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CHARLES W. HALLECK 14211 TURKEY FOOT RD. GAITHERSB

January 26, 1977

CHARLES W. HALLECK , Plaintiff
v.
HENRY A. BERLINER, JR., WILLIAM C. GARDNER, ERMAN W. EDGECOMBE, GERHARD A. GESELL, RICHARD K. LYON, JOHN T. WALKER and HOWARD C. WESTWOOD, In Their Capacities As Members of the District of Columbia Commission on Judicial Disabilities and Tenure 717 Madison Place, N.W. Washington, D.C. 20006, Defendants



The opinion of the court was delivered by: THOMSEN

Plaintiff, a judge of the Superior Court of the District of Columbia, filed this action for declaratory and injunctive relief on October 26, 1976, seeking to have this court: (I-A) declare unconstitutional certain provisions of §§ 1521-30 of Title 11 of the D.C. Code, which create the District of Columbia Commission on Judicial Disabilities and Tenure (the Commission) and deal with its duties in evaluating judges seeking reappointment; (I-B) declare void the September 1975 evaluation by the Commission of plaintiff's candidacy for reappointment as a judge of the Superior Court; (II-A) declare unconstitutional § 11-1526(a)(2)(C) of the D.C. Code, dealing with the disciplinary responsibilities of the Commission; and (II-B) enjoin the disciplinary proceeding concerning plaintiff pending before the Commission.

 The Statutes

 In 1970, Congress passed the District of Columbia Court Reorganization Act of 1970 (the Court Reorganization Act), D.C. Code, § 11-101 et seq. (1973), pursuant to its power to "exercise exclusive Legislation" over the District of Columbia under Art. I, § 8, cl. 17, of the United States Constitution. *fn1" Under the Court Reorganization Act, several trial courts were merged into the newly created Superior Court of the District of Columbia, § 11-901; fifteen year terms were established for judges of the Superior Court, § 11-1502; and the District of Columbia Commission on Judicial Disabilities and Tenure was created and empowered to suspend, retire or remove judges of the District of Columbia courts, § 11-1521, subject to review by a special court of three federal judges designated by the Chief Justice, § 11-1529.

 In 1973 Congress again exercised its Art. I, § 8, cl. 17 power by enacting the District of Columbia Self-Government and Governmental Reorganization Act (the Home Rule Act). Act of Dec. 24, 1973, Pub. L. No. 93-198, 87 Stat. 774. In Title IV, Part C (the Judiciary) of the Home Rule Act, now codified in D.C. Code, Title 11, Appendix (Supp. III 1976), the Commission was reorganized *fn2" and by § 433(c) was given the additional function of evaluating the candidacy of a judge of the District of Columbia courts seeking reappointment to judicial office. Section 433(c) is set out in the margin. *fn3"

 Historical Facts

 By appointment of the President, with the advice and consent of the Senate, plaintiff had been commissioned a judge of the Court of General Sessions for a ten-year term, on October 20, 1965. Under the Court Reorganization Act, § 11-1501 as amended by Pub. L. No. 91-358, § 194, 84 Stat. 594, such a judge serves as a judge of the newly created Superior Court until the expiration of his existing term, and "until his successor is appointed and qualifies," § 11-1502, or until he is removed, suspended or involuntarily retired from office under § 11-1526. Subject to these provisions, plaintiff's term ran until October 20, 1975.

 Pursuant to § 433(c), see note 3 above, and after the Commission had informed him of his right to do so, plaintiff filed with the Commission on July 10, 1975, a declaration of candidacy for reappointment as a judge of the Superior Court. As contemplated by the statute, the Commission received and gathered information pertaining to plaintiff's candidacy and, after advising plaintiff and his counsel of the matters which were giving it concern, on September 16, 1975, met with plaintiff, who was accompanied by his counsel and others, to discuss aspects of plaintiff's judicial conduct as they related to his fitness for reappointment. *fn4" Thereafter, on September 19, 1975, the Commission submitted to the President an evaluation of plaintiff's performance as a judge and the Commission's determination that plaintiff was "qualified" for reappointment to another term.

 Under § 433(c) of the Home Rule Act, a determination that a declaring candidate is "exceptionally well qualified" or "well qualified" results in automatic reappointment for a full term; a determination that the candidate is "unqualified" makes the candidate ineligible for reappointment; a determination that the candidate is "qualified" for reappointment means that the President may nominate the candidate for reappointment, subject to the advice and consent of the Senate. The President forwarded to the Senate his nomination of plaintiff for reappointment, which was then referred to the Senate Committee on the District of Columbia. That Committee held extensive public hearings on December 3, 1975, and voted unanimously on August 10, 1976, to report favorably to the full Senate the nomination of plaintiff. *fn5" The Senate, however, did not act on plaintiff's nomination for reappointment before adjourning sine die on October 1, 1976, until January 1977. Under Rule 38.6 of the Senate Standing Rules, plaintiff's nomination must be returned to the President. Senate Manual, 94th Cong., 1st Sess. (1975 ed.). If the President again nominates plaintiff, the Senate can again consider giving its advice and consent.

