18

1 duct of its activities, which rules shall be matters of public

2 record, and shall be effective upon promulgation.

3

AUTHORIZATION OF APPROPRIATIONS

4 SEC. 9. There are authorized to be appropriated such

5 sums as may be necessary to carry out the provisions of 6 this Act.

STAFF DRAFT

A BILL To establish a procedure in addition to impeachment for the retirement of disabled members of the Judiciary of the United States and the removal of those whose conduct is or has been inconsistent with the good behavior required by Article III, section 1 of the Constitution and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That this Act may be cited as the "Judicial Tenure Act".

PROCEDURES FOR CENSURE, REMOVAL AND INVOLUNTARY RETIREMENT

SEC. 2(a) Chapter 17 of title 28, United States Code, is amended by adding at the end thereof the following new sections:

"8 377.

Judicial Conduct and Disability Commission; establishment and duties. "(a) There is established in the judicial branch of the Government a body which shall be known as the Judicial Conduct and Disability Commission. The Commission's mandate shall be to further the honest, impartial and efficient administration of justice in the courts of the United States in accordance with the duties imposed upon it by law. The Judicial Conference of the United States is authorized to appoint and fix the compensation of the staff of the Commission. "(b) The Commission shall be composed of nine members, eight of whom shall be chosen by the Judicial Conference of the United States from its membership with the ninth member being chosen by the Supreme Court of the United States from its membership. The member from the Supreme Court shall serve as the presiding officer of the Commission. The Chief Justice shall neither take part in the selection of the members of the Commission from the Judicial Conference nor may be appointed as the member of the the Commission from the Conference. The Chief Justice can be selected as a member of the Commission from the Supreme Court.

66

"(c) (1) The term of each member of the Commission shall be three years; however, the term of any member which expires during the pendency of an inquiry before the Commission shall automatically be extended until the inquiry is concluded and the term of a new member shall commence at that time. A member selected to fill a vacancy shall commence a new three year term. A judge or justice may serve on the Commission any number of terms but may not serve consecutive terms.

"(2) The term of a member of the Commission shall become vacant automatically when such member resigns, retires or is permanently separated from regular active service as a judicial officer.

"(d) Performance of duties as a member of the Commission shall constitute the transaction of official business within the meaning of section 456 of this title. "§ 378. Panels; Selection and Receipt of Complaints.

"(a) The Supreme Court, the judicial council of all circuits, the Court of Claims, the Court of Customs and Patent Appeals, and the Customs Court shall each elect from their respective memberships a panel of judges to receive, process and resolve complaints against members of their respective courts or circuits. The Chief Justice of the Supreme Court and the Chief Judge of each circuit or court shall sit as presiding officer of the panel except when he is the subject of the complaint, in which case he shall not sit on the panel during consideration of the complaint against him and the next most senior member of the court or circuit shall sit as presiding officer of the panel.

"(b) Upon receipt of a complaint the panel shall convene and conduct its proceedings in accordance with the rules for conduct for such proceedings pursuant to section 7 (b) of this Act and other provisions of this title.

"§ 379. Complaint concerning conduct of justice or judges; filing and processing. "(a) Any person may file a complaint concerning the conduct of a justice or judge of the United States which may be a ground for discipline as authorized in section 383, or requesting the involuntary retirement of a justice or judge under section 372 (c) of this title. The complaint shall be in writing and filed with the Commission. A complaint filed with the Commission shall be transmitted within five working days to the presiding officer of the panel of the

circuit in which the judge against whom the complaint was filed sits, or the chief judge of the Court of Claims, the Court of Customs and Patent Appeals, the Customs Court or the Chief Justice of the Supreme Court. The Commission shall prepare an annual report to the Congress showing the number of complaints and the action taken on each complaint. In so reporting, the confidentiality prescribed in section 382 of this title shall be observed.

