and sanction is obviously conduct that in itself would justify impeachment, since the Judicial Conference may recommend that the House of Representatives consider impeachment. 28 U.S.C. § 372(c)(7)(B), (8). The complaint against Judge Hastings alleges that he conspired to take a bribe and to obstruct justice. It is difficult to imagine any conduct by a judge, if it occurred, more worthy of impeachment. No judge accused of these types of conduct can credibly argue that he lacked advance notice that they were forbidden.
Although it is well settled that "one to whose conduct a statute clearly applies may not successfully challenge it for vagueness," Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974), Judge Hastings makes a broader challenge that will be considered. He seems to contend that even if some of his alleged conduct clearly is reached by the statute, he is still being investigated for other conduct that is too vaguely defined and that is constitutionally protected. He urges that given the broad scope of the Act, it should not withstand constitutional scrutiny.
The statutory standard, "conduct prejudicial to the effective and expeditious administration of the business of the courts," was necessarily broad.
The legislative history notes that this standard was "intended to include willful misconduct in office, willful and persistent failure to perform duties of the office, habitual intemperance, and other conduct prejudicial to the administration of justice that brings the judicial office into disrepute." S. Rep. No. 362, 96th Cong., 1st Sess. 9 (1979), reprinted in 1980 U.S. Code Cong. & Ad. News 4315, 4323.
The legislative history further notes that this statutory standard was intended to draw guidance from the Code of Judicial Conduct for the United States Judges, published by the Judicial Conference,
among other sources. Id. In adopting this standard, this Court holds that Congress therefore did not intend to authorize investigation and formal proceedings against a judge for one or two isolated instances of possibly unethical or inappropriate official conduct unless such conduct, by itself, could amount to an impeachable offense. Congress recognized that a clearly established pattern of similar or disparate unethical judicial conduct, if unchecked, could so prejudice the administration of the courts and bring the judiciary into such disrepute that formal disciplinary action would be required.
So read, the Act is clearly not vague. Cf. Roberts v. United States Jaycees, 468 U.S. 609, - , 52 U.S.L.W. 5076, 5081-82, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984).
Thus the statutory mechanism was intended to be available if no collegial resolution is possible for the relatively rare case where the charges, by their individual weight or by their weight as a pattern taken together, are sufficiently serious to bring into question the integrity of the judicial system itself.
The complaint against Judge Hastings, if established, presents such a gross pattern of ethical violations.
Given the Act's clear emphasis on invoking the Act's investigative machinery only for serious misconduct, it was not necessary for Congress to compile an exhaustive catalogue of all forms of misconduct targeted by the Act. Indeed, it would have been impossible, because excepting those most rare cases of single impeachable acts, the pattern and the varied context of an individual judge's behavior must remain critical to determining whether the statute's investigative processes will be invoked. Such an inquiry is too subtle for more rigid legislative codification.
Moreover, as discussed above, Judge Hastings' argument that the Act chills his and other judges' constitutionally protected independence fundamentally misconstrues the nature of the judicial independence that the Constitution was intended to protect. He continues to confuse the independence of the judiciary with his desire for unbridled personal independence.
C. Due Process
Judge Hastings' due process claims equally lack merit. He contends that the Act creates "a Star Chamber in which the accused has no right to confront the evidence against him." This is patently incorrect. The Act expressly provides a judge under inquiry with, among other rights, the opportunity to appear before the investigating committee, present evidence and compel its production if necessary, as well as to cross-examine witnesses. 28 U.S.C. § 372(c)(10). It is true that the Act does not expressly provide the same confrontational rights in its provision for additional investigation by the Judicial Council, the Judicial Conference or its Standing Committee. But such rights are implicit in the statutory design providing that additional confrontational hearings "may" be held. Congress hardly could have intended to allow a judge's confrontational rights to be sidestepped by the device of allowing him to confront evidence at a foreshortened investigating committee proceeding, saving most of the evidence for presentation at later proceedings at which confrontation would be barred. Fairly read, the Act requires that a judge under inquiry have the right to confront all the evidence against him at whatever stage it is presented.
This, of course, does not mean an accused judge has a right to re-confront old evidence at every stage where it is considered. But a judge under inquiry has the right under the Act to confront at some point all the evidence against him, and the Court so holds.
