SAID, I STILL WORRY ABOUT
THE BUSINESS OF SOMEONE COMING IN SAYING CAN I KEEP THIS IN
CONFIDENCE? AND THE JUDGE HAVING TO SAY NO.
THAT IN SOME WAY CREATES A VICIOUS CIRCLE IN WHICH
COMPLAINANT MIGHT BACK AWAY AND NOT WANT TO GET INVOLVED.
THIS MIGHT BE OUTSIDE OF THE SCOPE OF THE COMMITTEE’S
JURISDICTION, BUT I THINK THERE SHOULD BE A SAFE PLACE WHERE
THEY CAN TALK TO A DESIGNATED STAFF PERSON WHO IS NOT OBLIGATE
OBLIGATED TO RUN UP THE CHAIN OF COMMAND BECAUSE THERE ARE THE
SUGGESTIONS THAT THERE ARE ALTERNATIVE WAYS TO REGISTER
COMPLAINT OUTSIDE OF THE DIRECT CHAIN OF COMMAND.
ONE POSSIBILITY WOULD BE TO PROVIDE SOMEONE THAT SOMEONE CAN
TALK TO BECAUSE THEY MAY NOT EVEN KNOW WHETHER THEY WANT TO
FILE A COMPLAINT. THEY MAY NOT KNOW WHETHER THIS
MISCONDUCT IS SERIOUS ENOUGH TO BE RECEIVED.
ALL OF THAT SAID, I COME BEFORE YOU A TODAY, THAT I’VE HAD THE
PRIVILEGE OF NEVER EXPERIENCEING .
I CREDIT THE EXTENT WHICH THE DRAFT RULE IMPLEMENTS KEY
ELEMENTS OF THE REPORT ON THE AD ADA COMMISSION ON WOMEN
RECOMMENDS. BUT WHEN IT COMES TO WHETHER
FURTHER RECOMMENDATIONS ARE NEEDED OF FURS IMPLEMENTATIONS
YOU’LL BE HEARING FROM WITNESSES WITNESSES, SOME INCLUDE A
MULTITUDE OF WOMEN WHO ARE IN IN A
BETTER POSITION THAT I LACK AND I DON’T SHARE.
I WOULD SAY LISTEN TO THEM AND TAKE THEIR RECOMMENDATIONS
SERIOUSLY. A COUPLE COUPLE OF FINER POINTS
THAT RELATE TO THE RULE CHANGES.
FIRST, PROFESSOR HELLMAN WILL BE TESTIFYING YET IN WHICH THE
PROCESS CAN BE MADE MORE TRANSPARENT.
IT’S ODDLY ORIENTED TO PUBLIC CONFIDENCE RATHER THAN SELF
PROTECTION. I SUPPORT HIS RECOMMENDATIONS.
SECOND AND LAST, I ENCOURAGE THE COMMITTEE TO CONTINUE IN WORKING
UP ITS GRADUAL RULE, THE CONSTITUTION OF THE COMMITTEE
SINCE 1980 TOWARDS MORE FULLY INTEGRATEING AND EMBRACEING THE
CODE OF CONDUCT IN THE DISCIPLINARY PROCESS.
THE CODE OF CONDUCT OF U.S. PROJECTS WAS PROMULGATEED IN
1973 USING THE 197 MODEL CONDUCT AS A
GUIDE. THE MODEL CODE THAT WAS DESIGNED
EXPLICITLY TO PROVIDE STANDARD OF CONDUCT IN DISCIPLINARY
PROCEEDINGS AND IT HAS BEEN ADOPTED AND SO USED ACROSS THE
STATES FOR THE PAST 45 YEARS. THE CODE OF CONDUCT IS A CODE OF
ETHICS, AND UNETHICAL CONDUCT HAS NO PLACE IN THE JUDICIARY.
AND LET ME WORK FROM THE CANON VIOLATION OF THIS CODE DIMINISH
DIMINISHES PUBLIC CONFIDENCE IN THE JUDICIARY AND INJURES OUR
SYSTEM OF GOVERNMENT UNDER LAW. IF WE ACCEPT THAT PREMISE, AND I
DO, THEN IT STRIKES ME AS SENSIBLE TO ESTABLISH A DEFAULT
IN WHICH NON-TRIVIAL VIOLATIONS OF THE CODE QUALIFY AS CONDUCT
PREJUDICIAL TO AFFECT THE ADMINISTRATION OF THE COURTS.
THE JUDICIAL CONFERENCE HAS LONG RESISTS BRINGING THE CODE TO
BEAR IN IN THE DISCIPLINARY PROCESS
PROCESS. IT HAS WEAKENED IT OVER TIME AND
THE DRAFT STATES, WHILE IT’S CAN CANON’S CODES ARE INFORMATIVE,
ULTIMATELY WHAT INSTITUTES IS DETERMINED BY THE ACT AND THESE
RULES AS INTERPRETED AND APPLY IED
BY THE JUDICIAL COUNCIL. THE IMPLICATION FROM A PUBLIC
PERSON LOOKING IN IS THAT THE COUNSEL HAS DISCRETION TO LOOK
THE OTHER WAY WHEN IT’S UNETHICAL BY THE CODE AS LONG AS
THE CONDUCT SLIPS BETWEEN THE CRACKS OF THE SEVEN SPECIFIC
AREAS OF RECOGNIZEABLE CONDUCT. THEY HAVE IDENTIFYIED SEVEN
SPECIFIC STANDARDS OF CONDUCT THAT ARE DRAWN LARGELY FROM THE
RULES. BUT WHAT ABOUT THE OTHER RULES
THAT GOVERNOR THE JUDICIARY CONDUCT?
WHY SHOULDN’T THEY BE CLUEED. TECHNICALLY SPEAKING THERE IS NO
REASON WHY THEY COULDN’T BE. I JUST DON’T UNDERSTAND WHY THE
EASEYIEST RESOLUTION IS TO DO WHAT
THE 50 STATES HAVE DONE MOSTLY FOR THE BETTER PART OF 50 YEARS.
WHICH IS RECOGNIZE THAT THE CODE IS A VALUABLE DEVICE IN
PROCEEDING WITH THE PROCESS. THE OPTICS OF THE PROCESS IN
WHICH JUDGES DISCIPLINE EACH OTHER AND AFFORD THEMSELVES THE
FREEDOM TO OVER LOOK CONDUCT THAT THEY THEMSELVES ARE DEEMED
UNETHICAL IS PARTICULARLY PROBLEMATIC NOW WHEN PUBLIC SET
SETTISM OF THE COURTS ARE RUN RUNNING HIGH AND THE ABILITY FOR
COURTS TO MIND THEIR OWN SHOPS IS UNDER SCRUTINY.
IT’S A FAIRLY SIMPLE POINT. WHICH IS JOIN THE VAST MAJORITY
OF JURISDICTIONS INSTEAD OF STIFF ARMING THE CODE OVER AND
OVER AGAIN. IT BEGAN IN 1980 BY SAYING THIS
INDIVIDUALLY WAS NOT MEANT TO BE DISCIPLINARY WHEN IT WAS.
AND I APPLAUD THE LANGUAGE WHERE IT SAYS IT IS GENERALLY HIGHLY GENERAL STANDARDS. AND WITH THAT I WILL–I DON’T
WANT TO END ON A SOUR NOTE. I THINK WE’RE HERE TO TALK ABOUT
THE SEXUAL HARASSMENT POLICY. I THINK THAT THE KRAZINSKY
AFFAIR WAS A MESS AND IT EXPOSE ED
PROBLEMS IN THE PROCESS THAT THIS COMMITTEE HAS ADDRESSED,
AND I REALLY DO THANK THE COMMITTEE FOR TAKEING THAT ONE
ON ON.
AND I DO PUT THE REST OF WHAT I’M SAYING IN THE STATUS AS AN
ACADEMYIC I MAKE A BIG DEAL OF.>>THANK YOU VERY MUCH.
MR. GE GEYH. ARE THERE QUESTIONS?
>>I HAVE ONE. I HAVE TO GIVE MY INDIANA COUNTY
A REASON WHY I COME TO WASHINGTON.
NICE SEEING YOU, PROFESSOR. IF WE IMPORT ALL OF THE CODES OF
CONDUCT INTO THE DISCIPLINARY REGIMEN SO THAT EVERYTHING IN
THE CODE BECOMES SANCTIONABLE, WITH THE CAVEAT THAT IT IS THE
NON-TRIVIAL MATTERS IN THE CODE THAT WE ARE WE PROCESS IN A
DISCIPLINARY WAY, DON’T YOU THINK THAT DESIGNATION OF NON-
NON-TRIVIAL IS A HORNET’S NEST? THAT WOULD BE THE POINT OF WHICH
THE WHOLE THING WOULD COLLAPSE. BECAUSE NO JUDGE IS ON NOTICE AS
TO SANCTIONABLE CONDUCT IF IT IS LEFT IN SOMEBODY ELSE’S IDEA OF
WHAT IS NON-TRIVIAL.>>JUDGE, YOU’RE GOING TO BE
SUBJECT TO DISCIPLINE IF YOU ENGAGE IN CONDUCT DETRIMENTAL TO
THE ADMINISTRATION OF JUSTICE. IF A JUDGE IS TOLD, FOLLOW THE
CODE. IF YOU DON’T THINK IT’S
UNETHICAL, ELIMINATE IT. IF IT IF YOU THINK THAT IT
UNETHICAL TO DO SO, THEN YOU’RE SUBJECT TO DISCIPLINE IF YOU
ENGAGE IN IT. THE POSSIBILITY THAT YOU HAVE AN
OBLIGATION TO BE CIVIL OR COURT COURTEOUS, AND YOU MAKE ONE OFF-
OFF-HAND REMARK TO A LITIGANT THAT IS DISCOURTEOUS, THAT WOULD
BE A SITUATION WHICH I THINK HAVING BASIC DISCRETION TO
ENFORCE THE CODE OR NOT IS PERFECTLY REASONABLE.
BUT I THINK THAT IS A LOT LESS UNCERTAIN THAN WE CURRENTLY HAVE
WHICH ARE SEVEN ARTICULATEIBLE FORMS OF MISCONDUCT IN WHICH WE
ALSO ADD THAT WE’RE NOT CLUEING IT.
WE’RE NOT LIMITING IT TO THAT CREATING TREMENDOUS UNCERTAINTY
AS TO WHAT FALLS BETWEEN THE CRACKS.
I THINK IT’S LESS CERTAIN TO SAY HERE’S WHAT IS ENFORCEABLE, BUT
WE’LL EXERCISE THE DISCRETION IN THE CASE OF TRIVIAL VIOLATIONS
AS NOT RISING TO MISCONDUCT UNDER THE ACT.
TO ME THAT ALLOWS FOR CLARITY FOR JUDGES, CLARITY FROM
COMPLAINANTS AND LIMITS, KEEPS DISCRETION UNDER CONTROL.
IN MY STUDY I HAVE YET TO FIND A CONDUCT SUBJECT TO DISCIPLINE
THAT IS ALSO NOT A VIOLATION OF THE CODE OF CONDUCT.
I’VE NEVER SEEN IT.>>HOW DO YOU TREAT EMPIRICAL
WORK? IS THAT AVAILABLE?
>>YES, IT’S A FREIGHT GREAT STOCKING
STUFFER. THIS IS A 1993 PENNSYLVANIA LAW
REVIEW ARTICLE CALLED “INFORMAL JUDICIAL DISCIPLINE”.”
AND YES, IT IS COMPLETE COMPLETE COMPLETE COMPLETELY
CORROBORATIVE OF JUDGE O’NEILL’S POINT.
I DON’T WANT TO LOSE IT. I’M INDIFFICULT WHETHER WE
CHARACTERIZE IT AS TRULY, COMPLETELY INFORMAL ACTION, OR
REFERRED TO AS LESS FORMER FORMAL
ACTION WHERE COMPLAINT IS NOTICED BUT DEALT WITH INFORMAL
INFORMALLY. I THINK IS AN ENORMOUSLY
EFFECTIVE DEVICE BECAUSE IT PRESERVES COLLEGIATETY.
AS LONG AS WE CAN AVOID HAVING MISCONDUCT BEING SWEPT UNDER THE
RUG. IF THE COMPLAINANT HAS CONTROL
WHETHER HE OR SHE TAKES IT TO THE NEXT LEVEL, THEN WE CAN–
>>CAN YOU PROVIDE A COPY.>>IT’S BEEN LONG ENOUGH THAT I
DON’T HAVE IT COMMITTED TO MEMORY, BUT I WOULD BE HAPPY TO
DO SO, YOUR HONOR.>>ANY OTHER QUESTIONS?
THANK YOU VERY MUCH.>>PROFESSOR HELLMAN.
>>THANK YOU , MEMBERS OF THE
COMMITTEE. I WANT TO JOIN IN THANKING
MEMBERS OF BOTH COMMITTEES FOR YOUR WORK THAT YOU’VE PUT IN,
AND FOR THE PRODUCT. I’VE SUBMITTED A LENGTHY AND
DETAILLED WRITTEN STATEMENT ADDRESSED TO THE COMMITTEE ON
JUDICIAL CONDUCT AND DISABILITY. I’LL JUST TOUCH ON A FEW THIS
MORNING, MOSTLY ADDRESSING THE RULES, BUT OCCASIONAL REFERENCES
TO THE CODE. I DO WANT TO NOTE THAT RUSSELL
WHEELER OF THE BROOKINGS INSTITUTION, IS UNABLE TO BE
HERE IN PERSON, BUT HE HAS SUBMITTED A STATEMENT FOR THE
HEARING, AND I AGREE WITH PRETTY MUCH EVERYTHING THAT HE HAS SAID
SAID. AND HE, IN TURN IN REVIEW OF MY
STATEMENT, AGREES WITH EVERYTHING THAT I HAVE SAID.
THE SUB TANTIVE TANTHE SUBSTANTIVE AMENDMENT MEANT TO
ADDRESS MISCONDUCT IN THE WORKPLACE AND THE WORKING GROUP
REPORT. WHILE THAT IS VERY IMPORTANT, I
HOPE YOU WILL NOT LOSE SIGHT OF THE EMPHASIZE OF THE ARCHITECT
OF THE MISCONDUCT SYSTEM WHICH IS THE 1980 ACT ESTABLISHED A
CITIZEN CONTEMPLATE PROCEDURE, AND ONE OF THE PURPOSES WAS TO
MAINTAIN PUBLIC CONFIDENCE IN THE JUDICIARY.
I THINK IT IS IMPORTANT TO CONSIDER PORTIONS OF THE RULE OF
THE PROCESS THAT ADDRESS THE PROCESS–ADDRESS COMPLAINTS
GENERALLY, NOT JUST LIMITED TO WORKPLACE CONDUCT.
I WOULD LIKE YOU TO TALK ABOUT SOME OF THE RULES PARTICULARLY
EFFECTING WORKPLACE CONDUCT AND THEN JUST LIST SOME OF THE
THINGS THAT APPLY TO CONDUCT
GENERALLY. JUDGE O’NEILL EXPRESSED SOME
CONCERNS ABOUT THE REPORTING REQUIREMENT, AND HE HAS TALKED
ABOUT THEM VERY ELOQUENTLY TODAY IN HIS ORAL STATEMENT., AND HE
HAD SOME DETAILS, SOME COGENT POINTS IN HIS WRITTEN STATEMENT.
RATHER THAN REPEAT THAT, WHAT I WOULD LIKE TO DO IS TO SUGGEST
AN ALTERNATIVE APPROACH , AND
SUGGEST THAT THE PROBLEM, THE PROBLEM OF WHAT TO DO ABOUT
REPORTING AND CALFTY PROMISES THAT JUDGES MAY NOT BE ABLE TO
KEEP AS PROFESSOR GEYH APTLY
NOTEED. THAT PROBLEM IS BEST ADDRESSED
BY REMOVING BARRIERS REPORTING BY INDIVIDUALS DIRECTLY AFFECTED
AFFECTED. I TALKED ABOUT HOW THAT MIGHT BE
DONE. AM THE REPORT, THE WORKING GROUP
EMPHASIZEED THAT LEADERSHIP MUST COME FROM THE VERY TOP OF THE
ORGANIZATION. TO THE MAINTAIN AN E EVERY HEAR
WORKPLACE. THAT IDEA FITS PERFECTLY WITH
THE SYSTEM CREATEED BY THE 1980 ACT BECAUSE THE ORGANIZATION IS
THE CIRCUIT,, AND AT THE VERY TOP
IS THE CIRCUIT CHIEF JUDGE. AND THE ACT CONTEMPLATES THAT
THE CHIEF JUDGE OF THE CIRCUIT WILL PLAY A CENTRAL ROLE INNED A
SUREING ETHANOL NORMS BY JUDGES IN THE CIRCUIT.
IN MY STATEMENT I SUGGEST SEVERAL STEPS THAT COULD BE
TAKEN TO STRENGTH THE ROLE OF THE CHIEF JUDGE AND STEPS
PARTICULARLY RELEVANT IN IDENTIFYING MISCONDUCT IN THE
WORKPLACE. RULE 5 SHOULD MAKE CLEAR
UNDERSTANDED CIRCUMSTANCES THE CHIEF JUDGE MUST CONDUCT AN
INFORMAL INQUIRY OR IDENTIFY THE COMPLAINT.
SECOND, THE GEORGEING THE CIRCUIT TO
ESTABLISH WEB PORTALS THAT WOULD ENABLE COURT EMPLOYEES TO INFORM
THE CIRCUIT CHIEF JUDGE ABOUT MISCONDUCT WHILE FILEING A
FORMAL COMPLAINT.
AND FINALLY CHIEF JUDGES SHOULD MAKE A VISIBLE AND EMPHATIC
COMMITMENT TO ADDRESSING COMPLAINTS AND PROTECTING
COMPLAINANTS. I’LL JUDGE DIRECTLY TO THIS
SUGGESTION, WHICH IS NOT FULLY DEVELOPED, BUT I THINK WORTH
CONSIDERING. IT RESPONDS TO THE SPECIFIC
SUGGESTIONS THAT THE JUDICIARY SHOULD DEVELOP ADDITIONAL LESS
FORMAL ALTERNATIVE FOR ADDRESSING INAPPROPRIATE WORK-
WORK-LIKE BEHAVIOR. I’M SUGGESTING THAT YOU HAVE AN
ELECTRONIC SITE OR PORTAL, I’LL CALL IT, THAT WOULD PERMIT
EMPLOYEES TO MAKE SIMILAR TO A
COMPLAINT BUT NOT DOCKETED AS COMPLAINTS AND WOULD NOT BE
SUBJECT TO CONSTRAINTS AND REQUIREMENTS OF THE RULE.
AT THE SAME TIME BECAUSE THE REPORTS WOULD GO TO THE CHIEF
JUDGE, THERE WOULD BE NO IMPLICATION OR INTERFERENCE WITH
THE PROCEDURES ESTABLISHED IN
THE 1980 ACT. I THINK THAT’S IMPORTANT.
WHILE I UNDERSTAND THE DESIRE FOR THE LESS FORMAL PROCEDURES,
WE DON’T WANT TWO PEOPLE OR ENTITYIES INVESTIGATING THE SAME
COMPLAINT AT THE SAME TIME. WOULD YOU ALLOW ANONYMOUS
COMPLAINTS PROBLEMATIC TO INVESTIGATION.
I THINK A PORTAL WOULD OPERATE MOST EFFECTIVELY IN CONJUNCTION
WITH MY OTHER SUGGESTION, WHICH IS THE CHIEF JUDGE HAS TO BE OUT
THERE VERY PUBICLY SAYING, TELL TELLING THE WORLD THAT HE OR SHE
WANTS TO HEAR IF JUDGES ARE DOING SOMETHING WRONG, THEY CAN
DO SOMETHING ABOUT IT, AND PROTECT AGAINST RETALIATION.
THERE ARE TWO SPACES WHERE THIS CAN BE DONE.
FIRST IT’S CIRCUIT WEBSITE. IF YOU GO TO THE JUDICIAL
CONDUCT AND DISABILITY PAGE, YOU’LL FIND SEVERAL COMPLAINTS
ABOUT JUDGES DECISIONS AND NO EVIDENCE TO SUPPORT THEM.
WELL, THAT’S IMPORTANT. BUT THAT SHOULD NOT STAND ALONE.
THERE SHOULD ALSO BE A PERSONAL STATEMENT FROM THE CHIEF JUDGE
TELLLING COURT EMPLOYEES AND EVERYONE ELSE THAT IF THERE IS
EVIDENCE OF MISCONDUCT OR DISABILITY, THE CHIEF JUDGE
WANTS TO HEAR ABOUT IT, DO SOMETHING, AND PROTECT AGAINST
IT. THE SECOND PLACE IS THE
JUDICIARY INTERNET. I CAN’T ACCESS THAT, SO WITH I
ASSUME IT IS, BUT I ASSUME THAT COURT
EMPLOYEES CAN AND REGULARLY DO ACCESS THAT.
SO THERE ON THE LANDING PAGE, AN EMPLOYEE SHOULD FIND A SIMILAR
STATEMENT ADDRESSED TO THEM, AND EXPRESSING THE STATEMENT
COMMITTEE. I THINK–THE SAME COMMITMENT.
I THINK SOMETHING LIKE THAT, AND SOMETHING THAT JUDGE O’NEILL HAS
IMPLYIED, JUDGE BROWN TALK ED
ABOUT THESE INFORMAL PROCEDURES, AND HOW EFFECTIVE THEY WERE.
SO YOU HAVE TO GIVE ALL SCOPE TO THAT, AND THAT CAN BE AT THE
DISTRICT LEVEL. IT CAN BE AT THE CIRCUIT LEVEL.
BUT REMOVING THE BARRIERS
REPORTING TO THOSE DIRECTLY EFFECTED IS THE BEST WAY OF
AVOIDING TOUGH QUESTIONS ABOUT CONFIDENTIALITY PROMISES THAT
CANNOT BE KEPT. I WOULD HIKE TO TURN NOW TO THE
ASPECT OF THE RULES APPLICABLE TO THE RULES GENERALLY AND NOT
JUST THE WORKPLACE. THERE ARE THREE BROAD CATEGORIES
CATEGORIES, COVERAGE, TRANSPARENTCY, DISCLOSURE AND
PROCEDURAL REGULARITY. I WOULD BE HAPPY TO ADDRESS ANY
OF THOSE. BUT FIRST I WANT TO COMMENT ON A
POINT MADE BY PROFESSOR GEYH AT THE END OF HIS STATEMENT.
THE RELATIONSHIP BETWEEN THE CODE OF CONDUCT AND THE RULES OF
JUDICIAL CONDUCT AND JUDICIAL DISABILITY PROCEEDINGS. I’M PLEASEED MA PROFESSOR GEYH WITH HIS STATEMENTS BUT THERE IS
ONE POINT THAT I DISAGREE. HE TALKS ABOUT LARGEER THAN LIFE
IN THE CODE AS INTERPRETTIVE TOOLS OF INTERDISCIPLINARY
PROCEEDINGS. I DON’T THINK THAT’S AN ACCURATE EXPLANATION.
HE DESCRIBEED THE CANONS AS INFORMATIVE NOT DISPOSITIVE.
BUT IF YOU LOOK AT WHAT CHIEF JUDGES ACTUALLY DO, THEY ROUTINE
ROUTINELY LOOK AT THE CODE. PARTICULARLY IN THE CORRECTIVE
ACTION CASES THEY RELY ON THE INADVERTENT LANGUAGE THAT PROFESSOR GEYH QUOTES IN HIS
STATEMENT. WHAT IT COMES DOWN TO IS THAT
THE CHIEF JUDGES AND THE CIRCUIT COUNSELS ARE DOING JUST WHAT
PROFESSOR GEYH THINKS THEY OUGHT TO BE DOING.
THEY’RE LOOKING AT THE CODE. THEY’RE USEING IT.
BUT THEY’RE NOT TIED TO IT WITH THE PROBLEMS OF CHIEF JUDGES
WOULD BE UNDER IF LINKED MOST CLOSELY. WELL, I TALK IN MY STATEMENT
ABOUT ISSUES OF, I THINK I’LL LEAVE THOSE TO THE STATEMENT
UNLESS THIS ARE QUESTIONS ABOUT THAT.
I’LL CONCENTRATE INSTEAD ON TRANSPARENTCY AND DISCLOSURE.
WHEN LEGISLATION BECAME THE 1980 ACT WAS UNDER CONSIDERATION,
VERY LITTLE CONSIDERATION WAS GIVEN TO WHAT THE PUBLIC SHOULD
BE TOLD ABOUT MISCONDUCT PROCEEDINGS AND WHEN.
AND IT IS VANG TO US TODAY, BUT YOU JUST DON’T FIND MUCH THERE.
TODAY, HOWEVER, AS PROFESSOR GEYH SAID, WHEN ALL INSTITUTIONS
INCLUDING COURTS MUST STRUGGLE TO MAINTAIN PUBLIC TRUST, THE
QUESTIONS ARE CENTRAL. AND THE SEPTEMBER DRAFT ADDRESS
THREE ELEMENTS THAT ARE PARTICULAR IMPORTANCE.
INTERIM DISCLOSURES. IDENTIFICATION OF THE JUDGE THAT
IS SUBJECT OF AN HONOR, AND THE MANNER IN WHICH ORDERS ARE MADE
PUBLIC. I’VE ADDRESSED THOSE SUBJECTS IN
DETAIL IN MY STATEMENT, AND HERE I WILL MAKE THESE POINTS.
FIRST, I WOULD LIKE TO FLAG AN IDEA THAT IS RELEVANT TO ALL
THREE ELEMENTS, WHICH IS THIS: MORE DISCLOSURE AND GREATER
TRANSPARENTCY ARE REQUIRED WHEN ALLEGATIONS ABOUT POSSIBLE MIS
MISCONDUCT OR ABOUT THE UNDERLYING EVENTS HAVE BECOME
SUBJECT OF PUBLIC COURSE. AND FOR THESE PURPOSES A REPORT
IS MADE PUBLIC WHEN PUBLISHED IN
A PRINT OR ELECTRONIC SOURCE IN A WAY THAT COULD REASONBLY BE
EXPECTED TO EFFECT PUBLIC
PERCEPTION. IF YOU HAD SUCH A REPORT, I
THINK FOR EXAMPLE, THE CHIEF JUDGE SHOULD BE REQUIRED TO
IDENTIFY A COMPLAINT IF ONE HAS NOT BEEN FILED INTERIM ORDERS
SHOULD BE MADE PUBLIC, AND THE ORDER SHOULD BE ISOLATEED FROM
THE ROUTINE ORDERS THAT ARE PUBLISHED TODAY.
AND THAT BRINGS ME TO MY SECOND GENERAL SUGGESTION.
IT’S A GOOD THING THAT ALL FINAL ORDERS ARE BEING POSTED ON
CIRCUIT WEBSITES. BUT THERE IS ONE PROBLEM WITH
THAT, THE ORDERS OF GENERAL PUBLIC INTEREST, THOSE THAT
RESPOND TO PUBLIC REPORTS OR THAT INTERPRET THE CODE, THOSE
ARE BURYIED AMONG THE ROUTINE CASES.
I THINK THAT IS A SERIOUS IMPEDIMENT TO TRANSPARENTCY.
