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Byline: Denise M. Champagne

Efforts by Congress to oversee the federal judiciary are being renewed with the re-introduction of a bill that would create an inspector general to conduct investigations of alleged misconduct.

The bill was introduced in the 112th Congress last week by Sen. Charles E. Grassley, R-Iowa, ranking member of the Senate Judiciary Committee, and Rep. F. James Sensenbrenner Jr., R-Wis., member and former chairman of the House Judiciary Committee.

Federal judges should live by the highest of standards, Grassley said in a press release. When misconduct, waste, fraud and abuse occur, the public's confidence in the federal judiciary is eroded. A good inspector general can detect, expose and deter problems and restore accountability with the American people.

The inspector general would be appointed by the chief justice of the Supreme Court for a four-year term. Duties would include conducting investigations of alleged misconduct of judges that may require oversight or other action by Congress; conducting and supervising audits and investigations; preventing and detecting waste, fraud and abuse; and recommending changes in laws or regulations governing the judicial branch.

The inspector general would be prohibited from investigating or reviewing the merits of a judicial decision and investigatory powers would be limited to only alleged misconduct under the Judicial Conduct and Disability Act of 1980, a law that establishes a procedure to file complaints against a federal judge or an employee of the federal judiciary.

Creating an independent inspector general for the judicial branch will help provide the American public with some peace of mind that there is oversight over those entrusted with the grave responsibility of interpreting the laws of the land, Sensenbrenner said.

The House bill (H.R. 727) would cover only the federal and appellate courts while the Senate bill (S. 348) would allow the inspector general to also conduct oversight of the Supreme Court. Each was referred to its respective Judiciary Committee. Neither bill has a co-sponsor.

Other state representatives serving on the judiciary committees include Sen. Charles E. Schumer, D-N.Y., and Rep. Tom Reed, R-Corning.

Sen. Schumer is taking a close look at the proposal, said Matt House, Schumer's press secretary.

This is the fourth time a bill calling for an inspector general to oversee the federal judiciary has been introduced.

As we have said in past correspondence with Congress, 'rigorous and effective systems and mechanisms for audit, review and investigation currently exist in the judiciary, making the legislation duplicative, intrusive and unnecessary,' said Karen Redman of the Office of Public Affairs for the Administrative Office of the U.S. Courts.

Beth Pellett Levine, a Grassley press secretary, said the current bill is the same as the one introduced in the last Congress, expiring when that session ended Jan. 3.

She said Grassley often heard about problems within the judiciary in the early 1990s when he chaired the Administrative Oversight in the Courts Committee, a subcommittee of the Senate Judiciary Committee.

Then the Breyer report solidified that there were still problems, Levine said, noting the bill was first introduced to the 109th Congress in 2006 following the release of a report by a committee chaired by Supreme Court Justice Stephen G. Breyer.

Two major conclusions were reached by the Judicial Conduct and Disability Act Study Committee, in its report — The Implementation of the Judicial Conduct and Disability Act of 1980 — to then-Chief Justice William H. Rehnquist.

First, the chief circuit judges and judicial councils have properly implemented the act in respect to the vast majority of the complaints filed, what we have referred to as the bulk of the iceberg,' the report states.

The committee sought to determine whether each complaint in the samples was properly reviewed and resolved in accordance with the act's criteria. It found an error rate of about 2 to 3 percent in the failure to properly process complaints.

While a perfectly operating system remains the goal, the committee recognizes that no human system operates perfectly; some error is inevitable, the report states. And the committee is unanimous in its view that a processing error rate of 2 percent to 3 percent does not demonstrate a serious flaw in the operation of the system — given the number of complaints filed, their occasional lack of clarity, and the judgmental nature of the decision as to whether further inquiry is required.

Levine said the report acknowledged that problems still existed.

The problems were that they have a hard time policing themselves, she said. And Sen. Grassley would say inspector generals have been used very effectively in the executive branch.

Members of the bar are watching the bill's progress.

At this point, we do not have a position of any kind on it, said Jack D. Lockridge, executive director of the Federal Bar Association. We continue to monitor it.

The American Bar Association did not return a call by presstime.

The New York State Bar Association has not taken a position on it, said Lise Bang-Jensen, director of Media Services.

In its findings, the Judicial Conduct and Disability Act Study Committee noted it strictly applied committee standards, but found no serious problem with the judiciary's handling of the vast bulk of complaints under the act.

The federal judiciary handles more than two million cases annually; 700 users of the system file complaints; the handling of 2 percent to 3 percent of those is problematic, the report states. We find this last number reflective of the difficulties of creating an error-free system. We conclude that there is no problem-riddled 'iceberg' lurking below the 'high-visibility' surface.

The committee's second major finding had to do with an assessment of high-visibility cases that had received national or regional press coverage, including matters that came to the attention of or had been filed by members of Congress.

Such cases were few, the report says. We identified 17 over a five-year period, but we found the handling of five of them problematic. We consequently consider the mishandling of five such cases out of 17 — an error rate of close to 30 percent –far too high.

The committee also notes the proper handling of high-visibility cases has particular importance because the public is likely to form a view of the judiciary's handling of all cases based on the few that have received publicity.

Wendy Riemann, a spokesperson for Sensenbrenner, cited two recent impeachments of federal judges — Judge G. Thomas Porteous Jr. of the Eastern District of Louisiana following a 2008 investigation in bribery and perjury allegation; and Judge Samuel Kent (2009) of the Southern District of Texas who was sentenced to 33 months in prison for lying after pleading guilty to lying to federal investigators in a sex abuse investigation involving two of his employees.

Rieman said Sensenbrenner has had concerns about judicial misconduct and thinks there should be congressional oversight.

Denise M. Champagne

Copyright: COPYRIGHT 2011 BridgeTower Media Holding Company, LLC

http://nydailyrecord.com/

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