Judge Hastings' contention that the Act impermissibly combines investigative and adjudicatory power, so as to render impossible a fair adjudication, similarly lacks merit. The mere combination of such powers, by itself, does not violate due process. Withrow v. Larkin, 421 U.S. 35, 58, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975). Judge Hastings simply has made no credible showing that under the procedures established by the Act "the risk of unfairness is intolerably high." Id. It is, of course, inevitable that in any peer-review mechanism as established here, members of judicial councils occasionally may have prior knowledge of allegations of misbehavior before they are asked to sit in judgment on such charges. But prior knowledge of some of the facts of a case does not by itself establish bias. See Withrow v. Larkin, 421 U.S. at 47-50; FTC v. Cement Institute, 333 U.S. 683, 701, 92 L. Ed. 1010, 68 S. Ct. 793 (1948). To protect against the possibility of actual bias from prior knowledge or personal animosities within a circuit, Congress gave review authority to the more remote and scattered members of the Judicial Conference. The Act thus cannot be said on its face to violate the due process requirement of an impartial tribunal. As for Judge Hastings' particular concerns with the composition of the Investigating Committee and its actions to date, those are not reviewable here. Judge Hastings must follow the statutory review process. See 28 U.S.C. § 372(c)(10).
This Court concludes that the Act shows a sensitivity to the procedural rights of judges under inquiry and protects them with adequate care to satisfy the fundamental fairness required by the due process clause.
D. Other Issues
Judge Hastings contends the government's refusal to pay for his legal fees to defend against the disciplinary action diminishes his compensation in office in violation of Article III of the Constitution.
Congress, of course, is forbidden by the compensation clause from diminishing directly the salary of federal judges. See United States v. Will, 449 U.S. 200, 225-26, 66 L. Ed. 2d 392, 101 S. Ct. 471 (1980). An indirect diminution of a judge's disposable income, triggered by that judge's own conduct, is entirely different. See Duplantier v. United States, 606 F.2d 654, 669 (5th Cir. 1979), upholding civil penalty provisions of the Ethics in Government Act, 28 U.S.C. App. § 301 et seq., as applied to judges. This claim has no more substance than the contention of judges assigned to duties away from their homes that their compensation is diminished because their per diem allowance does not cover actual necessary expenses.
Finally, upon further review of this complaint in the light of the foregoing analysis, it is clear that the two remaining counts must also be dismissed, on the Court's own motion.
Count Three asks the Court to review the motives underlying Judge Godbold's order instituting the investigation. That order simply is not reviewable by this type of collateral lawsuit, see 28 U.S.C. § 372(c)(10), even if Judge Hastings seeks to clothe his request for review in the language of conspiracy. In no other respect does Count Three state a cause of action on which relief can be granted.
Count Four states on its face no Privacy Act claim in regard to past actions by the Justice Department, since the Act requires neither that Judge Hastings be notified nor approve of any disclosures made. See 5 U.S.C. § 552a(b)(7), (e)(8). The Justice Department memorandum mentioned in paragraph 57 of the amended complaint merely states in most general terms matters already of public record. No violation of the regulations cited emerges. As for future cooperation between the Justice Department and the Investigating Committee, that has been resolved by In re Petition, 576 F. Supp. 1275 (S.D. Fla. 1983), aff'd, 735 F.2d 1261 (11th Cir. 1984). Finally, the due process allegations against the Investigating Committee defendants in Count Four represent yet another attempt by Judge Hastings to short-circuit the exclusive review process vested by the Act in the judicial councils and the Conference, and this Court cannot consider them. See 28 U.S.C. § 372(c)(10). Thus no cause of action is stated in Count Four.
For reasons stated, the Court finds that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 withstands close constitutional scrutiny and is reasonably fashioned by Congress to improve judicial administration so as to enable the judiciary to preserve and protect its independence. The pending investigation by the Eleventh Circuit of Judge Hastings' behavior will not be enjoined. The complaint is dismissed with prejudice. An appropriate Order is filed herewith.
Upon consideration of all motions filed by the parties, the respective oppositions thereto, the arguments of counsel, and the entire record of the case, for the reasons stated in the accompanying Memorandum, it is hereby
ORDERED that the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, insofar as it authorizes and establishes procedures for the investigation and disposition of complaints relating to the conduct of Article III judges, is declared constitutional on its face; and it is further
ORDERED that plaintiff's motion for summary judgment as to Count One of the amended complaint is denied and defendants' motion for summary judgment as to Count One is granted; and it is further
ORDERED that Counts Two, Three and Four of the amended complaint are dismissed with prejudice.