I THINK AT A MINIMUM THE CIRCUIT SHOULD BE REQUIRED TO POST ORDER
OF GENERAL PUBLIC INTEREST ON A SEPARATE PAGE OR UNDER A
SEPARATE HEADING. BEYOND THAT THERE SHOULD BE AN
INDEX COMPENDIUM OF NON-ROUTINE MISCONDUCT ORDERS AND THAT
SHOULD BE ON THE JUDICIARY WEBSITE.
SOMETHING OF THAT SORT SHOULD BE ON THE COMMISSION WORKED TOWARD THAT PROFESSOR GEYH WORKED
TOWARD, AND THE COMMITTEE WORKED TOWARD SHOULD BE DONE.
THE RULES SHOULD BE USER-FRIENDLY.
THAT IS NOT A CHARACTERIZATION THAT ANYBODY WOULD MAKE TODAY.
AND IF YOU CAN’T DO IT ON THIS ROUND OF PROVISIONS, I HOPE YOU
WILL DO IT IN THE NEXT ONE BECAUSE IT IS VERY IMPORTANT
THAT THE PUBLIC UNDERSTAND HOW THE RULES WORK, WHAT THEY SAY,
WHAT IS REQUIRED OF THE VARIOUS ACTORS, AND HOW MISCONDUCT
COMPLAINTS ARE HANDLEED. THANK YOU AGAIN FOR HOLDING THIS
HEARING AND ALL YOUR WORK. I’M HAPPY TO ANSWER ALL YOUR
QUESTIONS ABOUT WHAT YOU SAID HERE AND ANYTHING IN MY
STATEMENT.>>PROFESSOR HELLMAN, THANK YOU
FOR COMING HERE FROM PENNSYLVANIA AND TALKING WITH US
THIS MORNING. THE PRIOR WITNESSES HAVE SAID
CORRECTLY, IN MY VIEW, THAT INSTANCES OF MISCONDUCT OR
DISABILITY IN THE DISTRICT COURTS OR THE MAGISTRATE JUDGE
COURTS OR BANKRUPTCY COURTS ALMOST ALWAYS FIRST COME TO THE
ATTENTION OF THE CHIEF DISTRICT JUDGE, AND NOT THE CHIEF CIRCUIT
JUDGE. HE SAID THAT WHEN THIS HAPPENS,
THE CHIEF DISTRICT JUDGE OUGHT TO BE GIVEN THE LATITUDE TO TO
BE TO DEAL WITH THE ISSUE.
IT IS ONLY WHEN. “T” IS NOT POSSIBLE TO DO SO,
AND IT HAS BEEN TRIED AND THINGS HAVE GONE AWRY THAT THERE SHOULD
BE REPORTING TO THE CHIEF CIRCUIT JUDGE.
IF I’M REMEMBERING THE TESTIMONY CORRECTLY, I WOULD LIKE YOU TO
JUST EXPAND A LITTLE BIT ON YOUR VIEW.
I TAKE IT THAT YOU GENERALLY AGREE WITH THEIR FORMULATIONS IN
THIS MATTER?>>I DO, INDEED, AND I WOULD
JUST EMPHASIZE ONE OF THE POINTS IN THE WORKING GROUP REPORT IS
THAT THERE SHOULD BE MULTIPLE CHANNELS, AND THAT THE–AN
EMPLOYEE, EMPLOYEES IN THE
EXAMPLES THAT JUDGE O’NEILL GAVE GAVE, THAT AN EMPLOYEE WALKED
INTO THE CHAMBERS OF THE JUDGES, PARTICULARLY THE CHIEF JUDGE,
THAT SHOULD BE ENCOURAGEED. IF THE EMPLOYEE DOES NOT FEEL
LIKE DOING THAT, I THINK IT WOULD BE VERY GOOD TO HAVE SOME
CHANNEL TO THE CHIEF CIRCUIT JUDGE THAT WOULD BE LESS
CONSTRAINING OR EASEIER TO DO THAN FILEING A FORMAL COMPLAINT,
AND INTERESTING TRIG TRIGGER ING A PROCESS THAT
MUST BE DOCKETED AND THEN AN ORDER.
EVERY COMPLAINT MUST END IN AN ORDER.
THERE ARE MAIN EVENTS THAT MANY EVENTS THAT WE
MAY NOT NEED OR WANT THAT.>>WE HAVE WORKED REALLY HARD TO
STRIKE A BALANCE IN
RESPONSIBILITY IN THE RULE. I’LL TELL YOU THAT I’M ON THE
DISTRICT COURT AND I’VE BEEN A DISTRICT COURT CHIEF.
I SERVED ON THE BREYER COMMISSION.
MANY OF US LABORED LONG ON THE RULES AND THE PROCESSES.
WE’VE ALWAYS BEEN OUGHT BY YOUR
THOUGHTS. I THANK YOU.
WE’VE BEEN HELPED ALL ALONG THE WAY.
AND I WANT TO LET YOU KNOW.
ONE OF THE PROBLEMS THAT–IT IS TRUE THAT WE CAME OUT STAUNCHLY
AND FAVOR DISCLOSURE TO REQUIRE ALL MEMBERS OF THE JUDICIARY TO
STEP UP AND DO WHAT NEEDED TO BE DONE.
THEY COULD IN THE HIDE BEHIND AWKWARDNESS, THAT USED TO BE THE
TRAP FOR JUDGES, IT WAS AWKWARD, AND IT WAS DIFFICULT.
AND IT WOULD FALL INTO PERSONAL RELATIONS THAT MAY BE
LONGSTANDING. NOT EVERYONE HAS THE COMMAND
THAT JUDGE O’NEILL HAS. SO WHEN WE SAY THAT WE OUGHT TO
HAVE A FORMAL METHOD, I AGREE WITH THAT.
AND WHEN WE GO BACK TO–HOLD BACK
FROM AN OBLIGATION TO DO SOMETHING, WE INVITE PEOPLE TO
BE NEGLECTFUL OF THE COMPLAINT, OR TO WISH IT AWAY, OR TO
MINIMIZE. SO WE THOUGHT, OUR COMMITTEE,
THAT IT WOULD BE BETTER TO IMPOSE AN DISCLOSURE REQUIREMENT
REQUIREMENT, AND ALLOW SOME CONSULTATION WITH THE CHIEF
JUDGE, AND SOME DISCUSSION AS TO THE MERIT OF THE PROBLEM IN
DECIDEING WHAT ACTIONS SHOULD BE
TAKEN. SO I HEAR YOU SAYING AND I HEAR
JUDGE O’NEILL CONCERNED ABOUT THAT WE HAVE NOT LEFT ENOUGH
FLEXIBILITY TO ALLOW DISCRETION
TO BE ALLOWED. I’LL JUST LOB IT BACK TO YOU .
>>I UNDERSTAND, AND I’M SURE YOU HAVE STRUGGLEED WITH WHAT IS
A VERY DIFFICULT QUESTION OF REALLY TWO THINGS.
HOW DO YOU DRAW THE BALANCE? AND WHAT DO YOU PUT IN THE RULES
RULES, AND WHAT YOU PUT IN THE CODE BECAUSE MAYBE SOME OF THE
STUFF SHOULD BE IN THE CODE AND NOT IN THE RULES.
I THINK ONE THING THAT WOULD MAKE IT EASEIER TO HAVE SOME
FLEXIBILITY WOULD BE IF THE
JUDGE TO WHOM THE REPORT IS INITIALLY GIVEN BY THE COURT
EMPLOYEE OR TYPICALLY BY SOMEBODY ELSE COULD SAY TO THAT
EMPLOYEE, LOOK, I HAVE RESTRICTIONS ON WHAT I CAN DO IN
TERMS OF PROMISING CONFIDENTTY. HERE IS AN ALTERNATIVE CHANNEL
FOR YOU TO REPORT IT. IN OTHER WORDS, THE PREMISE THAT
THE PROCESS WILL WORK MOST EFFECTIVELY, AND THE THAT SOME
INVESTIGATION HAS TO BE DONE, IT CAN BE DONE MOST EFFECTIVELY
WHEN THE INFORMATION GOES TO THE PERSON DOING THE EFFECT
INVESTIGATING. IF THE INFORMATION GOES TO THE
CHIEF JUDGE, AND SO IF THERE IS THIS ALTERNATIVE CHANNEL WHETHER
IT’S ONE THAT I PROPOSE OR SOMEBODY ELSE GETS THE
INFORMATION TO THE CHIEF JUDGE, AND IF THE JUDGE THAT IT COMES
INITIALLY CAN TELL THE EMPLOYEE ABOUT THAT, THAT MIGHT OBVIATE
SOME OF THE CONCERNS.>>DO YOU THINK THAT FAILURE TO
REPORT TO THE CHIEF CIRCUIT JUDGE OUGHT TO BE GROUNDS FOR
MISCONDUCT? I THINK THAT’S A VERY DIFFICULT
QUESTION. WHAT I MIGHT SAY IS FAILURE TO
REPORT TO THE CIRCUIT CHIEF JUDGE OR TAKE OTHER APPROPRIATE
ACTION, I THINK THAT’S WHAT THE CODE SAYS IN THAT PART.
FOR EXAMPLE, IF THE JUDGE WHO RECEIVES THE REPORT SUGGESTS TO
THE EMPLOYEE THAT SHE USES AN ALTERNATIVE CHANNEL MAY
ENCOURAGE THE JUDGE TO GET BACK TO THAT EMPLOYEE AND ASK, DID
YOU DO THAT? MAYBE AT THAT POINT IF THE
EMPLOYEE HASN’T DONE ANYTHING, AND IT SEEMS LIKE A SERIOUS MIS
MISCONDUCT–AND BY THE WAY, ONE OF THE OTHER THINGS THAT I
SUGGEST IN MY STATEMENT IS THAT THE REQUIREMENT SHOULD BE
LIMITED TO SERIOUS MISCONDUCT. I THINK THAT IT IS MUCH MORE–
MORE–MUCH LESS TROUBLEING IF IT HAS THAT LIMITATION, WHICH AS I
MENTIONED, IS A LIMITATION IN THE REPORTING REQUIREMENT AND
THE ADA RULES OF RESPONSIBILITY AS IT APPLYIES TO LAWYERS.
IF YOU LIMIT IT THAT WAY, IF THE JUDGE KNOWS ABOUT SERIOUS MIS
MISCONDUCT AND DOESN’T TAKE SOME APPROPRIATE STEPS TO GET IT TO
THE ATTENTION OF SOMEBODY WHO CAN DO SOMETHING ABOUT IT, THAT
WOULD BE MISCONDUCT. BUT YOU HAVE TO CLUE ALL INCLUDE
ALL OF THOSE ELEMENTS, I THINK. IF THE JUDGE IS NEGLIGENT OR
FAILS TO DO ANYTHING AT ALL.>>AVOID, I’M NOT SURE ABOUT
NEGLIGENCE AND INATTENTION WHEN AN EMPLOYEE COMES TO YOU AND
TELLS YOU, FOR EXAMPLE, JUDGE O’NEILL’S EPISODE, AND TALKS TO
YOU ABOUT SOMETHING THAT IS PRETTY SERIOUS.
IS IT INATTENTION AT THAT POINT NOT TO DO ANYTHING?
I’M NOT SURE HOW OFTEN THAT SORT OF SCENARIO WOULD PLAY OUT.
>>I HAVE ONE AREA I WOULD LIKE TO ASK YOU BRIEFLY ABOUT, AND
THAT IS IS THAT AREA WHERE THERE APPEARS TO BE TENSION BETWEEN
YOU AND PROFESSOR GEYH, THAT’S THE IDEA WHETHER OR NOT THE CODE
SHOULD BE USED TO DEFINE DISCIPLINEABLE CONDUCT OR
CONDUCT THAT NEEDED DISCIPLINE.
IF YOU READ THE CANONS AND THE PROVISIONS UNDER IT, THERE IS A
SENSE THAT THE CODE IS TRYING TO TO–HOW WOULD YOU ENVISION OR RE
REWRITE ON THE CODE? WHAT WOULD WE HAVE TO DO IN YOUR POSSIBLY
OPINION TO HAVE THEM FUNCTION IN THAT WAY?
>>THAT’S A GOOD QUESTION, I WANT TO SIGH THAT’S A TOUGH
QUESTION. TO ANSWER IT IN GENERAL TERMS,
IT IS NOT DIFFICULT DOING IT, I THINK THAT WOULD BE DIFFICULT
BECAUSE ESSENTIALLY YOU HAVE TO RELOOK AT EVERY WORD AND PHRASE
IN THE CODE IF IT WERE TO BECOME ATTACHED TO THE MISCONDUCT
STATUTE IN A WAY THAT I THINK PROFESSOR GEYH IS PROPOSEING.
I DID WANT TO REPORT TO THE
NATIONAL COMMISSION, THE COMMISSION THAT PROFESSOR GEYH
WORKED WITH, THE NATIONAL COMMISSION WAS CHAIREDED BY THE
PRINCIPLE SPONSOR OF THE 1980 ACT AS IT WAS FORMED, AS IT WAS
ACTUALLY PASSED. THE COMMISSION CHAIR HAD SOME
CREDIBILITY. THE CODE THAT WOULD NOT–AND
IT’S THE VERY POINT YOU’RE MAKING–THE CODE WAS NOT INTEND
INTENDED AS A SOURCE OF DISCIPLINARY RULES, AND NOT ALL
OF ITS PROVISIONS ARE APPROPRIATELY REGARDED AS
ENFORCEABLE UNDER THE ACT. SO I THINK IF YOU CHANGE THAT,
YOU ARE PUTTING YOUR COMMITTEE IN THE POSITION OF HAVING TO GO
THROUGH AND ASK IS THIS REALLY SOMETHING THAT WE WANT TO PUT–
PUT–IN ESSENCE, PUT INTO THE ACT.
THE DOMAIN OF THE ACT IN A WAY THAT A CHIEF JUDGE CONFRONTED
WITH BEHAVIOR. I WOULD HAVE TO SAY THAT THIS IS
MISCONDUCT, AND IT SEEMS TO ME A CLICH BUT APPROPRIATE, BUT IF
IT AIN’T BROKEN, DON’T FIX IT. I REALLY DO THINK THAT THE
CIRCUIT COUNCIL AND CHIEF JUDGES ARE DOING JUST ABOUT WHAT
PROFESSOR GEYH THINKS THEY OUGHT TO BE DOING, AND THEY’RE DOING
IT IN THE LANGUAGE IN THE RULES COMMENTARY NOW.
>>THANK YOU.>>SO YOU WOULD NOT–YOU WOULD
GO BACK TO THE ORIGINAL COMMENTARY?
>>I DO NOT FAVOR THE AMENDMENT, AND MR. WHEELER HAS ADDITIONAL
LANGUAGE IN HIS STATEMENT THAT I THINK WOULD ENDORSE.
>>AND YOU’RE TALKING A BIT ABOUT RULE 23, CONFIDENTIALITY,
CAN YOU EXPOUND ON THAT A BIT?>>YES, THE RULE OF
CONFIDENTIALITY, THERE ARE TWO OF THEM, BASICALLY THEY SAY
FOLLOW THE RECOMMENDATION OF THE WORKING GROUP THAT NOTHING IN
THESE CONFIDENTIALITY RULES SHOULD PREVENT REPORTING OF MIS
MISCONDUCT OR DISABILITY. I REALLY THINK THAT IS A
RESTATEMENT OF THE RULE. I DO NOT THINK THAT ANYTHING IN
THE RULE TODAY IS ADDRESSED TO COMPLAINANTS OR POTENTIAL
COMPLAINTS. AT THE SAME TIME IT DOES SEEM
THAT THE RULE HAS BEEN EITHER MISUNDERSTOOD, MISREAD, OR
PEOPLE HAVE GOTTEN THE WRONG IMPRESSION, BUT IT IS ENTIRELY
APPROPRIATE TO MAKE THE AMENDMENTS THAT YOU HAVE IN THAT
SEPTEMBER DRAFT, AND TO MAKE CLEAR THAT NOTHING IN THE RULE
23 OR OTHER CONFIDENTIALITY PROVISIONS OF THE RULES,
JUDICIAL CONDUCT OR DISABILITY
AND NOTHING THAT COULD NOT BE REPORTED TO ALL AUTHORITY.
>>ANY OTHER QUESTIONS?>>SEEING NON-.
THANK YOU VERY MUCH FOR YOUR TIME.>>AT THIS POINT WE’LL TAKE OUR
MORNING RECESS. WE’LL BREAK FOR 15 MINUTES.
WE’LL STAND IN RECESS FOR 15 MINUTES AT THIS POINT.
THANK YOU.>>WE’LL RECONVENE AT THIS POINT
POINT. THE NEXT WITNESS IS PROFESSOR– K
PROFESSOR–KNAKE?>>KNAKE.
>>I’M TERRIBLY SORRY. IT’S YOUR TIME.
>>I WANT TO THANK THE COMMITTEE FOR THE OPPORTUNITY TO BE HERE
AND TALKING ABOUT THE PROPOSE CHANGES TO THE RULES REGARDING
APPROPRIATE WORKPLACE BEHAVIOR. BEFORE WE BEGIN, I WANT TO TELL
YOU ABOUT MY BACKGROUND. MY NAME IS REN E NEWMAN SNAKE
MAKE. I’M THE AUTHOR OF TWO CASE BOOKS
THEY INCLUDE PROFESSIONAL RESPONSIBILITY AND CONTEMPORARY
APPROACH PUBLISHED BY WEST ACADEMYIC AND ALSO LEGAL ETHICS
FOR THE REAL WORLD BUILDING SKILLS FOR CASE CITY PUBLISHED
BY PRESS. A THIRD BOOK CALLED GENDER,
POWER, LAW, LEADERSHIP AS WELL AS A BOOK THAT IS SOON TO BE OUT
CALLED DIVERSITY, WOMEN, AND THE SUPREME COURT.
AND IT PROFILES NINE MEN WHO WERE SHORT LISTED TO THE U.S.
SUPREME COURT BEFORE SANDRA DAY
O’CONNOR BECAME OUR FIRST FEMALE JUSTICE. I’VE TESTIFYIED ON BEHALF OF
JUDGES FACING DISCIPLINE BEFORE BEFORE
THE TEXAS SUPREME COURT, CAUSING A JUSTICE WHO CHALLENGEED ON
FIRST AMENDMENT GROUNDS. CURRENTLY I TEACH PROFESSIONAL
RESPONSIBILITY, CONSTITUTIONAL LAW AND GENDER LEADERSHIP AND
POWER. WHEN I MENTIONED THAT I WAS
GOING TO BE SPEAKING HERE TODAY, THEY WERE SURPRISED THAT MY
RECOMMENDATIONS WERE NOT ALREADY PART OF THE CODE.
I’M A MEMBER OF THE AMERICAN LAW INSTITUTE.
I’M A GRADUATE OF THE UNIVERSITY UNIVERSITY
OF CHICAGO. ALL OF THAT INFORMED MY
TESTIMONY BEFORE YOU THIS MORNING.
I’M HERE TODAY IN SUPPORT OF THE PROPOSED CHANGES TO THE CODE OF
CONDUCT AND RELATEED RULES. I’M ALSO HEAR TO OFFER
RECOMMENDATIONS THAT IF ADAPTED WOULD GREATLY STRENGTHEN THE
PROPOSALS AND THEIR PURPOSES. I COMMEND THE COMMITTEE FOR
THEIR WORK. YOUR PROPOSED REFORMS ARE A
NECESSARY FIRST STEP, BUT I BELIEVE THAT YOU CAN AND THAT
YOU SHOULD GO FURTHER. ALL PROFESSIONS HAVE EXPERIENCE
ED THEIR OWN “ME TOO” RECKONING
REGARDING THE MISTREATMENT OF WOMEN.
NO ONE SHOULD EXPECT THAT THE JUDICIARY IS SOME HOW IMMUNE.
TO GIVE ONE EXAMPLE, WHEN I CONTEMPLATEED APPLYING FOR THE JUDICIAL CLERKSHIP, I WAS WARNED
TO AVOID A CERTAIN JUDGE ON THE NINTH CIRCUIT, KNOWN TO MISTREAT
FEMALE CLERKS. I WISH THE REFORMS YOU’RE
CONSIDERING TODAY HAD BEEN IN PLACE TWO DECADES AGO IF NOT
BEFORE. NO ONE SHOULD HAVE TO ENDURE
SEXUAL HARASSMENT AS A RITE OF PASSAGE INTO THE LEGAL
PROFESSION. AND THE COMMITTEE’S CAREFUL AND
RESPONSIVE WORK HAS THE POTENTIAL TO SPARE SUCH IN
INDIGNITYIES, TO PURGE OF JUDICIARY OF SEXUAL MISCONDUCT
AND THEREFORE STRENGTHEN THE RULE OF LAW.
LET ME TURN NOW TO MY CONCERNS AND RECOMMENDATIONS.
JUDICIAL CODE OF CONDUCT TYPICALLY FOCUS ON PUBLIC
CONFIDENCE OF THE INTEGRITY OF THE JUDICIARY.
AND THESE ARE IMPORTANT GOALS THAT SHOULD BE EXPANDED.
A WORKPLACE FREE OF HARASSMENT WILL ENHANCE THE PUBLIC
CONFIDENCE IN THE JUDICIARY BUT ALSO SERVE AS A MODEL FOR THE
LEGAL PROFESSION AND EXPAND THE POOL OF TALENTED LAWYERS WILLING
TO di VOTE THEIR EARLY YEARS PROVIDING THE EXCELLENT WORK
PRODUCT IN THE JUDICIAL BRANCH WHICH IS SO VITAL TO OUR RIGHTS
AND LIBERTYIES. YOU’RE FAMILIAR WITH THE
PROPOSED CHANGES. I WON’T REPEAT THEM.
I’LL FOCUS ON MY SPECIFIC CONCERNS AND OFFER TANGIBLE
RECOMMENDATIONS FOR YOU TO CONSIDER.
BECAUSE THE ULTIMATE OBJECTTIVE IS TO CURB SEXUAL MISCONDUCT, I
FEAR THE RECOMMENDATIONS WILL
FALL SHORT. I UNLIKE MANY PLACES OF EMPLOYMENT
EMPLOYMENT, A JUDGE’S CHAMBERS IS HIGHLY INTIMATE.
CLERKS ARE FEW IN NUMBER. THEY RELY HEAVILY ON THEIR JUDGE
FOR THE NEXT STEP IN THE CAREER PATH.
IN MANY WAYS THE RELATIONSHIP IS MORE SIMILAR TO THAT OF A
PROFESSOR AND STUDENT THAN A TRADITIONAL EMPLOYMENT
RELATIONSHIP. AND THE PRESSURE TO ENDURE
HARASSMENT SILENTLY IS FIERCE. THE REPORT COULD RUIN PROSPECTS
IN THE PROFESSION EVEN RELATEED TO RETALIATION AND ATURANOSE OF
CONFIDENTIALITY. AN UNFAVORABLE REFERENCE, THE
ABSENCE OF A REFERENCE, A TEPID REFERENCE LETTER COMING FROM ONE
ONE’S JUDGE CAN COMPROMISE OR DESTROY CAREER ASPIRATIONS.
THE PROPOSED REPORTING PROCESS THAT YOU’RE CONTEMPLATEING IT
ASSUMES THAT HARASSMENT IS INEVITABLY GOING TO OCCUR.
AND IT PLACES THE BURDEN ON THE VICTIM TO ADDRESS IT.
THIS PROCESS ALONE, BECAUSE OF THE PRESSURE I’VE JUST DESCRIBE
ED DESCRIBED, SEEMS UNLIKELY TO
PREVENT THE CONDUCT THAT YOU’RE ASPIREING TO REMEDY, ESPECIALLY
IN INSTANCES WHERE THE HASMENT HARASSMENT TAKES FORM.
YOU MAY APPRECIATE WHY A VICTIM MAY REMAIN SILENT.
WE MUST REDUCE THE CONSEQUENCES OF SOUNDING AN ALARM.
WE PUT IN PLACE ENFORCEABLE RULES TO CREATE AN ENVIRONMENT
FREE OF SEXUAL HARASSMENT IN ADDITION TO REPORTING MECHANISM
FOR UNCOVERING BAD CONDUCT. UNLIKE THE OTHER WITNESSES
EARLIER THIS MORNING, I WANT TO FOCUS ON A CULTURE WHERE THIS
TYPE OF BEHAVIOR NEVER OCCURS IN THE FIRST PLACE.
SO YOU WON’T NEED THE REPORTING MECHANISM, YOU WON’T HAVE TO
GRAPPLE THE ISSUES THAT HAVE ALREADY BEEN BEFORE YOU TODAY.
HERE ARE MY RECOMMENDATIONS FOR ADDRESSING THESE CONCERNS.
FIRST, IN ADDITION TO WHAT THE PROPOSED NEW RULE FOR THE WORD
PROHIBIT WHICH IS UNWANTED, OFFENSIVE, SEXUAL MISCONDUCT
INCLUDING HARASSMENT AND ASSAULT ASSAULT, A PRO HIS PROHIBITION EXISTS IN
ACADEMYIC ENVIRONMENTS ALREADY. AN CONSENSUAL DATEING ROMANTIC
RELATIONSHIP BETWEEN AN EMPLOYEE AND ANY RELATIONSHIP WHERE THEY
CAN OVERSEE GRADE, COACH, EVALUATE IN ANY WAY.
THIS PROHIBITION IS INTENDED TO AVOID CONFLICTS OF INTEREST,
FAVORITISM AND EXPLOITATION, BUT IT IS ALSO MEANT TO CREATE A
WORKPLACE CULTURE THAT IS FREE FROM SEXUAL OVERTURES. THE OVERTURES MAY BE VIEWED AS
CONSENSUALS BY THE MORE POWERFUL PERSON BUT AT THE SAME TIME UN
UNWANTED ONLY BECAUSE OF THE POWER DIFFERENTIAL OR SOON
SHE’LL BE MOVING ON TO ANOTHER JOB.
A PROHIBITION LIKE THAT DOES NOT HAVE TO REMOVE ALL HUMAN AUTO MY
MY. THERE COULD BE AN EXEMPTION FOR
DISCLOSURE. THERE IS AN EXCEPTION FOR DIS
DISCLOSURE TO OUR ASSISTANT VICE PRESIDENT OF EQUAL OPPORTUNITY.
A PROVISION LIKE THIS WOULD HELP
TO STOP THE INSTIGATEOR ON THE
PART THE TARGET. AND IT REMOVES THE HE HE SAID/
SHE SAID WHERE THE VICTIM HAS THE
BURDEN TO SHOW THE CONDUCT IS UN UNWELCOME. A SURVEY SHOULD BE SHOULD SHOULD BE GIVEN
BY A THIRD PARTY. THE RESULTS SHOULD BE PUBLICLY
AVAILABLE. A TRANSPARENT SURVEY OF THIS
NATURE WOULD INDICATE THAT THE JUDICIARY VALUES THE REPORTING
OF MISCONDUCT. IT WOULD CREATE AN ENVIRONMENT
THAT IS MORE FAVORABLE TO REPORTING GENERALLY.
AND IT WOULD PROVIDE THE JUDICIARY INFORMATION ABOUT THE
PERVASIVENESS PERVASIVENESS OF THE HARASSMENT
AND THE EFFECTIVENESS OF ANY RE REFORM YOU PUT INTO PLACE.
IMAGINE ONE OF YOUR CHALLENGE IN IN
ADOPTING THIS IS THE LACK OF EMPIRICAL DATE THAT IS NEEDED TO
KNOW WHAT IS GOING ON. A SURVEY LIKE THIS WOULD PROVIDE
IT. THIRD AND MY LAST RECOMMENDATION
RECOMMENDATION. WE HAVE TO TAKE CARE THAT THE
PROPOSALS, WHATEVER YOU ADOPT, CAN BE ENFORCEED.
