786 KENTUCKY LAW JOURNAL [VOL. 76 of the United States.98 The statutory text, in addition to mandating rules that contain provisions for notice and the right to appear at a proceeding, requires that rules be made public and that the Conference can modify any council rule." Two amendments would fortify this statutory framework. The first would clarify that any new rules or amendments to rules by the councils or the Conference would occur only after appropriate notice is made to the public and opportunity is given for comment. The first would ensure a modicum of public participation in the rulemaking process. Presumably, the public comments received after notice would contribute to a better work-product. The second amendment would circumscribe the rule-making power of the circuit councils so that a council could not create a statute of limitations. As to the latter, the rulemaking authorization of the 1980 Act extends to "rules for the conduct of proceedings. . . including the processing of petitions for review. . . ."'100 This procedural grant that Congress confers on courts or agencies ordinarily would not allow the making of rules of substantive content. A statute of limitations does have a procedural aspect, but it is so intertwined with substance that rulemaking entities should not merge the two.101 Because the 1980 Act was ambiguous about whether circuit rules could provide for a statute of limitations, the text should be clarified on this point: statutes of limitations are for the Congress to make and not for the rulemakers. In appropriate cases, complaints can be dismissed for unreasonable delay in filing, by analogy to the equitable doctrine of laches. 6. Dismissal of Complaints The 1980 Act includes a comprehensive laundry list of circuit council powers relating to the disposition of discipline complaints.102 Among the enumerated powers are the ability to conduct an additional investigation, certify disability, order a 98 Id. at § 372(c)(11). 99 Id. 100 See id. 101 See Burbank, supra note 16, at 338-39. 102 See 28 U.S.C. at § 372(c)(6). 1987-88] LEGISLATIVE PerspectiVE 787 voluntary retirement, temporarily remove cases, and censure or reprimand either by private communication or by public announcement. A search for explicit statutory authority to dismiss, however, is doomed to fail. Because the entire statutory scheme turns on the ability to dismiss, lack of clarity on this point ordinarily would not be significant. The power clearly exists. A drafting improvement to the Act could be made by adding a provision in a new section 372(c)(6)(C) stating that the councils have dismissal authority. Because the Act elsewhere requires that the judicial branch keep statistics on the general nature and disposition of all complaints, 103 a specific reference to dismissal on the list of council powers would contribute to statistical consistency among the circuits and also would further understanding of the Act. 104 7. Reimbursement of Reasonable Expenses, Including Attorneys' Fees The Act should state clearly whether a judge, particularly one who is not sanctioned and indeed is vindicated by the proceedings, can receive recompense for expenses, including attorneys' fees in defending against a complaint. The text of the 1980 Act was silent on this issue, and the legislative history is sparse. Support for the power to pay attorneys' fees is derived from a statement of the Congressional Budget Office (CBO) to the House Committee on the Judiciary. 105 The Administrative Office of the United States Courts provided the information for the CBO cost-estimate, so the assumption that the Act authorizes the payment of attorneys' fees emanates from the judicial branch of government, and not from the Congress. In any event, an ambiguity exists that needs clarification. A proposed amendment creating a new section (16) of section 372(c) of the United States Code would confer authority on the circuit councils to recommend to the Director of the Adminis 103 Id. at § 604(h)(2). 104 As a drafting proposition, the power to dismiss could be placed in § 372(c)(6)(B), but then all dismissal orders would become public under § 372(c)(15). That publicity is not necessary. 105 See H.R. REP. No. 1313, supra note 42, at 21-22. 788 KENTUCKY LAW JOURNAL [VOL. 76 trative Office of the United States Courts that reimbursement of reasonable expenses, including attorneys' fees, be awarded to a judge for those expenses that would not have otherwise been incurred but for the investigation. Reasonable expenses may be awarded, however, only when a complaint is finally dismissed. The proposed amendment would implicitly confer similar authority on the Judicial Conference, which could order the awarding of reasonable expenses through the appropriate council. During the legislative process, Congress may well want to consider broadening the amendment to allow the award of attorneys' fees in circumstances other than dismissals. 8. Several Technical Amendments A recent circuit court decision contained extensive discussion of the importance of the phrase "impeachment may be warranted," which permits a certification by the Judicial Conference to the House of Representatives. 