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July 25, 1984

The Honorable ALCEE L. HASTINGS, Plaintiff,

The opinion of the court was delivered by: GESELL

 United States District Judge Alcee L. Hastings brought this action seeking to enjoin an ongoing investigation of his judicial conduct by an investigative committee of the Judicial Council of the Eleventh Circuit. The investigation was begun pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, Pub. L. No. 96-458, 94 Stat. 2035 (1980), 28 U.S.C. §§ 331, 332, 372(c), 604. Judge Hastings seeks a declaration that the Act is unconstitutional on its face and as applied to him. These issues are before this Court on cross-motions for partial summary judgment, which have been fully briefed and argued, *fn1" along with the defendants' motion to dismiss certain counts on grounds of ripeness and subject-matter jurisdiction.

 Judge Hastings filed this action on December 23, 1983. The amended complaint names as defendants the Judicial Conference of the United States, the governing body of the federal court system on which all circuits are represented by a circuit judge and a district judge; the Chief Justice of the United States in his official capacity as presiding officer of the Conference; the Standing Committee of the Judicial Conference; *fn2" the Judicial Council of the Eleventh Circuit, the governing body of judges for that circuit; the Chief Judge of the Eleventh Circuit, John C. Godbold; the members of the Investigating Committee, Judges Godbold, Tjoflat, Johnson, Pointer and O'Kelley; *fn3" and, in Count Four, the Attorney General of the United States, William French Smith, who is joined with other defendants in a Privacy Act claim. *fn4"

 While the complaint states a multitude of prolix and sometimes inconsistent constitutional claims, Judge Hastings' basic contentions are: (1) that the Act interferes with the constitutional guarantee of an independent judiciary by providing machinery for disciplining judges and delegating impeachment powers to the judiciary, in violation of the separation of powers doctrine, and (2) that the Act, both on its face and as applied to him, violates due process rights.

 I. The Act

 The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 culminated nearly 50 years of consideration by Congress and the federal judiciary of the best means to assure responsible judicial conduct consistent with the constitutionally protected independence of the judicial branch.

 At the urging of Chief Justice Hughes and other distinguished federal judges, Congress in 1939 created judicial councils for each circuit empowering them to "make all necessary orders for the effective and expeditious administration of the business of the courts" in each circuit. Administrative Office Act of 1939, Pub. L. No. 76-299, 53 Stat. 1223, 28 U.S.C. § 332. Under this authority the judicial branch has proceeded to run its affairs by negotiation, rules and persuasion. In 1970, the Supreme Court in Chandler v. Judicial Council of the Tenth Circuit, 398 U.S. 74, 26 L. Ed. 2d 100, 90 S. Ct. 1648 (1970), noted that it was "reasonable, proper, and necessary" for the federal courts to have rules governing the management of court business and that "the need for enforcement [of such rules] cannot reasonably be doubted." Id. at 85. But the Court expressed concern about the lack of specificity in the 1939 Act's definition of the scope of the judicial councils' powers and called for legislation to clarify the enforcement power of the councils against recalcitrant judges and the method of review of their orders. Id. at 85 n.6.

 The 1980 Act evolved from this background after long and careful legislative deliberation. Congress was acutely aware of the need both to preserve fundamental judicial independence and at the same time to enable the judiciary "to put its own house in order" by providing tools to implement the judiciary's own disciplinary procedures where necessary to assure judicial accountability. Both House and Senate leaders agreed that

The goals of the . . . legislation are to improve judicial accountability and ethics, to promote respect for the principle that the appearance of justice is an integral element of this country's justice system, and, at the same time, to maintain the independence and autonomy of the judicial branch of government.

 H.R. Rep. 1313, 96th Cong., 2d Sess. 1 (1980); 126 Cong. Rec. S13,858 (daily ed. Sept. 30, 1980) (remarks of Sen. DeConcini).

 As will be seen from the analysis of the Act that follows, the judicial councils were authorized to hold investigative hearings aided by subpoena power and impose specific sanctions short of removal from office. Procedures for receiving and processing complaints from the public were also enacted to promote public confidence in the federal judiciary.

