Halleck v. Berliner

• Citation: 427 F. Supp. 1225
• Decision Date: 07 March 1977
• Docket Number: Civ. No. 76-1985.
• Parties: Charles W. HALLECK, Plaintiff, v. Henry A. BERLINER, Jr., et al., Defendants.
• Court: U.S. District Court — District of Columbia

427 F. Supp. 1225

Charles W. HALLECK, Plaintiff, v. Henry A. BERLINER, Jr., et al., Defendants.

Civ. No. 76-1985.

United States District Court, District of Columbia.

January 26, 1977.

Motion to Reconsider and Amend Denied March 7, 1977.

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John W. Karr, Karr & Graves, Washington, D.C., for plaintiff.

John R. Risher, Jr., Corp. Counsel for the District of Columbia, Robert L. Chernikoff and James C. McKay, Jr., Asst. Corp. Counsel, Robert S. Bennett, of counsel, Washington, D.C., for defendants.

THOMSEN, Senior District Judge.^*

Plaintiff, a judge of the Superior Court of the District of Columbia, filed this action for declaratory and injunctive relief on October 26, 1976, seeking to have this court: (I-A) declare unconstitutional certain provisions of §§ 1521-30 of Title 11 of the D.C. Code, which create the District of Columbia Commission on Judicial Disabilities and Tenure (the Commission) and deal with its duties in evaluating judges seeking reappointment; (I-B) declare void the September 1975 evaluation by the Commission of plaintiff's candidacy for reappointment as a judge of the Superior Court; (II-A) declare unconstitutional § 11-1526(a)(2)(C) of the D.C.Code, dealing with the disciplinary responsibilities of the Commission; and (II-B) enjoin the disciplinary proceeding concerning plaintiff pending before the Commission.

The Statutes

In 1970, Congress passed the District of Columbia Court Reorganization Act of 1970 (the Court Reorganization Act), D.C. Code, § 11-101 et seq. (1973), pursuant to its power to "exercise exclusive Legislation" over the District of Columbia under Art. I, § 8, cl. 17, of the United States Constitution.¹ Under the Court Reorganization Act, several trial courts were merged into the newly created Superior Court of the District of Columbia, § 11-901; fifteen year terms were established for judges of the Superior Court, § 11-1502; and the District of Columbia Commission on Judicial Disabilities and Tenure was created and empowered to suspend, retire or remove judges of the District of Columbia courts, § 11-1521, subject to review by a special court of three federal judges designated by the Chief Justice, § 11-1529.

In 1973 Congress again exercised its Art. I, § 8, cl. 17 power by enacting the District of Columbia Self-Government and Governmental Reorganization Act (the Home Rule Act). Act of Dec. 24, 1973, Pub.L.No. 93-198, 87 Stat. 774. In Title IV, Part C (the Judiciary) of the Home Rule Act, now codified in D.C. Code, Title 11, Appendix (Supp. III, 1976), the Commission was reorganized² and by § 433(c) was given the additional function of evaluating the candidacy of a judge of the District of Columbia courts seeking reappointment to judicial office. Section 433(c) is set out in the margin.³

Historical Facts

By appointment of the President, with the advice and consent of the Senate, plaintiff had been commissioned a judge of the Court of General Sessions for a ten-year term, on October 20, 1965. Under the Court Reorganization Act, § 11-1501 as amended by Pub.L.No. 91-358, § 194, 84 Stat. 594, such a judge serves as a judge of the newly created Superior Court until the expiration of his existing term, and "until his successor is appointed and qualifies," § 11-1502, or until he is removed, suspended or involuntarily retired from office under § 11-1526. Subject to these provisions, plaintiff's term ran until October 20, 1975.

Pursuant to § 433(c), see note 3 above, and after the Commission had informed him of his right to do so, plaintiff filed with the Commission on July 10, 1975, a declaration of candidacy for reappointment as a judge of the Superior Court. As contemplated by the statute, the Commission received and gathered information pertaining to plaintiff's candidacy and, after advising plaintiff and his counsel of the matters which were giving it concern, on September 16, 1975, met with plaintiff, who was accompanied by his counsel and others, to discuss aspects of plaintiff's judicial conduct as they related to his fitness for reappointment.⁴ Thereafter, on September 19, 1975, the Commission submitted to the President an evaluation of plaintiff's performance as a judge and the Commission's determination that plaintiff was "qualified" for reappointment to another term.