THE AMERICAN BAR ASSOCIATION, AS YOU KNOW, AMENDED IT’S MODEL
RULES IN 2016 AM TO CLUE A PROVISION THAT BANS CONDUCT OF A
LAWYER KNOWS IS HARASSMENT OR DISCRIMINATION ON THE BASE OF
RACE, SEX, RELIGION AND A NUMBER OF THOSE FACTORS.
ONE STATE QUICKLY ADOPTED THIS RULE, OTHERS CHALLENGEED IT, AND
THE ATTORNEY GENERAL OF TEXAS ISSUEED AN OPINION SAYING THAT
THE RULE CHANGE WAS INVALID ON FIRST AMENDMENT GROUNDS, AND
OTHER CONSTITUTIONAL BASIS BEING BROAD AND VAGUE.
I HAVE RAISE THIS AS AN ISSUE FOR YOU, NOT TO SAY THAT SIMILAR
KINDS OF PROVISIONS SHOULDN’T BE CONTEMPLATEED HERE BUT REALLY AS
A CAUTION. YOUR PROPOSED REFORMS TO THE
CODE TO ADDRESS SEXUAL HARASSMENT, AND THAT IS THE
PRIMARY PURPOSE, ALTHOUGH YOU MAY BE THINKING ABOUT OTHER
INAPPROPRIATE WORKPLACE BEHAVIOR BEHAVIOR.
IN FACT, YOUR VISIONS INCLUDE CIVILITY AND CANON 3 B 4 AND
CANON 2A. I SUGGEST THAT MISCONDUCT BEHAVE
BE ADDRESSED SEPARATELY FROM THESE OTHERS.
THANK YOU FOR ALLOWING ME TO APPEAR BEFORE YOU.
>>ANY QUESTIONS?>>I HAVE A QUESTION.>>I WOULD HAVE THEM ENFORCEED
AND GOVERNED INDEPENDENT OF THE OTHER PROVISIONS THAT RELATE TO
CIVILITY AND WORKPLACE BEHAVIOR IN GENERAL. [INAUDIBLE QUESTION]
>>POTENTIALLY. THERE WERE INTERESTING QUESTIONS
EARLIER WHAT PART IS ASPIRATION AND WHAT SHOULD BE REPORTED
THROUGH A REPORTING MECHANISM. I WOULD SAY WITH RESPECT TO
ADDRESSING SEXUAL HARASSMENT, AND HOW THAT IMPACTS A WORKPLACE
CULTURE FOR WOMEN IN PARTICULAR, AND I GUESS I’LL JUST NOTE FROM
MY PERSPECTIVE, THE FACT THAT WOMEN ENTER THE PROFESSION IN
NUMBERS EQUAL TO MEN, YOU KNOW THAT WOMEN DO NOT REMAIN IN THE
PROFESSION. WHEN YOU LOOK AT THE NUMBERS OF
LEADERSHIP, WHETHER IT’S IN THE JUDICIARY OR GENERAL COUNSEL’S
OFFICE OR EQUITY PARTNERSHIP, WE DON’T SEE THE SAME EQUAL NUMBERS
THAT HAVE ENTERED. ONE THING THAT CONTRIBUTES TO
THAT IS A CULTURE THAT SEXUAL HARASSMENT THAT GOES UNADRESSED
PERVADES. FOR ME, I ADDRESS IT SEPARATELY
THAN OTHER PROBLEMATIC WORKPLACE BEHAVIOR.
AND TO THE EXTENT THERE IS A
DECISION MADE AS YOU CONSIDER ALL OF OUR COMMENTS TODAY, TO
MAKE PORTIONS OF THE BEHAVIOR THAT’S CURRENTLY ADDRESSED TO
THESE REPORTING REQUIREMENTS, I WOULD CALL THAT A NATURE AND
SPECIFIC AREA RELATEED TO MIS MISCONDUCT.
>>THE OTHER KINDS OF MISCONDUCT AND IN COOPERATE AMERICA, DOES
IT MAKE A DIFFERENCE HOW WE CLAIM OR HANDLE OR THE EFFECTIVE
EFFECTIVENESS OF HANDLE COMPLAINTS?
>>I’LL SPEAK TO WHETHER OR NOT THE SEPARATE PROCEDURE MAKES IT
A DIFFERENCE IN TERMS OF WHETHER OR NOT THOSE CLAIMS ARE HANDLEED
MORE EFFECTIVELY OR NOT? I GUESS I WOULD GO BACK TO ONE
OF MY INITIAL OPENING POINTS, WHICH IS FROM MY PERSPECTIVE,
MUCH OF THE SEXUAL HARASSMENT THAT OCCURS GOES UNREPORTED
ENTIRELY. THE REPORTING MECHANISM, HOWEVER
IT IS, IS NOT GOING TO BE EFFECTIVE IN CHANGING PROBLEMS
THAT WE KNOW HAVE PERVADEED FOR DECADES.
THE REAL FOCUS SHOULD BE ON PREVENTIVE MEASURES, WHETHER
IT’S SOMETHING THAT THE CONSENSUAL RELATIONSHIP BAN I
PROPOSE OR ALSO HAVING ALTERNATIVE WAYS OF LEARNING
ABOUT WHAT IS GOING ON, EVEN IF IT DOESN’T MEAN REPORTING AND
DISCIPLINING THAT PARTICULAR JUDGE IN A PARTICULAR CLAIM.
>>I HAVE ONE QUESTION. WHEN I HEARD YOUR FIRST COMMENTS
COMMENTS, I UNDERSTOOD YOU TO BE SAYING SEPARATEING OUT THE
PROVISIONS OF THE CODE TO SEPARATE SEXUAL HARASSMENT FROM
THE OTHER FORMS OF MISCONDUCT IN THE WORKPLACE.
I DON’T KNOW THAT I NECESSARILY HEARD YOU SAY THAT THE REPORTING
MECHANISMS NEEDED TO BE DIFFERENT.
SO ARE YOU ADVOCATEING THAT WE HAVE A SEPARATE REPORTING
MECHANISM OR SIMPLY THAT THE CODE SEPARATE THE VARIOUS CLASS
CLASSES OF CLAIMS?>>SO, MY CONCERN IS THE LATTER,
WHICH IS THE CODE ON THE FRONT END KEEP THIS BEHAVIOR SEPARATE
FROM BEING WRAPPED UP WITH PROVISIONS RELATEED TO CIVIL
BEHAVIOR AND OTHER SORTS OF ABUSES.
AND IN TERMS OF A DIFFERENCE IN THE REPORTING SIDE, I THINK THAT
MATTERS LESS FROM MY PERSPECTIVE PERSPECTIVE.
>>ONE LAST THING THAT I JUST WOULD NOTE, ONE OF THE ISSUES
THAT HAS BEEN RAISEED IN THIS PROCESS GENERALLY IS THE
FORMATION OF AN OFFICE OF JUDICIAL INTEGRITY, WHICH WOULD
ALLOW FOR A DIFFERENT REPORTING PROCESS OR INFORMATIONAL OR
INVESTIGATIVE PROCESS OUTSIDE OF THE ORDINARY DISCIPLINARY
CHANNELS, WHICH HAS NOT YET BEEN FLESHED OUT, BUT THAT’S
SOMETHING STILL IN THE WORKS. IF YOU PAY ATTENTION TO THOSE
PROPOSALS AS THEY DEVELOP, WE WOULD WELCOME YOUR INPUT IN
THOSE AREAS AS WELL. IS THERE ANYTHING ELSE?
JUDGE?>>I’M GLAD THAT YOU GAVE US THE
WINDOW INTO YOUR PROFESSIONAL JOURNEY BECAUSE THAT REALLY IS
INFORMATIVE, AND THAT YOU SAID IT AT THE BEGINNING THAT’S WHY
YOU WERE GIVING US THAT DETAIL. SO I TAKE IT THAT BECAUSE OF THE
REPUTATIONNAL INFORMATION YOU LEARNED ABOUT THIS JUDGE THAT
YOU DID NOT BECOME A LAW CLERK? IS THAT TRUE?
>>I DID NOT CLERK. AND PART OF WHAT MADE ME
RELUCTANT TO DO SO WAS NOT JUST HEARING ABOUT THAT PARTICULAR
JUDGE, BUT OTHERS AT THE TIME. NOW, THERE ARE OTHER REASONS WHY
I MADE THE CHOICE I DID TO GO DIRECTLY TO LAW SCHOOL, AND THAT
WAS IN PART I HAD A LOT OF LAW SCHOOL DEBT.
THAT’S ANOTHER DAY.
>>I’M SORRY WE LOST YOU AS A LAW CLERK.
I LIKE YOUR RECOMMENDATIONS AND I WANT TO ASK YOU ABOUT THE NO
ROMANTIC RELATIONSHIP. HOW IS THAT ENFORCEED?
YOUR THIRD PROPOSAL THAT WE ADOPT THINGS WE CAN ENFORCE.
HOW IS THAT ENFORCEED?>>THESE PROPOSALS ARE ENFORCEED
THROUGH A REPORTING MECHANISM AS WELL.
FROM MY PERSPECTIVE, WHAT IS DIFFERENT ABOUT A PROPOSAL LIKE
THAT THAN A PROPOSAL THAT ALLOWS FOR THE REPORTING OF HARASSING
BEHAVIOR IS THAT IT CHANGES– CHANGES–POTENTIALLY IT CHANGES
THE DYNAMIC OF THE WORKPLACE TO ONE WHERE EVEN ONCE AGAIN MAY BE
PERCEIVED ON THE PART OF ONE PARTY TO BE A CONSENSUAL
OVERTURE NO LONGER CAN OCCUR IN WORKPLACE.
OFTEN THE HARM IS DONE AS SOON AS THAT OCCURS, AND THE PERSON
WHO–AND FRANKLY, IT PROTECTS BOTH PARTIES.
BECAUSE THE PERSON WHO MAKES THE OVERTURE MAY VERY WELL THINK
THAT IT’S GOING TO BE WELCOMEED, ONLY TO FIND OUT THAT IT’S NOT.
AND THEN HE OR SHE COULD BE SUBJECT TO HARASSMENT COMPLAINTS
COMPLAINTS.>>THAT WOULD BE A GOOD RULE IF
WE COULD ASSUME THAT EVERYBODY FOLLOW IT.
BUT BECAUSE THEY WON’T, AND I DON’T THINK THAT PROBABLY DO AT
THE UNIVERSITY OF HOUSTON, BUT I DON’T HAVE ANY INFORMATION
EXCEPT OLD AGE INFORMING MY JUDGMENT.
>>THE RULE WAS PASSED IN 2018. SO I DON’T THINK WE HAVE
EMPIRICAL EVIDENCE YET.>>IS THAT MORE A CODE OF
CONDUCT THAN A DISCIPLINARY RULE RULE.
>>THAT’S A TERRIFIC INSIGHT, AND IT GOES, AGAIN, FROM MY
PERSPECTIVE, HAVING A PROVISION LIKE THAT EVEN IF IT ISN’T
ENFORCEED BECAUSE IT’S UNLIKELY TO BE FOR THE CRITICISMS THAT I
HAVE AND MY CONCERNS ABOUT THE PRESSURE ON THE INDIVIDUAL WHO
WOULD LIKELY REPORTING, IT STILL
EXPECTATIONS AND OBLIGATIONS ON ALL PARTIES, AND I THINK FOR
SOME IT MIGHT EVEN HAVE A BIT OF AN EDUCATIONAL TOOL.
SO I IMAGINE THAT THERE ARE SOME PEOPLE IN THE WORKPLACE WHO
WOULD FIND THAT TO BE A LEARNING OPPORTUNITY.
THINK ABOUT WHY IS IT THAT EVEN WHAT I THINK WOULD BE A
CONSENSUAL OVERTURE WOULD NOT BE APPROPRIATE WHEN I’M IN POSITION
OF POWER OVER AN EMPLOYEE.>>WE COULD TRAIN, BUT IT WOULD
BE GOOD TO HAVE IT IN THE CODE AS WELL.
>>I HAVE A FOLLOW UP ON YOUR SECOND POINT IN YOUR ANONYMOUS
SURVEY, BECAUSE I WANT YOU TO KEEP WRITEING ABOUT THESE THINGS
AND TEACHING THEM SO WE CAN ALL BENEFIT FROM THAT.
SO MY THOUGHT, WHEN I READ THAT, WAS INSTEAD OF AN UNWIELDY
ANNUAL SURVEY, MAYBE THAT’S ONE OF THE THINGS THAT WE SHOULD LOB
TO THE EDR PEOPLE TO DO AS AN EXIT INTERVIEW FORMAT.
THAT’S MORE MANAGEABLE THAN INSTITUTEING A NATIONAL SURVEY
WITH RECORDING REQUIREMENTS.>>I AGREE WITH THAT.
THE ONLY CAVEAT I WOULD SAY TO THE EXTENT YOU CAN GET A
SNAPSHOT NOW ABOUT WHAT HAS HAPPENED IN THE PAST RESPECT TO
JUDGES WHO ARE STILL SITTING, AND NOT TO TARGET A SPECIFIC
JUDGE, EVEN,, BUT AS YOU KNOW TO WRITE AND CRAFT RULES GOING
FORWARD WHAT YOU’RE DEALLING WITH
WITH, EVEN IF IT’S COMPLETE HI ANONYMOUS IT WOULD GIVE YOU DATA
AND EMPIRICALS TO WORK WITH. IT MAY NOT BE A SPECIAL STUDY
PERFECT STUDY, BUT IT WOULD GIVE YOU MORE
INFORMATION THAN YOU HAVE NOW AND THAT WOULD ONLY SERVE YOU
BETTER.>>THANK YOU.
>>THANK YOU FOR ALL YOUR TIME.>>THIS MAY SOUND LIKE A SILLY
QUESTION, BUT IT’S NOT INTENDED TO BE.
HOW WOULD YOU DEFINE SEXUAL OVERTURE?
EASY EXAMPLES WE CAN THINK OF, BUT —
>>I DON’T THINK YOU HAVE TO FOR PURPOSES HERE.
BUT IT COULD BE ANYTHING AS SIMPLE AS A COMMENT ABOUT ONE’S
APPEARANCE AND ATTRACTIVENESS. IT COULD BE SAYING, YOU KNOW,
WILL YOU JOIN ME FOR DINNER? LET’S GET A DRINK.
YOU KNOW, THAT MAY SEEM COMPLETE COMPLETELY HARMLESS ON THE ONE
HAND, BUT ON THE OTHER HAND, IF SOMEONE FEELS PRESSUREED TO DO
IT AS PART OF THEIR JOB, I THINK
ANY OF THOSE THINGS COULD FALL UNDER THAT UMBRELLA.
BUT I’M NOT HERE TO SAY THAT ANY OF THOSE THINGS SHOULD BE
PROHIBITED CONDUCT, BUT I THINK THAT WHEN WE THINK ABOUT
CONSENSUAL ROMANTIC AND SEXUAL RELATIONSHIPS, THAT’S MORE THAN
JUST THAT INITIAL OVERTURE, TO BE SURE.
BUT HAVING A PROVISION LIKE THIS AND THE CODE IN PLACE, I THINK,
AGAIN, WOULD GO FARTHER THAN WHAT YOU HAVE NOW AT ELIMINATE
ING THE VERY CONCERNS THAT YOU ARE
HERE TO ADDRESS.>>IT’S EASY AT ONE LEVEL TO SAY
NO TO A ROMANTIC RELATIONSHIPS. MORE DIFFICULT TO SAY NO
OVERTURES. THAT’S WHAT I’M TRYING TO GET AT
AT.>>OH, SURE, AND JUST SO I’M
CLEAR, I DIDN’T MEAN TO SAY THAT YOU SHOULDN’T BE BANNING ANY
OVERTURE. MY REMARKS BEFORE YOU AND MY
PROPOSAL THAT I OFFER AS AN EXAMPLE FROM HOUSTON IS
CONSENSUAL AND ROMANTIC AND ROMANTIC SEXUAL
RELATIONSHIPS. THAT’S WHAT THE PROHIBITION IS
ON. IN MY REMARKS I TRY TO EXPLAIN
WHY I THINK THAT COULD BE HELPFUL.
THAT’S WHY WHY I EXPLAIN AN OVERTURE
COULD BE UNWELCOMEED EVEN THOUGH IT’S NOT PERCEIVED AS MUCH.
>>CAN I GIVE ONE PERSONAL POINT POINT.
I’M VERY INTERESTED IN YOUR BOOK “SHORT LISTED”.”
WHEN IT’S OUT I WOULD LIKE TO READ THAT.
>>I’LL SEND YOU A COPY.>>NO NEED TO SEND ME A COPY.
THAT’S PROBABLY NOT IN THE CODE OF CONDUCT.
>>YOU CAN GET IT AT THE LIBRARY LIBRARY.
>>YOU CAN TELL YOUR STUDENTS WHEN YOU GO HOME THAT YOU GOT
RAVE REVIEWS.>>OH, THANK YOU.>>THE ST. LOUIS SCHOOL OF LAW.
AND HAS WRITTEN EXTENSIVELY IN THIS AREA.
WE’RE HAPPY TO HAVE YOU HERE.>>I’M HAPPY TO BE HERE TO
DISCUSS THESE PROPOSALS. MY NAME IS CAROL A. NEEDHAM, I’M
EMANUEL MYERS PROFESSOR OF LAW ST. LOUIS UNIVERSITY SCHOOL OF
LAW IN ST. LOUIS, MISSOURI. I’VE TAUGHT AND PUBLISHED ON
CIVIL PROCEDURES AND I’VE DRAFTED VARIOUS CODES OF CONDUCT
AND AFTER GRADUATEING LAW SCHOOL I DID CLERK FOR A FEDERAL JUDGE,
AND IT IS A STELLAR EXPERIENCE FOR THOSE OF US PRIVILEGED TO
HAVE IT. AND I PRACTICEED LAW IN LOS
LOS ANGELES BEFORE STARTING TO TEACH.
I ALSO THEN BEFORE THE ABA LAWYERS PROFESSIONAL CONDUCT AND
INVOLVED IN THE WORK OF THE ABA STANDING COMMITTEE ON THE
PROFESSIONAL RESPONSIBILITY FROM THE LIAISON PROFESSIONAL
RESPONSIBILITY. I HAVE COMMENTS ON CHAPTER 2 AND
THE PROCEDURAL RULES. OVER ALL I SUPPORT THE PROPOSED
CHANGES. I THINK THE COMMITTEE HAS DONE A
FABULOUS JOB, BUT YOU KNOW THAT. YOU’VE DONE HARD WORK, AND IT IS
VALUABLE. THERE ARE SOME PLACES WHERE
ADDITIONAL REVISION SHOULD BE CONSIDERED.
IN THE REVISIONS I SUGGEST THREE KEY POINTS IN IN THE FELL
WORKPLACE IDENTIFYIED IN PAGES 4 AND 25 IN
THIS JUNE 1 REPORT. MINDFUL OF THE MUST DISCUSSED
DISTINCTION BETWEEN GUIDANCE AND ENFORCEABLE DISCIPLINARY
STANDARDS I SUGGEST KEY PLACES IN THE PROPOSED DRAFT LANGUAGE
FOR CANON 3 SHOULD BE AMENDED TO REPLACE THE WORD “SHOULD” WITH
THE MORE CLEARLY DIRECTIVE WORD “SHALL”.”
USING THE WORD SHALL WOULD BE CONSISTENT AS THOSE OF US HERE
REALIZE WITH THE DESCRIPTIVE
WORD SHOULD. IT IS THE LANGUAGE THAT IS RELY
RELIED UPON. HOWEVER, IN A RECENT IN ADOPTING
THE WORD SHALL IS MORE CLEARLY SIGNAL
SIGNALING TO THE GENERAL PUBLIC AND
ADMINISTRATIVE ASSISTANTS AND OTHER COURT EMPLOYEES THAT THE
CANON SET OUT AND MANDATEED STANDARD OF BEHAVIOR.
BETTERRATHER THAN USING THE SAME WORD
TO REFER TO ACTIONABLE, NON- NON-TRIVIAL ON THE ONE HAND AND
AS DISCUSSED WITH PROFESSOR GEYH GEYH.
SO CONSIDER THE DIFFERENCE IT WOULD MAKE IF ONLY PAGE 6 THE
SENTENCE OF CANON 3 IS THAT THE JUDGE SHALL PERFORM THOSE DUTY
AND SHALL NOT ENGAGE IN BEHAVIOR THAT IS ARRESTING, ABUSIVE,
REGION DISOR BIAS. WHY NOT STATE THOSE OBLIGATIONS
IN THE DECLAREATIVE? IT’S HARD OLD TESTAMENT IMAGINE
THERE WOULD BE SUPPORT THAT THE CANON 3 WOULD ALLOW THE JUDGES
TO ENGAGE IN HARASSING BEHAVIOR. THE WORD SHOULD IN DIRECTIVE
CANON 3 IN THAT ARENA. FOR SOME OF THE REASONS I
RECOMMEND REPLACING THE WORD SHOULD WITH SHALL, OR MUST IN
THE SECTIONS RELATEED TO TWO ADDITIONAL KEY AREAS.
CANON 3, 3 A 3, A JUDGE SHALL BE
DIGFIED, RESPECT TELEPHONE. CANON 3 B 4, A JUDGE SHALL NOT
ENGAGE IN HARASSMENT OR RETALIATION FOR THE REPORTING OF
ALLEGATIONS. 3 B 6 THAT A JUDGE’S CONDUCT AND
THE JUDICIAL’S CONDUCT AND SO ON ON.
I HAVE BELABORED THAT POINT ENOUGH, BUT I WANTED TO –I KNOW
IT’S A DEPARTURE FROM THE DRAFT DRAFTING UP TO NOW, BUT I THINK
THERE IS THIS WRESTLEING OF WHAT IS REQUIRED, WHAT IS SIGNALED TO
BE REQUIRED, AND I THINK THE USE OF THE WORD “SHALL” IN THOSE
PLACES WOULD BRING CLARITY. I WILL NOTE THAT I AGREE WITH
THE WORKING GROUP IN THE GENERAL REPORT THAT THERE IS NO HARM IN
ADDING LANGUAGE IN CODE AND COMMENTARY CLARIFYING THAT
INTERACTIONS ARE PRECLUDEED IN
CANON 3 B 3. AND ALTHOUGH THE APPROPRIATE
ACTION CAN DEPEND ON THE CIRCUMSTANCES, THE ACTION TAKEN
SHOULD BE REASONBLY LIKELY TO PREVENT HARM TO THOSE EFFECTED
AND PROMOTE PUBLIC INTEGRITY IN THE JUDICIARY.
IT WOULD MAKE SENSE THAT PAGE 11 OF THE PROPOSED DRAFT TO REPLACE
THE WORD SHOULD WITH SHALL, THE THEY SHALL NOT TOLERATE CONDUCT
THAT IS VIEWED AS HARASSMENT WHEN REPORTING SUCH CONDUCT.
PLUS COMMENTS ON THE CODE.
AND .
>>OBVIOUSLY YOU’RE AWARE WE USED “SHOULD” BECAUSE IT’S THE
PRIMARY WORD THAT APPEARS IN THE CODE IN THOSE TYPES OF PLACES
FROM PREVIOUS CANONS. WE APPRECIATE WHAT YOU’RE SAYING
SAYING. “SHALL” BECOMES PROBLEMATIC FOR
THOSE WHO LITIGATE CONTRACTS BECAUSE SHALL IS INDEFINITE, AND
MAYBE MORE OPEN FROM THE DRAFT DRAFTING STANDPOINT TO USE MUST
WHERE WE MAY MUST AND MAY WHERE WE MEAN MAY WHICH MAY BE MORE
DEFINITE ABOUT SHOULD. I SHOULD BE CAREFUL ABOUT
STATING THAT AS CHAIR BECAUSE I PROBABLY STATED SOMETHING THAT I
COMMUNITY. THAT’S HOW IT ALL CAME TO BE.
I WANTED YOU TO UNDERSTAND HOW THE PARTICULAR VERBIAGE EXISTS.
>>BEFORE WE REMOVE FROM YOUR COMMITTEE, I WOULD LIKE TO AMEND
MY PRIOR TESTIMONY TO SUGGEST THE WORD “MUST”.”>>IN LAW SCHOOL THEY TELL US
WHAT SHALL MEANS AND THEN IN THE OKAY OXFORD DICTIONARY AND WE FIND
OUT IT MAY NOT MEAN THAT.>>MUST IS THE INTENDED, AND I
THINK YOU’RE RIGHT, IT IS MORE CLEAR TO SAY MUST.>>REALLY IN THE LAST 0 YEARS
THE ADVISEORY COMMITTEE ON CIVIL RULES HAVE BEEN DEBATEING
WHETHER IT SHOULD BE MUST, SHOULD OR
SHALL, AND IT’S STILL NOT OVER.>>WELL, YOU KNOW, AS A VALUABLE
DEBATE TO HAVE, BUT I THINK HAVING SOME RESULTS WITH ALL THE
WISDOM ACCUMULATEED THROUGHOUT THE DEBIT COMING DOWN WITH WORD
WORDING. THANK YOU.
>>WHY DON’T YOU TELL US ABOUT THE COMMENTS TO THE RULES?
>>THANK YOU, CHAIR. REGARDING THE PROPOSED CHANGES
TO CHAPTER 3, JUDICIAL CONDUCT, I WILL SAY BRIEFLY THE PROPOSAL
SHOULD BE REVISEED TO SPECIFY THE
STANDARDS THAT THE CHIEF JUDGES ARE TO APPLY IN THEIR DISCRETION
IN KEY POINTS IN THE PROCESS. FOR EXAMPLE, A CHIEF JUDGE IN
INDISTINGUISHES A REPORT THAT IS SO MINOR THAT IT CAN BE DEALT
WITH. OR IS IT PART OF A PATTERN THAT
SHE HAD TO BE HANDLEED FORMALLY. THERE SHOULD BE SOME GUIDANCE
WITHIN THE STANDARD TO BE USED IN MAKING THOSE DISTINCTIONS.
SECOND, IT IS IMPORTANT THAT THE FINAL NOTE OF THE RULES CLOUDY
CHEER GUY WANTS FOR THE AM .
>>–IN OTHER ARENAS THAT SOMETIMES HAS HAPPENED, AND IT’S
IMPORTANT TO BELIEVE THAT WITH THE JUDICIARY THAT IT DOES NOT.
MOVING FORWARD WOULD, IMPORTANT IN AREAS WHERE THE FINAL WORDING
OF THE RULES STANDARDS ARE GIVE WITH KEY DETERMINATIONS THAT ARE
LEFT IN THE DISCRIMINATION OF THE CHIEF.
AND THE MAINTAINING CONFIDENTIALITY REMAIN.
PROBLEMATIC. AND ADDITIONAL COMMENTS PROVIDED
AFTER THE HEARING, BUT I DO WANT TO KNOW THAT SOME FEEL FOR THE —
THE–FOUR, THROUGHOUT THE RULES SPECIFY A TIME FRAME FOR THE
CLAYFICATION OF THE RULES. FOR EXAMPLE, NOT ENOUGH GUIDANCE
IS GIVING ON RULE A 45, PAGE 16 LINE 26. THEY APPEAR LIKELY TO YIELD TO
PROMPT RESOLUTION TO INFORMAL CORRECTIVE ACTION.
