Star chamber II

Now that the Love Field suit has landed in his courtroom, The Dallas Morning News apparently has discovered Fort Worth federal Judge John Henry McBryde's existence. Moreover, they appear to like him--though still not enough to give his historic constitutional brawl with fellow jurists the billing it deserves.

As the Dallas Observer reported in a cover story this fall on the maverick McBryde ["Temper, temper," October 2], the 65-year-old Bush appointee may well be the first federal judge in more than 200 years of legal history to be tried by his peers for lacking a proper "judicial temperament." Early this month, Dallas' Only Daily finally got around to running a version of McBryde's tale--albeit without any mention of the star-chamber proceedings against the judge--below the fold in its metro section.

A few weeks before that, the Morning News gave the judge stellar marks in its lead editorial, after McBryde took the courageous step of sending the Love Field case to mediation. ("Give the judge an A-plus for effort," wrote the editorial board, apparently unaware that the judge had simply issued the standard order he enters in all his cases.) But the maverick McBryde may soon be devoting lots more attention to the fight between Fort Worth and Dallas over expanded flights from Love Field--or else none at all.

A special committee of the 5th U.S. Circuit Court of Appeals that has been investigating McBryde's fitness to continue to hear cases has apparently sent its report and recommendations to the full, 19-member Circuit Judicial Council. Among the sanctions the council may enter against the judge is an order decreeing that McBryde receive no new cases for a set period, possibly as long as six months. Sources who wish to remain anonymous say that McBryde received the five-member special committee's report late last month.

According to 5th Circuit rules, McBryde had 10 days to lodge his exceptions to the report's findings and recommendations. The report, as well as McBryde's responses, will be presented to the full judicial council during a meeting this week in New Orleans. Courthouse sources say that McBryde and his counsel flew to New Orleans on Tuesday evening and were scheduled to appear before the full council as it considered the report Wednesday.

The council, which is composed of nine judges from the 5th Circuit, nine judges from lower federal district courts the 5th Circuit oversees (those in Texas, Louisiana, and Mississippi), and 5th Circuit Chief Judge Henry Politz, will subsequently vote on whether to accept the special committee's recommendations. According to statute, the council could vote to adopt the recommendations, to take some action other than that recommended, or to launch an additional round of investigation. The council is, however, required to give the special committee's findings and recommendations "substantial deference." As a practical matter, in the past the judicial council has acted as a rubber stamp.

As for possible actions, the council has a number of options available, among them dismissing the pending complaints against McBryde--filed by a number of aggrieved litigants, including the U.S. Justice Department--and entering a private reprimand. But the rare nature of these proceedings, as well as the expense to which the 5th Circuit Judicial Council has gone, makes these outcomes unlikely.

When Chief Judge Politz appointed the Special Investigative Committee more than two years ago, he hired former Whitewater special counsel Robert Fiske to present the case against the temperamental McBryde, who is accused of mistreating lawyers who appear in his court. Since then, Fiske and a host of his law firm's associates have spent hundreds of hours interviewing witnesses, preparing briefs, presenting testimony, and arguing in the six different lawsuits, appeals, and administrative proceedings the brouhaha has spawned.

The next-highest form of sanction available, public reprimand, also is considered unlikely, in part because the council has previously entered public censure against the judge. That censure order was later set aside by another panel of the 5th Circuit in a case known as "McBryde I." Earlier this month, those 5th Circuit judges who are not also on the judicial council refused to reconsider McBryde I, triggering the 90-day time limit for the judicial council to seek Supreme Court review.

While sources who have seen the report declined to reveal its contents, courthouse betting is that the special committee will enter a more draconian sanction than public or private reprimand.

Among the options is an order decreeing that McBryde receive no new cases for a specified period of time. But at least one lawyer familiar with the arcane statutes involved maintains that this sanction is not intended for use in a case such as McBryde's.

"It's not intended to be used as a punishment, but as a means for a judge to catch up with his cases," says the attorney, who, like all those whose livelihoods depend on practicing before federal courts overseen by the 5th Circuit, requested anonymity. "That's the logic--but that doesn't mean it won't be used as punishment in this case."

Of course, such punishment would wreak not only constitutional havoc, but also case flow problems, since by standing order McBryde currently receives 44 percent of all cases filed in Tarrant County federal court. (Judge Terry Means hears 44 percent, and Judge Eldon Mahon picks up 12 percent.) McBryde would have the right to appeal any such temporary order to the full Judicial Conference of the United States.

The next step up in the disciplinary scheme would be for the 5th Circuit to ask Judge McBryde to retire. If used, this provision could well trigger another round of hearings, since McBryde appears to be determined to fight this to the end.

If McBryde declined to retire, the judicial council and McBryde could well embark on a sort of disciplinary Star Trek, since none appears to have gone this way before. The judicial council could then vote to certify McBryde as "disabled" and present that certification to President Clinton. If he found McBryde "unable to discharge efficiently all the duties of his office by reason of permanent mental or physical disability," Clinton could then appoint a new judge. Since the provision has never been invoked, it is unclear what rights of appeal, if any, McBryde might have from this form of involuntary commitment.

Meanwhile, no one involved in this extraordinary case is willing to make public predictions. "I'd like to say more," said one wag, "but I don't want to spend Christmas in leg irons.


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