"(b) Any complaint received by a panel of a circuit, the Supreme Court, the Court of Claims, the Court of Customs and Patent Appeals, or the Customs Court, which, after preliminary inquiry, such panel finds frivolous, unwarranted or outside the scope of this Act shall be dismissed by written order of the panel and the complainant shall be notified of the action taken and the reason for dismissal. Whenever the panel determines that there is probable cause to make further investigation with respect to the removal or censure under section 383 or retirement under section 372 (c) of any justice or judge is necessary, it shall notify such justice or judge of the commencement of the investigation and give such justice or judge notice and opportunity for a hearing. Such notice shall be given not less than fifteen (15) days before such hearing is held. At any hearing by the panel regarding the conduct or condition of a justice or judge, that justice or judge has the right to make or submit a statement in his own behalf, may be represented by counsel, offer evidence on his own behalf, and confront and cross-examine any witness, and have the right to compulsory process to obtain witnesses. Not later than sixty (60) days after the end of hearings under this section with regard to the conduct or condition of a justice or judge, the panel shall make findings of fact and a determination as to such conduct or condition. Notwithstanding any other provision of this subsection, the panel shall have no longer than one hundred and twenty (120) days from receipt of the complaint to make its findings and determination, unless the panel in the interests of justice finds it necessary to extend the final time for disposition of a complaint. "(c) The panel may solicit the assistance of the staff of the Commission or any other personnel necessary to assist it in resolving a complaint.

"(d) The panel shall keep a record of each hearing and make a copy of such record available to the justice or judge who was the subject of the hearing at the expense of the panel.

"(e) Following the commencement of an investigation under subsection (b), the panel may order the subject or any such inquiry to cease the exercise of any judicial powers or prerogatives pending disposition of the inquiry. Such an order shall be issued over the signature of the presiding officer. During the period of suspension the justice or judge shall continue to receive the salary of his office. Such an order shall include specifics as to business pending before such justice or judge as the panel may deem appropriate.

"(f) Any panel shall have the power in all cases brought before it, by majority vote thereof

"(1) to order the censure of any justice or judge whose conduct is found to be inconsistent with the good behavior required by the Constitution;

"(2) to order the removal from office of any such justice or judge whose conduce is found to be inconsistent with the good behavior required by the Constitution;

"(3) to order the involuntary retirement of any justice or judge in accordance with section 372 (c) of this title; or

"(4) to dismiss any such case.

All orders shall be in writing and any justice or judge affected by any such order shall be so notified in writing.

"(g) The decision of a panel may be appealed by the subject justice or judge to the Commission within ten (10) days of the rendering of a determination by the panel. The panel shall stay any order of removal, censure or involuntary retirement of any justice or judge pending appeal of the case to the Commission. "§ 380. Procedure before the Commission.

"(a) Upon receipt of an appeal from a panel the Commission shall convene and conduct its proceedings in accordance with the rules for conduct for such proceedings as promulgated pursuant to section 7(b) of this Act and other provisions of this title.

"(b) The Commission shall keep a record of its proceedings and make such record available to the justice or judge who requested the appeal at the expense of the Commission.

"(c) The Commission shall affirm, modify, or reverse any decision of a panel. Upon affirmance by the Commission of the order of the panel directing removal, censure or involuntary retirement of a judge or upon the expiration of the time for seeking review of any such order without the filing of an appeal, the order of the panel shall be final.

(d) In any case in which a justice or judge is removed or involuntarily retired under this chapter, the Chief Justice of the Supreme Court shall certify to the President that a vacancy exists in the office from which the justice or judge has been removed or involuntarily retired. The President shall appoint, by and with the advice and consent of the Senate, a successor to fill any vacancy caused by the removal of a judge under this section.

"(e) The Commission shall have sixty (60) days from notice of appeal to render a decision.

“(f) The Commission shall notify the complainant and any justice or judge of its determination that the conduct or fitness of such justice or judge does not warrant removal, censure or involuntary retirement.

"§ 381. Disqualification of judges.

"A judge who is a member of the panel shall not sit in any proceeding of such body when it inquires into his own conduct, fitness, or claim. In no case shall a member of a panel from which an appeal is pending before the Commission be a member of the Commission.

"§ 382. Confidentially of proceedings.

"All matters filed with and all testimony or evidence given before a panel or the Commission in connection with the removal or censure of a justice or judge under section 383 of this title or the involuntary retirement of a justice or judge under section 372 (c) of this title shall be made public at the discretion of the panel or the Commission.

"8 383. Good behavior standard.

"Conduct which shall be deemed to be inconsistent with good behavior includes, but is not limited to, wilful misconduct in office, wilful and persistent failure to perform duties of the office, habitual intemperance, or other conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

"§ 384. Immunity.

