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Critiques of the Judiciary
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Critiques of the Judiciary
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Escaping Judicial Accountability Through Retirement JUDICIAL ENTITLEMENTS REACH NEW HEIGHTS
In an attempt to perpetuate the concept of judicial privilege, the Fifth Circuit has ruled that it is no longer necessary to investigate past impeachable offenses of judges who retire.
By law, judges who retire after having held their offices during "good behavior" continue to collect their full salaries for the rest of their lives,1 whereas judges who resign or are forced to resign get nothing.2
However, the Fifth Circuit's ruling opens the door for miscreant judges to receive their salaries (now "annuities") for the rest of their lives by the simple act of "retiring" from the bench before they can be indicted for past offenses. This not only allows scoflaw judges to escape impeachment or be held accountable for past misconduct, it actually rewards them for the rest of their lives. All they need to do is retire from the bench before being indicted.
Like other judicial practices such as the doctrine of judicial immunity, this ruling does not create law; rather it reinforces a precedent that is likely to become universally recognized by judges as a means to further strengthen the protective wall they have built that exempts themselves from laws that everyone else is obliged to obey.
This Fifth Circuit's ruling, which shields fellow "brothers or sisters of the robe" from being disciplined for past breaches of good behavior or worse, grew out of a complaint of judicial misconduct brought against U.S. District Judge Walter S. Smith, Jr. for stalking and making sexual advances in his chambers against a staff member of the court. The complaint was filed by attorney Ty Clevenger on behalf of the victim, whose health was threatened and who was driven to leave her position at the courthouse.
A second investigation into sexual misconduct allegations against Judge Walter S. Smith Jr., and whether Smith lied about the allegations, was shut down when he retired earlier this month. A federal council ruled this week Smith is no longer a judicial officer subject to disciplinary procedures.
While the plug was pulled on the second probe before hearings were held and findings could be released, the Judicial Council of the 5th Circuit "concludes that the actions of Judge Smith, though serious, do not warrant a recommendation for impeachment."
Smith, 75, ended his 32-year tenure as Waco’s federal judge with his retirement, effective Sept. 14. He cleaned out his chambers last week and had planned to meet with courthouse employees in his former courtroom on Sept. 22. But, Smith canceled the meeting.
Smith did not return a message Tuesday left with a former staff member.
The Judicial Council of the 5th Circuit formally reprimanded Smith in December after finding he made "inappropriate and unwanted physical and nonphysical advances" toward a female courthouse staff member in his court chambers in 1998.
In retirement, Smith will draw an annual annuity for the rest of his life that equals his annual salary of $203,100.
Former Dallas attorney Ty Clevenger filed the original complaint against Smith and appealed the council’s initial ruling, saying Smith should have been impeached. That appeal led to the inquiry called off this week.
“If judges knew that their misdeeds could ultimately be exposed regardless of how long they had previously escaped justice, that would serve as a rather strong deterrent against the sort of misconduct perpetrated by Judge Smith...”-- Ty ClevengerSmith resigned before the Judicial Council could complete its full inquiry, an order released Wednesday said.
"As noted in the first Judicial Council order, there is evidence that there were other incidents involving Judge Smith similar to the incident that was the focus of the complaint," the order, signed by Carl E. Stewart, chief judge of the 5th U.S. Circuit Court of Appeals, said. "After further investigation on remand, the investigators found no evidence that any such incidents have occurred in many years, despite their having interviewed all witnesses likely to have knowledge of any such conduct.
"The first order also indicated that there were misrepresentations by Judge Smith that extended the proceeding, but that did not affect its outcome. Thus, the council concludes that Judge Smith’s actions in neither respect warrant recommending the extraordinary step of attempting the impeachment of a judge who is no longer on the bench."
Clevenger said it is good that Smith no longer in on the federal bench but called the action "too little, too late." He said Smith should have been impeached.
"I think the Fifth Circuit is probably right about the consequences of Judge Smith’s retirement," Clevenger said Thursday. "As the law is currently written, it would be nearly impossible to divest him of his post-retirement pay. Obviously the law needs to be changed, and I will continue to press for reforms in the judicial disciplinary process. Federal judges are treated like gods, and it’s high time that they were held to the same standards as the rest of us."
U.S. Sen. John Cornyn and U.S. Sen. Ted Cruz have established the Federal Judicial Evaluation Committee, a bipartisan panel of leading attorneys in Texas, to identify the most qualified candidates to help fill judicial vacancies, an aide in Cornyn’s office said.
"This panel reviews applications, interviews candidates and makes recommendations to the senators. The senators then send the recommendations along to the White House for the president’s consideration," the aide said.
Federal judges are appointed by the president. With the upcoming election, it is unclear how long it could take for Smith’s replacement to be named.