 This formal investigative machinery was expected to be rarely used. Congress emphasized, as did many judges and others supporting the legislation, that informal resolutions by negotiation, discussion and debate among judges were to be preferred and should continue to be used as under the 1939 Act. S. Rep. No. 362, 96th Cong., 1st Sess. 3-4 (1979), reprinted in 1980 U.S. Code Cong. & Ad. News 4315, 4317. However, it was equally clear that on occasion informal resolution would prove ineffective due to the nature of the issue presented, factual disputes or stubborn intransigence.

 The Act provides that any person alleging that a judge "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such a judge . . . is unable to discharge all the duties of office by reason of mental or physical disability," may file a written complaint with the clerk of the court of appeals for that circuit, 28 U.S.C. § 372(c)(1), which the clerk is required to send to the judge involved and to the Chief Judge of the circuit.

 If the Chief Judge does not dismiss the complaint *fn5" or conclude the proceeding on grounds that corrective action has been taken, 28 U.S.C. § 372(c)(3)(B), he must appoint a special committee, as was done in this case, consisting of himself and equal numbers of district and circuit judges of the circuit, to investigate the complaint. 28 U.S.C. § 372(c)(4)(A).

 The judge under inquiry has a right to "adequate prior notice of any investigation." 28 U.S.C. § 372(c)(11)(A). He or she also is entitled to "an opportunity to appear (in person or by counsel) at proceedings conducted by the investigating panel, to present oral and documentary evidence, to compel the attendance of witnesses or the production of documents, to cross-examine witnesses, and to present argument orally or in writing." *fn6" 28 U.S.C. § 372(c)(11)(B).

 The investigating committee is charged with conducting an "investigation as extensive as it considers necessary," and to expeditiously file a written report with the circuit's judicial council stating the committee's findings and recommended action. 28 U.S.C. § 372(c)(5). The committee, like the judge, has "full subpoena powers." 28 U.S.C. § 372(c)(9)(A).

 The judicial council then "shall take such action as is appropriate to assure the effective and expeditious administration of the business of the courts within the circuit." 28 U.S.C. § 372(c)(6)(B). Such action may include, but is not limited to, censuring or reprimanding the judge publicly or privately, temporarily "for a time certain" ordering that no new cases be assigned to the judge, requesting that the judge voluntarily retire at full salary, or certifying the disability of the judge. *fn7" 28 U.S.C. § 372(c)(6)(B). However, the council cannot remove from office any judge appointed to hold office during good behavior. 28 U.S.C. § 372(c)(6)(B)(vii)(I).

 Written notice of any action taken must be sent immediately to the judge under inquiry and to the complainant, and also is to be available to the public in the clerk's office of that circuit's court of appeals. *fn8" 28 U.S.C. § 372(c)(6)(C), (15). The judicial council may conduct any further investigation it believes necessary before action on the investigating committee's recommendation, and subpoena power is provided, 28 U.S.C. § 372(c)(6)(A).

 The council has discretion to refer any complaint and record of related proceedings to the Judicial Conference of the United States. 28 U.S.C. § 372(c)(7)(A). In addition, if the council determines that the judge has engaged in impeachable conduct or conduct which "in the interest of justice, is not amenable to resolution by the judicial council," the council must certify such a finding, together with any complaint and a record of any associated proceedings, to the Judicial Conference. 28 U.S.C. § 372(c)(7)(A), (B). *fn9"

 The Judicial Conference may affirm or reject the Council's action. *fn10" It may conduct further investigation of any matters referred to it by the judicial councils and has the same range of disciplinary actions open to it as to the councils. In addition, if it determines that Congress should consider impeachment, it shall send that finding to the House of Representatives along with any record of proceedings for whatever independent action the House considers appropriate. 28 U.S.C. § 372(c)(8).

 The Judge under inquiry may ask the Judicial Conference, or a Standing Committee of the Conference appointed under the Act, to review the action taken by the Judicial Council. No other judicial review of council or ...

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