"No person except the justice or judge who is the subject of an inquiry under this chapter shall be excused from complying with an order of the panel compelling the person to testify or produce evidence on the ground that the testimony or evidence produced may tend to incriminate such person. The testimony given or evidence produced in compliance with the order, and any information directly or indirectly derived from the testimony or evidence, may not be used against the person in a criminal prosecution, except that such person shall not be exempt from prosecution and punishment for perjury committed while so testifying. Any panel and the Commission shall consult with the Department of Justice prior to requiring a person to testify or give evidence.

"(b) The analysis of chapter 17 of title 28, United States Code, is amended, by adding at the end thereof the following new items:

"Sec.

"377. Judicial Conduct and Disability Commission; establishment and duties. "378 Panels selection and receipt of complaints.

"379. Complaint concerning conduct of justice or judges; filing and processing. "380. Procedure before the Commission.

"381. Disqualification of judges.

"382. Confidentiality of proceedings. "383. Good behavior standard.

"384. Immunity.

INVOLUNTARY RETIREMENT

SEC. 3. Section 372 of title 28, United States Code, is amended by adding at the end thereof:

"(c) Whenever any justice or judge of the United States appointed to hold office during good behavior who is eligible to retire under this section does not do so and a majority of the Commission finds, that such justice or judge is

unable to discharge efficiently one or more of the critical duties of his office by reason of a permanent mental or physical disability, the Commission shall certify the disability of such justice or judge from active service. Any justice or judge who is involuntarily retired shall be entitled to salary as specified in subsection (a) of this section. Habitual intemperance that seriously interferes with the performance of any one of the critical duties of a justice or judge may constitute a permanent disability for the purposes of this subsection provided the justice or judge has served more than seven years in judicial office. Such justice or judge shall then be involuntarily retired from regular active service and the Commission shall send notice of its action to the President. The President shall, by and with the advice and consent of the Senate, appoint a successor to any justice or judge retired involuntarily under the provision of subsection (c) of this section. Whenever such successor shall have been appointed, the vacancy subsequently caused by the death or resignation of the justice or judge involuntarily retired shall not be filled."

ASSIGNMENT OF RETIRED JUDGE

SEC. 4. (a) Section 294 (a) of title 28, United States Code, is amended by striking out "retired" and by inserting immediately after "Court" the following: "who has voluntarily retired".

(b) Section 284 (c) of title 28, United States Code, is amended by inserting in the first sentence, after the word "Any", the word "voluntarily".

MISCELLANEOUS

SEC. 5. Section 604 of title 28, United States Code, is amended by adding at the end thereof the following new subsection.

"(f) The Director shall provide facilities and pay necessary expenses incurred by the Commission, under chapter 17 of this title including mileage allowance and witness fees at the same rate as provided in section 1821 of this title." SEC. 6. Section 569 (b) of title 28, United States Code, is amended immediately after "Canal Zone" by inserting "and of the Commission under chapter 17 of this title."

SEC. 7. (a) Within one hundred and eighty (180) days after the date of enactment of this Act, the Justices of the Supreme Court, the judges of each circuit, and the judges of the Court of Claims, the Court of Customs and Patent Appeals, and the Customs Court shall elect the members to serve on the Commission in accordance with section 377(b) of title 28, United States Code (as added by section 2 (a) of this Act).

(b) Within one year after the date of enactment of this Act, the Judicial Conference shall promulgate rules for the conduct of the proceedings of the Commission, and the Judical Councils, the Justices of the Supreme Court, and the judges of the Court of Claims, the Court of Customs and Patent Appeals, and the Customs Court shall promulgate rules for the conduct of the proceedings of their respective panels, which rules shall be matters of public record, and shall be effective upon promulgation.

AUTHORIZATION OF APPROPRIATIONS

SEC. 8. There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act.

Senator DECONCINI. Senator Nunn, we particularly welcome you and thank you for your very, very important effort and desire to see this become a statute. We look forward to your testimony. Your previous testimony will be inserted in the official record once again here. I have had an opportunity to review it, as has my staff. Indeed, you have done a lot of work in this particular area.

We look forward to hearing from you. Please proceed.

[The statement of Senator Sam Nunn on S. 1110 of the 94th Congress made before the subcommittee on February 18, 1976, follows:]