of Formal Proceeding" delivered to plaintiff on June 14, 1976, stated that specific alleged conduct set out in that notice would, if proved, "constitute grounds for Commission action" under that subsection, as conduct which is "prejudicial to the administration of justice or brings the judicial office into disrepute".
A statute may be successfully challenged as vague if it does not clearly define the conduct regulated, and thus does not afford an individual fair warning of what conduct is prohibited. See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). Moreover, a statute which clearly defines the conduct regulated may be unconstitutionally overbroad if it includes protected conduct within its prohibitions. See, e.g., Grayned v. City of Rockford, supra, at 114; Zwickler v. Koota, 389 U.S. 241, 250, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967). A statute is not necessarily invalid as vague or overbroad merely because it is difficult to determine whether marginal conduct falls within the statutory language. United States v. National Dairy Products Corporation, 372 U.S. 29, 32, 9 L. Ed. 2d 561, 83 S. Ct. 594 (1963).
The provisions of § 11-1526(a)(2)(C) do not stand alone. The ABA Code of Judicial Conduct has been adopted by the Joint Committee on Judicial Administration in the District of Columbia.
The Canons of that Code supply judges with ethical standards expected of them. Arguments in other jurisdictions that constitutional and statutory provisions for the discipline of judges were vague or overbroad have been rejected primarily on the ground that the Code of Judicial Conduct furnished sufficient specification of the judicial conduct which warrants disciplinary action. See, e.g., Keiser v. Bell, 332 F. Supp. 608, 613-15 (E.D. Pa. 1971); Sarisohn v. Appellate Division, Second Department, Supreme Court of New York, 265 F. Supp. 455, 458-59 (E.D. N.Y. 1967); In re Foster, 271 Md. 449, 471-72, 475-78, 318 A.2d 523 (1974).
In the case at bar, the Commission's "Notice of Formal Proceedings" stated that plaintiff's alleged conduct would, if proved, violate Canons 2A and 3A(3) of the Code of Judicial Conduct. This court concludes that the provisions of § 11-1526(a)(2)(C) are supplemented by the Code of Judicial Conduct, and so supplemented are not unconstitutionally vague or overbroad in violation of the Due Process Clause.
Plaintiff's other challenges to the disciplinary proceedings currently pending before the Commission involve the conduct of the proceedings to date and the scope of the Commission's disciplinary powers. The line between what issues should properly be decided by this court, and what issues should be left for resolution by the special court under § 11-1529 of the D.C. Code on review of an order of the Commission is not sharp. Even though some of the questions decided here might have been left for decision by the Commission in the first instance and by the special court on review of a possible order of the Commission adverse to plaintiff, this court has concluded that fairness to plaintiff, to other judges who may come before the Commission, and to the public, calls for as prompt a resolution as possible of the basic questions presented by this case.
Plaintiff asks this court to enjoin the Commission from concluding the pending disciplinary proceeding, on the ground that plaintiff's First Amendment right to freedom of speech is violated by the Commission's consideration of statements he made from the bench or otherwise in connection with his judicial duties. As was noted in Part I-B (2) of this opinion, a judge's constitutional right to freedom of speech is not without limits, and the ABA Code of Judicial Conduct, adopted by the Joint Committee on Judicial Administration in the District of Columbia, reflects most of those limits. The First Amendment does not completely insulate a judge from discipline for judicial misconduct which happens to take the form of speech.
The need for public confidence in and respect for the judiciary requires some reasonable limits on the freedom of a judge to say what he pleases from the bench, and this court concludes that consideration by the Commission of the three specific instances of plaintiff's conduct as a judge which were set out in the Notice of Formal Proceedings delivered by the Commission to plaintiff will not infringe upon his First Amendment rights.
Plaintiff has argued that the disciplinary functions of the Commission represent an unconstitutional encroachment upon the independence of the judiciary of the District of Columbia in violation of the doctrine of separation of powers, and that actions of members of the office of the United States Attorney who instigated or furnished information in connection with the Commission's investigation of plaintiff's conduct also encroached upon judicial independence. Even assuming that the doctrine of separation of powers is fully applicable to the governmental structure of the District of Columbia, see Part I-A of this opinion, this court concludes that the doctrine has not been violated. The Commission is an independent body, designed to exercise its statutorily created disciplinary functions free from the influence of either the executive or legislative branches. Disciplinary orders of the Commission are subject to review by a special court composed of federal judges, see § 11-1529, not by either the executive or legislative branches. The evidence in this case does not show any such intrusion into the Commission's activities by present or former Assistant United States Attorneys as would indicate that the Commission has not been operating as an independent body during the pending disciplinary proceedings. This court concludes that neither the limited disciplinary powers given to the Commission in § 11-1526 nor the activities of the Commission in its proceedings against plaintiff to date encroaches upon the independence of the judiciary of the District of Columbia.