AND IT GOES ON, I WOULD HAVE THE TIME FRAME IF THE END OF THE
NEXT SENTENCE, SOMETHING LIFE THE LIKES ORDINARYILY, WHATEVER
TIME FRAME WITH YOU DEEM USEFUL IN THE PAM OF DAYS TO WEEKS.
FROM DAYS TO MONTHS. BUT THE HAST PHRASE WOULD LEAD
TO INITIAL EDUCATE THE SUBSETS AS PROBABLY AND THE REASONABLE
REASONABLENESS. AS TESTIFYIED EARLIER,
IMMEDIATELY, THE JUDGE WENT THE NEXT DAY TO ADDRESS THINGS.
THAT’S ADMIREABLE. 2 WAS OBVIOUS TO THE JUDGES THAT CORRECTIVE ACTION SHOULD NOT
TAKE MONTHS OR YEARS. BUT THE DESIRE TO MORE THOROUGH
THOROUGHLY INVESTIGATE, THE INABILITY TO CONFRONT A CHERISH
CHERISHED COLLEAGUE, ALL KINDS OFCHED CONSULTING IT AND SERVING
THE TIME FRAME AT THIS POINT IN THE COMMENTARY TO MOVE FORWARD
PROVIDING GUIDANCE THAT WOULD HELP THOSE WHO ARE RESPONSIBLE
FOR APPLYING THE RULE. NEXT, THE ASSESSMENT OF
POTENTIAL INSTITUTIONAL ISSUES REFERRED TO IN THE RULE 11 E
SHOULD BE ALWAYS BE UNDER TAKEN. IF SYMPTOMS SYSTEMS CAN BE PUT
IN PLACE, THEY CERTAINLY SHOULD BE
CONSIDERED. THEREFORE, MY DRAFTING
SUGGESTION THAT IS 20 DELETE TO DELETE THE
SENTENCE PREVENTIVE DISCOVERRY, THE STEPS MUST BE UNDER TAKEN TO
PREVENT ITS OCCURRENCE. THIS INCLUDES PROPOSED LANGUAGE
AND COMMENTARY ON PAGE 49. NEXT, THOSE OF YOU–SIX POINTS.
THE PROPOSED NEW LANGUAGE ON RULE 23 C ON PAGE 56 LINE 8
SHOULD BE ADOPTED AS PROPOSED. NOTHING USUAL UNUSUAL IN THE
CONFIDENTIAL IN THE REPORTING PROCESS REGARDING THE MISCONDUCT
MISCONDUCT. THIS IS A KEY IMPORTANT REVISION
TONIGHT. I CAN’T IMAGINE THAT THERE IS
MUCH DISCUSSION ON THAT POINT. SEVEN.
WITH ONE REVISION I STRONGLY URGE THE COMMITTEE TO INCLUDE
THE NEW LANGUAGE PROPOSED FROM V 13 A FROM LINE 35.
REPLACING THE WORD SHOULD WITH THE REQUIREMENT WOULD BE
SIGNALING IT TO THE PUBLIC. AND THE AM OF THE POTENTIAL MIS
MISCONDUCT AND DISABILITY WHEN A PATTERN OR BROADER DISABILITY
EXISTS. FINALLY, I ALSO SUPPORT THE
LANGUAGE PROPOSED FOR INCLUSION IN THE COMMENTARYIEN COMMENTARY COMMON COMMENTARY AND THE
INFORMATION THAT IS APPROPRIATE APPROPRIATELY MADE PUBLIC SHOULD
BE MADE AVAILABLE IN A WAY THAT IT IS ACCESSIBLE TO THE PUBLIC.
HERE BECAUSE OF THE INCLUSION OF UNSEARCHABLE ELECTRONIC INDICES.
THANK YOU FOR THE OPPORTUNITY TO TESTIFY HERE TODAY, AND THANK
YOU FOR THE QUESTIONS YOU MAY HAVE.
>>THANK YOU VERY MUCH. ANY QUESTIONS?
>>I HAVE A QUESTION. SO SINCE YOUR ORAL
RECOMMENDATION WITH YOUR WRITTEN SUBMISSION, WILL YOU LOOK AT
ITEM 1 AND GIVE US EXAMPLES OF WHAT YOU THINK SUCH STANDARDS
WOULD BE BECAUSE IT SEEMS TO ME THAT THE WAY ITS WRITTEN SORT OF
IN BITES, A LOCAL WITHOUT STANDARDS.
I DON’T WANT YOU TO DO AT A WHILE SITTING HERE.
BUT THINK ABOUT WHAT SORT OF
STANDARDS? WHAT ARE YOU TALKING ABOUT THERE
THERE?>>TO GIVE IT MORE BODY.
>>TO SEE WHAT YOU’RE DRIVING AT AT.
THANK YOU.>>THANK YOU.
>>I MAY ASK YOU ABOUT PROPOSAL NUMBER 2, ABOUT THE USE OF TIME
DURING WHICH AN INVESTIGATION CAN BE IN PROGRESS WITHOUT
RESOLUTION. WHEN I WAS CHIEF JUDGE OF THE
11TH CIRCUIT, I HAD TWO SERIOUS COMPLAINTS MADE WHERE I HAD TO
FORM A SPECIAL COMMITTEE. AGAINST TWO DISTRICT JUDGES,
THEY HIDE THEIR OWN COUNCIL. THEY OFFERED A FORMER .
I DON’T KNOW HOW THAT WOULD BE WALKABLE, TO HAVE A.
WHEN WE GET THESE COMPLAINTS FILED, IT TAKES THOSE COMMITTEES
IF TIME TO AM–SOMETIMES IT CAN TAKE A YEAR.
SOMETIMES IT’S TWO YEARS. I DON’T SEE HOW YOU CAN HAVE A. HOW WOULD YOU RESPOND TO THAT?
>>YES, THE SPECIAL COMMITTEE SITUATION I THINK IS SEPARATE FROM THE SHISH DECEMBERER TAPE
ING NUMBER AS ALONG AS THERE ARE
MILESTONES AND KIND OF GUIDE POSTS FOR THE TIMEING, THAT
WOULD SATISFY THE AND OTHER
CIRCUMSTANCES NOT THE OCCASIONAL INVESTIGATION.>>SOMETIMES WHEN THESE
INVESTIGATIONS BEGAN, CERTAIN IF THINGS WILL BE EXPOSEED THAT
WILL CAUSE THE INVESTIGATION TO BE
EXPANDED OR HOW IT’S INVOLVED?>>RIGHT, RIGHT, AND THE THING
IS–NOT CLAM IF. THERE IS A DAWNING REALIZATION
WHERE SOMETHING ISN’T BRAVE UP IN FOR THERE WERE OTHER THINGS
THAT WOULD MAYBE NOT SURFACE. BUT IT SEEMS TO ME HAVING THE
MILESTONES BE BUT HAVING PLEA BARGAIN.
A WAY TO CONTAIN IT TO IT DOESN’T INGEST–?
ICED A. YEAR.
>>THEREED THIS TESTIMONY THEY HAVE JUDICIARY MISCONDUCT.
>>I’M NOT SUGGESTING THAT NUMBER .
THERE WILL NOT BE A COMMENT BECAUSE WE’RE HUMAN.
EDWARDING AGAINST THAT, MOOP NUMBER IT IS HAVE AM FINANCIAL MILESTONES
WOULD BE VALUABLE.>>I DIDN’T KNOW THE ANSWER TO
THAT.>>AND AT THIS POINT IT’S AN UN
UNKNOWN. AS FAR AS I DON’T KNOW.>>SO THIS QUESTION GOES TO
RECOMMENDATION NUMBER 5, THAT IN EVERY THE CIRCUIT SHOULD CONDUCT
AN ASSESSMENT OF POTENTIAL INSTITUTIONAL ISSUES, WHICH
COULD INVOLVE WHETHER THERE IS A PATTERN OF MISCONDUCT OR
DISABILITY, AND SO FORTH. DO YOU HAVE ANY THOUGHTS ON WHAT
PROCESS OR WHAT THAT ASSESSMENT SHOULD LOOK LIKE?
DO YOU THINK IT SHOULD BE ROLL LED
INTO THE INITIAL SUBJECT OF THE
COMPLAINT? SHOULD IT BE SOMETHING THAT IS
SEQUENCED AFTER THE CONCLUSION OF THE ORIGINAL COMPLAINT?
SHOULD THE CIRCUIT COUNSEL BE REQUIRED TO MAKE SPECIFIC FIND
FINDINGS? WHAT DO YOU THINK THAT SHOULD LOOKING LIKE?
AND TAKING JUDGE BARKER’S POINT, IF YOU THINK ABOUT THAT FURTHER,
AND GIVE US THOUGHTS AFTERWARDS, THAT WOULD BE FUN, BUT I THINK
THAT’S THE IMPORTANT QUESTIONS, AND I WOULD BE INTERESTED IN
FURTHER THOUGHTS.>>IT RAISING THE QUESTION THAT
YOUR COLLEAGUE HAS BROUGHT UP. IF YOU’RE FOCUSED ONLY THE ON
THE RECORDED INCIDENT THAT IS THE COUNTY, THAT’S ONE THING.
BUT IF YOU’RE SAYING WHAT CAN WE
DO TUESDAY NALLY TO PUT OUR BLOG BLOGS IN PLACE AND IT WOULD
DELAY THE BLOGGER’S PROGRESS. BUT I WOULDN’T DO THIS AT THE
EXPENSE OF THE CONSTITUTIONAL LOOK.
MY FIRST RESPONSE IS ON SOME LEVEL A TWO-PART PROCESS IS
PROBABLY IN ORDER, BUT YOU WOULD PROBABLY SEND LITERALLY
SOMETHING LIKE WINDOWS INDOORS, OR SIMPLE, SIMPLE THINGS CAN BE
INSTITUTEED . YOU’RE HAVING AN OPPORTUNITY TO
THINK THROUGH THE SYSTEMIC LOOK IS VALUE.
IT’S BEEN VALUE IN MEDICINE, AND I THINK THAT THE THE TESTING PUT
INTO MAAS. THANK YOU.
>>ANY I QUESTIONS?>>THANK YOU VERY MUCH. VERY HELPFUL TO US. THE NEXT TWO WITNESSES MAY COME
FORWARD. KENDALL TURNER AND JAIME SANTOS.>>GOOD AFTERNOON, AND THANK YOU
FOR ALLOWING BOTH OF US TO TESTIFY THIS MORNING.
>>STILL MORNING.>>Y, STILL MORNING.
>>EACH WITNESS HAS BEEN ALLOTTED 15 MINUTES.
IF YOU COULD KEEP YOUR TIME IN THAT.
MS. TURNER, YOU’RE FIRST. THANK YOU.
>>THANK YOU FOR ALLOWING US TO TESTIFY TODAY.
JAMIE AND I ARE TWO OF THE FOUND FOUNDERS OF A GROUP CALLED CLAW
LAW CLERK WORKPLACE ACCOUNTABILITY.
WE WORK WITH SEVERAL WOMEN WHO ARE WITH US IN SPIRIT TODAY. IN ADDITION TO THIS STARTING
THIS GROUP, I WAS ALSO A LAW CLERK TO JUDGE BREYER.
BASED ON THOSE EXPERIENCES AND THE WORK WE’VE DONE WITH THIS
GROUP AND HEARING FROM WOMEN– WOMEN–AND MEN–WHO HAVE WORKED
IN A VARIETY OF RULES IN THE JUDICIARY THAT WE MAKE THESE
RECOMMENDATIONS TODAY. AS YOU KNOW IN THE INTEREST OF
TIME WE’RE GOING TO FOCUS ON OUR SUGGESTION FOR IMPROVEMENT
ALTHOUGH WE SHOULD ADDRESS HOW QUICKLY THE JUDICIARY HAS ACTED
TO ADDRESS THESE IMPORTANT ISSUES.
AND JAMIE AND I ARE GOING TO SPLIT UP SOME OF OUR TOPICS.
IF YOU SAVE YOUR HARD QUESTIONS FOR YOU, I WOULD BE APPRECIATIVE
APPRECIATIVE. BUT TOPICS I WOULD LIKE TO
DISCUSS, WHICH WE’VE COVERED TODAY AND I THINK WE HAVE A
SLIGHTLY DIFFERENT VIEW, THE MANDATORY REPORTING OBLIGATION.
THE PUBLIC DISCLOSURE OF MIS MISCONDUCT AND THE CHANGES THAT
CAN BE IMPLEMENTED OUTSIDE OF THE FRAMEWORK OF THE RULES AND
THE CODE, WHICH I REALIZE IS A LITTLE BIT OUTSIDE OF THE
PURVIEW OF THE HEARING, BUT I’LL QUICKLY MENTION IT AT THE AND OF
MY TESTIMONY. WE’VE COVERED SOME OF THEM LIKE
THE EXIT SURVEYS THAT WERE DISCUSSED EARLIER.
TO THE RECOMMENDED CHANGES REGARDING JUDGE’S MANDATORY
OBLIGATION. FIRST, MOSTLY I WAS GOING TO
CRITICIZE YOU, I WOULD HIKE TO COMPLIMENT YOU ON THE CHANGE YOU
MADE TO JUDGE’S OBLIGATIONS. NOW THAT THE JUDGES ARE REQUIRED
TO REPORT MS. ON DUCT, AND NOW FAILLING TO CALL ATTENTION TO
INFORMATION LEADS REASONBLY LIKE LIKE
LIKELY THAT IN ITSELF IS MIS MISCONDUCT, THAT WOULD GO A LONG
WAY TO ADDRESSING THE PROBLEMS THAT THE JUDICIARY IS FACING
RIGHT NOW. THE LANGUAGE OF THE CHANGE IS TO
ME A LITTLE BIT UNCLEAR. SO I JUST–TO READ THE TWO
SENTENCES, AND THIS IS FROM RULE 4, A JUDGE WHO RECEIVES SUCH
INFORMATION THAT IS INFORMATION REASONBLY LIKELY TO CONSTITUTE
MISCONDUCT SHALL DISCLOSE THE INFORMATION TO THE CHIEF
DISTRICT JUDGE AND CHIEF CIRCUIT JUDGE.
A JUDGE’S CONFIDENTIALITY MAY YIELD WHEN THERE IS INFORMATION
THAT IS SERIOUS AND EYE AGREE SHOES AND THREATENS THE PROPER
FUNCTIONING OF THE JUDICIARY. I THINK THE WAY I UNDERSTAND
THIS IS THAT A JUDGMENT ALWAYS SUPPORTS THE CHIEF CIRCUIT JUDGE
JUDGE. BUT ANY OTHER REPORT ING IS
DISCRETION NEAR. I DON’T KNOW IF THAT’S A MAPPED
TORE. YOU THINK THE LACK OF CLARITY
ITSELF IS CONFUSEING TO THOSE VICTIMS AND JUDGES.
I THINK TO THE EXTEND THAT THERE IS A LACK OF CLARITY, THE JUDGE
AM IS LIKELY TO A CLARIFYING MIS
MISCONDUCT, AND REPORTING, WE STRONGLY ENCOURAGE TO DO SO.
WE STRONGLY ENCOURAGE TO MAKE CLEAR THAT THERE IS A MANDATORY
REPORTING OBLIGATION. WE UNDERSTAND THAT THERE IS SOME
REQUEST THAT SUCH MANDATORY REPORTING OBLIGATION COULD SHOW
MISCONDUCT, BUT WE THINK THERE SHOULD BE INFORMAL AVENUES THAT
PEOPLE WITH REACH OUT TO ASK FOR ADVICE, HOW DOES THE REPORTING
OF MISCONDUCT PROCEED? AND WITH THOSE INFORMAL
MECHANISMS IN PLACE, WE THINK THAT THE CHILLLING ASPECT FOR
THE REPORTING ON JUDGES SHOULD BE
MINIMALIZE. THIS IS NOT ONLY GOING TO .
WITHS WILL WANT TO MENTION. DONE MAKE ANY PROVISION WHEN THE
CHIEF CIRCUIT JUDGE OR WHEN THE DISTRICT JUDGE IS THE SUBJECT OF
THE COMPLAINT. IN ALL CASES IT REQUIRES THE
JUDGE TO RECEIVE A REPORT EVER MISCONDUCT TO REPORT THAT
INFORMATION TO THE CHIEF DISTRICT JUDGE AND THE CHIEF
CIRCUIT JUDGE. WE RECOMMEND THAT THIS BE THE
ALTERNATIVE IN A CASE WHERE THE JUDGES IS AND FOR IT TO BE
REPORTED TO THE OFFICE OF JUDICIARY INTEGRITY.
AND JUST TURNING TO PUBLIC DIS DISCLOSURE, SO I KNOW THESE
RULES ARE NOT NEW, BUT WE WANTED
TO SAY A FEW WORDS ABOUT THEM. IN THE VAST MAJORITY OF
CIRCUMSTANCES, COMPLAINTS OF MIS MISCONDUCT ARE NOT MADE PUBLIC,
AND WE UNDERSTAND WHY THAT IS, BUT THAT INCLUDES SITUATIONS IN
WHICH, FOR EXAMPLE, A COMPLAINANT IS JUST REPRIMANDED
ON CONDUCT THAT SHOULD NOT BE
KEPT PRIVATE. IN THOSE RULES THE THE COMPLAINT NOT
BE MADE PUBLIC. AND WE–WE WOULD WISH IN A THE AT THE VERY LEAST IF INDIVIDUAL
COMPLAINTS CANNOT BE MADE PUBLIC PUBLIC?
WE ASK ABOUT THE FREQUENCY OF ALLEGATION AND THEIR GEE GRAPH
GRAPHCELTICS AND THAT SHOULD BE
MADE AVAILABLE TO THE PUBLIC. WE STRONGLY SUPPORT THAT THERE
BE A SURVEY THAT GIVES THE PUBLIC AND THE JUDICIARY A
BETTER UNDERSTANDING OF THE SCOPE OF THE PROBLEM.
SOMETIMES A LOT OF PEOPLE GIVE
THE IDEA THAT THIS IS AN ISOLATE ISOLATED ISSUE, AND THERE MAY
ONLY BE A BAD JUDGE OR TWO, AND THAT’S IT.
I DON’T KNOW IF THAT’S THE CASE. WE JUST DON’T KNOW.
I THINK IT WOULD IMPROVE THE PUBLIC CONFIDENCE IN JUDICIARY
AND APPROVE THE BRIEFLY I NEED
TO TOUCH ON THAT HAS THE POWER TO ASSESS SPEAKS ISSUES RELATEED
TO THE COMPLAINT. EVEN IF IT DOES NOT RESULT IN
THE REMEDIAL MEASURE. THIS IS IN NUMBER 11.
THEY MAY KNOW WHAT PRECAUTIONARY OR CUREATIVE STEPS MAY BE TAKEN
TO PREVENT THE OCCUR RAPS. THE SUCCESS OR WITH A HAVE WE
ASKING FOR SPECIFICS IN THE COMMENTARY.
I THINK THIS POWER IS PROBABLE HI NOT GOING TO TO BE USED EAKS
EAKSTIVELY AS:WHO SHOULD CONDUCT IT? SETTLEMENT AND THEN FINALLY AS I
SAID, I JUST WANTED TO BRIEFLY MENTION
RECOMMENDATIONS THAT ARE A LITTLE BIT OUTSIDE OF THE SCOPE
OF THE RULES IN THE CODE. THERE ARE RECOMMENDATIONS THAT
WE MAKE TO THE FEDERAL DUE JUDICIARY WORKING
GROUP. AND I KNOW A FEW INDIVIDUAL
COURTS HAVE TAKEN STEPS TO IMPLEMENT THEM.
SO THESE WOULD INCLUDE THE CREATION OF A NATIONAL REPORTING
OPTION WHICH HAS THE POWER TO RECEIVE REPORTS AS WELL AS
INVESTIGATE THEM. THAT COULD BE THE OFFICE OF
JUDICIARY INTEGRITY. THAT MAKES NO SENSE.
I KNOW THAT BODY IS STILL INFLUX INFLUX.
WE ALSO, AS I SAID, STRONGLY SUPPORT THE RECOMMENDATION THAT
THERE BE A COMPREHENSIVE RETROSPECTIVE SURVEY AND THE
SURVEYS SURVEY THE
EXIT SURVEYS WE TALKED ABOUT. AND THE STANDING COMMITTEE TO RE
REAGGRAVATED ASSAULT THE EFFICACY OF THE JUDICIARY EFFORT
TO ADDRESS HARASSMENT. I KNOW THAT–I’M NOT SURE WHAT
THE WORKING GROUP, IF IT WILL CONTINUE TO EXIST NOW THAT
THEY’VE COMMITTED THEIR REPORT. BUT WE RECOMMEND THAT SOMEBODY
ARE UNRELATEEDLY, I KNOW SOME
COURTS HAVE TAKEN STEPS TO IMPLEMENT, BUT THERE ISN’T
UNIFORM ACTION ACROSS THE COURTS TO ADDRESS THESE ISSUES.
AND WE STRONGLY URGE THE CONFERENCE TO IMPLEMENT REFORMS
THAT APPLY TO ALL OF THE CIRCUMSTANCE.
AND BEGIN WE NOTICE THAT THE
PROPOSED AMENDMENTS PERTAINING TO THE SUPREME COURT, WHILE WE
EQUAL THAT PROMULGATEING RULES IN
YOUR CONDUCT IS WE ASK AER.>>THANK YOU SO MUCH FOR ALLOW
ALLOWING US TO TESTIFY BEFORE YOU TODAY.
AND IT’S NICE TO SEE A FRIENDLY FACE THAT WE ON THE DC WORKING
GROUP. WE HAD A GOOD EXPERIENCE WORKING
WITH THE VARIOUS CIRCUITS AND WORKING GROUP AND WE APPRECIATE
THE OPPORTUNITY TO ADDRESS YOU TODAY AS WELL.
MY COLLEAGUE, MS. TURNER, ADDRESSED MANY OF OUR COMMENTS
AND THERE ARE THREE ADDITIONAL ISSUES THAT I WANTED TO DRESS
TAP THAT IS ARE NOT IT GIVES SOME ACCESS TO CODES AND IN OUR
VIEW DO NOT NUCLEAR EMPLOYEES TO
REPORT MISCONDUCT OR WOULD BE INEFFECTIVE IN MAKING SURE THAT
THEY WOULD BE WHICH IS THEED HAD .
SO WHEN WE EXAM THE RULES GOVERNING, WE NOTICE THERE ARE
SLEETLY DIFFERENT PROCESSES OR BECAUSE SOMEONE FILED A FORMAL
COMPLAIN AND THE MISCONDUCT BECOMES AWARE OF BECAUSE HE
RECEIVED INFORMATION ABOUT IT. THAT’S PREFERRED TO IN THE.
>>IT INTERESTINGERRED A FORMER NUMBER IT RESULTS IN AN ORDER
THAT WAS ISSUEED, AND AT THE LEAST IN A MEMO OF CONNECTIVEITY
. THIS HELPS TO INSURE THAT
PATTERNS OF MISCONDUCT ARE CENTRALLY COLLECTED AND HIDDEN
FROM THE GENERAL CONFERENCE. GO THROUGH THIS REVIEW PROCESS
ONLY AT A LAST RESORT. INCLUDING TO THE RULES AND MEN
TEAR ONLY IF AN I AM FORMER RESOLUTION LUIS CAN BE BE A
ARECEIVE, THERE MAY BE MIS MISCONDUCT BECAUSE HE INTERVIEW
INTERVIEWED REMEMBER. NOW, I HAVE RESEARCHED THE V AND
YOU. THE ONLY ADDITION THINGS DRAWN
IN STATURE IS WHEN IT IS AN
IDENTIFYIED COMPLAINT, AND FROM THEN ON THE IDENTIFYIED
COMPLAINT IS NOT SEPARATEED FROM THE ACTUAL
COMPLAINT. THIS CAN HAVE HUGE RAMIFICATIONS
PARTICULARLY FOR THE EFFECTIVE EFFECTIVENESS OF THE JUDICIARY
CONFERENCE PROPOSED NEW DUTY TO REPORT OF ANY MISCONDUCT WHEN IT
BECOMES AWARE. IF IT IS TAKEN SERIOUSLY, AND
THEN JUDICIARY CONFERENCE, AND THE PUBLIC WILL ALL BE DEPRIVEED
OF ANY INFORMATION ABOUT JUDICIAL MISCONDUCT THAT OCCUR
OCCURRED. MISCONDUCT CAN REMAIN SILO
WITHIN PARTICULAR DISTRICTS OR CIRCUITS AT A TIME WHEN WE
SHOULD BE TAKEN EVERY EFFORT TO BRING THAT TYPE OF ACTION TO
LIGHT. AND IN MY VIEW THE FACT THAT
WE’RE REFERRING AND IDENTIFYIED COMPLAINT FOR FORMER REVIEW IS
THE THE LAST RESORT ENCOURAGES THE
SILO EFFECT. WE STRONGLY URGE THE JUDICIARY
CONFERENCE TO GIVE SERIOUS CONSIDERATION IN THE FILEING OF
AN IDENTIFYIABLE COMPLAINT, WHETHER THE DISTINCTION CAN HAVE
THE DIFFERENT IN THE STATUTE AND THE DUTY OF THOSE TO REPORT.
THE SECOND OF FRAMEWORK, ADJUDICATEING OR ADDRESSING
THESE TYPES OF COMPLAINTS.
THE TWO PROCESSES AVAILABLE FOR SOMEONE TO REPORT ARE PROCESSES
THAT REQUIRE INVESTIGATION BY A JUDGE OR GROUP OF JUDGES AND
ADJUDICATION BY A GROUP OF JUDGES RATHER THAN BY NEUTRAL,
DISINTERESTED INDIVIDUALS. THIS IS CONCERNING TO US FOR A
FEW REASONS. FIRST, JUDGES ARE VERY SMART,
BUT YOU’RE NOT TRAINED INVESTIGATORS.
I GUESS THATAND WORKPLACE ALLEGATIONS ARE
DIFFICULT TO INVESTIGATE PROPERLY EVEN FOR A SEASONED
INVESTIGATEOR LET ALONE A JUDGE WHO IS NOT AN INVESTIGATIVE
PROFESSIONAL. IN A WORKS PLACE THAT HAS SECRET
SECRECYIES AND KEEPS EMPLOYEES
FROM FEELLING COMFORTABLE COMING FORWARD.
JUDGES HAVE BEEN FRUSTRATEED WHEN
THEY’VE ATTEMPTED TO INTERVIEW WITH VICTIMS OR WITNESSES OF
HARASSMENT, THE INDIVIDUALS DON’T FEEL COMFORTABLE TALKING
TO THEM. THAT IS NO SURPRISE TO THINK
THAT ESPECIALLY AT LOWER LEVEL JUDICIARY EMPLOYEES ARE UN
UNCOMFORTABLE TALKING TO A JUDGE ABOUT INAPPROPRIATE CONDUCT
INVOLVING JUDICIARY PEER. SO TO ASK JUDGES TO INVESTIGATE
IS LESS LIKELY TO LEAD TO TRUE FACT FINDING IN MY VIEW. I HAVE CONCERNS ABOUT A LOCAL
MEMBER OF THE BAR INVESTIGATING JUDICIAL WHEN THEY MAY HAVE
THEIR OWN FEARS OF RETALIATION WHEN APPEARING BEFORE THE COURT.
INVESTIGATORS AND DECISION MAKERS, THIS IS A DUTY BUT IS
NOT CONDUCIVE TO FACT FINDING EITHER.
