783 F.2d 1488 (11th Cir. 1986), 85-2054, Matter of Certain Complaints Under Investigation by an Investigating Committee of Judicial Council of Eleventh Circuit

Docket Nº:85-2054, 85-5420.
Citation:783 F.2d 1488
Party Name:In the Matter of CERTAIN COMPLAINTS UNDER INVESTIGATION BY AN INVESTIGATING COMMITTEE OF the JUDICIAL COUNCIL OF the ELEVENTH CIRCUIT. Betty Ann WILLIAMS and Alan Ehrlich, as members of the official staff of the Honorable Alcee L. Hastings, and the Honorable Alcee L. Hastings, United States District Judge, Plaintiffs-Appellants, v. Spencer MERCER,
Case Date:February 20, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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783 F.2d 1488 (11th Cir. 1986)

In the Matter of CERTAIN COMPLAINTS UNDER INVESTIGATION BY

AN INVESTIGATING COMMITTEE OF the JUDICIAL COUNCIL

OF the ELEVENTH CIRCUIT.

Betty Ann WILLIAMS and Alan Ehrlich, as members of the

official staff of the Honorable Alcee L. Hastings,

and the Honorable Alcee L. Hastings,

United States District Judge,

Plaintiffs-Appellants,

v.

Spencer MERCER, as Clerk of the United States Court of

Appeals for the Eleventh Circuit; and the Honorable John C.

Godbold, Chief Judge of the Eleventh Circuit, the Honorable

Gerald Bard Tjoflat and Frank M. Johnson, Jr., Judges of the

United States Court of Appeals for the Eleventh Circuit, and

the Honorable Sam C. Pointer and William C. O'Kelley, Judges

serving on United States District Courts within the Eleventh

Circuit, as members of a committee known as the

Investigating Committee of the Judicial Council of the

Eleventh Circuit, Defendants-Appellees.

Nos. 85-2054, 85-5420.

United States Court of Appeals, Eleventh Circuit

February 20, 1986

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Terrence J. Anderson, Coral Gables, Fla., Robert Catz, Cleveland, Ohio, for plaintiffs-appellants.

John Doar, New York City, G. Stewart Webb, Baltimore, Md., for defendants-appellees.

Daniel Simons, Ft. Lauderdale, Fla., pro se.

Jeffrey Miller, Ft. Lauderdale, Fla., pro se.

Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Civ. Div. Brook Hedge, Washington, D.C., Stanley Marcus, U.S. Atty., Miami, Fla., for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before CAMPBELL [*], Chief Judge, KEARSE [**], Circuit Judge, and PELL [***], Senior Circuit Judge.

LEVIN H. CAMPBELL, Chief Judge:

This opinion concerns the latest of the cases stemming from the Eleventh Circuit's investigation of Judge Alcee Hastings, a judge of the United States District Court for the Southern District of Florida. Judge Hastings and, in the instant case, present and former members of his staff have strongly challenged the legal and constitutional propriety of the investigation itself, of the Act of Congress which authorizes and directs judicial councils to conduct such investigations, and of many of the procedures involved.

The current opinion disposes of two separate proceedings which were consolidated and heard together before us on June 17, 1985. 1

The first of these consisted of original subpoena enforcement proceedings commenced in this court by the Investigating Committee of the Judicial Council of the Eleventh Circuit (the "Investigating Committee" or "Committee") under the asserted authority of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. Secs. 332(d)(1), 372(c)(9)(A) ("the Act"). In these proceedings, the Committee seeks orders enforcing subpoenas that the Committee caused to be issued under seal of the United States Court of Appeals for the Eleventh Circuit to Betty Ann Williams, Alan Ehrlich, Daniel Simons, and Jeffrey Miller. Ms. Williams is the secretary, and the three others are law clerks or former law clerks, of Judge Hastings.

The second matter is an appeal by Ms. Williams, Mr. Ehrlich and Judge Hastings from a judgment of the United States District Court for the Southern District of Florida (Wilkens, J., sitting by designation) dismissing, for lack of subject matter jurisdiction, their action seeking injunctive, declaratory and other relief against the above-mentioned subpoenas to Williams and Ehrlich, 610 F.Supp. 169 (D.Fla.1985).

Both of the above matters raise similar issues, to wit: 1) whether the Act confers original jurisdiction upon the United States courts of appeals to enforce or quash subpoenas issued under the Act, and 2) whether the subpoenas in question are valid and

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enforceable despite appellants' 2 claims of privilege and of various constitutional and technical defects. We answer both questions in the affirmative, enforcing the Committee's subpoenas to Williams and Ehrlich, directing Simons and Miller to testify before the Committee in response to the matters as to which they have refused, and affirming the dismissal of the district court action.

