Petition of Lauer, s. 84-012

• Decision Date: 24 January 1985
• Docket Number: Nos. 84-012,84-014,s. 84-012
• Citation: 788 F.2d 135
• Parties: In re Petition of David F. LAUER. In re Petition of Frank Robert STRANG. The Judicial Council of the Eighth Circuit
• Court: U.S. Court of Appeals — Eighth Circuit

Page 135

788 F.2d 135

In re Petition of David F. LAUER In re Petition of Frank Robert STRANG.

Nos. 84-012, 84-014.

The Judicial Council of

the Eighth Circuit.

Jan. 24, 1985.

LAY, Chief Judge.

This matter comes before me, as Chief Judge, based upon verified complaints filed by two citizens relating to alleged misconduct arising in part from comments of a federal district judge during the sentencing of two anti-war protesters. The defendants freely admitted to damage of three military computers built by Sperry Corporation for use in Trident II missile systems. These verified complaints are representative of numerous letters which have been sent to me, as Chief Judge, by other citizens with the same general complaint. ¹ One of the allegations of these complaints relates to the length of sentence given by the judge to the two protesters. If the complaints singularly focused on the judgment of sentence I would be required to dismiss them as being outside the jurisdiction of the Judicial Conduct and Disability Act of 1980, 28 U.S.C. Sec. 372(c)(1) (1982), because they directly relate to the merits of a judicial proceeding. Sentencing of a defendant in a criminal case is controlled by the range of statutory penalty set forth by Congress and lies within the exclusive discretion of a district judge. ² To the extent that the complaints relate to the actual sentence (in this case, six months probation) I must dismiss these allegations as not within the jurisdiction of the Act.

One verified complaint relating to the Sperry case states as follows:

On 11-8-84 [the federal district judge] sentenced J. LaForge & B. Katt to six months probation for their crime of illegal entry and destroying $34,000 of U.S. Government property at Sperry in Egan Mn [sic].

[The federal district judge] admittedly based his unbelievable leniency upon the fact that Sperry had overcharged the U.S. Government in the past. This outrageous behavior undermines our courts and the peoples [sic] confidence in our judicial system. His use of his office and our court for his personal feelings, is prejudicial to the effective adminestration [sic] of the courts.

Another verified complaint criticized the judge's comments made at the sentencing hearing and, more specifically, the judge's statement: "What is so sacred about a bomb, so romantic about a missile? Why do we condemn and hang individual killers, while extolling the virtues of warmongers." ³ This complaint also cites the same trial judge's actions in Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir.1976), in Gardiner v. A.H. Robins Co., 747 F.2d 1180 (8th Cir.1984), and to his comments on a national television broadcast of 60 Minutes. The complaint concludes that his conduct is prejudicial to the effective administration of the courts.

Under the Judicial Conduct and Disability Act, if a Chief Judge finds that allegations of misconduct fall within the scope of the Act, it is the statutory obligation of the Chief Judge to appoint an investigative committee consisting of himself and equal numbers of circuit and district judges of the circuit. 28 U.S.C. Sec. 372(c)(4). The committee is to make its report to the Judicial Council, which in this circuit is composed of the nine active judges of the court of appeals and five district judges. The Judicial Council determines whether any action should be taken against the judicial officer based upon the complaint, and then is authorized to take such appropriate action.

In the present case the question I must initially resolve is whether the alleged misconduct lies outside the scope of the Act. The Act authorizes dismissal of the complaint if the claim (a) is frivolous or (b) directly relates to the substantive or procedural merits of a decision. 28 U.S.C. Sec. 372(c)(3). In reviewing the transcript of the sentencing proceeding of November 11, 1984, I have determined that the trial judge's comments fall outside the scope of the Act. The judge's comments were made during a sentencing proceeding in his capacity as a judicial officer, and they were related to the merits and reasons for the sentence imposed. As such, they cannot serve as the basis for a disciplinary proceeding under the Act.

Based upon the letters received, I note that many citizens have disagreed vigorously with the comments of the district judge. On the other hand, this court takes judicial notice of numerous letters appearing in the metropolitan newspapers of Minneapolis and St. Paul, in which other citizens agree with the district court's comments. My decision to dismiss these claims is not based upon philosophical agreement or disagreement with the judge's comments. Rather, my decision is controlled by the fact that the trial judge's comments, rightly or wrongly expressed, were rendered as part of a judicial proceeding and were directly related to the sentence given. In this sense, at least in my judgment, any comments made by a trial judge during a sentencing proceeding generally lie outside of the Act in question. ⁴

While many people may agree or disagree with the sentence and the judge's reasons for imposing the sentence, it must be remembered that a judge has the authority and the power to be wrong as well as to be right. A federal judge possesses this power by virtue of the independence protections guaranteed by Article III of the United States Constitution, and such independence should not be threatened by the congressional Act in question. The Judicial Conduct and Disability Act should not be invoked so as to chill the independence of a trial judge in a judicial proceeding. A trial judge should not fear that because of comments he or she makes from the bench, which in good faith the judge feels are related to the proceeding before the court, he or she ultimately may be subject to a disciplinary sanction by the Judicial Council. Disenchanted litigants or other citizens should not be able to attempt to influence a federal judge about a judicial decision through...