Hastings v. Judicial Conference of U.S.

Decision Date15 September 1987
Docket NumberNo. 86-5588,86-5588
Citation829 F.2d 91,264 U.S.App.D.C. 306
Parties, 56 USLW 2183 Alcee L. HASTINGS, Honorable U.S. District Judge, U.S. District Court for the Southern District of Florida, Appellant, v. JUDICIAL CONFERENCE OF the U.S., et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 86-2353).

Terence J. Anderson, Coral Gables, Fla., with whom John W. Karr, William G. McLain, Washington, D.C., and Robert S. Catz, Coral Gables, Fla., were on brief, for appellant.

Brook Hedge, Atty., U.S. Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Harold Krent, Atty., U.S. Dept. of Justice, Washington, D.C., were on brief, for appellees Judicial Conference of the U.S., et al.

John Doar, New York City, for appellees Judicial Council of the Eleventh Circuit, et al.

Before RUTH BADER GINSBURG, BUCKLEY, and D.H. GINSBURG, Circuit judges.

Opinion for the court filed by Circuit Judge D.H. GINSBURG.

Opinion concurring in part and dissenting in part filed by Circuit Judge BUCKLEY.

D.H. GINSBURG, Circuit Judge:

Two years ago, this court held that United States District Judge Alcee L. Hastings' challenges to the constitutionality of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 ("the Act"), 1 were premature, and instructed the lower court to dismiss the action without prejudice. When that action was filed, the committee appointed by the Chief Judge of the Eleventh Circuit to investigate the complaint lodged against Judge Hastings under the Act ("the Investigating Committee") had not yet reported its conclusions and recommendations to the Judicial Council of the Eleventh Circuit ("the Council"); we held that the possible outcomes of the investigation were too numerous, and the actual outcome too uncertain, to justify judicial intervention at that stage in the proceedings. 2

Since that time, the Investigating Committee has delivered its findings and recommendations to the Council, prompting Judge Hastings to renew his attack on the constitutionality of the Act. In addition, during the pendency of this appeal, the Council determined that Judge Hastings may have committed impeachable offenses and, as contemplated by the Act in such circumstances, it certified this finding to the Judicial Conference of the United States ("the Conference"). The Conference has concurred in the Council's assessment that the consideration of impeachment may be warranted and in turn certified this determination to the House of Representatives.

Judge Hastings filed the instant action for injunctive relief on August 25, 1986, a few weeks after the Investigating Committee transmitted its report and recommendations to the Judicial Council. 3 His complaint contained two counts. Count One alleged that the Act, on its face, violates the separation-of-powers principles of the Constitution and the Due Process Clause of the Fifth Amendment; Count Two alleged that the Council's (and the Conference's expected) application of the Act to Judge Hastings violated the same constitutional principles and worked a violation of the Compensation Clause of Article III of the Constitution.

In a brief unpublished opinion, the district court held that Judge Hastings' claims concerning procedures before the Conference were not then ripe, and that all but one of his additional constitutional claims were barred by final rulings in one or more cases in which Judge Hastings participated and had an opportunity to raise the claims. 4

                The single constitutional claim that the court held properly presented for decision was the contention that Congress may not compel the Conference to certify to the House of Representatives its own or a council's determination with respect to a judge that--in the words of the Act--"consideration of impeachment may be warranted." 5   The district court found this claim to be without merit, however, because "[a]ny certification of the Council or the Conference is merely informational, nothing more, to be granted only such weight as Congress in its wisdom wishes." 6
                