THOSE ROLES ARE DISTINCTION AND FOR REASON.
IT HELP TO PREVENT INVESTIGATIVE VIE BASS.
WHEN YOU INVESTIGATE SOMETHING, YOU DEVELOP A THEORY AND PURSUE
THAT THEORY. THIS RISK OF BIAS IS A CONCERN
IN THIS CONTEXT BECAUSE THE FRAMEWORK FOR INVESTIGATING
JUDICIARY JUDICIAL MISCONDUCT, A JUDGE, I
HOPE, WOULD NEVER PRESIDE OVER A CASE INVOLVING HIS BEST FRIEND
AS A LITIGANT. BUT THE RULES PERMIT THIS
ARRANGEMENT IN THIS TYPE OF PROCEEDING, AND RECUSAL RULES
WHEN JUDGES SHOULD RECUSE FROM THESE TYPES OF ARRANGEMENTS.
IT PROVIDES COMPROMISE IN THE WAY THESE COMPLAINTS ARE HANDLE
ED HANDLED.
I KNOW THIS PROCESS IS INTENDED FOR A WIDE VARIETY OF COMPLAINTS
AND THIS MAKES SENSE FOR SOMEONE WHO VIOLATEED ACTIVE ROLES.
BUT FOR COMPLAINTS ABOUT HARASSMENT BY A JUDGE, WE
BELIEVE AT A MINIMUM DISINTEREST DISINTERESTED INDIVIDUALS FROM
OUTSIDE OF THE CIRCUIT SHOULD BE INVESTIGATING CREDIBLE
ALLEGATIONS OF MISCONDUCT, AND THESE CASES SHOULD BE THE RESULT
OF OUTSIDE OF THE CIRCUIT THEY SHOULD ARRIVE AND THEY SHOULD BE
MANDATORY PROVISIONS. INVESTIGATING AND RESOLVEING
THESE COMPLAINTS WE BELIEVE IS ESSENTIAL TO REMOVING THE
BARRIERS TO REPORTING THAT EXIST EXISTS.
IT’S NOT JUST ABOUT MAKING SURE THAT THESE INVESTIGATIONS ARE
HANDLEED PROPERLY BUT THAT PEOPLE
FEEL COMFORTABLE COMING FORWARD. IF THE EMPLOYEE DOES NOT BELIEVE
BELIEVE, IT WILL NOT BE WORKED THE WORTH TO COME FORWARD.
AND DISCUSS THE EXPERIENCES
THEY’VE HAD. WE STRONGLY URGE YOU TO TAKE A
BROADER LOOK AT THE INVESTIGATIVE FRAMEWORK, AND
REALLY CONSIDER WHETHER IT’S EFFECTIVE FOR THESE TYPES OF
CASES. AND THEN THE FINAL ISSUE I WANT
WANTED TO BRIEFLY ADDRESS ARE THE ARTS AFFORDED TO INDIVIDUALS
DURING THESE PROCESSES. THE JUDGES ACCUSED OF MISCONDUCT
ARE AFFORDED SIGNIFICANT RIGHTS, THE RIGHT TO RESPOND TO A
COMPLAINT, THE RIGHT TO BE REPRESENTED BY COUNSEL, THE
RIGHT TO CALL ATTENTIONS, ATTEND HEARINGS AND EVEN THE
EXPECTATION OF REIMBURSEMENT IF THERE ARE ALLEGATIONS THAT ARE
UNSUBSTANTIATED. THIS IS ALL HOW IT SHOULD BE.
DUE PROCESS IS IMPORTANT FOR ANYONE WHO IS ACCUSED OF MIS
MISCONDUCT. BUT FOR VICTIMS OF WORKPLACE MIS
MISCONDUCT WE FEEL THERE SHOULD BE MORE RIGHTS FOR THESE
INDIVIDUALS. SOMEONE WHO IS BRAVE ENOUGH TO
REPORT SUCH AN MISCONDUCT OR COMPLAINT, IF SOMEONE IS BRAZEN
ENOUGH TO COME FORWARD AND PARTICIPATE IN THE PROCESS, WE
BELIEVE THAT THEY SHOULD HAVE THE RIGHT TO SPENT ARGUMENT,
WITNESSES AND. SUBSTANTIATEED CASES.
THESE PROCEEDINGS IMPLICATE JUDGES, PROFESSION, AND PERSONAL
REFTATION. BUT AS ANYONE WHO HAS EVER
LOOKED KNOW, THEY ALSO INDICATE THE PROFESSIONAL REPUTATION OF
VICTIMS. BECAUSE THE JUDICIARY IS NOT
COVERED BY TITLE 7 THESE PROCEEDINGS WILL BE THE ONLY
ANNUAL OF RELIEF FOR SICKS OF HARASSMENT.
YOU SIMPLE HI CANNOT SUE A JUDGE FOR SEXUAL HARASSMENT.
THESE TYPES OF PROCEEDINGS ARE THE ONLY OPPORTUNITY FOR THEM TO
ADDRESS THESE THINGS TO HAPPEN. WE THINK THAT AFFORDING RIGHTS
TO VICTIMS WILL ENCOURAGE PARTICIPATION HEARINGS, WHICH IS
WHAT THE JUDICIARY WANTS. ENCOURAGE PEOPLE TO COME FORWARD
AND REPORT THE MISCONDUCT AND THANK YOU.>>ANY QUESTIONS?
>>I HAVE A QUESTION PERHAPS FOR MS. TURNER.
AND IT DEALS WITH–SHE CAN JUMP IN. WE ALL KNOW IF THERE IS A
PROBLEM WITHIN THE THE APPELLATE JUDGE, THE REPORTING GOES TO THE
CHIEF CIRCUIT JUDGE. THAT’S PRETTY STRAIGHTFORWARD.
BUT AS WE TALKED ABOUT THIS MORNING, THE PROBLEM IS WITH
DISTRICT COURT JUDGE OR MAGISTRATE JUDGE OR BANKRUPTCY
JUDGE, IT ALMOST EVIDENTLY WILL GO TO THE CHIEF DISTRICT JUDGE. ARE YOU–WOULD YOU BE SATISFYIED
OR CONTENT WITH A RULE THAT SAYS REPORTING IN THOSE CIRCUMSTANCES
COULD GO EITHER TO THE CHIEF CHEF DISTRICT JUDGE OR CHIEF
CIRCUIT JUDGE OR THE RULE THAT PROPOSES THAT IT SHOULD GO TO
BOTH THE CHIEF DISTRICT JUDGE AND THE CHIEF CIRCUIT JUDGE.
>>I THINK THE, UM, PROVEMENT IN THIS CIRCUMSTANCE BECAUSE OF THE
POSSIBILITY THAT ONE OF THE CHIEF JUDGES COULD BE THE
SUBJECT OF THE COMPLAINT. BY IDEALLY I WOULD LIKE TO SEE
THAT THE REPORTING GOES TO ONE OF THE CHIEF JUDGES IN ADDITION
TO GOING TO THE OTHER PART,EE. , YEAH
YEAH.>>REPORT TO GO ANY CHIEF JUDGE
IS IMPORTANT. BUT THESE THINGS, WHILE THEY MAY
BE HANDLEED LOCALLY THEY SHOULD NOT BE REPORTED ONLY LOCALLY.
THE JUDICIAL CONFERENCE ON JUDICIAL CONDUCT SHOULD HAVE ALL
THE INFORMATION ON ALLEGATIONS OF MISDEMEANOR CONDUCT BY A
JUDGE. THEY SHOULD HAVE THIS
INFORMATION SO YOU KNOW WHAT TYPE OF TRAINING YOU’VE HAD.
THE PATTERN OF MISCONDUCT BY A PARTICULAR JUDGE THAT OTHER
WORDS WOULD BE SEEN. AND ACTUALLY I THINK THE EXAMPLE
OF A JUDGE IN THE FIRST EXAMPLE OF THE JUDGE WHO WAS APPARENTLY
SUFFERING FROM DEMENTIA, I THINK THAT’S EXACTLY A PERFECT EXAMPLE
OF WHY REPORTING SHOULD NOT JUST BE HANDLEED LOCALLY.
IN AN INSTANCE LIKE THAT WHERE SOMEONE COMES FORWARD, A LUNGE
MADE A LEWD AND COMPLETELY INAPPROPRIATE COMMENT TO ME.
JUST GOING TO THAT JUDGE AND HAVING HIM RESIGN IS NOT AN OKAY
OH RESPONSE. THE RESPONSE SHOULD BE
INVESTIGATING WHAT HAPPENED TO SEE IF THERE WERE OTHER WOMEN
VICKIZEED BY THIS JUDGE, DO THEY NEED ANY TYPE OF EMOTIONAL
SUPPORT. WERE THERE PEOPLE WHO KNEW ABOUT
IT AND ENABLEED IT AND ALLOWED IT
TO OCCUR? ARE THERE PROCESSES WE CAN PUT
IN PLACE? THAT STORY TO ME DOES NOT
DEMONSTRATE WHY THERE SHOULD BE DISCRETION.
DISCRETION. IT DEMONSTRATES WHY THERE
SHOULDN’T BE.>>THAT WAS A QUESTION I WAS
GOING TO ASK. YOU HEARD JUDGE O’NEILL EARLIER,
AND PLEAD THAT THERE BE DISCRETION TO HANDLE THESE
THINGS INFORMALLY. DO YOU HAVE OTHER CONCERNS ABOUT
THAT APPROACH?>>I THINK IT’S A RECOMMENDATION
RECOMMENDATION. WE’RE RECOMMENDING A MUCH MORE
FORMALIZEED PROCESS. NOT TO SAY THAT WE THINK MUCH OF
THE CHANGE THAT NEEDS TO BE TO OCCUR
NEEDS TO HAPPEN IN DISCUSSION. BUT FOR THE REASONS THAT HE GAVE
GAVE, WE DON’T THINK THAT IT SHOULD QUIETLY BE ADDRESSED
WITHOUT SOME REPORTING OF THE INCIDENT AND THE INVESTIGATION
OF IT. IT SEEMS THAT THE JUDGE HANDLEED
IT EXCELLENTLY AND THE RESOLUTION WAS GOOD, BUT THERE
WILL BE EXAMPLES THAT THAT IS NOT THE CASE OR MAYBE THE JUDGE
WOULD NOT JUST RESIGN AND THE PROBLEM WOULD BE ONGOING.
THEN IT’S A MORE COMPLICATEED SITUATION.>>ALSO SEEKING FOR FULL ACTION
IT WILL SEND THE MESSAGE OF THOSE WHO ARE EXPERIENCEING THIS
THEMSELVES. IF THERE IS AN EMPLOYEE WHO IS
SUBJECTED TO HARASSMENT AND THEY NEVER SEE ACTION BEING TAKEN,
THEN THEY DON’T HAVE MUCH OF AN INCENTIVE COMING FORWARD.
BUT WHEN THEY SEE IT HAS BEEN HANDLEED APPROPRIATELY, THEN
MORE WOULD BE WILLING TO COME TO
SUPPORT. I’M NOT SAYING THAT EVERYTHING
NEEDS TO GET OUT, BUT ACTIONS HAVE CONSEQUENCES.
WHEN YOU’RE A JUDGE THAT’S CHARGED WITH THE PUBLIC TRUST,
AND PROTECTING THE RIGHTS OF THE MOST VULNERABLE AND YOU HAVE
BEHAVE OF MISCONDUCT, THERE SHOULD BE ACTIONS FOR THAT AND
IT SHOULD NOT BE HIDDEN.>>THE CODE HAS BEEN MODIFIED TO
REFLECT THAT A JUDICIAL EMPLOYEE SHOULD TAKE APPROPRIATE ACTION
UPON LEARNING RELIABLE EVIDENCE INDICATEING LIKELIHOOD OF
CONDUCT CONDUCT.
MY QUESTION IS THIS, I DON’T MEAN IT TO BE RE RHETORICAL, BUT
SHOULD THE CODE OF CONDUCT FOR JUDICIAL EMPLOYEE CHANGE THE
WORD SHOULD TAKE APPROPRIATE ACTION TO USE PROFESSOR NEEDHAM
NEEDHAM’S TURN, MUST REPORT REPORT.
MUST TAKE APPROPRIATE ACTION UPON LEARNING?
WHAT IS YOUR COMMENT ON THAT?>>WE AGREE THAT IT SHOULD BE
CHANGED TO SHALL AND MUST. AND IN TERMS OF THE APPROPRIATE
ACTION LANGUAGE, I UNDERSTAND APPROPRIATE ACTION WE FIND IT
HELPFUL IF THE COMMITTEES COULD ELUCIDATE OR GIVE MORE EXAMPLES
OF WHAT THAT COULD ENTAIL.>>DO YOU SEE A DIFFERENCE
BETWEEN A JUDGE WHO JUDGE
O’NEILL DESCRIBE. ONCE THE JUDGE RESIGNS HIS OR
HER COMMISSION, CAN NEVER BE RESTOREED TO OFFICE UNLESS RE
REAPPOINTED, AND THAT NEVER HAPPENS.
OPPOSED TO SOMEONE WHO IS PLACED ON A DISABILITY.
RETIREMENT OR IF YOU TAKE FEMUR STATUS, WHICH ALLOWS YOU TO FIRE
FIRE, DO YOU SEE ANY DIFFERENCE THERE?
THE ARGUMENT CAN BE MAYBE IF THE JUDGE RESIGNS, MAYBE CANNOT
RESPOND WITH A PUBLIC.>>I DON’T AGREE WITH THAT.
THE JUDGE WILL RETIRE WITH A PENSION.
AND THAT’S A PUBLIC INTEREST. WHETHER IT’S A RESIGNATION, I
THINK IT’S IMPORTANT TO–FOR THE PUBLIC TRUST, FOR THE JUDICIARY
AS A WHOLE, AND FOR PEOPLE WHO MIGHT BE VICTIMS, THAT THERE BE
AN INVESTIGATION INTO WHAT HAPPENED.
>>MANY JUDGES WHO HAVE RETIRED MAY COME BACK TO COMING BACK TO
THE PUBLIC LIFE , TRYING TO
REPRESENT CLIENTS PRO BONO. IN THE LAST OF AN INVESTIGATION
EXAMINEING THE SCOPE OF THE MIS MISCONDUCT THAT OCCURS, MAKES IT
POSSIBLE FOR THAT TO HAPPEN WITHOUT EVERY KNOWING THE FULL
CIRCUMSTANCES. THAT’S HARMFUL TO THE VICTIMS
AND IT’S HARMFUL TO THE PUBLIC.>>YOU’RE SUGGESTING THAT NOT
ONLY IT BE REPORTED TO SOMEONE IN THE ADMINISTRATIVE OFFICE IS
WHAT I HEARD, BUT THAT THERE CONTINUE TO BE AN ONGOING
INVESTIGATION, AND DISCIPLINE BE FORMERLY APPOSED IN TIGHT OF AM.
>>I THINK THAT COURTS HAVE–I HAVEN’T LOOKED INTO THE LEGAL
ANNOUNCES BUT THEY HAVE INTERPRETED THE STATUTE TO THE
BEST OF THEIR ABILITY, BUT IT DOESN’T NEED TO IF AND I THINK
THAT THERE SHOULD BE A REPORT AFTER SOMETHING LIKE THAT
HAPPENS, AND THAT IT SHOULD NOT BE THAT EVERYTHING JUST ENDS.
>>ANY FURTHER QUESTIONS?>>MAY QUESTION GOES TO THE
SCOPE OF THE PROBLEM. I’LL START OUT BY THANKING YOU
BOTH FOR BEING HERE. AND FOR THE EFFORT AND YOU’VE
ATTEMPTED TO THESE ISSUES ALONG WITH YOUR COLLEAGUES.
WOULD IF IT’S VERY HELPFUL TO IF HAVE YOUR TESTIMONY, BUT I’LL
HAVE A BETTER SENTS OF IT IF YOU CAN DIS YOU
CAN DISCLOSE IF YOU’RE SPEAKING ABOUT THINGS THAT YOU LEARNED
YOURSELF AS LAW CLERKS? ESPECIALLY THE HARASSMENT.
WERE THESE PROBLEMS WHICH PUBLIC DISCOURSE THAT PEAKED YOUR
INTEREST BECAUSE OF YOUR OWN WORK?
AND SO YOU DID THIS DEEP DIVE IN THIS SUBJECT?
CAN YOU GIVE US AN IDEA TO THE THINGS THAT HAVE GIVEN RISE TO
YOUR INTEREST AND YOUR EXPERTISE EXPERTISE.
>>WELL, VERY GENEROUS FOR YOU TO CALL US EXPERTS.
I HAD EXCELLENT–BOTH OF MY BOSSES WERE THE BEST BOSSES I
COULD ASK FOR. THE REASON WHY I CARE ABOUT THIS
THERE WAS A FAIR AMOUNT OF HARASSMENT THAT I SAW, MOST PEER
PEER-TO-PEER, MORE LATERAL, CLERKS HARASSING OTHER CLERKSS,
OR SOME PEOPLE HAVE PROBLEMS WITH THEIR JUDICIAL ASSISTANCE
ASSISTANTS AND THAT TYPE OF ISSUE.
AND PEOPLE WOULD OFTEN REACH OUT TO US AND GIVE THEIR STORIES.
AND THOSE STORIES PROCEED TO THE PERCEPTION THAT IF IT’S A RARE
AND ISOLATEED INCIDENT, I THINK THAT’S ACCURATE.
AGAIN, I DON’T HAVE THAT–THAT’S SLIGHTLY I MORE GENERALLY WHY I
CARE ABOUT THIS, I’M A WOMAN, AND I CARE ABOUT EVERYONE HAVING
RIGHTS AND HAVING .
>>MY EXPERIENCE IS SIMILAR TO MS. TURNER’S.
I HAD EXCELLENT EXPERIENCES IN BOTH OF MY CLERK SHIPS.
I KNEW OF HIM WHO WERE EXPOSEED TO INAPPROPRIATE CONDUCT BY
JUDGES, BUT NOTHING WAS AT THE SCOPE OF SOME OF THE ISSUES WE
SAW REPORTED IN THE “WASHINGTON POST” LAST YEAR WHEN I THINK
THEY STARTEDED. MORE WOMEN BEGAN TO HAVE MORE
DISCUSSIONS ABOUT THEIR EXPERIENCES AND THAT’S HOW I
TARTED TO IF THE INVOLVE. AND WE WOULD REACH OUT TO THE
OUTSIDE AND TRY TO GET HELP ON ADVOCATEING ON THESE ISSUES.
WE SPOKE WITH DOZENS OF AUTHORS AND THOSE WHO SPEAK ACROSS THE
COUNTRY ABOUT THEIR OWN PERSONAL EXPERIENCE.
THAT’S HOW WE KNOW THIS ISSUE IS NOT
NOT WITH JUST ONE. AND WE’VE BEEN WORKING ON THESE
ISSUES FOR 11 MONTHS. THIS IS NOT PROMO KNOW WORK THAT
WE DO IN THE FIRST TIME. THIS IS SOMETHING THAT WE DO
BECAUSE WE TEAR ABOUT IT. I CARE ABOUT THE KNACK I BELIEVE
THAT WOMEN OPT OUT BECAUSE THEY’RE HARASSED.
WOMEN DON’T TAKE CLERKSHIPS BECAUSE THEY’RE HARASSED.
AND THESE COULD BE EQUALIZEING FORCES IN A TESTIMONY WHO IS THE
FIRST PROFESSIONAL IN OUR FAMILY FAMILY, AND THEN GET THEM TO
TEACH WITH US. AND THEN YOU’LL HAVE TO BE IN IF
THE IF OF THAT DOES NOT REFLECT THE DIVERSITY OF THE PROJECT.
THAT IS WITH.>>NUMBER ONE THING THAT I WILL
MENTION IS THAT WE HAVE A LOT OF SUPPORT FROM JUDGES AND A LOT OF
SUPPORT IN SO AS AN EXAMPLE OF OFFED WITH THE ATTEMPT OF SOCIAL
MEDIA AND THE ENTIRE WEEKEND IT WAS OUR ORGANIZATION FOR THE
WORK THAT WE WERE DOING. HE CALLED OUR WORK THE SPANISH
INQUISITION. HE SAID THAT JUDGE KRAZINSK
REQUESTS WAS ICE GAMING AND SAID THAT I FARED HUM.
WITH KNOW THIS IS NOT JUST ONE. I THINK THAT DEMONSTRATES OUR
FINANCE NUMBER.
>>A REMARKABLE STORY WITH THE TWO OF YOU TO HAVE DONE.
I AGREE WITH EVERY RECOMMENDATION IN IT, AND YOU
DON’T NEED TO THINK ABOUT THIS AM.
I HOPE YOU KNOW THAT WHAT YOU’RE DOING IS IMPORTANT.>>I WOULD LIKE THAT AUTOGRAPHED
FOR JUDGE, AND USE THE WORDS THAT WE APPRECIATE YOUR
CONVICTION IN AN ENVIRONMENT TO STAND UP IN AN ENVIRONMENT THAT
IS NOT ALWAYS EASY. THANK YOU FOR DOING THAT AND
REAL’ TAKE SERIOUSLY THE RECOMMENDATIONS THAT WERE MADE.
IS THERE ANYTHING ELSE? WE’LL BREAK UNTIL 1:00.
THANK YOU VERY MUCH. S .
>>WELCOME BACK TO THE AFTERNOON SESSION.
WE’RE DELIGHTED TO HAVE THE
VIDEO CHIEF JUDGE JULIE ROBINSON ROBINSON, WHO WAS A VALUABLE
MEMBER OF THE WORKING GROUP, AND WHO HAS VERY GRACIOUSLY AGREEED
TO TALK TO US THIS AFTERNOON. JUDGE ROBINSON, JULIE, IT’S
WONDERFUL TO SEE YOU. CAN YOU HEAR ME?
>>I CAN. CAN YOU HEAR ME?
>>PERFECTLY.>>CAN YOU HEAR ME?
>>YES, VERY WELL.>>OKAY.
THE PLEASE GO AHEAD WHEN YOU’RE
READY.>>WELL, THANKS–FIRST OF ALL
FOR GIVING ME THE OPPORTUNITY TO TALK TO YOU FROM KANSAS.
AND AS YOU SAID, I WAS A MEMBER OF THE WORKING GROUP ON
WORKPLACE CONDUCT, AND WE BEGAN OUR WORK IN JANUARY, AND IT
CULMINATEED–I SHOULDN’T SAY CULMINATEED, BECAUSE OUR WORK
WILL CONTINUE, BUT WE ISSUEED A REPORT JUNE 1, AND I KNOW YOU’RE
FAMILIAR WITH. LET ME GIVE YOU A SYNOPSIS OF
HOW WE WENT ABOUT OUR WORK, AND THEN FOCUS ON WHAT I THINK OUR
FOUR KEY FINDINGS ARE, AND ALL OF WHICH I THINK YOU ADDRESSED
ONE WAY OR ANOTHER WITH YOUR PROPOSED CHANGES.
SO WE WERE A SMALL GROUP, AND FROM THE OUTSET WE VIEWED OUR
MISSION AS DETERMINING WHAT PROCESSES, PROCEDURES AND RULES COULD FIX THE PROBLEM, SO TO
SPEAK. WE DID NOT BELIEVE THAT OUR
MISSION SHOULD BE A LONG-TERM STUDY OF THE EXTENT OF THE
PROBLEM. WE STARTED WITH THE ASSUMPTION
THAT WE HAD A PROBLEM. WE ARE A WORKPLACE OF 30,000
EMPLOYEES. WE HAD NO REASON TO THINK THAT
WE DIDN’T HAVE SOME PROBLEMS, WHETHER PERVASIVE OR NOT, EVEN
IF THERE WAS A MINOR NUMBER OF PROBLEMS, WE FELT THAT IT
DESERVED OUR FULL ATTENTION. WE WERE INFORMED BY A NUMBER OF
SOURCES, AND YOU HEARD FROM TWO REPRESENTATIVES OF THE CLAW
CLERK GROUP SURPRISED OF PRIMARY PRIMARILY FORMER LAW CLERKS.
THEY SPENT CONSIDERABLE TIME WITH US.
MET WITH US IN THREE OUT OF THE FOUR FACE-TO-FACE MEETINGS, AND
WE ADOPTED VIRTUALLY ALL OF THE RECOMMENDATIONS THEY GAVE US.
WE WERE INFORMED BY THE LONGITUDINAL STUDY THAT THE EOC
DID IN 2017, AND THE FINDINGS THAT THEY MADE ABOUT WERE A
PLACE OF COP DUCT, AND SOME OF THE FACTORS THAT LEADS TO SEXUAL
HARASSMENT IN MUCH WORKPLACE, AND THE FACT THAT THERE WAS
UNDER REPORTING FROM THESE WORKPLACES.
WE HEARD FROM A REPRESENTATIVE GROUP OF EMPLOYEES THAT WAS
COMPOSEED OF CLERK SEPARATIONS FOLKS AND PROBATION FOLKS AND TO
RECEIVE THEIR INPUT. AND THEN THE E-MAIL BOX THAT
SATISFIED MORE THAN 200 PEOPLE
TOOK ADVANTAGE OF THAT OPPORTUNITY.
WE CAME AWAY WITH THE SENSE THAT WE DID HEAR ABOUT INSTANCES OF
HARASSMENT AND DISCRIMINATION. WE HEARD, WHO IT TOOK AM OF THE
MAILBOX, IT IS BEHAVE THAT WE COULD CHARACTERIZEED A BULLYING
OR LACK OF RESPECT, WHICH IS TROUBLESOME PROBLEMS AS WELL.
WE CAME TO A WORKPLACE OF MULTI BULL BULL AM DISRESPECT.
WE HAD COURT UNION ANDIC WE
HEARD FROM A LOT OF KNOCKS IF .
SO WITH ISSUEED A REPORT OF 5 RECOMMENDATIONS.
FROM THE OUTSET WE KNEW THAT OUR CHARGE WAS TO MAKE
RECOMMENDATIONS. WE DID NOT SEPARATE WITHIN THE
GOVERNANCE STRUCTURE, OF COURSE IT ARE SOME REMAINDATIONS THAT
HAVE BEEN FUN IFED AND DOESN’T? WILL THE IN JUST SAY FROM THE
OUTSET THAT WE THANK BOTH OF YOUR COMMITTEES FOR YOURING IT
IN PRO TOING. AND CHANGES TO THE CODE OF
CONDUCT AND RULES. I’M NOT PREPARED TO SPEAK TO
SPECIFIC LANGUAGE. THE WORKING GROUP HAS NOT IN THE
THE. AM NUMBER I HOPE THAT I CAN AT
LEAST FORM YOUR DELIBERATIONS AND ANSWERING ANY QUESTIONS THAT
YOU MAY HAVE ABOUT OUR PROCESS, WHAT OUR UNDER LAYS ARE, OUR
PROM FAG .
CENTERED AROUND FOUR KEY AREAS. FIRST, WITH RED SOXED. NUMBER HAVE A DUTY TO ONE
ANOTHER TO INSURE AND MAINTAIN AN E EVERY RATHER WORKPLACE, AND
THAT’S A HEALTHY WORKPLACE FREE OF ANY MISCONDUCT OF ANY SORT.