In the June 14, 1976, Notice of Formal Proceedings delivered to plaintiff, the Commission noted that plaintiff's alleged conduct would, if proved, be contrary to his representations to the Commission at the September 16, 1975, reappointment conference that "in the future he would take great care to avoid intemperate and similar conduct". The Commission further notified plaintiff on September 21, 1976, that in connection with plaintiff's disciplinary hearing it would take official notice of the substance of those representations
and of the contents of a written statement submitted by plaintiff at the September 16, 1975, conference. Plaintiff contends that this court should enjoin the pending disciplinary proceedings because they are premised upon the reappointment conference, which he contends was constitutionally defective. In Part I of this opinion, however, this court concluded that the Commission's evaluation of plaintiff's candidacy for reappointment did not violate his constitutional rights. Precisely what if any representations were made by plaintiff at the September 16, 1975 conference,
and whether a "breach" of such representations, if they were made, would support disciplinary action by the Commission under § 11-1526 (a)(2)(C) need not be decided by this court at this time, but should instead be considered by the Commission and, if necessary, by the special court on review of a possible Commission order adverse to plaintiff. This court merely holds that consideration of the alleged representations, if found to have been made, would not violate plaintiff's constitutional rights.
Plaintiff raises three due process challenges to the impartiality of the Commission and its handling of the disciplinary proceedings to date, contending that this court should enjoin the Commission from further consideration of disciplinary action against him. He argues (a) that the Commission and its individual members are so biased against him that he cannot receive impartial consideration from the Commission, (b) that the Commission has breached the confidentiality requirements found in both § 11-1528(a) of the D.C. Code and the Commission's own rules, and (c) that a combination of investigatory, prosecutorial and adjudicatory functions in the Commission creates an unconstitutional risk of bias in the pending disciplinary proceeding.
(a) In Part I-B (1) of this opinion it was noted that the probability of bias in a decisionmaker may be too great to permit a proceeding to take place before that decisionmaker. This court finds, however, that neither the Commission nor any of its members is biased against plaintiff. This court has already concluded that the Commission accorded plaintiff a fair and impartial evaluation of his candidacy for reappointment. His present contention is that the Commission, through its special counsel, has indicated a predisposition to impose a sanction on plaintiff in the form of a public reprimand for his alleged conduct set out in the Notice of Formal Proceedings. Plaintiff testified at trial that the Commission's special counsel informed him of such a predisposition to reprimand at a meeting with plaintiff on September 17, 1976. The special counsel testified, however, that he never told plaintiff that the Commission was predisposed to impose any particular sanction, and that his September 17 meeting with plaintiff was initiated by plaintiff's efforts to resolve informally the matter pending before the Commission. This court finds from all the evidence that one or more members of the Commission or its counsel has expressed the belief that the Commission has the power to reprimand a judge,
but the court further finds that neither the Commission nor any of its members either has or has indicated a predisposition to impose a particular sanction on plaintiff, or to impose any sanction at all.
(b) Section 11-1528(a) of the D.C. Code provides that a disciplinary hearing before the Commission, the record of such a hearing, and all papers filed in connection therewith, shall be confidential unless otherwise authorized by the judge who is the subject of the hearing. The Commission has promulgated rules which provide for the confidentiality of disciplinary hearings and of information received or papers filed in connection with such hearings,
and for having witnesses swear that they will keep confidential the existence of such proceedings.
Plaintiff contends that the Commission breached these confidentiality requirements by: (i) revealing to a reporter for the Washington Post, directly or indirectly, the fact of the proceedings against plaintiff, which was the subject of an article in that paper; and (ii) by the failure of its special counsel to have all individuals with whom he spoke concerning the charges against plaintiff swear not to disclose the fact that they had spoken with him.
(i) This court finds, after considering all the evidence presented at trial, that neither any member of the Commission nor its special counsel was the source of the information which formed the basis for the article in the Post.
(ii) With respect to plaintiff's contention that the Commission's special counsel violated a Commission rule by not swearing to secrecy the individuals he interviewed concerning the charges against plaintiff, this court disagrees with plaintiff's interpretation of that rule. The rule requires that "every witness in every investigation or other proceeding under these rules shall swear or affirm . . . not to disclose the existence of the proceeding or the identity of the judge involved." That language does not expressly require that each person to whom the special counsel speaks while looking into a complaint about a judge received by the Commission must be formally sworn to confidentiality; the rule is framed in terms of "witnesses". It would not be practicable for the special counsel to require everyone with whom he has contact to make a formal oath or affirmation. The special counsel testified that he did inform those to whom he spoke that the investigation of plaintiff was confidential. This court concludes that plaintiff is not entitled to an injunction against the pending disciplinary proceeding because of the failure of the Commission's special counsel to have each individual to whom he spoke formally swear or affirm not to disclose that they had been contacted concerning a Commission inquiry into plaintiff's conduct.
