The Breyer Committee solution: the way judges make decisions is fair game

In my view, too many complaints about judges are dismissed without investigation because they are characterized as being about the merits of the decision – which can only be pursued on appeal.

I believe this is a real (but easilty remedied) problem with Minnesota’s Board on Judicial Standards – and the form letter it sends to complainants, telling them it will not investigate if the issue should have been appealed.

In September 2006, the Judicial Conduct and Disability Act Study Committee, appointed in 2004 by Chief Justice Rehnquist and known as the “Breyer Committee,” presented a report, known as the “Breyer Committee Report,” 239 F.R.D. 116 (Sept. 2006), to Chief Justice Roberts that evaluated implementation of the Judicial Conduct and Disability Act of 1980, 28 U.S.C.§§ 351-364. The Breyer Committee had been formed in response to criticism from the public and the Congress regarding the effectiveness of the Act’s implementation. The Executive Committee of the Judicial Conference directed the Judicial Conference Committee on Judicial Conduct and Disability to consider the recommendations made by the Breyer Committee and to report on their implementation to the Conference.

(JUDICIAL CONFERENCE OF THE UNITED STATES: Rules for Judicial-Conduct and Judicial-Disability Proceedings, p. 2, ln. 11).

The result was a new set of rules for complaining about federal judges.  (Rules for Judicial-Conduct and Judicial-Disability Proceedings here).

I think the most important aspect of the Breyer Committee report is its discussion of  what is about the ‘merits’ of a decision (and therefore can only be pursued on appeal), and what is proper content for a complaint about a federal judge.  After setting forth a number of examples of the ‘merits,’ the Rules now provide,

Conversely, an allegation — however unsupported — that a judge conspired with a prosecutor to make a particular ruling is not merits-related, even though it “relates” to a ruling in a colloquial sense. Such an allegation attacks the propriety of conspiring with the prosecutor andgoes beyond a challenge to the correctness — “the merits” — of the ruling itself. An allegationthat a judge ruled against the complainant because the complainant is a member of a particularracial or ethnic group, or because the judge dislikes the complainant personally, is also notmerits-related. Such an allegation attacks the propriety of arriving at rulings with an illicit or improper motive. Similarly, an allegation that a judge used an inappropriate term to refer to aclass of people is not merits-related even if the judge used it on the bench or in an opinion; thecorrectness of the judge’s rulings is not at stake. An allegation that a judge treated litigants orattorneys in a demonstrably egregious and hostile manner while on the bench is also notmerits-related.


(Id. at 11, ln. 21; emphasis added).  This is helpful.  It clarifies that the way in which the decision was arrived at – is fair game.  And, it emphasizes that even when it is unsupported, it is proper to complain that the judge conspired with someone else in making the decision.  This is a big step forward for Americans, and it makes sense.

First, even when a complainant truly believes (based on what they have observed) that the judge conspired with someone regarding the decision, the parties almost never have access to evidence that would prove that.  It’s not fair to hold the complainant to a standard that would require them to have phone records, emails, courthouse video, when those are nearly impossible for most people to get.

Second, the Breyer Committee studied the issue in response to public criticism that the federal courts were not doing enough to hold their judges accountable.  That Committee’s decision to specifically authorize complaint for that reason, even without supporting evience, in my view, gets to the heart of what the public wanted when it demanded the courts do more.

The Rules now clarify that it is only the “correctness” of the decision (the outcome itself) that is off limits – pursuable only on appeal.  (Id.).

I am suggesting the Minnesota Board of Judicial Standards adopt the Breyer Committee descriptions of merits versus the way in which a decision was arrived at, and that it implement them when it receives complaints.