Under § 433(c) of the Home Rule Act, a determination that a declaring candidate is "exceptionally well qualified" or "well qualified" results in automatic reappointment for a full term; a determination that the candidate is "unqualified" makes the candidate ineligible for reappointment; a determination that the candidate is "qualified" for reappointment means that the President may nominate the candidate for reappointment, subject to the advice and consent of the Senate. The President forwarded to the Senate his nomination of plaintiff for reappointment, which was then referred to the Senate Committee on the District of Columbia. That Committee held extensive public hearings on December 3, 1975, and voted unanimously on August 10, 1976, to report favorably to the full Senate the nomination of plaintiff.⁵ The Senate, however, did not act on plaintiff's nomination for reappointment before adjourning sine die on October 1, 1976, until January 1977. Under Rule 38.6 of the Senate Standing Rules, plaintiff's nomination must be returned to the President. Senate Manual, 94th Cong., 1st Sess. (1975 ed.). If the President again nominates plaintiff, the Senate can again consider giving its advice and consent.

In the early part of 1976, while plaintiff's nomination for reappointment was before the Senate, the Commission received information relating to plaintiff's judicial conduct, on the basis of which it initiated an investigation to determine whether grounds existed for disciplinary proceedings under § 11-1526 of the D.C. Code.⁶ On June 14, 1976, the Commission served on plaintiff a "Notice of Formal Proceeding", in which it informed plaintiff that specific instances of his conduct were to be the subject of a disciplinary hearing to determine whether the Commission should take action under § 11-1526. In that notice it was stated that the alleged conduct, if it had in fact taken place, would be in contravention of Canons 2A and 3A(3) of the Code of Judicial Conduct of the American Bar Association. The Joint Committee on Judicial Administration in the District of Columbia had adopted the ABA Code of Judicial Conduct on February 16, 1973.⁷

On August 26, 1976, the Commission notified plaintiff that the hearing would be held on September 29, and informed him on September 21 that the Commission would take "official notice" that plaintiff had made certain representations at the September 16, 1975, reappointment conference, which the Commission felt were not borne out by plaintiff's subsequent conduct. Following an exchange of correspondence and the filing of various motions by plaintiff, the hearing on the disciplinary charges against plaintiff was set for October 27, 1976.

The Proceedings Herein

On October 26 plaintiff filed this action, seeking inter alia to enjoin the disciplinary hearing set for the next day. Noting that no judge of this Court was available to hear the matter, Judge Bryant, on October 27, entered an order restraining the Commission from proceeding with the hearing until the further order of the Court. All of the regularly assigned judges of this Court promptly disqualified themselves and, on the same day, the Chief Justice of the United States designated the undersigned judge to sit as a judge of this Court to hear this case.

At a conference in chambers held on the morning of October 28, the parties agreed to a procedure for handling the case, and this court entered the following order:

"The parties have agreed that the hearings on all requested injunctions and declaratory relief be held at the same time. The Court has fixed that time as Monday, November 15, 1976, at 10 a.m., in the United States Courthouse in Washington. Both sides will file briefs with me not later than Monday, November 8.

"The parties are further agreed that the Commission may set its proposed hearing on Monday, December 13, 1976, subject to further order of the Court."

The trial commenced on November 15, but only after the court denied plaintiff's request for a fourteen day continuance, which he sought on the morning the trial was scheduled to begin, and after the court directed that plaintiff's belated attempts to acquire discovery by deposition be accommodated by permitting plaintiff's counsel wide latitude in asking questions of witnesses designed for discovery purposes. All of the testimony which was taken for discovery purposes was afterwards offered in evidence by plaintiff. On the fourth day of the trial, November 18, plaintiff's counsel complained for the first time of his inability to obtain documentary discovery and requested that the proceedings be recessed to allow documentary discovery to take place. The court acceded to that request, but stated that the conclusion of the evidence and argument should take place within two weeks, i. e., by December 2, since the agreed date for the disciplinary hearing was December 13. Subsequently, the court set December 2 and 3 for the completion of the presentation of evidence and argument. On the afternoon of Friday, November 26, eight days after the proceedings were recessed to provide plaintiff's counsel an opportunity to seek documentary discovery and only four working days prior to the scheduled resumption of the trial, plaintiff's counsel served on defendants a request for production of documents which, in effect, requested that the Commissioners produce every document of any sort they have in their possession referring to Judge Halleck. In order to permit a proper presentation and consideration of the various questions involved in plaintiff's request, the court postponed the case...