I. PROCEEDINGS TO DATE

The history of the Committee's investigation of Judge Hastings' judicial conduct has been set out in our earlier opinion, In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d 1261, 1263-64 (11th Cir.1984), and need not be repeated here. Further background may be found in Hastings v. Judicial Conference of the United States, 593 F.Supp. 1371 (D.D.C.1984), vacated and remanded, 770 F.2d 1093 (D.C.Cir.1985), which, among other things, sets out the complaint against Judge Hastings that is the focus of the present investigation. Filed on March 17, 1983, by two judges of district courts within the Eleventh Circuit, the complaint alleges that Judge Hastings has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts and has violated several Canons of the Code of Judicial Conduct for United States Judges, adopted by the Judicial Conference of the United States. Its most serious allegations are that Judge Hastings has conspired to obtain a bribe in return for an official judicial act. Other allegations are as follows: 1) that Judge Hastings made "public and unfounded statements" that the United States was prosecuting him on racial/political grounds; 2) that Judge Hastings has exploited his judicial position by accepting financial donations from lawyers and others to defray the costs of his criminal defense; 3) that in particular cases Judge Hastings has "completely abdicated and delegated" his decisionmaking authority to his law clerk; 4) that Judge Hastings has told counsel in a judicial proceeding that he had read an important precedent when he knew he had not; and 5) that Judge Hastings has exploited his judicial position by soliciting funds for someone he knew was a convicted federal offender. Id. at 1376-77.

We now proceed to a fuller description of the specific matters before us.

A. The Committee's Original Subpoena Enforcement Proceedings

In May 1985 the Committee, acting through the Chief Judge of the Eleventh Circuit, directed that subpoenas be issued and served on Williams, Ehrlich, Simons, and Miller commanding each to appear before it on a specified date later that month, and directing Williams to produce the originals of certain appointment diaries, telephone logs, and the like from Judge Hastings' chambers. 3 Each subpoena was issued by the clerk of the United States Court of Appeals for the Eleventh Circuit under the seal of that court, as provided in 28 U.S.C. Sec. 332(d)(1), and was signed by the Chief Judge as well as by the clerk of that court. Representatives of the Federal Bureau of Investigation served each subpoena and tendered the appropriate mileage and witness fees at the time of service.

The subpoena to Williams commanded her to appear to testify before the Committee

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on May 20, 1985, and bring with her the indicated documents. 4 She did not, however, appear on that date but instead filed in this court a document which she styled as a Notice of Objection to Subpoena and Subpoena Duces Tecum and of Intent to Seek Protective Order and Other Relief. In this she claimed a privilege purportedly protecting against disclosure of in-chambers communications among a judge and his staff. Following the Committee's filing of a motion for contempt, we issued an order requiring Williams to show cause why she should not be adjudged in contempt, but subsequently withdrew that order. The Committee then filed in this court what it called a Motion for an Order Enforcing the Subpoena and Directing Betty Ann Williams to Testify as to All Pertinent Matters.

The subpoena to Ehrlich commanded him to appear to testify before the Committee on May 27, 1985. Before that date, Ehrlich filed in this court a so-called Notice of Objection to Subpoena and Subpoena Duces Tecum and of Pending Case Challenging Subpoena and Seeking Injunctive and Other Relief, and a Motion to Quash or Recall Subpoena and Supplemental Notice of Objections. In his filings Ehrlich asserted a privilege similar to that claimed by Williams. Ehrlich did not appear on May 27. The Committee then filed in this court what it entitled a Motion for an Order Directing Alan Ehrlich to Testify as to All Pertinent Matters.

The subpoenas to both Simons and Miller commanded them to appear to testify before the Committee on May 27, 1985. Before that date, Simons filed in this court a Notice of Objection to Subpoena and Request for Judicial Clarification and Motion to Quash Subpoena. This filing relied on a claim of privilege similar to that raised by Williams and Ehrlich. Miller filed no papers in response to the subpoena. Both Simons and Miller appeared and testified before the Committee on May 28, but both refused to testify, on grounds of privilege, about communications among Judge Hastings and his staff. The Committee then filed in this court motions for orders directing Simons and Miller to testify as to all pertinent matters.

B. The District Court Action

On May 20, Judge Hastings, Williams and Ehrlich brought the district court action from which they now appeal by filing a complaint against the Committee and the clerk of this court (viz., of the Court of Appeals for the Eleventh Circuit) in the United States District Court for the Southern District of Florida. The complaint sought injunctive relief to restrain enforcement of the subpoenas directed to Williams and Ehrlich, an order requiring return of documents already produced...

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