 In the early part of 1976, while plaintiff's nomination for reappointment was before the Senate, the Commission received information relating to plaintiff's judicial conduct, on the basis of which it initiated an investigation to determine whether grounds existed for disciplinary proceedings under § 11-1526 of the D.C. Code. *fn6" On June 14, 1976, the Commission served on plaintiff a "Notice of Formal Proceeding", in which it informed plaintiff that specific instances of his conduct were to be the subject of a disciplinary hearing to determine whether the Commission should take action under § 11-1526. In that notice it was stated that the alleged conduct, if it had in fact taken place, would be in contravention of Canons 2A and 3A(3) of the Code of Judicial Conduct of the American Bar Association. The Joint Committee on Judicial Administration in the District of Columbia had adopted the ABA Code of Judicial Conduct on February 16, 1973. *fn7"

 The Proceedings Herein

 On October 26 plaintiff filed this action, seeking inter alia to enjoin the disciplinary hearing set for the next day. Noting that no judge of this Court was available to hear the matter, Judge Bryant, on October 27, entered an order restraining the Commission from proceeding with the hearing until the further order of the Court. All of the regularly assigned judges of this Court promptly disqualified themselves and, on the same day, the Chief Justice of the United States designated the undersigned judge to sit as a judge of this Court to hear this case.

 At a conference in chambers held on the morning of October 28, the parties agreed to a procedure for handling the case, and this court entered the following order:

 
"The parties have agreed that the hearings on all requested injunctions and declaratory relief be held at the same time. The Court has fixed that time as Monday, November 15, 1976, at 10 a.m., in the United States Courthouse in Washington. Both sides will file briefs with me not later than Monday, November 8.
 
"The parties are further agreed that the Commission may set its proposed hearing on Monday, December 13, 1976, subject to further order of the Court."

 The trial commenced on November 15, but only after the court denied plaintiff's request for a fourteen day continuance, which he sought on the morning the trial was scheduled to begin, and after the court directed that plaintiff's belated attempts to acquire discovery by deposition be accommodated by permitting plaintiff's counsel wide latitude in asking questions of witnesses designed for discovery purposes. All of the testimony which was taken for discovery purposes was afterwards offered in evidence by plaintiff. On the fourth day of the trial, November 18, plaintiff's counsel complained for the first time of his inability to obtain documentary discovery and requested that the proceedings be recessed to allow documentary discovery to take place. The court acceded to that request, but stated that the conclusion of the evidence and argument should take place within two weeks, i.e., by December 2, since the agreed date for the disciplinary hearing was December 13. Subsequently, the court set December 2 and 3 for the completion of the presentation of evidence and argument. On the afternoon of Friday, November 26, eight days after the proceedings were recessed to provide plaintiff's counsel an opportunity to seek documentary discovery and only four working days prior to the scheduled resumption of the trial, plaintiff's counsel served on defendants a request for production of documents which, in effect, requested that the Commissioners produce every document of any sort they have in their possession referring to Judge Halleck. In order to permit a proper presentation and consideration of the various questions involved in plaintiff's request, the court postponed the case once again, this time until Wednesday, December 8. On December 7 plaintiff filed a motion to compel production of those documents. When the case resumed on December 8, the court denied that motion. Plaintiff then presented additional testimony and documentary evidence, *fn8" and each side closed its case on December 8. Final arguments by both sides were heard on December 9.

 By its order issued December 10, the court directed that the Commission hearing set for December 13 could proceed, but that defendants be enjoined from "reaching, deliberating upon or discussing a decision with respect to the charges against Judge Halleck and from making any public or private statement whatsoever with respect to what transpired at the hearing, until after this court has filed its opinion and entered its judgment in this case." A request for a stay of that order was denied by a panel of the United States Court of Appeals for the District of Columbia Circuit (Fahy and Leventhal, JJ.) on December 11.

 The Commission held its disciplinary hearing on December 13. On December 30 plaintiff moved this court to reopen the record in this case for the purpose of receiving into evidence a transcript of that disciplinary hearing, which was attached to the motion. Defendants have filed a memorandum in opposition to that motion. This court has concluded that the transcript should be admitted for the limited purpose of shedding whatever light it may on the issues properly before this court, but that this court should not undertake to decide issues which should be decided by the Commission, subject to review by the special court provided for in § 11-1529 of the D.C. Code. This court has examined the transcript with that limitation in mind.

