UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


JUDICIAL COUNCIL COMPLAINT


99-0001a

D.C. Cir. 1999


*	*	*


Edwards, Chief Judge: This matter involves a complaint of  judicial
misconduct, arising pursuant to the Judicial Councils  Reform and
Judicial Conduct and Disability Act of 1980  ("Judicial Councils
Act"), which seeks to ensure that federal  court of appeals, district,
bankruptcy, and magistrate judges  will not "engage[ ] in conduct
prejudicial to the effective and  expeditious administration of the
business of the courts." 28  U.S.C. s 372(c)(1) (1994). "Any person"
who has reason to  believe that a judge has engaged in such conduct
may file a  written complaint, along with a brief statement of the
facts  constituting such conduct, with the Clerk of the Court of 
Appeals. Id. The matter is then referred to the Chief Judge  of the
Circuit, who, by written order, may dismiss the com- plaint if it is
(i) not in conformity with section 372(c)(1), (ii)  directly related
to the merits of a decision or procedural  ruling, or (iii) frivolous.
See 28 U.S.C. s 372(c)(3)(A) (1994);  D.C. Cir. Jud. Misconduct R.


The instant complaint involves charges against a judge of  the United
States Court of Appeals for the D.C. Circuit who  serves as a member
of the division of the court designated to  appoint independent
counsels ("Special Division"). See 28  U.S.C. s 49 (1994). The
complaint alleges that the judge  engaged in misconduct when the
Special Division on which he  serves issued an order directing the
Justice Department and  Independent Counsel Kenneth Starr to respond
to an Appli- cation for Judicial Notice and Writ of Prohibition filed
by the  Landmark Legal Foundation. For the reasons that follow,  the
complaint must be dismissed.


I. BACKGROUND


The Special Division has three members, each of whom is  appointed by
the Chief Justice of the United States for a two- year term. Although
the Special Division is in no way  involved with the judicial work of
the D.C. Circuit, Congress  created the Special Division as a
"division of the United  States Court of Appeals for the District of
Columbia [Cir- cuit]," 28 U.S.C. s 49(a), in order to give the Special
Division  a base of operations. One appointee to the Special Division
is  selected from the D.C. Circuit, and the other two appointees  are
selected from two other Circuits. The appointment of  independent
counsels is the principal responsibility of the  Special Division.


The appointment authority of the Special Division is de- fined in
detail in the Ethics in Government Act of 1978, as  amended by the
Independent Counsel Reauthorization Acts  of 1987 and 1994
(collectively, "Ethics Act"). See generally  28 U.S.C. ss 591-599
(1994 & Supp. 1995). Under the Ethics  Act, the Special Division acts,
upon receipt of an application  from the Attorney General, to
designate an independent  counsel charged with the investigation and
possible prosecu- tion of criminal violations by certain high-ranking
federal  government officials. See 28 U.S.C. s 593.


The basic facts of Independent Counsel Starr's appoint- ment and
investigation are widely known and need not be  repeated here. See,
e.g., United States v. Hubbell, No.  78-3080 (D.C. Cir. Jan. 26,
1999); In re Charge of Judicial  Misconduct or Disability (No. 98-11),
141 F.3d 333 (D.C. Cir. 


1998). The latest chapter of the story, which has given rise  to this
complaint, began on February 10, 1999, when various  media outlets
reported that the Department of Justice had  begun an investigation
into whether Independent Counsel  Starr or his staff violated
departmental rules and prosecutori- al guidelines in violation of the
Ethics Act. See 28 U.S.C.  s 594(f)(1) ("[A]n independent counsel
shall, except to the  extent that to do so would be inconsistent with
the purposes  of this chapter, comply with the written or other
established  policies of the Department of Justice respecting
enforcement  of the criminal laws"). The next day, February 11, 1999, 
Landmark Legal Foundation filed an Application for Judicial  Notice
and Writ of Prohibition ("Application") instructing the  Attorney
General and her staff to cease any investigation of  Independent
Counsel Starr and his staff for ethical violations  or other
wrongdoing, arguing that the authority to oversee  the conduct of the
Independent Counsel is vested in Congress  rather than the Attorney
General. On February 19, 1999, the  judge who is the subject of this
complaint, along with the  other members of the Special Division,
issued a per curiam  order directing the Attorney General and


On March 8, 1999, complainant filed the instant complaint,  asserting
that the subject judge engaged in misconduct by  joining in the order
directing the Attorney General and  Independent Counsel to respond to
the Application. The  complainant argues that, because the subject
judge and the  Independent Counsel previously served together as
judicial  colleagues on the D.C. Circuit, the judge's impartiality
could  reasonably be questioned if he acted in any case in which Mr. 
Starr was a party. Complainant appears to assume that,  because they
served together as members of the U.S. Court  of Appeals for the D.C.
Circuit for 20 months and "sat on  various, perhaps even numerous,
three judge panels" togeth- er, the judge and Mr. Starr must be close
friends. See  Complaint of Judicial Misconduct 99-1 ("Complaint") at


On March 18, 1999, after this complaint had been filed and  after the
Attorney General and Independent Counsel had 


responded to the Special Division's order, the Special Division 
dismissed Landmark's application, finding that Landmark  lacked
standing to pursue its claim and that the Ethics Act  does not
authorize the Special Division to review any action  by the Attorney
General with regard to the Independent  Counsel. In re Madison
Guaranty Savings & Loan Ass'n,  Division No. 94-1 (D.C. Cir. Mar. 18,


