November 13, 2014
For the last five years, the Honorable John H. McBryde, United States District Judge for the Northern District of Texas, has battled with the Chief Judge of his district, the Fifth Circuit Judicial Council, and a Special Committee appointed by the Chief Judge over whether the Judicial Council has the power to investigate and sanction him, pursuant to the Judicial Conduct and Disability Act of 1980, on account of his judicial conduct.
Judge McBryde, who was appointed to the bench in 1990 by President Bush, contends that it is unconstitutional for other judges to pass judgment on him and that the only remedy is to remove him by impeachment.
On September 13, 1995, Fifth Circuit Chief Judge Henry Politz appointed a Special Committee of the Fifth Circuit Judicial Council to investigate allegations of misconduct against Judge McBryde. Although the investigation began with five complaints, Chief Judge Politz expanded the scope of the investigation to include others.
During the course of the investigation, Judge McBryde resisted the efforts of the Special Committee by initiating a series of court challenges to the Special Committee's request for a psychiatric examination and its efforts to issue subpoenas. Finally, the Special Committee held evidentiary hearings in New Orleans and Fort Worth in August, September, and October 1997, receiving hundreds of exhibits and hearing many witnesses, including federal district court judges, a Texas state court judge, a U.S. Attorney and numerous assistant U.S. Attorneys, the Director of Enforcement of the SEC, the head of the Public Defender's Office in Fort Worth, and private attorneys who had practiced before Judge McBryde.
The Special Committee issued a 159 page report in December 1997. The report detailed "several alarming patterns of conduct exhibited by Judge McBryde over the course of his tenure on the bench," which it divided into various categories.
First, the Special Committee determined that Judge McBryde had a proclivity to question integrity, which led him to accuse attorneys of lying without taking any steps to verify whether his suspicion of bad faith had any justification. In doing so, the report found, Judge McBryde often used sarcastic and abusive language, belittling and attacking attorneys. In many cases, Judge McBryde threatened contempt or other sanctions or actually issued show cause orders as to why lawyers should not be held in contempt. As a result, in many instances lawyers appearing before Judge McBryde feared incarceration. He also sent attorneys to ethics classes and remedial reading courses. In one example cited in the report, Judge McBryde berated a government lawyer and threatened him with sanctions because the lawyer would not agree to a settlement provision that the enforcement order be sealed.
Second, the Special Committee found that Judge McBryde overreacted to "perceived" violations of his rules and imposed abusive sanctions.
The Special Committee also found that Judge McBryde had an excessive need to control. Judge McBryde consistently refused to listen to attorneys explain why they had not been able to comply with a court directive and treated them in a humiliating and sarcastic manner. As a result of Judge McBryde's conduct, attorneys were fearful of appearing before him. For example, Judge McBryde held a lawyer in contempt of court for failing to promptly initiate a conference call because of a malfunction in his telephone system. In another case, Judge McBryde incarcerated a lawyer because he refused to provide an answer to a question that the lawyer felt might waive his client's rights. The Special Committee also determined that Judge McBryde's conduct had a negative effect on the legal community. Attorneys felt so intimidated by him and so fearful that he would belittle them before a jury, that they would forego an argument or question against their better judgment. Many lawyers would refuse to accept cases before him and some even left the area to avoid appearing before Judge McBryde.
Finally, the Special Committee found that Judge McBryde behaved in a disrespectful and offensive manner toward other members of the judiciary, including federal and state judges. Judge McBryde imputed bad faith to his peers and refused to extend even the most rudimentary courtesy to them. Some reported that they were physically threatened by him and his verbal attacks. In one instance, Judge McBryde refused even to speak to a state court judge who had come to Judge McBryde's chambers to explain that a lawyer who was expected to appear at a conference before Judge McBryde was involved in a jury trial in state court.
On December 31, 1997, the Judicial Council issued an order that publicly reprimanded Judge McBryde for "conduct prejudicial to the effective administration of the business of the courts." In addition, the Judicial Council sanctioned Judge McBryde by ordering that he be assigned no new cases for one year and that for three years he not participate in any cases involving certain attorneys who had testified during the Special Committee's investigation.
On September 18, 1998, the Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States slightly modified but otherwise affirmed the Judicial Council's order.
Judge McBryde filed a complaint in the District Court for the District of Columbia against the Special Committee, the Fifth Circuit Judicial Council, and others. Bob Fiske represents the defendants.
This past December, Judge Colleen Kollar-Kotelly, of the District of Columbia District Court, upheld the Special Committee's Report and the Judicial Council's order, determined that the act was constitutional and did not violate the separation of powers doctrine, ruled that the act was not unconstitutional as applied to Judge McBryde, and concluded that Judge McBryde's due process rights had not been violated by the investigation and proceedings before the Special Committee. In her decision, Judge Kollar-Kotelly pointed out that Congress carefully crafted the Judicial Conduct and Disability Act to avoid encroaching on the impeachment power. Judge Kollar-Kotelly noted that the language of the act expressly prohibits removal, providing that in no circumstances may the council order removal from office of any judge appointed to hold office during good behavior. As an additional safeguard against encroachment of the impeachment power, she continued, the remedial measures were "narrowly drawn such that they may not effect the removal of a sitting judge from office."
Judge Kollar-Kotelly found that in each situation examined by the Special Committee, the Special Committee focused on Judge McBryde's conduct and treatment of attorneys, not on whether the legal decisions he made were correct. The Special Committee recommended that Judge McBryde be given the choice between resigning and the public sanctions ultimately imposed.
Judge Kollar-Kotelly also rejected Judge McBryde's other arguments, stating that the act does not undermine judicial independence because individual judges do not have unfettered power to bring discredit on the court. Instead, each judicial council has the power to ensure the integrity and orderly functioning of the judiciary as an institution. Judge Kollar-Kotelly similarly rejected Judge McBryde's argument that the act violates the separation of powers, stating that, so long as the rulings of the judge were not at issue, there was no obstacle to a group of judges acting to remedy conduct that interfered with the efficient operation of the courts.
It should also be noted that in her December 30, 1999 decision, Judge Kollar-Kotelly granted Judge McBryde's motion to unseal the records in the case in the interest of allowing Judge McBryde to vindicate his reputation. Judge Kollar-Kotelly stated that Section 372(c)(14) of the act "operated as a prior restraint on Judge McBryde's ability to discuss and to challenge publicly the proceedings that resulted in his censure." Judge Kollar-Kotelly found that Judge McBryde's interest outweighed the need to protect witness privacy and encourage witnesses to come forward in the future. Moreover, the names of 23 lawyers who participated in the disciplinary proceedings had been made public in connection with the order to Judge McBryde to recuse himself from their cases for three years.
On January 5, 2000, Judge McBryde filed an appeal to the District of Columbia Circuit. The dispute is likely to end up before the Supreme Court.
Bennette Deacy Kramer is a partner at Schlam Stone & Dolan.
[This article is reprinted with permission from the April 2000 issue of the Federal Bar Council News. Copyright © 2000 Federal Bar Council. All rights reserved. Further duplication without permission is prohibited.]