WHETHER IT’S EGREGIOUS OR JUST
HUP AGREEMENT AS WITH. AM AND BECAUSE THE CONDUCT FOR
OTHERS EMPLOYEES SHOULD CLARIFY AND MAKE CLEAR THAT WE HAVE SUCH
AN AFFIRMATIVE DUTY. AS JUDGES, AND AS JUDGES ON
WORKPLACE CONDUCT GROUP WE’VE BEEN GOING OUT AND TALKING TO
EMPLOYEE GROUPS AND STRESSING THE FACT THAT EMPLOYEES HAVE AN
OBLIGATION. NO MATTER WHAT THE ROLE, NO
MATTER WHAT THEIR TYPES ARE HOOK HOOK–TO.
PI STAND NUMBER IS IT COP DOESN’T THAT WITH SETTLEMENT WE
HAVE THAT DUTY AND AN OBLIGATION TO MODEL THAT FOR OUR OTHER
EMPLOYEES. WE RECOMMENDED THAT THERE BE
CLARIFYING LANGUAGE AS WELL AS ADDITION GUIDANCE, JUDGES AS
WELL AS OTHER EMPLOYEES HOW GOOD AND DEALLING WITH MISCONDUCT,
WHETHER IT’S THE EDR PROCESS. AND GUIDANCE OF WHAT INSTITUTES
MISCONDUCT .
CERTAINLY TERMS SUCH AS MIS MISCONDUCT TO AM .
BE SUNSHINE T BE IT BALM CARRY TO NUMBER AND WE ARE NEED OF
MORE GUIDANCE, AND WHETHER THAT’S IN THE COMMENTARY OR THE
RULES, OR GUIDANCE IN THE FORM OF TRAINING, WE CAN ALL BENEFIT
WHEN WE ALL KNOW WHAT OUR ROLE IS IN THE JUDICIAL.
THEY’VE ALREADY DEVELOPED NEW TRAINING FOR ALL GREW IN THE
WORK SHOTS. TOMORROWS FOCUS ON HUGE TRAINING
AS WELL AS THOSE WHO HAVE BEEN IN THE SYSTEM FOR A WHILE.
WITH NEEDED TO TRAIT .
SETTLEMENT. AND ACCOUNTABILITY.
ALTHOUGH WE DID NOT START OUR WORK WITH SOME LONGITUDINAL
STUDY, WE RECOMMENDED THAT OUR INSTITUTION CONTINUEED TO DO
SYSTEMIC RULES. WHEN WE DONE AM NO MATTER WHAT
THE OUT? OF A TESTAMENT SO TO STRENGTHEN
OUR INSTITUTION. IDENTIFY PROBLEMS SO WE CAN
PREVENT SUCH PROBLEMS FROM HAPPENING AGAIN.
SO WE MADE A NUMBER OF RECOMMENDATIONS AROUND THAT, AS
WELL AS RECOMMENDATIONS FAMILIAR
FAMILIAR. AND MAKING THAT RECOMMENDATION
WHEN 2 IS APPROPRIATE. SO THANK YOU.
I KNOW YOU ALL HAVE BEEN HARD AT WORK FOR THE PROPOSED RULES.
I TO .
>>THANK YOU VERY MUCH. THE JOB THAT WAS DONE BY THE
WORKING GROUP WAS EXTRAORDINARY. AND PROVIDED A GREAT WHERE YOU
BREW FROM OF COURSE, THERE WERE
OTHER MATTERS BEING BELTEL WELL
FIVE-DAY FORECAST ARE THERE ANY COMMENTS OR QUESTIONS FOR CHEECH
CHIEF JUDGE? THIS IS SARAH BARKER.
YOU KNOW THIS WILL BE A SOFTBALL QUESTION.
ONE OF THE PROPOSALS THAT WAS MADE BY ONE OF THE PRESENTERS
THIS MORNING TO THE COMMITTEE THAT THERE MIGHT BE A ROLE, A
CONTINUEING ROLE FOR A WORKING GROUP STRUCTURE THAT SORT OF
OPERATES WITHOUT REGARD TO SILOS WITHIN THE JUDICIAL THE
JUDICIARY, TO MAINTAIN SORT OF A CONTINUEING WATCH OVER THESE
ISSUES, TO SEE WHAT OUR. BASED ON YOUR WORK COULD YOU
FORESEE SUCH A CONTINUEING ROLE FOR SUCH A BODY?
>>I COULD. I SHOULD SAY THAT WE HAVE NOT
MET AS A BODY SINCE WE ISSUEED OUR REPORT IN EARLY NINE, BUT
WE’RE UNDERSTANDING. THAT WE UNDER THAT OUR ROLE IS
NOT PINNED ABOUT I DON’T KNOW IF WE CLEARLY DEFINED WHAT WE’RE
GOING TO GO GOING. OF BEING A BODY THAT CONTINUES
TO MONITOR SETTLED AS WELL AND
TO HAVE YOUR SUPPORT WITHIN YOUR COMMUNITY AND OTHER COMMUNITYIES
IN THE GOVERNMENT STRUCTURE.>>GOOD AFTERNOON, HOW ARE YOU?
>>GOOD, I WAS INTERESTED IN YOUR COMMENT THAT THE E-MAIL BOX
THAT THE WORKMAN GROUP OPENED HAVE RECEIVED A NUMBER OF
COMMENT ABOUT CIVIL YOU DID AND
YOU SUGGEST HAD A THIS WERE MORE PROBLEMS OF BULLY AND INFIDELITY
YOURSELF.>>CORRECT, CORRECT, HAD A IS AM
AM. WHAT DO WE DO WITH THAT?
THAT IS BEYOND THE SCOPE OF OUR CHARTER, WHAT WAS THE REACTION
OF THE WORKING GROUP?>>THAT WAS OUR REACTION TO MIS
MISCONDUCT, TOO. IT MAY NOT BE CONDUCT THAT
SOMEONE WANTS TO PURSUE. WHAT WE HEARD REPEATEDLY WAS WE
HAVE THESE TWO STRUCTURES FOR PEOPLE WHO SEEK RELIEF OR ACTION
ACTION, BUT SOMETIMES, PARTICULARLY IN A PEER-TO-PEER
SITUATION, OR LESS LESS EGREGIOUS
SITUATION, SOMETIMES IT’S BETTER HANDLEED INFORMALLY.
PEOPLE DON’T NECESSARILY WANT TO FILE COMPLAINTS BUT THEY WANT
THE CONDUCT ADDRESSED BECAUSE IT’S DISTRACTING THEM AND AFFECT
AFFECTING THEIR ABILITIES TO WORK.
AND SO YOU KNOW, AMONG THE RECOMMENDATIONS THAT WE FIND
MORE INFORMAL AVENUES FOR THIS. ONE OF THE RECOMMENDATIONS FOUND
ITS WAY THROUGH THE OFFICE OF JUDICIAL INTEGRITY.
PEOPLE CAN CALL AND REPORT, BUT ALSO GET COACHING AND ADVISE.
AND WE REQUEST THAT SIMILAR SITUATIONS BE.
ACROSS COO. ON A MOP.
NOW VERY EYE AGREE JUSTICE CONDUCT–
JUSTICE–EGREGIOUS CONDUCT, THEN THEY’LL HAVE TO FIND A WAY OR A
PLACE WHERE PEOPLE FEEL COMFORTABLE REPORTING THAT OR
DISCUSSING IT SO THEY KNOW HOW TO ADDRESS IT THEMSELVES.
>>HOW DOES ONE DEFINE BELIEVE ING
OR LACK OF CIVILITY IN THE WORKPLACE SUCH THAT IT RISES TO
THE LEVEL OF MISCONDUCT? DO YOU WANT TO GRAPPLE WITH THAT
AT ALL?>>WE DID NOT TALK ABOUT THE
DEFINITION. I THINK IT WAS CLEAR TO US THAT
WHEN PEOPLE TALKED ABOUT HUMILIATEED, BEING YELLLED AT, I
THINK WE HAVE ALL LIFE EXPERIENCE HAVING GONE TO SCHOOL
AND HAVING GROWN UP IN SITUATION WHERE IS WE’RE EITHER BULLIED OR
WE’VE SEEN OTHER BEING BULLIED. AND IT’S DIFFERENT IN A
WORKPLACE, BUT SOME OF THOSE CONDUCTS ARE THE SAME.
WHETHER THEY’RE ON THE SCHOOLYARD OR IN THE WORKPLACE.>>OTHER QUESTIONS OR COMMENTS?>>IT IS MY UNDERSTANDING THAT
THE WORKING GROUP WILL BE LOOKING AT THESE PROPOSALS.
AM I CORRECT ABOUT THAT?>>I’M SORRY, YOU’RE CUTTING OUT
OUT.>>SORRY.
IT IS MY UNDERSTANDING THAT THE WORKING GROUP WILL CONTINUE TO
LOOK AT THESE PROPOSALS FROM THE CODE OF CONDUCT COMMITTEE, AND
FROM THE CONDUCT AND DISABILITY COMMITTEE, AM I CORRECT ON THAT?>>THAT’S CORRECT.
WE’RE MEETING NOVEMBER 5TH, AND I’M SURE WE’RE GOING TO BE
DISCUSSING THAT, AND WE’LL PROVIDE YOU INPUT.
WE WANT TO BE A RESOURCE AND A SUPPORT TO YOU.
AS YOU GO ABOUT YOUR WORK, YES.>>THANK YOU.
WE WOULD WELCOME THAT VERY MUCH. YOU’VE DONE A TREMENDOUS JOB,
AND YOU HAVE WONDERFUL INSTITUTIONAL KNOWLEDGE THAT
WILL BE VERY HELPFUL TO ALL THE COMMITTEES.
>>JUDGE, I WOULD LIKE TO THANK YOU AND ECHO THAT, AND SAY THANK
YOU VERY MUCH FOR THE WORK THAT THE WORKING GROUP HAS DONE.
YOU’VE ALWAYS BEEN A GREAT BENEFIT TO THE CODES OF CONDUCT
COMMITTEE. WE LOOK FORWARD TO WORKING WITH
YOU AND YOUR GROUP BASS BECAUSE THESE ARE IMPORTANT ISSUES, AND
I THINK THEY CAN MAKE A GREAT DEAL OF PROGRESS WITH EACH OF
THE COMMITTEES AND THE WORKING GROUP WORKING TOGETHER.
SO THANK YOU. WE APPRECIATE YOUR EFFORTS.
>>THANK YOU AS WELL. WE APPRECIATE YOUR WORK.
>>THANK YOU VERY MUCH FOR DOING THIS. HAVE A GOOD DAY.
>>ALL RIGHT, THANK YOU, I’LL DISCONNECT.
>>YES, THANK YOU.>>INIAL HEARING LIKE THIS, WHEN
WE’RE FINISHED WITH THE CONSTITUTIONAL WITNESSES WHO
WERE BASICALLY SOME PRESENTED SOME TESTIMONY, AND OPEN OF
THOSE GROUPS WERE GIVEN AT A MINIMUM 15 MINUTES PER PERSON.
THAT’S WHY THEY’VE BEEN GOING LONGER.
AT THIS POINT WE’RE GOING TO MOVE INTO THE PUBLIC WITNESSES,
THOSE ARE PEOPLE WHO REQUESTED THE OPPORTUNITY TO BE HEARD AT
THIS HEARING, AND WE LIMITED EACH OF YOU TO FIVE MINUTES.
I KNOW THAT SEEMS TERRIBLY, TERRIBLY UNFAIR.
THE RESULT OF IT IS THAT WE’VE GOT 14 WINSS TO HEAR FROM.
WE HAVE PEOPLE WHO HAVE TO CATCH FLIGHTS, BOTH WHO ARE WITNESSES
AND JUDGES ON THE PANEL, SO WE’RE STUCK WITH THE TIME FRAME
THAT WE HAVE. AND SO, WE’LL CALL THE VERY
FIRST PUBLIC WITNESS, AND AS HE COMES UP, THERE IS JUST ONE
THING THAT I WANT TO TALK A LITTLE BIT ABOUT.
THOSE WHO ARE LAWYERS, ARE WELL AWARE OF THE LIGHT PHENOMENON.
WE’RE GOING TO TURN ON THIS TIME TIMER THAT HAS LIGHTS ON IT.
IT’S GOING TO HAVE LIGHTS ON IT, AND IT WILL TURN YELLOW AT ONE
MINUTE. IS THAT TRUE?
OKAY, WE’LL TRY TO HOLD PEOPLE TO THE ALLOTTED TIME SO WE CAN
GET ALL 14 OF THE WITNESSES ON AND OFF EXPEDITIOUSLY AND WE CAN
ALL CATCH THE FLIGHTS WE GOT TO CATCH.
ONE LAST THING. IF I GIVE YOU A MINUTE TO WIND
UP, FEEL FREE TO TAKE THAT MINUTE TO WIND UP, THAT’S FINE.
BUT DON’T TAKE AN EXTRA FIVE BECAUSE THAT WILL CREATE
PROBLEMS FOR US. ONE LAST THING, YEAH, AS I SAID
AT THE VERY BEGINNING, THIS IS NOT A FACT FINDING HAMMERING A
LOT OF EVIDENCE PRESENTED TO US HAS A LOT OF FACTS.
WE’RE VERY INTERESTED IN IT. WITH SOME COGENTCY AND SOME IS.
CONVINCING STATEMENTS PROPOSED THE STATEMENTS .
>>ONE THING I WOULD HIKE TO ADDRESS, FIRST OF ALL, TO
ADDRESS MYSELF AND TELL THE COMMITTEE WHO I’M SPEAKING FOR.
IT’S A GREAT PLEASURE TO BE ADDRESSING YOU IN THIS ROOM.
I’M SPEAKING NOT ONLY ON BEHALF OF MYSELF, BUT RALPH MECHAM, THE
PERSON FOR WHOM THIS ROOM IS NAMED FOR.
OUR INTEREST IN THESE PARTICULAR PROCEEDINGS ARRIVE FROM THE FACT
THAT WE’VE ATTEMPTED TO BRING TO
WORKPLACE VIOLATION.
AND IT WAS A COMPLETE FAILURE. THE WITHIN THAT IT WAS A FAILURE
FAILURE, NOT FOR THE RULES IN PLACE, BUT THOSE WHO HANDLEED
THE MATTER, ESSENTIALLY DECIDEED
INSTEAD OF DOING A GOOD FAITH INVESTIGATION OF JUDGE KAZINKY’S
ETHICS DECIDEED TO FOCUS ON IN FACT
AS AN INSTITUTIONAL MATTER. THE EXPERT RECOMMEND
RECOMMENDATION AND SOME OF THE PROBLEMS THAT OCCUR
IN THE ACTUAL HANDLEING OF THE DISCIPLINARY PROCESS.
AND IT’S A GREATER DIFFICULTY. PART OF WHAT HAPPENED IN THIS
PROCESS THAT WE JUST LEARNED FROM THE WORKING GROUP WE JUST
SPOKE, THEY WERE NOT INTERESTED IN LOOKING AT THE ACTUAL INCIDENTS AND HISTORY OF PAST
MISCONDUCT THAT SET THIS OFF THE FACT THAT JUDGE ALEX KOZINSKI
SPENT TWO DECADES OF SEXUALLY HARASSING EMPLOYEES AND
ESSENTIALLY IN PUBLISH, AND WAS CONSISTENTLY PROTECTED BY THE
NINTH CIRCUIT COUNCIL CIRCUIT COUNSEL AND THIRD
CIRCUIT COUNSEL. [INAUDIBLE STATEMENTS]
>>WE CAN TALK ABOUT THE PROBLEM PROBLEM.
THE PROBLEM IS RULE FOUR.>>LET’S TALK ABOUT RULE FOUR.
>>ONE OF THE THINGS THAT WE LEARNED FROM OTHER EXPERIENCES
AND AREAS THAT HAD THESE PROBLEMS THAT WERE OPEN. POEM WHO WERE RESPONSEIBLE FOR
ENFORCEING DISCIPLINE HAD NO RESPONSIBILITY IF THIS THEY FAILED TO
DO SO. THIS WAS THE CASE AT JOE PATERNO
AND THE CATHOLIC CHURCH. THE BOTTOM LINE THE PROCESS OF
BRINGING YOUR COLLEAGUES TO ACCOUNT IS ENORMOUSLY DIFFICULT
BECAUSE NO ONE WANTS TO HAVE THE PUBLICITY ASSOCIATED WITH HAVING
TO SHOW A SCANDAL IN THE RANKS PARTICULARLY WHEN THE PEOPLE
INVOLVED ARE VERY HIGHLY PLACED OR IN VERY POWERFUL POSITIONS.
RULE FOUR ESSENTIALLY MAKES IT IMPOSSIBLE TO HOLD TO ACCOUNT
JUDGES WHO HAVE REFUSED TO TAKE RESPONSIBILITY OF ACTING AS A
CHIEF JUDGE OR MEMBER OF JUDICIAL COUNCIL TO ENFORCE THE
RULE. SO AS LONG AS YOU HAVE–
>>HOW WOULD YOU SUGGEST THAT WE COULD AMEND RULE FOUR SO THAT IT
WOULD HOLD PEOPLE TO ACCOUNT?>>THE PROBLEM WITH RULE FOUR IS
VERY SIMPLE. SOMEBODY DECIDEED TO DO A
COMMENTARY AND SAY ADMINISTRATIVE ACTIONS FALL
UNDER THE STATUTORY EXEMPTION OF DECISIONS THAT WERE PUT IN
PROGRESS FOR VERY GOOD REASON. CONGRESS DIDN’T WANT THE
JUDICIAL MISCONDUCT SYSTEM TO BE A SECONDARY MECHANISM FOR
LITIGATING APPEALS. THAT’S THE WHOLE POINT OF IT.
YOU TAKE YOUR APPEALS ON ON THE MERITS, THAT THERE IS SOMETHING
THAT IS NOT RELATEED TO THE MERITS THAT IS A PROBLEM WITH
THE JUDGE, THEN YOU GET RACED UP THE INCLUDEED
IN THAT EXEMPTION. THAT’S PREPOSTEROUS.
THERE IS NOTHING THAT THESE TYPES OF ACTIONS SHOULD BE
EXEMPT.>>YOUR TIME IS EXPIRED.
DO YOU NEED A MINUTE TO SUM UP?>>THE BOTTOM LINE IS THAT AS
LONG AS THERE IS NO INCENTIVE OR MECHANISM FOR JUDGES TO BE HELD
TO ACCOUNT FOR EITHER REFUSING TO ENFORCE JUDICIAL DISCIPLINE,
OR COVERING THE MATTER UP, THEN YOU CAN’T, NO MATTER HOW GOOD
THE RULES LOOK IN ABSTRACT, THERE IS HISTORY TELLS US THAT
THEY’RE NEVER GOING TO BE ENFORCEED PROPERTY.
AND THERE IS NOTHING IN THE LOGIC OR LANGUAGE OF THE
JUDICIARY STATUTE THAT FORCES US TO MAKE THAT EXEMPTION.
AND THEN THAT OTHER, ALL EXAMPLE EXAMPLES OF NON-TRIVIAL YAM
ISSUES OF MISCONDUCT SHOULD REQUIRE THAT THE JUDGES ARE
BECOME AWARE OF IT, FIRE MUCH DISCIPLINARY REPORTS.
OTHERWISE YOU CAN’T DRAW THAT LINE AS PHYSIQUESIVELY PI SAYING
SAYING, YEAH, I DID TALK TO THE
GUY AT LUNCH AND TOLD HIM TO KNOCK IT OFF.
>>THANK YOU.>>THE JEST OF YOUR PROMISE FOR
COMMANDING YOU WILL RULE 4 ON PAGE NINE, THAN THOSE .
>>I THINK THE ANSWER IS WHY WE NO.
>>I DON’T HAVE A PAGE NUMBER.>>THE IS THE I DO NUMBER I DID
NOT HAVE TIME TO MAKE A NUMERICAL .
>>Mario: THE LIKE SOME OF THE ACADEMYICS DID, BUT WE AND YOU
WILL MUCH AND REALLY APPRECIATE
APPRECIATING THE COMMENTARY.>>I WAS ASKING YOU TO AM DIRECT
BE PHYSIQUE THANK YOU.
[.>>ONE LAST THING AS I INDICATE
ED EARLIER, THE RECORD WILL BE HELD
OPEN UNTIL NOVEMBER 13TH. IF YOU HAVE ANY ADDITIONAL
COMMENTS TO FILE IN WRITEING, PLEASE SEND THEM OUR WAY.>>WE’LL LOOK AT WHERE WE AGREE
AND DISAGREE WITH SOME OF THE OTHERS
OTHERS.>>OKAY, THANK YOU.>>YES, THE NEXT PANEL IS PANEL
6, WHICH ARE FOUR STUDENTS FROM YALE, ANDY, BOY, YOU’RE GOING TO
HAVE TO HELP ME WITH YOUR LAST NAME, ANDY.>>ANDY DeGUGLIELMO.
AND YOU’RE GOING FIRST?
>>I AM. THANK YOU.
AND GOOD AFTERNOON. MY NAME IS ANDREW DeGUGLIELMO.
I’M A FIRST-YEAR LAW STUDENT AT YALE LAW SCHOOL.
THOSE SITTING WITH ME ARE PART OF A GROUP OF 50 DRAFTING
COMMENTS FOR THE PROPOSED CHANGES FOR THE CODE OF CONDUCT
AND DISABILITY RULES. THANK YOU FOR THE ABILITY TO
TALK ABOUT THIS. WE BELIEVE THAT WE HAVE A
PARTICULAR RESPONSE TO SHAPE PROFESSIONALISM IN THE WORKPLACE
WORKPLACE. WE OFFER THE PERSPECTIVE OF
FUTURE LAW CLERKS. THE UNIQUE FEATURES OF THE JUDGE
JUDGE-CLERK RELATIONSHIP. WE DIRECT MANY OF OUR DIRECTIONS
TOWARDS THE SPECIAL CHALLENGES THAT THIS RELATIONSHIP POSE
FORCE CREATE AGRICULTURE OF REPORTING AND RECOGNIZING THERE
ARE OVER 30,000 JUDICIAL EMPLOYEES WHO HAVE DIFFERENT
NEEDS. THERE ARE SEVERAL ASPECTS OF THE
RULES RANGEING FROM REPORTING CHANNELS TO DISCIPLINARY ACTION.
MY TESTIMONY FOCUSES ON THE NEED FOR THE REPORTING.
THERE IS A NEED FOR MORE CHANNEL CHANNELS OF REPORTING.
WE FIND THAT THE REPORTING CHANNELS SEEM QUITE RIGID.
THE CHIEF JUDGE REPRESENTS THE ONLY AVENUE TO WHICH A COMPLAINT
CAN BE RECEIVED. THIS DISINCENTIVIZES THE
REPORTING TO THAT CIRCUIT. IN 2016 NOT A SINGLE MISCONDUCT
COMPLAINT WAS FILED BY LAW CLERKS OR JUDICIARY EMPLOYEES
UNDER THE JUDICIAL CONDUCT AND DISABILITY ACT.
WE ASK FOR CREATION OF CHANNELS
OR AVENUES. RULE 5- 5, 11, 25, 26, THEY INSURE
THAT THE CHIEF JUDGE PLAYS AN UN UNAVOIDABLE CENTRAL ROLE WHILE
HOLDING A DEGREE OF THE OUTCOME. IF A COMPLAINANT HAS REASON TO
BELIEVE THAT THERE IS A FRIENDSHIP TOWARDS THE AGGRIEVED
JUDGE, THAT THEY MAY FIND THE COMPLAINT AS A FUTILE ENDEAVOR.
WE SUGGEST THAT THE COMPLAINANT HAS THE OPTION OF SUBMITTING THE A
THREE-JUDGE REPORTING CHANNEL. THAT WOULD PROVIDE A CHECK ON
DISCRETIONARY PIECES. WE ASK THAT THE RULES BE ALLOWED
TO FOR COMPLAINTS TO BE DIRECTED TO
THE MOST CHIEF JUDGE .
THESE TWO ALTERNATIVE REPORTING CHANNELS ALLOW COMFORT AND
INSURANCES THAT HIS OR HER COMPLAINT WILL BE PROPERLY
ADDRESSED. 2 WILL PRESERVE THE INTEGRITY OF
THE PROCEEDINGS AND MITIGATING FOR DISCRETIONARY VIEWS. WE SUGGEST THAT COMPLAINANTS BE
ABLE TO REQUEST TRANSFER OF THEIR PROCEEDINGS IF THEY HAVE
REASON TO BELIEVE THAT THEIR COMPLAINT WILL NOT BE PROPERLY
ADDRESSED IN THE ORIGINAL CIRCUIT.
RULE FIVE BE ENABLEED ANY CIRCUIT
JUDGE THE COMPLAINT THAT THEY FIND INFORMATION NOT ONLY THE
CHIEF JUDGE. THE FLEXIBILITY OF THE CREATION
OF THE REPORTING CHANNELS AND BY DISINCENTIVIZEING THE FILEING
COMPLAINTS THE PROCEEDING RECOMMENDATION STAND TO ROLE
SYSTEM AS A WHOLE. THANK YOU FOR YOUR TIME AND
ATTENTION.>>THANK YOU VERY MUCH.
ARE YOU READY TO GO AHEAD? AND THEN WE’LL HAVE QUESTIONS
AFTER.>>GOOD AFTERNOON.
MY NAME IS RITA GILLES, AND I’M A SECOND YEAR STUDENT AT YALE
LAW SCHOOL. I’M OFFERING MY TESTIMONY ON
BEHALF OF THE WORKING GROUP THAT YOU JUST HEARD MY PEER DESCRIBE.
MY TESTIMONY TODAY WILL FOCUS SPECIFICALLY ON THE MISCONDUCT
AND DISABILITY RULE 23 B 8.
THIS RULE IS A STEP FORWARD IN IN
THE RIGHT DIRECTION ADDRESSING A CHALLENGE NOTEED BY THE BREYER
COMMITTEE IN 2006. INFORMAL OPPORTUNITY, THIS NEW
RULE HAS THE POTENTIAL TO SIGNIFICANTLY SUGGEST THE IN
INFORMALITY THAT CURRENT CHARACTERIZES THE JUDICIARY’S
RESPONSE IN COMPLAINTS OF JUDICIAL MISCONDUCT.
THE FIRST I’LL FOCUS ON WHEN WHEN THE
REQUIREMENT TO REPORT TO OUTSIDE ENTITYIES IS TRIGGERED.
RIGHT NOW THE RESULT HAS BENCHMARKS OF WHEN AND HOW
BEHAVIOR SUCH AS SEXUAL HARASSMENT RISES TO A LEVEL THAT
WARRANTS REPORT TO GO OUTSIDE ENTITYIES.
THE ABSENCE OF SUCH CAN SPECIFIC EXAMPLES ABOUT WHEN THIS TYPE OF
BEHAVIOR MUST BE DISCLOSED TO OUTSIDE ASSOCIATIONS SUCH AS
STATE BAR ASSOCIATIONS. THE ANALOGY OF THIS BEHAVIOR IS
APPROPRIATE, THIS BEHAVIOR IS APPROPRIATE, AND THIS BEHAVIOR
IS FAR BEYOND THE BOUNDS OF APPROPRIATE.
WE THINK THAT SCENARIOS MIGHT BE INCLUDEED TO PROVIDE BENCHMARKS
SO THAT JUDGES WHEN COMPLAINTS OF HARASSMENT AND DISCRIMINATION
HAVE CLEAR EXAMPLES. ALL THAT SAID, OUR RESEARCH
SUGGESTS THAT TO DATE STATE BAR ASSOCIATIONS NEVER ONCE ISSUEED
FORMAL SANCTIONS. IN THE ABSENCE OF FORMAL
SANCTIONS AGAINST JUDICIAL MIS MISCONDUCT.