In addition to reprimanding Smith after its initial investigation, the 5th Circuit Judicial Council suspended Smith for one year from hearing any new criminal or civil cases filed after Dec. 3.
U.S. District Judge Robert Pitman, of Austin, who had been serving as a replacement in Waco during Smith’s suspension of new cases, will assume the Waco caseload until Smith’s replacement is named, officials said.
After its initial reprimand and suspension, the 5th Circuit council also determined Smith allowed "false assertions to be made to the council," which added to the length and expense of the initial five-month investigation that included interviews with 31 people.
The panel also concluded Smith failed to properly disclose to attorneys appearing in Smith’s court his attorney-client relationship with Waco attorney Greg White, who represented Smith in the complaints while representing clients in Smith’s court.
Copyright 2016, BH Media Group, Inc.
From: Tommy Witherspoon, "Probe of federal judge ends with his retirement," Waco Tribune-Herald, September 29, 2016, Waco, TX, http://www.wacotrib.com/news/courts_and_trials/probe-of-federal-judge-ends-with-his-retirement/article_232c914f-578a-5e3d-813e-0f963cd75be3.html, accessed 12/31/2016. Tommy Witherspoon can be reached at twitherspoon@wacotrib.com. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
Judge's retirement halts probeSmith's exit amid 2nd sexual misconduct case lets him keep pensionGUILLERMO CONTRERASSeptember 30, 2016A federal judge who retired in mid-September near the end of a year's suspension for sexual misconduct apparently beat any further rap by leaving the bench. A judicial panel looking into new allegations dropped its probe because he is no longer a judge.
A judicial committee of the 5th in U.S. Circuit Court of Appeals in New Orleans in 2015 had found U.S. District Judge Walter S. Smith Jr. of Waco engaged in sexual misconduct years ago with a court clerk and suspended him for a year. It closed its renewed investigation into complaints of similar behavior by Smith with other women, it said in an order released Wednesday.
Under the law, Smith can continue to draw an annuity equal to his current salary, $203,100 per year, for the rest of his life.
Smith was publicly reprimanded for sexual misconduct last fall over a 1998 incident in which he groped, kissed and made sexual advances toward a court clerk in his chambers. After an appeal of the punishment by Dallas lawyer Ty Clevenger, who filed the original complaint against Smith and said the behavior warranted impeachment, the judicial committee earlier this year sent it back to a special investigative panel for more investigation.
"In the light of Judge Smith's retirement from office, the Judicial Council is no longer able to impose any sanction under (rules available to the council)," 5th Circuit Chief Judge Carl Stewart, on behalf of the 18 judges on the committee, wrote in a response to Clevenger.
"The Council is satisfied that the investigation was comprehensive, and has identified and defined the full scope of the potential adverse findings that could be made about Judge Smith's conduct. After considering the information obtained in the second investigation, the Council again concludes that the actions of Judge Smith, though serious, do not warrant a recommendation for impeachment."
The order said the panel found "evidence that there were other incidents involving Judge Smith similar to the incident that was the focus of the complaint" but none that have occurred in many years, and it said the judge's actions did not "warrant ... the extraordinary step of attempting the impeachment of a judge who is no longer on the bench."
Smith was appointed in 1984 by President Ronald Reagan, and was the only district judge in Waco. He was widely known throughout the district as a tough judge, handing out stiff sentences to defendants. The suspension would have expired Dec. 3. Smith, at 75, was eligible to take senior status or retire.
Clevenger said he was disappointed with the discipline but said the 5th Circuit is likely correct about the consequences of Smith's retirement.
"As the law is currently written, it would be nearly impossible to divest him of his post-retirement pay," Clevenger said. "Obviously the law needs to be changed, and I will continue to press for reforms in the judicial disciplinary process. Federal judges are treated like gods, and it's high time that they were held to the same standards as the rest of us."
Smith's resignation left yet another vacant bench in the San Antonio-based Western District of Texas, which has been waiting for numerous new judges as one of the three busiest federal judicial districts in the country.
The woman at the center of the complaint, deposed by Clevenger in March 2014, accused Smith of having the smell of alcohol on his breath when he made advances toward her in 1998. According to transcripts of her deposition, which are included in Smith's disciplinary record, the former clerk said Smith also had a reputation for drinking and for having a temper. Because she delayed in following his request to come see him in chambers, he appeared agitated when she finally did, and he closed the door behind her.
Copyright 2016, San Antonio Express-News
From: Guillermo Contreras, "Judge's retirement halts probe; Smith's exit amid 2nd sexual misconduct case lets him keep pension," San Antonio Express-News, September 30, 2016, San Antonio, TX, StateSection: Metro, Page A3. Guillermo Contreras can be reached at gcontreras@express-news.net. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
In Appeal, Lawyer Says Punishment of Waco Ex-Federal Judge Was Too LenientJOHN COUNCILOctober 26, 2016After the Fifth Circuit concluded there was nothing more they could do to punish former Waco U.S. District Judge Walter Smith on sexual harassment allegations after he retired from the bench, Smith's chief accuser — arguing Smith was treated with too much leniency — has again appealed its decision.
