08-21-90046, 08-21-90047, 08-21-90048•Judicial Council of the Eighth Circuit order: 08-21-90046, 08-21-90047, 08-21-90048
Judicial Council of the Eighth Circuit order: 08-21-90046, 08-21-90047, 08-21-90048
08-21-90046, 08-21-90047, 08-21-90048Judcoun8
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JUDICIAL COUNCIL OF THE EIGHTH CIRCUIT __________ JCP Nos. 08-21-90046, 90047, 90048 __________ In re Complaint of John Doe* ____________ Before COLLOTON, Chief Circuit Judge, LOKEN, L.R. SMITH, GRUENDER, SHEPHERD, KELLY, ERICKSON, GRASZ, STRAS, KOBES, and JUSTIN D. SMITH, Circuit Judges, and LANGE, WIMES, BAKER, ROSE, BROOKS, WILLIAMS, TOSTRUD, CLARK, WELTE, and BUESCHER, District Judges. ORDER AND MEMORANDUM BY THE COUNCIL: This is a complaint of judicial misconduct by a former court unit executive against a former chief district judge and two other district judges. The former chief circuit judge appointed a special committee under Rule 11(f) to investigate the complaint and to make a recommendation to the judicial council. The special committee submitted a report with recommended factual findings and a recommendation to dismiss the complaint. The judicial council has considered the report and concludes that the complaint should be dismissed under Rule 20(b)(1)(A)(i) and (iii). *Under Rule 24(a)(2) and (a)(5) of the Rules for Judicial-Conduct and Judicial- Disability Proceedings, the names of the complainant and the subject judges are not disclosed. Citations or references herein to a “Rule” refer to these Rules.
The complaint concerns primarily a personnel decision by the district judges to remove the complainant from a unit executive position. The complainant pursued a separate complaint under the district court’s employment dispute resolution plan, but that complaint was dismissed as untimely. In this proceeding, the complainant asserts that the judges “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts,” and engaged in “‘abusive or harassing behavior’ by ‘creating a hostile work environment for judicial employees.’” The complaint asserts that the judges have done so “by fabricating the reasons that led to” the complainant’s “forced retirement” as a unit executive. The complainant recounts that he was summoned one morning to a meeting in the chambers of the then-chief district judge. During the meeting, the chief judge and the other two subject judges said that the judges of the district court unanimously had lost confidence in the complainant’s ability to manage and lead the court unit. The judges also said the court had found that the complainant and his deputy had exhibited abusive and retaliatory management conduct, which adversely impacted the operations of the court and the court unit, and that the employees no longer could function effectively due to lack of trust in the complainant’s leadership. The judges also allegedly told the complainant that he had retaliated against staff for reporting concerns by frequently threatening to take away assignments or projects. The complaint asserts that the judges presented the complainant with a letter that outlined multiple issues regarding his conduct as unit executive. The complainant states that he was given about two minutes to read the letter and was not afforded an opportunity to respond. He was told that he could not have a copy of the letter, and that the letter would be destroyed if he chose to retire. The complainant reports that he was escorted out of the courthouse by two deputy U.S. Marshals and given twenty-four hours to decide on a course of action. The complainant asserts that -2-
he was told that he would be terminated if he disputed the allegations contained in the letter. He says that he then chose to retire because he “had no real recourse.” The remainder of the complaint is a discussion of the performance issues raised in the letter from the judges. The complainant defends his leadership of the court unit and objects to the lack of any process for him to respond to the court’s concerns. The subject judges responded to the complaint. The judges explained that after the departure of an unusually high number of court unit employees, exit interviews with departing employees led to an investigation of the leadership of the court unit. The three judges and a court human relations officer met with seventeen court unit employees. All judges of the district court then gathered and determined to remove the unit executive and his deputy from their executive positions. The letter that the judges provided to the complainant set forth information gathered from employee interviews. The judges gave the complainant the option to retire in lieu of a demotion, and he chose to retire. The judicial council concludes that the actions of the judges in making and carrying out the personnel decision are not cognizable misconduct. The judicial misconduct process “cannot be used to second-guess [a] judge’s administrative decision.” In re Judicial Misconduct, 726 F.3d 1060, 1061 (9th Cir. 2013). Like an allegation that calls into question the correctness of a judge’s ruling in a case, see Rule 4(b)(1), an allegation that calls into question the correctness of a judge’s personnel decision is not cognizable misconduct. Allegations about the judge’s decisionmaking process—such as whether to make a final decision based on interviews with seventeen employees without soliciting rebuttal from the unit executive—are directly related to the merits of the personnel decision and do not support a claim of cognizable misconduct. The judiciary maintains a separate employment dispute resolution process that is available to employees who dispute a personnel decision, and that is the proper avenue to challenge such a decision. -3-
The related allegations about implementation of the personnel decision likewise do not establish cognizable misconduct. Offering an employee the option of demotion or resignation in lieu of termination is a “useful management tool” and is not misconduct. In re Judicial Misconduct, 726 F.3d at 1061. Arranging for an escort by deputy marshals while emotions may be running high is within the range of reasonable administrative decisions and is not cognizable misconduct. The complainant filed a supplement to his complaint that makes separate allegations. The supplement expresses concern that “individuals employed by” the district court “have shared information about the confidential personnel action that is the subject of my complaint” with the complainant’s current employer, the public, and a current employee of the district court. In particular, the supplement cites a lawsuit filed in state court by the court employee against the complainant. According to the supplement, the employee’s petition alleged in part that the complainant had filed an unfounded judicial misconduct complaint that allegedly defamed the court employee. The supplement also cited a post on Twitter by a local attorney asserting that the complainant had been dismissed from federal employment for misappropriation of funds. The supplement alleges that approximately three months later, the chief judge selected the lawyer’s husband as a magistrate judge in the district court, but does not explain how the husband’s judicial appointment is relevant to the allegation of misconduct. The complaint supplement does not establish misconduct by the subject judges. The supplement does not even allege that the judges made inappropriate disclosures that might have violated confidentiality rules, but refers instead to possible disclosures by “individuals employed by” the court. The special committee obtained a copy of the court employee’s petition filed in state court. The committee found that while the petition referred to a judicial complaint filed by the complainant, the petition inaccurately described both the month of filing and the content of the -4-
complaint. When interviewed, the court employee said that she heard rumors of judicial ethics complaints, but did not know anything about judicial complaints or their contents. The special committee also found that the lawyer’s post on Twitter inaccurately described the complainant’s federal employer and how and why he left federal employment—there was no allegation that the complainant misappropriated federal funds. When asked during an interview whether anyone with the federal judiciary was the source of information conveyed in her post, the lawyer replied “absolutely not.” The judicial council adopts these findings of the special committee. The council further concludes that there is insufficient evidence to establish that the subject judges disclosed information about the complainant’s judicial complaint to the court employee or to the lawyer who posted on Twitter. For these reasons, the judicial complaint is dismissed. The complainant and the subject judges may petition for review of this order under Rule 21(b). Filed: July 23, 2026 ______________________________ -5-
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