 DISCUSSION

 I Reappointment Proceedings

 I-A

 Plaintiff contends that the provisions of the Court Reorganization Act creating the Commission and the provisions of the Home Rule Act giving the Commission duties and powers with respect to the reappointment of judges of the District of Columbia courts whose terms are about to expire, see note 3 above, encroach upon judicial independence, in violation of the doctrine of separation of powers derived from the first three Articles of the Constitution. This court does not agree with that contention.

 Under Art. I, § 8, cl. 17, Congress has the power to legislate for the District of Columbia. That power is plenary, and under it Congress may exercise within the District of Columbia all legislative powers which a state legislature may exercise over a state's affairs, subject to whatever restrictions are placed on the exercise of such powers by the Constitution. Palmore v. United States, 411 U.S. 389, 397, 36 L. Ed. 2d 342, 93 S. Ct. 1670 (1973); District of Columbia v. John R. Thompson Co., 346 U.S. 100, 108, 97 L. Ed. 1480, 73 S. Ct. 1007 (1953); Capital Traction Co. v. Hof, 174 U.S. 1, 43 L. Ed. 873, 19 S. Ct. 580 (1899). In the exercise of that power Congress has created for the District of Columbia a local governmental structure, including a local court system, analogous to that of a state. The judges who are appointed and confirmed as judges of that system are not Article III judges, and do not have the tenure and salary protection accorded by Article III. Palmore v. United States, supra, at 405-410. *fn9" The validity of the statutory provisions challenged by plaintiff and the proceedings of the Commission thereunder must be judged by the applicable provisions of the Constitution.

 It is doubtful whether the doctrine of separation of powers applies with the same force to the governmental structure of the District of Columbia as it does to the federal government. *fn10" It is not necessary, however, to decide that question in this case, because, even assuming that the doctrine does so apply, this court concludes, for reasons stated below, that the statutory provisions challenged by plaintiff and the proceedings of the Commission thereunder do not violate the doctrine of separation of powers.

 The evaluation function now served by the Commission in the reappointment process was previously served by the executive and legislative branches of the Federal Government. Before the creation of the Commission in 1970 and the grant to the Commission in 1973 of duties with respect to reappointment, judges of the local courts of the District of Columbia were appointed by the President, with the advice and consent of the Senate, for 10-year terms, and were eligible for reappointment by the same process for additional 10-year terms. See Act of Sept. 21, 1966, Pub. L. No. 89-598, § 1, 80 Stat. 825. Plaintiff was appointed to such a 10-year term in 1965. If the Commission had not been created and given its present functions with respect to the evaluation of judges seeking reappointment, plaintiff could have been continued in office for an additional term only upon appointment by the President, by and with the advice and consent of the Senate. *fn11"

 No interference with judicial independence results from allocating to the Commission functions, therefore served not by the judiciary but by the President and the Senate. The Commission is an independent body composed of seven members, one appointed by the President of the United States, two by the Board of Governors of the unified District of Columbia Bar, two by the Mayor of the District of Columbia, one by the Council of the District of Columbia, and one by the Chief Judge of the United States District Court for the District of Columbia. See § 431(e)(3) of the Appendix to Title 11 of the D.C. Code (Supp. III 1976). In the reappointment process provided for in § 433(c), see note 3 above, the Commission gathers and considers information about a judge who has filed a declaration of candidacy for reappointment, then prepares and submits to the President an evaluation of the judge's performance during his term of office and his fitness for reappointment to another term. *fn12" If the Commission determines that the judge is "exceptionally well qualified" or "well qualified" for reappointment to another term, his term is automatically extended for another full term; if the Commission determines that the judge is "qualified" for reappointment, the President may nominate him for reappointment, subject to confirmation by the Senate; if the Commission determines that the judge is "unqualified," he is not eligible for reappointment. After considering oral and written arguments by counsel and the pertinent authorities, this court concludes that the statutory shifting of part of the power of reappointment from the President and Senate to the Commission, in the manner described above, does not encroach upon the independence of the judiciary of the District of Columbia.