LAW STUDENTS AND CLERK MAY NEVER LODGE COMPLAINTS AGAINST FUTURE
BOSSES EVEN WHEN COMPLAINTS ARE CREDIBLE.
THIS BRINGS THE NEXT EVENT I WANT TO FOCUS ON.
THE NEED TO PROVIDE TO THE ENTITYIES, LAW SCHOOLS.
THE LAW SCHOOLS AND JUDICIARY HAVE CLOSE WORKING RELATIONSHIP.
WHEN IT COMES TO CLERKSHIP STUDENTS TRUST FACULTY TO PLACE
THEM IN ENVIRONMENTS FREE OF HARASSMENTS AND FACULTY NEEDS TO
KNOW ABOUT THE MISCONDUCT TO UPHOLD THAT.
IN THAT WE PROPOSE THE FOLLOWING FOLLOWING, IF THE COMMITTEE
CONSIDER ALSO INCLUDEING LAW SCHOOLS IN THE REPORTING
REQUIREMENTS OF THE 23 B 8 AS A SET OF REPORTING REQUIREMENTS.
WHEN IT COMES TO CLERKSHIPS, LAW SCHOOLS HAVE AN OBLIGATION FOR
INFORMATION TO BE SHARED ACROSS THESE INSTITUTIONS IN THE
INTEREST OF ALL. WE THEREFORE RECOMMEND THAT LAW
SCHOOLS BE ADD ADDED AS GIVERS AND
RECEIVERS IN THIS INFORMATION OF NEED WHACK LOOP.
I CAN PERSONALLY ATTEST THAT DEVELOPING CHANNELS FROM MY OWN
SCHOOL AND JUDICIARY WOULD GO A LONG WAY OF BROKEN TRUST OF .
ALTHOUGH DEVELOPING THESE REQUIREMENTS, IT IS DIFFICULT TO
DO CONSISTENT WITH CONFIDENTIAL CONFIDENTIALITY, WE BELIEVE THAT
THIS POSES SERIOUS CONSIDERATION AND LAW SCHOOLS WOULD STRONGLY
IN FAVOR OF SUCH A SYSTEM. IN CONCLUSION, RULE 23 B 8 IS A
CRITICAL STEP TOWARDS MAKING THE JUDICIARY A MORE FAIR, EQUITABLE
EQUITABLE, AND SAFE PLACE FOR ALL.
WE PROPOSE TWO WAYS TO STRENGTHEN THAT FURTHER.
FIRST, PROVIDING EXAMPLES OF ONE HARASSMENT AND MISBEHAVIOR DIS
DISCLAIRE DISCLOSURE UNDER RULE 23 B 8 AND SECOND, ADDING LAW
SCHOOLS TO THE REST OF OUTSIDE ENTITYIES THAT RECEIVE THAT
INFORMATION. WE BELIEVE THESE PROVISIONS WILL
BETTER ENABLE OUR OUTSIDE INSTITUTIONS TO TAKE APPROPRIATE
ACTION IN RESPONSE TO SERIOUS JUDICIAL MISCONDUCT.
THANK YOU FOR YOUR TIME AND CONSIDERATION.
>>THANK YOU, MS. GILLES.>>MY NAME IS, I’M A FIRST YEAR
LAW SCHOOL AT YALE LAW SCHOOL. STUDENT AT YALE LAW SCHOOL. I WILL TESTIFY TO THE STEPS THAT
CAN BE TAKEN. CREATE A CENTRALIZEED OFFICE
DEDICATEED TO DRESSING JUDICIAL MISCONDUCT.
I APPLAUD THE CONFERENCES COMMITMENT TO CREATING A HEALTHY
ENVIRONMENT IN WHICH ALL JUDICIAL EMPLOYEES CAN BRING
THEMSELVES TO WORK EVERY DAY. BUT TO ACHIEVE THIS, WE BELIEVE
THE CONFERENCE MUST GO BEYOND IT’S PROPOSED AMENDMENT.
JUDICIAL EMPLOYEES COMPLAINTS IN 2016 SYSTEM FROM
TWO FLAWS NOT YET ADDRESSED BY THIS
CONFERENCE. FIRSTLY, THE LACK OF REPORTING
AVENUES OUTSIDE OF THE CHIEF JUDGE.
SECONDLY, THE REPORTING PROCESSES.
WE RECOMMEND THAT THE CONFERENCE TACKLE THESE ROOT CAUSES HEAD ON
BY ESTABLISHING A CENTRALIZEED OFFICE DEDICATEED TO ADDRESSING
INTERNAL COMPLAINTS OF JUDICIAL MISCONDUCT.
AND AS OTHERS WERE MENTIONED, THE WORKING GROUPS RECOMMEND THE
CREATION OF AN OFFICE LIKE THIS. AND IT IS THE OFFICE OF
INTEGRITY. SUCH AN OFFICE WOULD RESEMBLE
THE CONSTITUTIONAL COMPLIANCE STRUCTURES THAT HAVE SEEN
UNIVERSITYIES DEVELOP IN THE TITLE 9 CONTEXT.
IT IS BASED ON THE LESSONS THAT WE LEARNED FROM THAT CONTEXT
THAT I WOULD LIKE TO I WILLLOUS STRAYS THE THREE CRITICAL
FUNCTIONS WE HOPE THAT THIS OFFICE WOULD PERFORM.
FIRSTLY, THEY COULD ADDRESS THE CONFLICT OF INTEREST BY CREATING
AN ADDITIONAL REPORTING CHANNEL EXTERNAL TO THE CHIEF JUDGE.
AS YOU HEARD THIS MORNING, REPORTING THE CHIEF JUDGE MAY BE
A WELCOME OPTION FOR SOME, BUT FOR SOME IT IS NOT ONE THAT
WOULD BE COMFORTABLE. TO THAT END WE RECOMMEND THAT
THE CENTRAL OFFICE PROVIDE AN ALTERNATIVE REPORTING.
STRUCTURE FOR ALL JUDICIAL EMPLOYEES.
THIS CHANNEL COULD FUNCTION, THE OFFICER COULD BE PLACED IN EACH
CIRCUIT FOR EMPLOYEES TO COMFORTABLY REPORT TO AND
TRANSFER INFORMATION BACK TO THE CENTRAL OFFICE.
THE NINTH CIRCUIT PILOTING THE SAME PROGRAM THAT THIS OFFICE
CAN LEARN FROM AND BUILD ON. IT COULD PRODUCE BARRIERS BY
ESTABLISHING THE STANDARDIZEED SYSTEM TO RECEIVE INFORMAL
REPORTS FROM A RANGE OF STAKE HOLDERS.
IT ACKNOWLEDGES THAT THE REPORTING PROCESSES SIMPLY
AREN’T WELL SUITED TO ADDRESSING ALL FORMS OF WORKPLACE MIS
MISCONDUCT, PARTICULARLY THOSE THAT FALL SHORT OF FLAT-OUT
ASSAULT, NEVERTHELESS CREATE AN UNPROFESSIONAL OR OTHERWISE WORKING ENVIRONMENT.
THEY MAY BE DISCOURAGED FROM REPORTING TO WHAT THEY SEE IS
LOW LEVEL HARASSMENT .
THEY COULD CREATE A SYSTEM TO CONFIDENTIALLY RECEIVE REPORTS.
THIS WOULD AGGREGATE REPORTS AND IDENTIFY PATTERNS OF MISCONDUCT.
BY RECEIVING MULTIPLE REPORTS AGAINST THE SAME INDIVIDUAL, THE
OFFICE COULD REACH OUT TO THE ORIGINAL COMPLAINANTS TO ASK
THEM WHETHER THEY WOULD LIKE TO PROCEED WITH A MORE FORMAL
COMPLAINT. WE’VE SEEN SYSTEMS OF THIS TYPE
PROVEN EFFECTIVE IN TACKLEING SEXUAL ABUSE ON COLLEGE CAMPUSES
CAMPUSES. WE’LL SHARE ADDITIONAL
INFORMATION IN OUR WRITTEN STATEMENTS AS WELL.
THIRDLY, THE OFFICE COULD INCREASE TRANSPARENTCY, RAISE
AWARENESS AROUND MISCONDUCT BY PERFORMING A DATA DATA COLLECTION AND
ASSESSMENT AND THIS WOULD TRACK THE EFFICIENTCY OF IT’S REFORM.
THE REPORT COULD CREATE CONDUCT AND ENCOURAGE THOSE WORKING ON
MISCONDUCT COMPLAINTS TO BE RESPONSIVE. LAW STUDENTS ACROSS THE COUNTRY
HAVE SIGNED A LETTER THAT DEVELOPING AN OFFICE LIKE I’VE
DESCRIBEED WOULD HELP TO REACH THESE GOALS.
WE RECOGNIZE THE SERIOUSNESS OF SEXUAL MISCONDUCTED AND FACING
THIS CHALLENGEING AHEAD ON. THANK YOU FOR YOUR TIME.>>HELLO, MY NAME IS .
CHANDINI JHA. I’M A FIRST YEAR LAW STUDENT AT
YALE LAW SCHOOL. WE KNOW THAT YOU SHARE OUR
CONCERN THAT SEXUAL HARASSMENT HAS NO PLACE IN THE JUDICIARY .
PROVIDING FAIRNESS AND ACCOUNTABILITY THROUGH THE
DISABILITY RULES. LIKE ANDY, I’LL BE TESTIFYING ON
THE REPORTING PROCESS. FIRST, I WOULD LIKE TO PROVIDE A
STUDENT PROSPECTIVE ON REPORTING REPORTING.
A CLERKSHIP IS AN EXCITEING FIRST
STEP INTO THE LEGAL COMMUNITY. STUDENTS ARE EAGER ABOUT THE
OPPORTUNITIES TO PARTICIPATE IN THE JUDICIAL PROCESS FROM THIS
PERSPECTIVE AS WELL AS RESULTING MEMBERSHIP AND EDUCATIONAL
OPPORTUNITIES. REPORTING HARASSMENT OR JUDICIAL
MISCONDUCT CARRIES WITH IT THE FEAR OF RETALIATION AND NEGATIVE
CHEER CHOICES CAREER CHOICES AND THIS
HAS A CHILLLING EFFECT. I WOULD LIKE TO POINT OUT THAT
THE BURDEN ON THIS FALLS UN UNEQUALLY ON SHOULDERS OF
CERTAIN GENDER, RACIAL OR CLASS IDENTITYIES.
AS STUDENTS AND POTENTIALLY FUTURE CLERKS WE FACE THIS
REALITY. I STRONGLY SUPPORT THIS
COMMITTEE’S WORK. I WOULD LIKE TO RESPECTFULLY
OFFER COMMENTS ON THE WORK. THE TIME FOR REPORTING SEEMS UN
UNCLEAR. WHY THE RULE SEEMS TO HAVE AN
OPEN WINDOW FOR REPORTING ANY TIME, WHICH WE THINK IS VERY
IMPORTANT, THE RESOLUTION PLAN HAS A 180 DAY LIMIT.
IT SEEMS NECESSARY TO CLARIFY HOW THESE TWO SETS OF GUIDELINES
WORK TOGETHER. LAW CLERKS AND OTHER EMPLOYEES
HAVE A CLEAR SET OF UNDERSTAND UNDERSTANDING AND CERTAINTY WITH
RESPECT TO HOW MUCH TIME THEY HAVE TO REPORT.
THE REPORTING WINDOW BE ADAPTED ADOPTED TO THE 180-DAY WINDOW.
GIVEN THE FEAR FOR RETALIATION AND THE IMPORTANCE OF JUDGE-
JUDGE-CLERK RELATIONSHIPS FOR FUTURE CAREER OPPORTUNITIES WE
THINK IT IS UNREALISTIC TO ASSUME THAT CLERKS WILL REPORT
DURING THE CLERKSHIP ITSELF. IN OUR VIEW, A REPORTING WINDOW
THAT IS INFINITE OR EXPANDS BEYOND THE ONE-YEAR LIMIT SEEMS
ESSENTIAL IN ENCOURAGEING FURTHER
REPORTING. TO KEEP VALUES OF REPORTING TIME
LINES I HOPE THE CONDITIONS FOR THE PRACTICALITY OF
INVESTIGATIONS UNDER RULE NINE WOULD ALSO BE INTERPRETED BROAD
BROADLY. THE RULES PROHIBIT RETALIATION
ONCE THE COMPLAINANT SUBMITS IT,
THE RETALIATION CAN HAVE A CHILL CHILLING EFFECT ON THE THE
PROCESS. FINALLY, I WOULD LIKE TO
EMPATHIZE WITH WHAT MY COLLEAGUE LISA SAID ABOUT THE NEED OF AN
OFFICE FOR REPORTING. CENTRALIZEING MORE OF THE
REPORTING PROCESS WOULD BETTER GUARANTEE STANDARD FAIR AND
EQUAL TREATMENT FOR ALL PARTIES INVOLVED IN THE PROCESS.
RATHER THAN REMOVING OVER SIGHT
IT SUPPLEMENTS OVERSIGHT.
THESE CHANGES WOULD PROVIDE AN CONSISTENT STANDARD OF OVER
SIGHT AND BENEFIT COMPLAINANTS AND INSURE THAT THE PROCESS WAS
FAIR TO THOSE ACCUSED OF JUDICIAL MISCONDUCT.
WE’RE NOT ASKING FOR A BURDEN SOME STRUCTURE BUT HAVE A PLACE
WHERE ALL OF THIS INFORMATION CAN BE CENTRALIZEED AND KEPT FOR
INSTITUTIONAL MEMORY. DATA CAN DISPLAY TO JUDICIAL
ACCOUNTABILITY. THIS COULD SHOW UNRESOLVEED AND
PENDING COMPLAINTS OVER A REASONABLE PERIOD OF TIME.
THIS WOULD INCENTIVIZE COMPLAINTS IN A RESPONSIVE
MANNER, AND FOR PEERS AND THE PUBLIC TO UNDERSTAND THAT
CIRCUITS ARE HOLDING THEMSELVES ACCOUNTABLE TO IMPORTANT LEVELS
OF ACCOUNTABILITY. THE DISTRICT COURT SIX MONTH
LIST PROVIDES AN ANALOG IN THIS CONTEST AND HAS BEEN WIDELY VIEW
VIEWED SUCCESSFUL. I THANK THE COMMITTEE FOR THEIR
CRITICAL WORK AND THIS OPPORTUNITY TO SPEAK.
>>THANK YOU,. I HAVE A QUESTION ABOUT THE
OFFENSE OF JUDICIAL INTEGRITY, AND PERHAPS MS. HANSMANN AND MS.
MS. JHA CAN HELP ME ON THIS. I THINK THIS THIS IS AN
EXCELLENT IDEA, AND WE’RE FAVORBLY FAVOR
BLY INCLINE INCLINED, AND IT WOULD BE
THROUGH THE ADMINISTRATIVE OFFICES RATHER THAN ONE OF THE
OFFICES HERE. AT WHAT POINT SHOULD A CHIEF
CIRCUIT JUDGE BE NOTIFIED OF A PROBLEM?
AND WHO WOULD BE DOING THE THE NOTIFICATION?
I’M TRYING TO THINK OF THE MECHANICS THAT WOULD GET THIS
INFORMATION AT THE PROPER TIME TO THE ONE INDIVIDUAL IN THE
CIRCUIT STRUCTURE WHO CAN DO SOMETHING ABOUT IT.
BY IDENTIFYING COMPLAINT OR TAKING SOME OTHER ACTION ON THAT
THAT? HAVE YOU THOUGHT ABOUT THAT AT
ALL? COULD YOU THINK ABOUT IT AND LET
US KNOW A FEW THOUGHTS?>>SO, I THINK WHEN WE THINK
ABOUT THE PURPOSE OF THE CENTRAL OFFICE, WHAT IS MOST EFFECTIVE
IS HAVING ALTERNATIVE REPORTING CHANNEL.
IT DOESN’T HAVE TO SUPERSEDE OR REPLACE NOTIFYING THE CHIEF
JUSTICE, BUT WE THINK THAT THE STANDARD BY WHICH A CHIEF
JUSTICE WOULD BE NOTIFIED OF MIS MISCONDUCT WOULD NOT NECESSARILY
CHANGED. THE PURPOSE OF HAVING A CENTRAL
CENTRALIZEED OFFICE IS TO BE SURE
THAT THERE IS CONSISTENCY IN ACCOUNTABILITY ACROSS CIRCUITS
AND ALLOW FOR TRACKING AND DATA AGGREGATION ACROSS COMPLAINTS.
>>ARE THERE QUESTIONS FOR OUR WITNESSES HERE?
>>I HAVE ONE. THAT WILL SURPRISE YOU.
[ CHUCKLING ] IT’S MOSTLY DIRECTED TO YOU, MR.
MR. DeGUGLIELMO. YOUR CONCERNS WITH RESPECT TO
HAVING MORE REPORTING CHANNELS, AND HAVING A TWO-JUDGE PANEL
STEP IN IF THERE IS A CONFLICT OF INTEREST, OR PERCEIVED
CONFLICT OF THERE. SOMEWE GENERALLY THINK THAT THE
OUT OUTCOME IS BETTER IF IT IS PRE-
PRE-DETERMINED WHO THE JUDGE IS GOING TO BE BECAUSE THEN YOU
DON’T GET INTO ENGINEERING DECISIONS ABOUT PICKING A
PARTICULAR JUDGE OR PANEL, THIS IS SOMETHING TO HOLD DEAR BY THE
JUDICIARY. WE ALSO–I GENERALLY INCLINEED
NOT TO DO A THREE-JUDGE PANEL BECAUSE THEY’RE SO CUMBERSOME.
THEY SHOW UP AT VARIOUS PLACES, BUT IT’S A VERY COMEBER PROCESS
AND VERY UNUSUAL PROCESS. SO I–THE PROPOSALS THAT YOU USE
THAT ADVANCE THESE IDEAS NEED A
CERTAIN MENTAL OBSTACLE STRUCTURALLY FOR JUDGES BECAUSE
OF THESE DEEPLY IMBUEED CONCERNS .
I THINK WE NEED SOME INCREASEED FLEXIBILITY WITH RESPECT TO THE
REPORTING CHANNELS, BUT I’M WONDERING WITH THE THREE-JUDGE
PANEL WOULDN’T IT BE ALL RIGHT TO GET ANOTHER JUDGE FROM LIKE
ANOTHER CIRCUIT? WE DO THAT ALL THE TIME.
WE SEND THINGS THAT ARE HIGHLY CONTROVERSIAL FROM ONE CIRCUIT
TO ANOTHER CIRCUIT IN THE CHIEF JUSTICE’S DIRECTION AND APPROVAL
APPROVAL. DON’T YOU THINK THOSE EXISTING
PROVISIONS MIGHT SUFFICE?
>>I THINK THAT’S A GREAT QUESTION, YOUR HONOR.
I THINK IN THINKING ABOUT THIS IS BALANCING THE INTEREST OF THE
ADMINISTRATIVE, WHICH IS THE GOAL AND PRINCIPLEED INTEREST OF
THE JUDICIARY AGAINST THOSE OF THE INDIVIDUAL.
AFTER ALL, THIS PROCESS IS DESIGNED TO MAKE THE INDIVIDUAL
FEEL AS THOUGH THEY CAN COME FORWARD IN THAT REMEDY, AND THAT
REMEDY IS ATTAINABLE. WITH REGARDS TO WORKING OUT THE
LOGISTICAL HURDLES, I THINK THAT MUCH
PANEL THAT ROTATES ON A YEAR TO YEAR BASIS COULD REMEDY THIS
ISSUE OF JUDGE SHOPPING. WHILE CUMBERSOME, IT MAY BE
ESTABLISHED FOR A PRE-DEFINE TERM, MAYBE A YEAR OR A FEW
YEARS, AND IT WOULD NOT REQUIRE THE LOGISTICAL BURDEN OF HAVING
TO CREATE IT EVERY TIME THERE WAS A COMPLAINT.
AND THERE COULD BE A WHOLE NUMBER OF FACTORS, BUT IF IT
WASN’T A CASE-TO-CASE BASIS PANEL, THEN IT WOULD MITIGATE A
LOT OF THOSE ISSUES.>>THANK YOU, MR. DeGUGLIELMO.
>>ONE OF THE THINGS ABOUT THE THREE-JUDGE PANEL, JUST FOR YOUR
PERSONAL INFORMATION, I WAS A DISTRICT JUDGE IN THE DISTRICT
OF NORTH DAKOTA. WE HAVE TWO ACTIVE DISTRICT
JUDGES IN THE DISTRICT. AND THERE IS NEAREST JUDGE IN
ANY DIRECTION IS 275 MILES AWAY.
THE THREE-JUDGE PANEL CAUSE A GREAT DEAL OF CONSTERNATION IN
THAT WORLD. IN TIMES OF DAYS OF JUDGES WORK,
AND SUCH AN EXPENSIVE PROCESS. THAT’S NOT TO SAY THAT IT IS AN
COMPLETELY UNWORKABLE PROCESS. BUT YOU HAVE TO BEAR IN MIND
THERE ARE SOME VERY RURAL AREAS. IF I CAME BACK WITH A THREE-
THREE-JUDGE PANEL PROPOSAL TO MY JUDGE BECAUSE CONGRESS HAS NOT
FILLED THE SPOT IN A YEAR, HE WOULD SHOOT PLEA.
YOU CAN SEE APPELLATE COURTS WORK THAT WAY, BUT IT IS A REAL
DILEMMA FOR DISTRICT COURTS.>>MAY I RESPOND, YOUR HONOR?
I THINK WITH THE TECHNOLOGICAL ADVANCES OF, I DON’T THINK THAT —
>>I’M NOT–I THINK MOST JUDGES, PARTICULARLY TRIAL JUDGES WILL
SAY THERE IS A MAGIC IN SEEING A WITNESS’ FACE TO FACE.
I DON’T MEAN TO ARGUE WITH YOU. I JUST WANTED TO POINT OUT THAT
THERE ARE SOME HURDLES THERE THAT THE INSTITUTION WOULD WOULD
BE COMPLICATEED.
>>THANK YOU.>>ANY OTHER QUESTIONS OR
COMMENTS? THANK YOU ALL VERY MUCH.
YOU DID A GREAT JOB.>>THE NEXT PANEL CONSISTS OF
MS. PETERSON, MS. WALKER AND MS. MS. YAN.
ONCE AGAIN, WELCOME. YOU’RE FAR MORE COURAGEOUS THAN
I WAS AS A LAW STUDENT. I DOUBT I COULD HAVE BEEN PUT IN
A ROOM LIKE THIS AND DONE ANYTHING BUT SHRUNK AWAY.
I KNOW IT’S HARD TO BELIEVE.>>MY NAME IS MELISSA PETERSON.
I’M A THIRD-YEAR STUDENT AT YALE LAW SCHOOL.
THANK YOU MEMBERS OF COMMITTEE FOR PERMITTING ME TO TESTIFY
TODAY. I ACCEPTED A CLERKSHIP IN 2020.
I’M TESTIFYING AS SOMEONE WHO WILL BE GOVERNED IN THE FUTURE
BY THE PROCEDURES GUIDED BY THIS COMMITTEE.
I SUPPORT THE INCLUSION OF CANON 3 B 4 THE JUDGES SHOULD QUOTE
NEAR ENGAGE IN OR BEHAVE IN
CONDUCT THAT IS CONSIDERED RETALIATION HARASSMENT.
I RECOMMEND THAT IT BE PRESERVED IN THE FINAL RULE.
I RECOMMEND THAT THE STANDARD BE VIEWED FROM THE PERSPECTIVE OF A
REASONABLE EMPLOYEE IN POSITION OF A JUDICIAL EMPLOYEE.
ADOPTION WOULD HAVE SEVERAL BENEFITS.
FIRST, IT WOULD ACCOUNT FOR THE POWER BETWEEN JUDGES AND PEOPLE
IN SUBORDINATE POSITIONS. AND SECOND, ENCOURAGE JUDGES TO
ACCOUNT FOR THE WAYS THAT THEIR ACTIONS ARE PERCEIVED BY THEIR
SUBORDINATES. ALLISON AL I STRONGLY SUPPORT THAT THIS
COMMITTEE’S EFFORTS RULE 4 OF THE JUDICIAL CONDUCT AND
DISABILITY RULE. IT WOULD INCREASE PROTECTION IN
A NUMBER OF IMPORTANT RESPECTS. FIRST, THE COMMENTARY ASSOCIATED
WITH THE RULE RECOGNIZES THAT ABUSIVE AND HARASSING BEHAVIOR
INSTITUTES CONSTITUTES MISCONDUCT.
AND RECOGNIZES THAT IT INCLUDES DISCRIMINATION BASED ON RACE,
GENDER IDENTITY, SEXUAL ORIENTATION, RELIGION, NATIONAL
ORIGIN, AGE AND DISABILITY STATUS.
THESE PROTECTIONS ARE PARTICULAR PARTICULARLY CRITICAL FOR WOMEN
OF COLOR AND OTHER MOSTLY MARGIN MARGINALIZEED GROUPS WHOSE
CLAIMS OF DISCRIMINATION DO DO NOT
ARISE FROM ONE DISCREET CATEGORY.
I’M CONCERNED THAT RULE 4A 2’S FOCUS ON SEXUAL ABUSE MAY SEND
THE MESSAGE THAT OTHER ABUSE IS NOT COVERED BY THE RULES.
I RECOMMEND THAT THE COMMITTEE CHANGE REFERENCES TO SEXUAL
HARASSMENT TO SEXUALLY BASED HARASSMENT TO CAPTURE HARASSMENT
THAT IS NOT SEXUAL BUT IS GENDER BASED. THE LIMITATION OF HARASSMENT
RECOGNIZES THAT HARASSMENT IS SOLELY FOR SEXUAL DESIRE.
ITHE JUDICIARY ARISE ABUSE THAT
IS NOT SEXUAL AND MAY NOT FALL AGAINST SOMEONE OF A PROTECTED
CLASS. I RECOMMEND THIS COMMITTEE
REITERATE THAT RULE 4 COVERS TYPES OF CONDUCT THAT ARE NOT
SEXUAL BUT UNPROFESSIONAL OR DISCRIMINATORY.
THESE TYPES OF CONDUCT REALLY CAN UNDERMINE THE JUDICIARY’S
COMMITMENT TO TREAT EMPLOYEES WITH DIGNITY, FAIRNESS AND
RESPECT. WE HIGHLY RECOMMEND THAT THIS
COMMITTEE PROVIDE EXAMPLES OF BEHAVIOR THAT CAN BE ABUSIVE
SUCH AS PARADEING BERATEING EMPLOYEES.
I ALSO RECOMMEND THAT THE JUDICIARY OFFER EXAMPLES TO
BETTER COMMUNICATE WHAT CONSTITUTES PROHIBITED BEHAVIOR.
FOLLOW THE LEAD OF THE WASHINGTON SUPREME COURT WHICH
RECENTLY RELEASED IT’S HARASSING POLICY THAT PROVIDES IMPORTANT
EXAMPLE OF PROHIBITED CONDUCT. AT PRESENT RULE 4A 4 IS FOR
PEOPLE WHO ARE REPORTING OR OTHER FORMAL MECHANISMS.