II. THE JURISDICTION OF  THE JUDICIAL COUNCIL FOR THE D.C. CIRCUIT  TO
CONSIDER THIS MATTER


As a preliminary matter, I note that there is a jurisdictional 
question as to whether members of the Special Division are  subject to
disciplinary proceedings in this circuit as a result of  the conduct
of their duties for the Special Division. See In re  Charge of
Judicial Misconduct or Disability (No. 98-11), 141  F.3d 333, 335
(D.C. Cir. 1998); In re Charge of Judicial  Misconduct or Disability
(No. 94-8), 39 F.3d 374, 377-79  (D.C. Cir. 1994). This issue has been
avoided in prior miscon- duct proceedings. Once again, I find it
unnecessary to ad- dress the issue here. Rather, I will assume again
for pur- poses of processing the pending complaint that the Judicial 
Council for the District of Columbia Circuit has jurisdiction to 


III. DOES THE COMPLAINT PRESENT  NON-FRIVOLOUS GROUNDS FOR A 
MISCONDUCT PROCEEDING?


In support of his allegations of misconduct, complainant  cites United
States v. Tucker, 78 F.3d 1313 (8th Cir. 1996),  and In re Charge of
Judicial Misconduct or Disability (No.  95-14), 85 F.3d 701 (D.C. Cir.
1996). Tucker involved a case  in which a District Court judge had
dismissed an indictment  secured by the Independent Counsel against
Arkansas Gover- nor Jim Guy Tucker. On appeal, the Eighth Circuit
reversed  the dismissal of the indictment. The court then ruled that, 
given a possible appearance of partiality, the case should be 
reassigned to a different District Court judge on remand. In  Tucker,
there had been a variety of news articles connecting 


the District Judge and Hillary Rodham Clinton, and the  District Judge
himself had publicly indicated that he would  recuse himself if issues
arose regarding the Clintons, because  of his relationship with the
First Lady. For their part, the  President and Mrs. Clinton reportedly
expressed continued  support for Tucker following his indictment.
Tucker, in turn,  had publicly claimed that the prosecution against
him was  designed to tar the President. Under these circumstances, 
the Eighth Circuit concluded that there was an appearance of 
partiality and that reassignment to another District Judge  would
"preserve the appearance and reality of justice."  Tucker, 78 F.3d at


Subsequently, in In re Charge of Judicial Misconduct or  Disability
(No. 95-14), the Judicial Council of this Circuit  affirmed the
dismissal of a misconduct complaint in a case in  which it was claimed
that the subject judge's friendship with  a Senator who supported the
appointment of an independent  counsel to investigate the late
Secretary of Commerce created  an appearance of bias, tainting the
subject judge's partic- ipation in the appointment. The Judicial
Council, distinguish- ing Tucker, said "Tucker would resemble this
matter only if  the Senator were the subject of a criminal proceeding
over  which the Special Division judge was presiding. Then there 
could be room for supposing the judge's rulings might be  affected."
In re Charge of Judicial Misconduct or Disability  (No. 95-14), 85
F.3d at 705. The complainant here contends  that the hypothetical
situation raised in Charge of Judicial  Misconduct or Disability (No.
95-14) is the precise situation  raised in this case. Complaint at 4.


First, there is no reasonable basis upon which to conclude  that the
subject judge and the Independent Counsel are close  friends. The fact
that the subject judge and the Independent  Counsel sat on various
three-judge panels together during the  20 months that they both sat
on this court does not necessari- ly or logically lead to the
conclusion that they were close  friends then or that they are close
friends now, ten years  later.


Second, the disputed order in this case, in which the Special 
Division merely directed the Attorney General and the Inde- pendent
Counsel to "respond" to the Application that had  been filed by
Landmark Legal Foundation, is a far cry from  the hypothetical posed
in Charge of Judicial Misconduct or  Disability (No. 95-14). In
joining an order that merely  sought a response to a filing by a third
party, the subject  judge was not "presiding" over a "criminal
proceeding" in- volving a close friend. The order was not in any way a
ruling  on the merits of the case. Indeed, following receipt of the 
response that had been sought, the subject judge and his  colleagues
ruled that "[t]he Special Division has 'no power to  review ... any of
the actions of the Attorney General with  regard to the [independent]
counsel.' " In re Madison Guar- anty Savings & Loan Ass'n, slip op. at
7 (quoting Morrison v.  Olson, 487 U.S. 654, 683 (1988)).


Presumably, complainant's concern here was that the sub- ject judge
would seek to thwart any investigation of the  Independent Counsel in
order to protect his "friend." The  Special Division's unanimous
decision refusing to intervene  and stop the investigation completely
undercuts complainant's  allegation of bias. In short, the claim of
bias is entirely  unsupported and thus frivolous. See Complaint of
Doe, 2  F.3d 308, 311 (8th Cir. Jud. Council 1993) (dismissing as 
frivolous unsupported allegations of bias and conspiracy).


IV. CONCLUSION


For the reasons stated above, the complaint is dismissed as  frivolous
under 28 U.S.C. s 372(c)(3)(A)(iii) (1994).1


1 Pursuant to 28 U.S.C. s 372(c)(10) (1994) and D.C. Cir. Jud. 
Misconduct R. 5, complainant may file a petition for review by the 
Judicial Council for the District of Columbia Circuit. Any petition 
must be filed in the Office of the Clerk of the Court of Appeals 
within 30 days of the date of the Clerk's letter transmitting the 
dismissal Order and this Opinion. See D.C. Cir. Jud. Misconduct R.