(c) Plaintiff contends that the Commission cannot be impartial on the ground that it investigates and prosecutes, as well as adjudicates, disciplinary charges against a judge. The Commissioners necessarily must receive complaints, praise or other comments from members of the public; the Commissioners may question witnesses, including the judge before them, at the hearing just as a trial judge may in court. The evidence presented in this case was that the special counsel appointed by the Commissioners conducted the investigation of plaintiff's alleged conduct and then presented the case against plaintiff to the Commission, and this court assumes that the special counsel will not participate in any of the Commission's deliberations or have a vote in the final decision by the Commission. Even though the Commissioners themselves may be involved in some parts of the investigation and prosecution, as well as being solely responsible for the adjudication, this court concludes that such a combination of functions does not violate due process.
The Supreme Court has recently addressed a similar issue in Withrow v. Larkin, 421 U.S. 35, 47, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975), where the Court said:
"The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented."
In Withrow v. Larkin, the Court held that the combination of investigatory and adjudicatory functions in a medical examining board empowered to issue reprimands, suspend licenses and institute actions to revoke licenses did not make the board biased in violation of an individual's due process right to a fair hearing before an impartial tribunal. Challenges in other jurisdictions to the combination of investigatory, prosecutorial and adjudicatory functions in judicial disciplinary bodies have been rejected by the courts. E.g., Roy v. Jones, 349 F. Supp. 315, 322 (W.D. Pa. 1972), aff'd on other grounds, 484 F.2d 96 (3 Cir. 1973); Keiser v. Bell, 332 F. Supp. 608, 617-19 (E.D. Pa. 1971); In re Rome, 218 Kan. 198, 542 P.2d 676, 683-84 (1975); In re Hanson, 532 P.2d 303, 306 (Alaska 1975); In re Diener, 268 Md. 659, 677-79, 304 A.2d 587 (1973), cert. denied, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885 (1974). In the case at bar, the evidence does not show that the Commission or any of its individual members is actually biased, and this court concludes that the combination of investigatory, prosecutorial and adjudicatory powers in the Commission does not violate due process.
The disciplinary functions of the Commission are set out in § 11-1526 of the D.C. Code. The only express remedial powers granted to the Commission in that section are removal and suspension of a judge from all or part of his judicial duties pending a hearing or an appeal from an order of removal.
Plaintiff contends that the Commission has indicated a predisposition to impose a sanction on him in the form of a public reprimand, and that such a sanction is beyond the statutory powers granted to the Commission by Congress.
In Part II-B(4)(a) of this opinion, this court found that "neither the Commission nor any of its members either has or has indicated a predisposition to impose a particular sanction on plaintiff, or to impose any sanction at all"; however, this court further found that "one or more members of the Commission or its counsel has expressed the belief that the Commission has the power to reprimand a judge". In a preface to the amendment of the Commission's rules and regulations governing its disciplinary responsibilities, the Commission has observed that "where provisions of the statutes refer to 'removal' of a judge it construes 'removal' to mean formal public reprimand as well as removal, on the ground that 'the greater . . . impliedly includes the lesser'". 22 D.C. Reg. (No. 18) 2201 (Nov. 4, 1975), quoting from In re Diener, 268 Md. 659, 683, 304 A.2d 587 (1973), cert. denied, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885 (1974). The Commission's rules governing the issuance and judicial review of orders expressly refer to orders of reprimand. See D.C. Reg. (No. 18), §§ 1.20-.21, at 2217-18 (Nov. 4, 1975). Defendant Berliner testified in this case that it is his belief, and that of the Commission as a whole that the Commission has the power to reprimand judges. The fact that the Commission's special counsel met with plaintiff concerning possible resolution of the charges through an acceptance by plaintiff of a sanction less than removal is further support for the conclusion that the Commission is operating on the assumption that it possesses the power to reprimand.
Whether this court should decide at this time the scope of the Commission's disciplinary powers is a difficult question. The Commission has not yet attempted to impose any sanction on plaintiff, and there is a possibility that resolution of the issue of the scope of the Commission's powers will not be a prerequisite to the conclusion of the pending disciplinary proceedings with respect to plaintiff. For example, if the Commission were to decide that plaintiff's conduct warrants removal under the statute and were to order such removal, the issue whether the Commission has the power to order a public reprimand would become moot; that issue would also be mooted if the Commission were to conclude that plaintiff's conduct is not serious enough to warrant any disciplinary sanction whatsoever. Moreover, if the Commission were to decide to order a public reprimand of plaintiff, judicial review by the special court of that decision, and of the power of the Commission to issue such an order (see § 11-1529(d)(3)), is available. Nevertheless, because the Commission is conducting its pending proceedings against plaintiff on the assumption that it has the power to order a public reprimand, and because it is desirable for the future guidance of the Commission and of the judges of the District of Columbia, this court believes that the issue of the scope of the Commission's disciplinary powers should be resolved in this case.
The only statutory grounds for removal of a judge of a local court of the District of Columbia are those set out in § 11-1526(a).
This court is convinced and holds that before the Commission may impose any sanction on a judge, it must determine that the judge has engaged in conduct which falls within one of the statutory grounds for removal.
. . .
With that important conclusion in mind, § 11-1526(a)(2) is susceptible of five constructions with respect to the sanctions which the Commission may impose:
If the Commission makes a determination of either
"(A) willful misconduct in office,