legislation to provide for judicial discipline short of removal. The act was designed to deal formally with the federal judge who, although not impeachable, has misbehaved or is suffering from a disability. In other words, it was meant to provide a "credible supplement and credible alternative to the process of impeachment and removal." The legislation created, within the judiciary itself, a mechanism and procedures for monitoring and responding to allegations of unfit federal judges.

The monitoring function, once performed wholly though irregularly by the House, has been effectively reassigned to the judicial branch, with responsibilities ranging from investigation to adjudication assigned to the chief judge, a special committee, the judicial council, and the judicial conference. (Nonetheless, problems of duplication and delay remain, particularly when a congressional impeachment investigation follows an extensive judicial investigation, adding to the government's cost and burdening both the judge and the complainant.) The sanctioning function, once the exclusive prerogative of the Congress, is now shared with the judiciary, while impeachment and Senate trial and removal continue to be employed in the most serious cases; lesser sanctions for lesser breaches of conduct are to be meted out by the judiciary.

Because the 1980 procedures call for self-policing of the

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from each circuit who is chosen by the circuit and district judges of the circuit) may conduct further investigation and may impose any of the sanctions available to the judicial council. Should the judicial conference determine that "consideration of impeachment may be warranted," the finding is referred to the House of Representatives for further review and, if necessary, for trial by the Senate. (See Appendix A, page 93, for a copy of the act, and Appendix B, page 103, for a copy of the illustrative rules.)

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judiciary, their legitimacy has been questioned by some critics. The Task Force concluded that the legitimacy of these reforms would be enhanced if an auditing mechanism were put into place.

government

Accordingly, the Task Force recommends that an oversight committee be established to review final dispositions under the 1980 act and to publish a summary national accounting on a periodic basis. Members of the oversight committee should be representatively selected by the Judicial Conference of the United States, on a nonpartisan basis, from the lay public, the bar, and the academy. To ensure judicial independence, we recommend that members of the executive and legislative branches of the federal not be eligible for service on this committee. The oversight committee should be provided adequate resources to allow for an annual audit-independent of the staffs of the clerks of the courts, the Administrative Office of U.S. Courts, and the Federal Judicial Center. The enabling legislation should also authorize complete access to all records and require the full cooperation of all judicial officers and their agents. Although this recommendation requires an alteration of the original stringent confidentiality rules, it is necessary to ensure that the work of such an oversight committee serves its function.

Although the public has access to final dispositions placed in the office of the clerk and at the Federal Judicial Center, the filing of these orders varies from circuit to circuit. Further, most details of current disciplinary procedures are confidential. Thus the public, public interest groups, and scholars are at a disadvantage in evaluating these procedures. As a result, there is no comprehensive record of the decisions of the chief judges and the judicial councils in response to the 1980 reforms.

The Task Force believes that reports by such an oversight committee would serve not only as a public record but also as a way of establishing more uniform national

benchmarks for misconduct. Defining "conduct prejudicial to the effective and expeditious administration of the business of the courts," as reflected in the dispositions under review, would undoubtedly aid the chief judges and judges serving on special committees and judicial councils. The reports of the oversight committee might be likened to opinions in The Federal Reporter, which inform each circuit about the law developed in the other circuits; the accounts would be informative, often persuasive, but not binding precedents. To that end, the Task Force recommends that these reports appear regularly in the Federal Rules Decisions.

Another important function of the oversight committee would be to assess how well the 1980 reforms are working and to recommend possible further reforms. We suggest that the oversight committee use a variety of techniquesincluding survey devices-to assess how many, and what type of, complaints go unfiled. The committee should be required to make recommendations on whether and (where appropriate) how to strengthen formal and informal mechanisms. It may also, for example, suggest procedures to reduce the burden of frivolous complaints. Our expectation is that the oversight committee would perform a proactive, not merely a reactive, function.

The 1980 act currently provides that "papers, documents, and records of proceedings related to investigations" are confidential. Most often, the name of the judge who is the subject of the complaint is not revealed. In any event, the judge's identity is not to be revealed if the sanction is a private censure or reprimand or if the complaint is dismissed.

The Task Force believes that the issue of confidentiality may need to be revisited after the monitoring committee we have proposed has been in place for a few years. While we have presumptions against decisionmaking inaccessible to the public, we are also concerned about in

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trusion on the personal privacy of judges. In this context it seems reasonable to conclude that a mixture of some confidentiality and some disclosure is appropriate.

The Task Force concluded that complaints adjudged frivolous ought to remain confidential-both to protect public confidence in the judiciary and avoid undue and unfair harm to the reputation of a judge who has been wrongly charged. The Task Force expects that monitoring by the proposed oversight committee will provide sufficient assurance that these matters are appropriate for dismissal. In nonfrivolous complaints, when the matter is referred to a special committee, the general expectation should be in favor of public disclosure. Exceptions are appropriate, for example, in the case of complaints dealing with an extremely private or personal matter related to the judge, one that is distinct from the judge's judicial conduct.

An issue that is both complex and not easily resolved may have become moot. In such a case, experience under the act has already demonstrated that a certain amount of flexibility would be beneficial. The Task Force suggests that the chief judge be allowed to dismiss a case as “no longer a matter of legitimate concern," stating the factual basis and the reasons for this action in a formal written document of dismissal.

The Task Force recognizes that Congress designed the 1980 act as an inquisitorial-administrative process, as opposed to an accusatorial-adversary process. Nonetheless, experience has shown that the investigation of serious complaints can be a burden on those judges participating as chief judges and as members of a special committee, the judicial council, and the judicial conference-as well as on the judge who is the subject of the complaint. Increased reliance on counsel to investigate the complaint is inevitable. The Task Force urges that Congress amend the 1980 act to provide explicit authorization for payment of counsel when such assistance is deemed necessary by the

chief judge who receives a complaint. Further, our sense of equity and fair play obliges us to urge that Congress consider amending the 1980 act to make some equivalent provision for the payment of reasonable attorneys' fees and expenses in favor of a judge who is defending against a complaint not dismissed at the initial stages and, in such a case, if the complainant requires assistance, that funds, as appropriate, be made available for this purpose.

Moreover, for the 1980 act to be truly effective, all of those involved-the bench, the bar, and the public-must be aware of its existence and must have access to it. We do not believe that public awareness of the act is widespread. The Task Force therefore endorses measures to educate the public about the 1980 act. We have been told that lawyers, let alone the general public, are not sufficiently familiar with the act; statistics on dismissals suggest that even those who are aware of the statute do not understand its purposes or limits. We recommend that explanatory notices about the act be posted in courthouses, that circuit court conferences include discussion of the act, and that the internal operating manuals and local rules of the circuit and district courts include an explanation of the procedures established by the act.

In addition, we were troubled by testimony that we heard from practicing attorneys who voiced reticence about filing a complaint out of concern that doing so would jeopardize their clients or hinder their careers. Accordingly, the Task Force recommends that consideration be given to mechanisms that will enable individuals to file complaints without fear of reprisals.

The Task Force specifically endorses measures that would require investigation of group complaints (for example, by bar association committees) and measures that would authorize chief judges to initiate the process on general knowledge, such as information contained in newspaper articles. We firmly support the proposition that