In this appeal, Judge Hastings renews his challenge to the constitutionality of the Act on its face and as applied, and disputes whether any issues he presents are or should be precluded by prior judicial decisions. First, the appellant asserts that the scheme established by the Act is "unconstitutional in principle" 7 because it improperly assigns executive and legislative functions to certain Article III judges and, in the course thereof, compromises the independence of all Article III judges. It is by no means clear whether the appellant intends for this general indictment of the Act to be treated as a distinct claim on appeal, or only as background to his more specific claims; we give him the benefit of the doubt, however, and treat the argument as raising a separate claim. Second, he maintains that the Act's certification requirements 8 violate separation-of-powers principles and compromise judicial independence. Third, the appellant argues that the Chief Judge of the Eleventh Circuit has effectively diminished Judge Hastings' compensation in office, in contravention of Article III, by exercising his discretion to initiate an investigation, thus requiring appellant to bear the cost of defending himself. Fourth, Judge Hastings makes certain facial attacks on the Act based on the Due Process Clause. Specifically, he alleges that the Act fails to provide fair procedures, and that it is unconstitutionally vague and overbroad. Finally, the appellant argues that the Act has been applied to him in an unconstitutional manner, again in violation of separation-of-powers principles, the Compensation Clause, and the Due Process Clause.

For the reasons stated below, we hold that the appellant was properly estopped from raising his claims that the investigatory and subpoena powers of the Investigating Committee and the Council violate the separation of powers and derogate from judicial independence. In view of recent developments, we do not agree with the district court that the issues sought to be raised as to procedures before the Conference are unripe. In addition, we disagree with the district court's conclusion that the remaining issues are precluded.

With respect to appellant's challenge to the certification provisions of the Act, we affirm the district court because we interpret the duty placed on the Conference to be discretionary rather than mandatory, thus blunting any concern with its effect on the separation of powers. The Compensation Clause claim was not decided in previous litigation, but is not properly before us because the appellant did not exhaust his administrative remedies. 9 The facial challenge to the Act on due process grounds is not precluded, but lacks merit. Finally, the claims alleging a denial of due process in the investigation as it unfolded must be revisited by the district court in order to consider whether the objections were raised during the investigative proceedings

and exhausted, and if so to resolve them on the merits.

I. BACKGROUND 10
A. Developments Through Hastings I

Appellant was indicted on December 29, 1981, by a federal grand jury for conspiracy to solicit and accept money in return for performing certain official actions in his capacity as a federal judge. The indictment also alleged that Judge Hastings revealed to his co-conspirator, William Borders, the content and expected issuance date of a judicial order that he was preparing. According to the indictment, Borders relayed this information to an undercover agent posing as a defendant in a case pending before Judge Hastings.

Judge Hastings moved to quash the indictment on the ground that impeachment by Congress is the sole means of punishing a federal judge for high crimes and misdemeanors. The motion was denied. Meanwhile, the trial of the alleged co-conspirator, Borders, was severed, he was convicted of several counts of conspiracy, and his conviction was upheld on appeal. 11 On February 4, 1983, however, Judge Hastings was acquitted of all the charges brought against him.

On March 17, 1983, two district court judges filed a complaint with the Judicial Council of the Eleventh Circuit against Judge Hastings, pursuant to 28 U.S.C. Sec. 372(c), alleging that he had engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts and had violated several canons of the Code of Judicial Conduct for United States Judges. Specifically, the complaint charged in substance that Judge Hastings had actually committed the crime of which he had recently been acquitted; that is, it alleged that he had conspired to obtain a bribe in return for the performance of a judicial act. The complaint also contained other allegations concerning conduct and statements by Judge Hastings in the course of the criminal proceedings against him. 12 On March 29, 1983, Chief Judge John C. Godbold of the Eleventh Circuit appointed a committee to investigate the complaint, pursuant to 28 U.S.C. Sec. 372(c)(4). The Investigating Committee consisted of himself, two circuit judges, and two district judges. On June 3, 1983, the Investigating Committee filed a petition in the Southern District of Florida for access to the files of the grand jury that had indicted Judge Hastings. The court granted the petition over Judge Hastings' objection that the investigation was part of a conspiracy to deprive him of his constitutional rights. That decision was affirmed by the Eleventh Circuit, which held that the Act barred district court review of Judge Hastings' conspiracy claims, 13 and remitted him exclusively to review by the Judicial Conference, under the procedures of the Judge Hastings brought an action in the United States District Court for the District of...

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