HOWEVER, RETALIATION SHOULD BE PROTECTED AGAINST PEOPLE WHO
BOTH PARTICIPATE AND PEOPLE WHO ALSO OPPOSE DISCRIMINATORY
PRACTICES. APPARENT THIS RULE OMITS THIS
OPPOSITION CLAUSE AND I RECOMMEND THAT THIS COMMITTEE
ADD ONE ONE. BEHAVIOR THAT WOULD BE
CONSIDERED RETALIATION THAT WOULD DISSUADE OTHER EMPLOYEES
FROM COMEING TO WORK.>>MS. WALKER.
>>HELLO. I’M A FIRST-YEAR STUDENT AT YALE
LAW SCHOOL. THANK YOU TO THE CHAIRS AND THE
REST OF THE COMMITTEE FOR HEAR HEARING OUR TESTIMONY.
AS LAW STUDENTS, AND FUTURE JUDICIARY EMPLOYEES, THESE RE
REFORMS REPRESENT A PROMISING EFFORT TO PROTECT JUDICIARY
EMPLOYEES FROM SEX-BASED HARASSMENT AND OTHER FORMS OF
JUDICIAL MISCONDUCT. BUT WE BELIEVE THAT THESE RE
REVISIONS DO NOT GO FAR ENOUGH TO CONFRONT MAJOR GAPS AND
REDUCE BARRIERS OF REPORTING. I’M HERE TO TALK ABOUT AN
ADDITIONAL WAY THAT COMMITTEES CAN ADDRESS THE LACK OF
REPORTING, I’LL ALSO DISCUSS
WAYS OF KEEPING MISCONDUCT. CONDUCTING A CLIMATE SURVEY CAN
ASSESS THE NATURE AND PREVALENCE OF JUDICIAL MISCONDUCT.
AS MY COLLEAGUES HAVE MENTIONED, SORRY, I’M VERY NERVOUS.
AS MY COLLEAGUES HAVE MENTIONED, THE REALITY REFLECTS THAT THE
CURRENT REPORTING METRICS DO NOT TELL THE FULL STORY.
THERE APPEARS TO BE INFORMATION GAPS CREATEED BY THE CURRENT
LACK OF REPORTING.
WE’RE CONCERNED WITH THE LACK OF ACCURATE BASELINE REPORTING, A
CONFIDENTIAL SURVEY COULD LOOK AT WAYS THE JUDICIAL CONFERENCE
COULD UNDERSTAND REPORTING CONCERNING THE CONFIDENTIAL
NATURE. THE LACK OF DATA , WE BELIEVE IN
INSTITUTEING A CLIMATE WOULD TRACK HOW SUCCESSFUL VARIOUS
REPORTS FROM THE CONFERENCE ARE AND PROVIDE HELP FOR TRAINING.
AS POTENTIAL FUTURE CLERKS WE BELIEVE THIS INFORMATION IS
CRITICAL AND IMPROVE THE EFFORTS OF REPORTING PROCESS.
RELATEED TO THE CURRENT SYSTEM OF
REPORTING WE RECOMMEND THAT THE COMMITTEE CHAIRIFY THAT
COMPLAINTS SHALL BE KEPT CONFIDENTIAL.
THE RULES CURRENTLY STATE THAT ONCE THE SUBJECT HAS GIVEN THE
DISCLOSURE OF CONFIDENTIAL MATERIALS, THE CHIEF JUDGE WILL
ONLY REFUSE TO THE EXTENT TO PROTECT THE CONFIDENTIALITY OF
THE COMPLAINANT OR THOSE WHOA HAVE PROVIDED INFORMATION IN
RESPONSE TO A LIMITED INQUIRY. THIS IS FROM RULE 23.
WE DO NOT BELIEVE THAT PROTECTION IS ENOUGH.
TO MAKE LAW CLERKS COMFORTABLE ABOUT REPORTING.
WHILE WE UNDERSTAND WHY THE CONFERENCE MAY NOT WANT TO
RECEIVE ANONYMOUS. WE BELIEVE THE CHIEF JUDGE CAN
ADDRESS THOSE ISSUES WITH A FORMER INVESTIGATION OFTEN AND
WITHOUT REVEALLING THE IDENTITY IES
IDENTITIES. GIVEN THE STRONG CONCERNS OF
RETALIATION AND DAMAGE TO FUTURE CLEAR PROSPECTS, THIS COULD BE
KEY IN INSUREING CONFIDENTIALITY .
THANK YOU FOR YOUR TIME.>>MS. YAN?
>>GOOD AFTERNOON , MY NAME IS
MEGAN YAN. I’M A SECOND-YEAR LAW STUDENT AT
YALE LAW SCHOOL, AND I’M TESTIFY TESTIFYING ABOUT THE WORKING
GROUP THAT MY COLLEAGUES HAVE DESCRIBEED EARLIER.
MY COMMENTS WILL ADDRESS RELIEF OF COMPLAINANTS .
THE PROPOSE CHANGES FOR CODE OF CONDUCT OFFER NO SPECIFIC
GUIDANCE ON RELIEF OF COMPLAINANT WHO UNDERGOING THE
REPORTING. PROCESS.
THEY THERE IS NOTHING FOR LAW CLERKS
WHO ARE REPORTING IN THE FIRST INSTANCE.
BECAUSE A LAW CLERK MAY REQUIRE RESOURCES AND AVENUES FOR
IMMEDIATE RELIEF RATHER THAN WAITING FOR THE COMPLAINT HAS
GONE THROUGH THE ENTIRE PROCESS. TO THAT END WE RECOGNIZE
PROVIDING CONFIDENTIAL ACCESS AND REVEL TO MENTAL HEALTHCARE
AND COUNSELING COVERED BY INSURANCE AND OTHER MEANS OF
SUPPORT. THE JUDICIARY SUPPORT TOOK NOTE
OF THE MARK THAT LAW CLERKS ARE HAVE YOU NEARIBLE IF REQUIRED TO
REMAIN IN CLOSE PROXIMITY TO A JUDGE ESPECIALLY IN SMALL.
JUDICIAL DISTRICTS. RESEARCH HAS DOCUMENTED THE
DAMAGING PSYCHOLOGICAL EFFECTS OF WORKPLACE HARASSMENT, PTSD,
ANXIETY, PROVIDING ACCESS TO MEMORY HEALTH RESOURCES AND
OTHER COUNSELING RESOURCES CAN GO A LONG WAY FOR PROVIDING
SUPPORT FOR CLERK EXPERIENCEING CONDUCT AND AS THEY CONTEMPLATE
THE REPORTING OR WAIT FOR THE PROCESS TO PLAY OUT.
WE ALSO RECOMMEND THAT THE COMMITTEE CONSIDERED PROPOSEING
VOLUNTARY TRANSFER OPTION THIS ECHOS THE WORKING GROUP
SUGGESTION WITH THE WORK ARRANGE ARRANGEMENTS INCLUDING FOR A LAW
CLERK. GIVEN THE PROXIMITY WITH WHICH
LAW CLERKS AND JUDGES WORK TOGETHER, PROVIDING TRANSFER CAN
ALLEVIATE IMMEDIATE STRESS OF WORKING IN AN OTHERWISE DE
DEMEANING WORKING ENVIRONMENT. THESE TWO RECOMMENDATIONS THAT
I’VE LAID OUT ACCESS TO COUNSELING AND VOLUNTARY
TRANSFER OPTIONS ARE PROPOSALS THAT WE TAILOR SPECIFICALLY TO
EARLY CAREER, SHORT-TERM EMPLOYMENT FOR EMPLOYEES
SUFFERING FROM SEXUAL HARASSMENT
HARASSMENT.:. I WANTED TO CLOSE WITH SOME
REMARKS CONVEYING OUT HEARTENING IT IS TO ALL OF US AS STUDENTS
TO SEE THE JUDICIAL CONFERENCE AND THE RESPECTIVE COMMITTEES
WORK TO MAKES CHANGES IN THE JUDICIARY.
WE SPEND TIME READING ABOUT THE JUDICIARY, IT IS IMPORTANT TO
SEE WAYS WE CAN BE PROTECTED IN THE WORKPLACE AS WELL.
AND THERE ARE UNIQUE AND EXCITE EXCITING OPPORTUNITIES FOR
STUDENTS. NOT JUST FOR MENTOR SHIP, BUT
CREATE OPPORTUNITIES TO WORK THROUGH ISSUES WITH THE LAW AND
LOOK AT COMPLEX CASES. SO THIS IS REALLY IMPORTANT TO
US. AND IN THE WAKE OF LAST YEAR’S
NEWS REGARDING THE REPORTS OF HARASSMENT, CLASSMATES DISCUSS
WHETHER CLERKSHIPS WERE STILL WORTH PURSUEING.
MANY STUDENTS FELT AMBIVALENT ABOUT THEM AFTER THESE REPORTS,
THE COMMITTEE’S WORK ON REFORM REFORMING THE WORK WORKPLACE CONDUCT.
WE’RE EXCITEED ABOUT THE PROPOSED
CHANGES AND WE OFFER OUR RECOMMENDATIONS TO FURTHER THE
SHARED GOAL OF A SAFE WORK ENVIRONMENT.
WE’RE JUST SEVEN OF 50 YALE LAW STUDENTS WHO WILL BE SUBMITTING
A WRITTEN COMMENT BY THE DEADLINE.
>>ARE THERE ANY QUESTIONS? WELL SAID.
THANK YOU VERY MUCH FOR YOUR TIME HERE.
WE REALLY APPRECIATE IT.>>THANK YOU.>>HI DR. RICHARD CORDERO.>>IS DR. CORDERO HERE? I THINK HE INDICATEED THAT
BECAUSE OF THE SHORTNESS OF TIME HE WOULD BE UNABLE TO BE HERE.
AND THEN OUR NEXT WITNESS IS MR. MR. FURNIER.>>YES.>>MY NAME IS CHARLES FURNIER.
I’M HERE ON BEHALF OF THE TYPE 1 DIABETES DEFENSE FOUNDATION NON-
NON-PROFIT. MY CONCERN IS RULE 31 C OF THE
RULES OF I COULDN’T ADDITIONAL CONDUCT AND DISABILITY
PROCEEDINGS. I’M SPECIFICALLY REQUESTING THAT
THE COMMITTEE DEFINE PERSON GOD IN THE DRAFT OF THE RULE.
THE CHANGES REPORTEDLY FOR RECOMMENDATIONED PROVIDED ON
JUNE JUNE 1 OF THE REPORTING GROUP. THE PRACTICE OF LIMITED
DISCOMFORT IN WORKPLACE CONTEXT. NOT TO THE STANDING STANDING REQUIREMENT.
THE FIRST AMENDMENT TO THE RULES RECOMMENDED BY THE WORKING GROUP
IS A 3 C 1.
BUT THE WORKING GROUP THERE WAS CONCERNED ABOUT THE POSSIBLE MIS
MISUNDERSTANDING REGARDING STANDING WITHOUT PERSON.
THE REQUIREMENT OF QUALIFICATION BE MEMORIES TO COME COME COME COME COMISSORY OF
THE MISCONDUCT.
THE WORKING GROUPS WILL HAVE TURNED THEIR FOCUS TO THE
SPENDING REQUIREMENTS IN THE RULE BUT NOT THE ACT.
THEY DID NOT. THE WORKING GROUP DID NOT EVEN
GLOSS OVER THE RULE 3 C 1 WHEN COMPARED TO THE RULE OF 1980.
IT WAS FROM THE RULE WITHOUT REQUESTING TO BE CHANGED OR
AMENDED IN ANY MANNER. STANDING UNDER THE CURRENT
VERSION OF THE CURRENT RULE 3 C 1 LEADS TO A PERSON AND SUBSET
OF CORPORATION. THEIT STATES ANY PERSON.
AND ANY PERSON MAY FILE . IN THE A PERSON UNDER REPRESENTED BY
LEGAL COUNCIL COUNSEL NOT AS A COMMAND
NAN, THEY HAVE REASON TO FEAR THAT ANY ATTEMPT TO FILE
COMPLAINTS REGARDING THE CONDUCT IN
IN IN THE BUSINESS OF THE COURT
WOULD BRING FURTHER DISCRIMINATION. RULE 3 C 1 AND ALSO LOCAL RULES
OF DISTRICT COURT IS NOT SUBSTANTIAL.
ITTHE PROMISES ARE TO REMOVE EXIST
EXISTING REQUIREMENTS AND COMMUNICATE TO THE COURT THE
WAYS BASIS FOR THIS AMENDMENT.
IN CONCLUSION, THE CORRECTION TO
3 C 1 IS A STEP IN THE RIGHT DIRECTION. THE DEFINITION OF PERSON AND
IT’S A DEPICTION OF RULE 3 C 1 THE LANGUAGE WILL ALLOW LONG
HELD BIASES TO PROCEED UNA UNADRESSED.
I QUESTION REQUEST THAT THE RULE WITH THE
WORD PERSON WITH A MEANING OF THE DICTIONARY AND INCLUDE
CORPORATION COMPANIES AND STATIONS FIRMS, PARTNERSHIPS,
ETC. AND SECOND, THE COMMISSORY FOR
THE CHANGE FOR THE RULE, AND SUMMARIZE YOU INJURE JURIS
PRUDENCE.>>THANK YOU.
ANY QUESTIONS? THANK YOU VERY MUCH FOR YOUR
TESTIMONY.>>YOU’RE NEXT.
>>THIS FILE OF A POSSESSION FOR FOR–
>>THAT’S MY HAND OUT. I’M AN OLD SCHOOLTEACHER.
>>GOOD AFTERNOON. I’M DR. HAMILTON FROM TEXAS.
AND COLORADO AND LSU GRADUATE, AND POST DOC IN GEORGETOWN.
MY WORK IS NUTRITION AND MY GOAL
IS TO KEEP ALL OF US OUT OF THE NURSING HOME AS LONG AS POSSIBLE
POSSIBLE. I CAM HERE SPEAKING FOR A
POPULATION WHO NEVER FELT THAT WE’RE LOVEED AND ACCEPTED. IT CAME INTO MY LIFE IN AN
UNUSUAL WAY. I WAS MARRIED TO A POWERFUL
TEXAS LAWYER FOR 46 YEARS. WE HAD A DROUGHT IN TEXAS AND I
MOVED TO ASPEN, COLORADO. THAT’S WHERE I MET NANCY: I
FELL IN LOVE WITH A WOMAN. LOOK AROUND AROUND THE TABLE AT
THANKSGIVING AND CHRISTMAS. I PROJECT THAT IN OUR FAMILIES
THERE COULD BE A GRANDCHILD, AN AUNT, AN UNCLE, SOMEONE WHO
YEARNS TO BE LOVEED AS THEY ARE, AS THEIR TRUE SELF, AS A PERSON
WHO WOULD FALL IN LOVE WITH A PERSON OF THE SAME GENDER.
I SUBMIT TO YOU THAT AMERICA IS TURNING A PAGE IN HISTORY, AND
WE’RE ALL BENEFICIARYIES OF THE
CONSTITUTION AND THE FREEDOM THAT IT ALLOWS US AND THE ARMOR
THAT I TAKE TO BE FOUNDING FATHERS AND MOTHERS OF OUR
COUNTRY. I LEARN AT A FAMILY REUNION I’M
THE DESCENDANT OF JON JAY. WHEN I FILE THIS CERTIORI THERE
WAS SOMEONE OVER MY SHOULDER .
I WILL KNOW SOME DAY. I’M TESTIFYING AS A VICTIM OF
SEXUAL HARASSMENT, SEXUAL ASSAULT.
I WOULD ASK YOU TO CHALLENGE THAT NOT JUST IN THE WORKPLACE,
BUT ACROSS THE BOARD IN EVERY VENUE IN AMERICA.
MY EXPERIENCE HAPPENED IN CHURCH CHURCH.
AND MY CASE IS A FIRST AMENDMENT CASE.
I BELIEVE THAT GOD LOVES EVERYBODY.
BOTH GAY AND STRAIGHT, PURPLE
AND POLKA DOT .
I WAS MANDATEED TO UNDERGO CONVERSION THERAPY.
THE TEN ELDERS OF THE BAPTIST CHURCH SAID THAT WE REALIZE YOU
AND NO WITNESS WHY DON’T REALIZE WHAT IS HAPPENING.
YOU HAVE TO MOVE OUT. YOU HAVE TO GO BACK TO TEXAS AND
WORK ON YOUR MARRIAGE AND YOU HAVE TO APOLOGIZE TO EVERYONE IN
THE THE CHURCH FOR POSEING AS A
CHRISTIAN BECAUSE NOW WE KNOW THAT YOU’RE NOT A CHRISTIAN AS A
GAY PERSON. MY INTEGRITY AND LIVING THE LIFE
THAT I KNEW, AND MY HUSBAND EVEN KNEW, I TOLD HIM.
HE SAID I KNEW. I TOLD MY OWN MOTHER, AND SHE
SAID, YEAH, I KNEW. THERE ARE WAYS WE CAN SHARE.
BEFORE I MOVE FORWARD IN WHAT I WOULD LIKE ALL OF YOU TO DO, I
WOULD LIKE YOU TO CONSIDER SCREENING THOSE WHO OPERATE UNDER LAW.
POLICEMEN, JUDGES, DEPUTIES, TO OPEN THE MIND TO THE FACT THAT
THERE ARE PEOPLE THERE IN THOSE ROLES WITH AXIS I TO AXIS V
V MENTAL ILLNESS. THAT’S GOING TO BE A CHALLENGE,
AND I’M GLAD YOU’RE ALL SUCH BRILLIANT LAWYERS, I BELIEVE
THERE ARE PEOPLE WHO SHOULD BE IMPEACHED.
I HAVE FILED COMPLAINTS AGAINST EVERY STEP OF THE WAY FROM EVERY
JUDGE FROM COUNTY COURT TO THE SUPREME COURT.
I’VE DONE THE PAPERWORK. I’VE BEEN IGNORED.
PHONE CALLS HAVE NEVER BEEN RETURNED.
COMPLAINTS, I’VE NEVER GOTTEN A RESPONSE FROM. ITCH EVENI HAVE EVEN SHARED
COLORED PICTURE OF MY ASSAULT FROM MY
PHYSICIAN. WHY WON’T PEOPLE LISTEN?
WHAT IS WRONG WITH OUR FREEDOM OF SPEECH?
OUR RIGHT TO RELIGIOUS FREEDOM? AND WE NEED TO WAKE UP TO THE
REALITY THOSE WHO ARE COMMITTING SUICIDE. THE NUMBER OF SUICIDE FROM OUR
YOUNG PEOPLE–IS MY TIME UP? I NEED ABOUT FIVE MORE HOURS.
I POINT I HAD HOPEED TO MAKE ARE THAT THE HATE CRIMES ACT PASSED
BY THE HOUSE, THE SENATE, SIGNED BY THE PRESIDENT.
I TELL YOU IT IS NOT BEING ENFORCEED.
I MENTIONED IMPEACHMENT. I THINK DISQUALIFICATION NOT
JUST MISCONDUCT HAS TO MOVE TO THE TOP OF THE LIST. MY HABEAS CORPUS CASES WERE
NEVER SCHEDULEED TO BE HEARD BY
THE PREJUDICED JUDGE.
I THANK YOU FOR THE FUTURE. OUR FUTURE IS IN YOUR HANDS.
I PRAY FOR YOU, AND I PRAY THANK YOU
IN ADVANCE FOR ALL THAT YOU DO. WE NEED YOU DESPERATELY.
GOD BLESS EACH OF YOU, AND HAPPY HOLIDAYS.
>>THANK YOU FOR YOUR TIME AND WE APPRECIATE YOUR COURAGE TO
SHARE YOUR STORY. SOME OF THE THINGS YOU SUGGESTED
ARE SO WITHIN THE SCOPE OF OUR COMMITTEE.
THE THINGS THAT ARE WITHIN THE
SCOPE OF OUR COMMITTEE WE’LL CONSIDER.
>>THEN I’LL GO TO EVERY COMMITTEE AND WE’LL IMPROVE IN
EVERY STEP.>>THANK YOU VERY MUCH.
HAVE A GREAT DAY.>>THANK YOU. MR. HORVITZ.
>>THANK YOU.>>I WOULD LIKE TO ADD A CAVEAT
TO WHAT I’M ABOUT TO SAY. THE FUTURE OF THE FEDERAL
JUDICIARY IS EMBODYIED IN THESE LAW STUDENTS WHO ARE RACING FOR
THEIR TRAIN, WE’RE GOING TO BE JUST FINE.
GOOD AFTERNOON. MY NAME IS PAUL HORVITZ.
I SHOULD DISCLOSE THAT I HAVE A MISCONDUCT COMPLAINT PENDING IN
THE TENTH CIRCUIT AGAINST A JUDGE WHO NOW SITS ON THE
SUPREME COURT. I’M NOT A LAWYER.
JUDGE ERICKSON, JUDGE SCIRICA. BOTH OF YOU ARE ACTIVE IN STATE
POLITICS ON YEARS SOME YEARS AGO .
AND I KNOW SOME ON THE PANEL HAVE SERVED IN STAFF POSITIONS
ON CAPITAL HILL. AND I BELIEVE, JUDGE DUBINA,
YOUR DAUGHTER IS NOW IN THE HOUSE OF REPRESENTATIVES?
THAT IS GREAT. WHEN YOU WERE SERVEING IN THE
LEGISLATURE, JUDGE SCIRICA, IN THE ’70s, POLITICS WERE
CONTENTIOUS, BUT I DON’T THINK IT WAS ANYTHING LIKE TODAY. BETWEEN 45% AND 49% IN THE LAST
13 YEARS WE HAVE NOT BROKEN 40%. THAT TREND TERRIFYIES ME, AND I
HOPE IT TERRIFYIES YOU. BECAUSE OF THE GENERALCY OF THE
COURT AND ALL FEDERAL COURTS IS AT STAKE. WHAT CAN WE DO TO ARREST THIS
DECLINE AND REBUILD PUBLIC TRUST IN THE FEDERAL BENCH?
IT WILL TAKE TRANSPARENTCY, A CODE RELEVANT TO CURRENT
CONDITIONS, AND PROPORTIONATE ENFORCEMENT.
I SUGGESTIN MY WRITTEN COMMENTS I SUGGEST
A DOZEN IDEA FOR COULD CONDUCT
COMPLAINTS. ONE OF THE REQUESTS THAT THE
NAME OF JUDGES ON A CIRCUIT COUNSEL BE CONSIDERED PUBLIC
INFORMATION. NOW, THE 10 CIRCUIT DOES NOT, SO
15 COMPLAINTS AGAINST A JUDGE WHO NOW SITS ON THE SUPREME
COURT ARE BEING REVIEWED BY A
SECRET PANEL OF NAMELESS JUDGES. YOU COULD FIX THIS TOMORROW. A FEMALE JUDICIAL EMPLOYEE
CONSIDERING A WORKPLACE CONDUCT COMPLAINT, TO BE ABLE TO SEE WHO
IS ON ITS JUDICIAL JUDICIAL COUNCIL, AND
WHETHER ANY OF ITS MEMBERS ARE WELCOME?
ANOTHER THING, IN THE CASE OF A FEDERAL JUDGE SEEKING
CONFIRMATION TO A HIGHER SEEK, I ASK THAT YOU REQUIRE PUMP PUBLIC
DISCLOSURE OF ANY MISCONDUCT COMPLAINT, THAT THE CIRCUIT
JUDGE HAS DECIDEED IS NONE
FREEZING DRIZZLEOUS. RECENTLY, IT TOOK 16 DAYS FOR
THE DC CIRCUIT TO PUBLICLY ACKNOWLEDGE THE EXISTENCE OF NON
NON-TRIVIALOUS COMPLAINTS AGAINST A SUPREME COURT NOMINEE.
THE ANNOUNCEMENT CAME ON A SATURDAY HOURS BEFORE THE JUDGE
WAS SWORN IN. THIS DOES NOT INSPIRE CONFIDENCE
CONFIDENCE. FURTHER, YOU CAN ALSO BAR PREJUDICE PREJUDICEAL STATEMENTS. THESE ARE ALL STEPS BUT THERE IS
A MORE CORROSIVE PROBLEM ARE STARING US IN THE FACE.
JUDGES ARE ACQUIESCEING IN A SENATE CONFIRMATION PROCESS THAT
IS DAMAGING THE INTEGRITY OF THE COURTS. LEGISLATIVE AND BRANCHES PURSUE THIS
PROCESS. YOU COULD DO FUTURE NOMINEES
GREAT SERVICE AND FOSTER THE COURT AS STATURE IF THE RULES
BARRED OR DISCOURAGED A FEDERAL JUDGE NOMINATEED TO A HIGHER
COURT FROM TAKING PART IN ANY EFFORT FOR COORDINATING NOMINATION EFFORTS FOR ANY PARTY
PARTY, OR LEGISLATIVE OFFICIAL. THIS WOULD BE A BOLD STEP.
BUT THE NATURE OF OUR POLITICS HAS CHANGED, AND THE TIMES
DEMAND BOLDNESS. THE CODE IS BASED ON REAL WORLD
SCENARIOS. AND REALITY HAS CAUGHT UP WITH
IT. LET THE PRESIDENT AND THE SENATE
EXERT THEIR POLITICAL WILL, BUT DO NOT LET JUDGES JOIN IN THE
FRAY. IF A FEDERAL JUDGE CANNOT STAND
ON HIS OWN RECORD AND HIS OWN CHARACTER WITHOUT COACHING ON
WHAT TO SAY OR ACT, HE OR SHE IS SIMPLY SHOULD NOT ADVANCE.
URNS, YOU COULD FIX THIS. AND IN SO DOING START TO REBUILD
THE INTEGRITY AND THE LEGITIMATE CY
OF THE FEDERAL COURTS. I RESPECTFULLY ASK THAT YOU TRY .
THANK YOU FOR YOUR LONG YEARS OF SERVICE.
I WOULD BE HAPPY TO ANSWER ANY QUESTIONS THAT YOU MAY HAVE.>>THANK YOU.
>>I DON’T THINK I PERSONALLY RECEIVED THE COPY OF THE LONGER
REPORT YOU’RE TALKING ABOUT. BEFORE YOU LEAVE, WILL YOU CHECK
WITH OUR STAFF COUNSEL AND MAKE SURE THAT THEY HAVE COPIES THAT
THEY CAN DISTRIBUTE TO ALL OF US IF WE DON’T HAVE THEM.>>YOU DON’T HAVE IT, BUT I’LL
MAKE SURE THAT YOU GET IT.>>THANK YOU. ANY OTHER COMMENTS?
MR. HORVITZ, THANK YOU VERY MUCH MUCH.
>>THE NEXT WITNESS IS MR.
MR. KENNEDY. NO?
MR. LOVE. MR. LOVE? IS JOHN LOVE HERE? DOES THAT EXHAUST THE WITNESS
LIST? THANK YOU VERY MUCH FOR YOUR
TIME HERE. THE RECORD REMAINS OPEN UNTIL
NOVEMBER 13, 2018. IF ANYONE HAS FURTHER MATERIALS
THEY WOULD LIKE TO LODGE WITH THE COMMITTEE SO WE CAN STUDY
THEM, JUST MAKE SURE THAT THEY’RE HERE BY NOVEMBER 13TH.
IS THERE ANYTHING ELSE FROM EITHER THE COMMITTEE?
>>I JOIN JUDGE ERICKSON IN GREAT THANKS TO EVERYONE WHO
TESTIFYIED HERE TODAY.>>THANK YOU.
YOU’RE GOING TO MAKE YOUR FLIGHT FLIGHT.