Appointed to the bench by former President Ronald Reagan in 1984, Smith was reprimanded by the U.S. Court of Appeals for the Fifth Circuit on Dec. 4, 2015, for making "inappropriate, unwanted physical and nonphysical sexual advances" toward a court employee in 1998.
As punishment, the Fifth Circuit stopped Smith's new case assignments for one year, required that he receive sensitivity training to the Fifth Circuit's satisfaction before returning to the bench, and noted that Smith "does not understand the gravity of such inappropriate behavior and the serious effect that it has on the operations of the courts."
The misconduct allegation that led to Smith's punishment was filed by Ty Clevenger, a former Dallas lawyer who was sanctioned $25,000 by Smith for filing a "frivolous" racketeering case. Clevenger was reprimanded by the State Bar of Texas in 2014 because of Smith's sanction but used the bar disciplinary proceedings to subpoena the witness who alleged Smith sexually harassed her in 1998 as part of his defense.
Clevenger appealed the Fifth Circuit's punishment of Smith earlier this year to the Judicial Conference Committee on Judicial Conduct and Disability, complaining it was far too lenient and called for his impeachment. And in July, that committee ordered the Fifth Circuit to investigate other witnesses who alleged Smith sexually harassed them and determine whether there was a "pattern and practice" to his behavior.
But before the Fifth Circuit issued its second decision concerning Smith's punishment, Smith sent a letter to President Barack Obama in September announcing his retirement.
And weeks after his retirement, the Fifth Circuit issued an order in which it determined that they were "no longer able to impose any sanction" on Smith because of he had had retired from office and was unlikely to ever seek a bench again. The Fifth Circuit also concluded there was evidence that Smith had sexually harassed other women but those incidents had also occurred many years ago. They ultimately declined to recommend his impeachment to Congress.
Clevenger again appealed the Fifth Circuit's order Oct. 26, taking issue with their conclusion that no further punishment could be taken against Smith because he had retired.
"In reality, nothing in the rules prevents a judicial council from investigating, censuring and/or reprimanding a judge following his or her retirement, and in fact, censure or reprimand of a retired judge could still serve as remedial action to ensure the effective and expeditious administration of the business of the courts," Clevenger wrote in his appeal.
"If judges knew that their misdeeds could ultimately be exposed regardless of how long they had previously escaped justice, that would serve as a rather strong deterrent against the sort of misconduct perpetrated by Judge Smith," Clevenger wrote.
A woman who answered the telephone at Smith's office said the former judge declined to comment.
Clevenger said he filed a second appeal of the Fifth Circuit to force the court to get tough on trial court judges who engage in abusive conduct.
"It's less about Walter Smith than it is about the Fifth Circuit. The Fifth Circuit has continued to give the impression that it tries to cover up for its judges," Clevenger said. "And I'm hoping that the national committee will establish a standard nationwide that requires the Judicial Council to be more transparent, and frankly a little more aggressive.''
Copyright 2017, ALM Media Properties, LLC
From: John Council, "In Appeal, Lawyer Says Punishment of Waco Ex-Federal Judge Was Too Lenient," Texas Lawyer, October 26, 2016, TX, http://www.texaslawyer.com/id=1202770843102, accessed 01/07/2017. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
Endnotes
- Federal judges who retire continue to collect their full salaries for the remainder of their lives.2 However, judges who resign or are forced to resign get nothing. See: Stephen B. Burbank, et al., "Leaving the Bench, 1970-2009: The Choices Federal Judges Make ...", U. Penn. Law Rev., 161, 1 (2012).
- 28 U.S.C. § 371(a).
- See also: John Simerman, "'Senior status' for Judge Helen 'Ginger' Berrigan opens second seat on federal bench in New Orleans," TheAdvocate.Com, New Orleans, September 9, 2016.
IN RE: Complaint of Judicial Misconduct
Against United States District Judge Walter S. Smith, Jr.
Docket No. 05-14-90120
- APPEAL OF COURT ORDER, October 26, 2016.
Ty Clevenger, Attorney- ORDER AND MEMORANDUM OF REASONS, September 28, 2016.
Carl E. Stewart, Chief Judge- ORIGINAL COMPLAINT OF MISCONDUCT, September 8, 2014.
Ty Clevenger, Attorney- DEPOSITION OF DEPUTY CLERK, March 7, 2014.
Ty Clevenger, Attorney
Censure Judge Berrigan?
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