 Plaintiff has attempted to prove that the Commission did not function as an independent body while evaluating his candidacy for reappointment as a judge. He contends that the office of the United States Attorney for the District of Columbia made an "institutionalized effort" to block plaintiff's reappointment, and that such involvement by the executive branch is an unconstitutional encroachment upon judicial independence. The evidence shows that members and former members of the United States Attorney's office opposed plaintiff's reappointment and submitted to the Commission materials and information with respect to statements from the bench and decisions made by plaintiff over the years. This court finds, however, that the Commission was not unduly influenced by information received from present or former members of the United States Attorney's office. The Commission received and considered information, some favorable and some unfavorable, from various sources with respect to plaintiff's service as a judge. The Commission has the right and the obligation to gather information from the community with respect to a declared candidate for judicial reappointment and to weigh the views expressed. Members of the United States Attorney's office, like other citizens, may bring to the Commission's attention information they believe to be relevant to the possible reappointment of a judge of the District of Columbia. In the past, like other citizens, they had the right to present their views to the President and to Senators when a District of Columbia judge was being considered for reappointment. In order properly to perform its statutory duty of evaluating a declaring candidate's performance in office and fitness for reappointment, the Commission should welcome information from all areas of the community; information offered by individuals who have been involved in litigation before a judge may be particularly helpful if due allowance is made for possible prejudice resulting from events during the trial and the ultimate decision of the case. The evidence at trial convinces this court that such information was fairly considered by the Commission. The receipt and consideration of information submitted by present and former Assistant United States Attorneys with respect to plaintiff's service as a judge was in keeping with the Commission's statutory duties and was not in violation of the doctrine of separation of powers.

 I-B

 (1)

 Plaintiff contends that he had an expectation of continuation in office as a judge of the Superior Court which amounted to a property interest entitling him to the full panoply of due process protections during the evaluation by the Commission of his candidacy for reappointment, and that he was denied those protections. Whether plaintiff was so entitled requires a twofold analysis: did plaintiff have a property interest of which he could be deprived only after according him due process; and if so, what process was due under the circumstances. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972); Board of Regents v. Roth, 408 U.S. 564, 570-71, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).

 Whether plaintiff had such a property interest requires an examination of the controlling statutory provisions in the light of recent Supreme Court cases. Both before and after the adoption of the Home Rule Act, a District of Columbia judge was and is initially appointed to a fixed term by the President, by and with the advice and consent of the Senate. Until the Home Rule Act took effect, a judge of the District of Columbia who desired to continue in office had to be reappointed by the same process; he clearly had no such expectation of reappointment as amounted to a property interest. The provisions of § 433(c) of the Home Rule Act, set out in note 3 above, now require that a judge who desires to continue in office must submit to a process under which reappointment to another term may occur only if the Commission determines that the judge is, at a minimum, "qualified" for reappointment. The purpose of the evaluation by the Commission under § 433(c) is to determine whether a judge is (a) "exceptionally well qualified" or "well qualified," upon which determination his term shall be automatically extended for another full term (subject to involuntary retirement, suspension or removal); or (b) "qualified," upon which determination he may be reappointed to another term by the President by and with the advice and consent of the Senate; or (c) "unqualified," upon which determination he shall not be eligible for reappointment. The term for which plaintiff had been appointed would have expired on October 20, 1975, whatever evaluation the Commission made of his performance during his existing term and of his fitness for reappointment to another term.

 Whether the provisions of § 433(c) have given a sitting judge such an expectation of continuation in office as amounts to a property interest under the Fifth Amendment has not been heretofore decided, nor are there any closely analogous cases. Based on such recent cases as Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976), Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975), Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972), and Field v. Boyle, 503 F.2d 774 (7 Cir. 1974), *fn13" this court concludes: that plaintiff did not have a property interest which entitled him to the full panoply of due process; but that he did have an interest in possible reappointment which entitled him to a thorough and fair evaluation of his candidacy by an impartial Commission; and that plaintiff was entitled to such process as would insure that the Commission's evaluation of his candidacy for reappointment was thorough and fair. *fn14"

 The process which must be afforded by the Commission in connection with the evaluation of a candidate for reappointment as a judge is less than the full panoply of protections accorded in a criminal trial. For example, a candidate for reappointment need not be given the right to examine or cross-examine every person who gave any information, favorable or unfavorable, to the Commission or any of its members with respect to the candidate's performance in office or fitness for reappointment.

 The Commission notified plaintiff of the areas of its concern, advised him of the cases and opinions giving rise to such concern, furnished to his counsel transcripts of most of those cases and copies of those opinions, informed plaintiff of the particular Canons of the Code of Judicial Conduct which the Commission believed to be pertinent, afforded plaintiff a conference lasting a full day, at which he was accompanied by his counsel and others, and gave plaintiff and his counsel an opportunity to respond to the Commission's inquiries and concerns with respect to the transcripts and opinions. After the Commission's consideration of plaintiff's candidacy for reappointment and its report to the President, the Commission adopted and published regulations relating to its functions in evaluating judges seeking reappointment. See 22 D.C. Reg. (No. 45) 6441-46 (May 19, 1976). Those regulations provided that a conference be held at the request of either the judge or the Commission and that the Commission will, whenever there is information raising a substantial doubt that a judge is at least "well qualified" for reappointment, inform the judge of the nature of the questions raised and provide to the judge in summary form the basis for such doubt, to the ...


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