10% The court postulated that "weighty constitutional issues would arise if certification by the Conference to the House were mandatory''107 and reaffirmed, from a plain reading of the statute, that any certification by both the councils and the Conference is entirely discretionary.108 Under the 1980 Act, neither the circuit councils nor the Judicial Conference is required to determine whether a judge may have committed an impeachable offense. The same language should be used when referring to the powers of the circuit councils and the Conference because of the need to promote drafting consistency. A technical amendment to the statutory text could easily accomplish this objective. Under present law, the circuit council has the power to refer a matter, either based on a complaint together with the record of associated proceedings or on the basis of information otherwise available, to the Judicial Conference if the judge has engaged in conduct that "might constitute one or more grounds for impeachment under article I of the Constitution... 109 The 106 Hastings v. Judicial Conference of the United States, 770 F.2d 1093 (D.C. Cir. 1985), cert. denied, 106 S. Ct. 3272 (1986). 107 Id. at 1100. 108 Id. 109 28 U.S.C. at § 372(c)(7)(B)(i). 1987-88] LEGISLATIVE PERSPECTIVE 789 statutory reference to article I is technically correct insofar as congressional authority to impeach resides therein. The grounds for impeachment are, however, located in article II of the Constitution110 and therefore the reference is defective. The Act should be amended by striking the reference to article I and referring to article II of the Constitution. 111 B. Amendments to Other Sections of Title 28, United States Code The following four provisions, found elsewhere in the Judicial Code, should also be amended. 1. Contempt Power The circuit councils should be granted power to institute contempt proceedings to enforce orders not obeyed by court officers or employees. The granting of authority to the circuit councils to pursue contempt citations, specifically in discipline cases, would be a logical and a natural outgrowth of the 1980 Act. In 1980, the councils' powers were substantially augmented by a general grant of authority to "make all necessary and appropriate orders for the effective administration of justice within [the] circuit." This overall responsibility was bolstered by a specific delegation of authority to hold hearings, take sworn testimony, and issue subpoenas and subpoenas duces tecum. Additionally, all judicial officers and employees of the circuit and district courts in the circuit were required to obey all council orders.113 Prior to 1980, several federal judges had indicated to Congress that lack of subpoena authority had created difficulties in 110 U.S. CONST. art. II, § 4, provides: "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." This drafting error was first pointed out to the Committee by Charles E. Wiggins, a former Member of the Committee and present federal judge. See House Hearings on Judge Claiborne, supra note 83, at 36 n.1. 112 Pub. L. No. 96-458, 94 Stat. 2035 (codified at 28 U.S.C. § 332(d)(1) (1980)). 113 See Remington, supra note 16, at 724-27. 790 KENTUCKY LAW JOURNAL [VOL. 76 obtaining necessary information.114 By conferring subpoena authority on the councils, and by requiring all court employees to obey council orders, it was widely perceived that, given the proper circumstances, the information gathering abilities of the councils would be adequate. With the passage of time, there have been few problems in this regard. Nevertheless, a small loophole, involving court employees who refuse to obey subpoenas or council orders, still remains. The gap could be filled by adding contempt power to the list of statutory powers delegated to the circuit councils. Limited in scope, the proposed amendment would specify that, in the instance of a failure to comply with a council order, the appropriate council or special committee of the council may institute a contempt proceeding in any district court to show cause as to why the judicial officer, or court employee, who fails to obey the order should not be held in contempt. 2. Oath of Office The statutory oath of office for federal judges'15 should be amended to eliminate a phrase that qualifies their duties. Originally established by the Judiciary Act of 1789, and reenacted several times since then, the language of the statutory oath has remained largely unchanged over time.116 The phraseology and substance of the statutory oath have been the subject of debate during several impeachment proceed 114 Hearings on Judicial Fitness Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm. on the Judiciary, 89th Cong., 2d Sess. 11 (1965) (statement of John Biggs, Jr.); Judicial Discipline and Tenure: Hearings on S. 295, S. 522, and S. 678 Before the Subcommittees on Judicial Machinery and Constitution of the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 100-17 (1979) (statement of J. Edward Lumbard). 115 28 U.S.C. § 453 (1948). Federal judges are also required to take an oath mandated by the Constitution of the United States. U.S. CONST. art. VI, cl. 3. 116 The oath is as follows: I, A.B., do solemnly swear (or affirm) that I will administer justice without |