Refusal to Comply as Misconduct

by Dennis Crouch

The Federal Circuit’s special investigation committee recently released an order in focusing on next steps in its ongoing investigation into the conduct and capacity of Judge Newman.  Although the investigation generally centers on disability and misconduct in her role as judge — the most recent order narrows the focus to the question of whether Judge Newman’s refusal to submit to medical testing constitutes misconduct that could potentially lead to her removal from the bench. The committee’s next steps will be to hold a closed-door hearing on July 13 solely on this issue.  The committee appears to be tacitly admitting that its allegations of general misconduct are insufficient alone and that it cannot prove disability without a medical evaluation.  Still, the committee is moving forward methodically and the order indicates that the refusal-to-cooperate is one area that it could fairly efficiently review and reach a conclusion sufficient to make a final recommendation to the Judicial Council, despite Judge Newman’s lack of cooperation.

Confidentiality: The court’s decision to refuse Judge Newman’s request for a public hearing is another important aspect of this case. This decision raises questions about transparency and the public’s right to know about proceedings that could potentially impact the composition of the judiciary. The order explains the committee’s reasoning:

• The court begins with a strong presumption that all proceedings that form part of the Committee’s investigation should be confidential, as mandated by the Judicial Conduct and Disability Act of 1980 and the Rules for Judicial-Conduct and Judicial-Disability Proceedings.
• Confidentiality facilitates the investigative process and is almost universally accepted.
• Opening the argument to the public carries a grave risk of inadvertent disclosure of both witnesses’ identities and confidential details of witness statements, which could impair the investigative process.
• The court believes that a public hearing may include references to materials that have not been made public, and that discussion may disclose information that would identify witnesses or confidential details of witness statements.
• The court believes that a better approach to permitting some public transparency would be to consider releasing a redacted transcript after the argument has been completed.
• The court argues that the cases defining a right of access to trials are of limited usefulness in the context of the fundamentally different procedures of judicial disciplinary boards, which do not have a long history of openness.

Read the Order.