Opinion
No. 06-10-90026.
Filed: May 3, 2010. Pursuant to Sixth Circuit Rule 206.
MEMORANDUM OPINION
This complaint was filed with the Judicial Council of the Sixth Circuit pursuant to the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, P.L. 96-458, as amended by the Judicial Improvements Act of 2002, Pub.L. No. 107-203, the Rules for Judicial-Conduct and Judicial-Disability Proceedings made effective April 10, 2008, and the Rules Governing Complaints of Judicial Misconduct or Disability adopted by the Judicial Council of the Sixth Circuit adopted effective March 1, 2007.
The Act and the Rules provide for the initial screening of complaints by the Chief Judge of the Circuit. The Chief Judge may dismiss a complaint:
(a) that is frivolous; or
(b) that directly relates to the merits of a decision or procedural ruling of a judge; or
(c) that fails to allege conduct or a condition of a judge or magistrate which is prejudicial to the effective and expeditious administration of the business of the courts.
This complaint was filed by a state prisoner who objects that his prior complaint of judicial misconduct was referred to the Chief Judge because he alleged that the Chief Judge played a part in the misconduct he cited in that earlier complaint. Inasmuch as the Chief Judge was named in this complaint, the matter was referred to the undersigned pursuant to 28 U.S.C. § 351(c), which provides that a judicial complaint against a chief judge be transmitted "to that circuit judge in regular active service next senior in date of commission." Rule 25(f) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings provides that, where a chief judge is disqualified, his or her duties "must be assigned to the most-senior active circuit judge not disqualified." Similarly, Rule 18(f) of the Rules Governing Complaints of Judicial Misconduct or Disability provides for assignment of such cases "to the circuit judge in regular active service who is the most senior in date of commission of those who are not disqualified." To the extent that these rules could be read to conflict with § 351(c), this circuit has long considered the Chief Judge its most senior active judge, and has followed the order of precedence provided in 28 U.S.C. § 45(b) when considering complaints of judicial misconduct.
Limited review of the pertinent court records reveals that complainant fails to allege conduct that is prejudicial to the effective and expeditious administration of the business of the courts. Complainant's earlier complaint is pending, but even had the Chief Judge ruled, the complaint would be subject to dismissal as directly related to the merits of the ruling pursuant to § 352(b)(1)(A)(ii) and Rule 11(c)(1)(B) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings. Such decisions, including a failure to recuse, are not the proper subject of another complaint of judicial misconduct. See Rule 3(h)(3)(A) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings. The Judicial Council has no jurisdiction to review rulings by the Chief Judge except as provided by 28 U.S.C. § 352(c), Rule 18 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings, and Rule 8 of the Rules Governing Complaints of Judicial Misconduct or Disability. Therefore, the complaint will be dismissed as failing to allege conduct that is prejudicial to the effective and expeditious administration of the business of the courts pursuant to 28 U.S.C. § 352(b)(1)(A)(iii) and Rule 11(c)(1)(A) of the Rules for Judicial-Conduct and Judicial-Disability Proceedings. See In re Complaint of Judicial Misconduct, 858 F.2d 331 (6th Cir. 1988).