The judicial council assures accountability to the citizens through its broad authority to oversee numerous aspects of court of appeals and district court operations. The council is authorized by statute to issue orders to individual judges and court personnel.http://www.uscourts.gov/uscourts/FederalCourts/Publications/English.pdf The Judicial Conduct and Disability Act defines judicial misconduct as “conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a). Under the Rules for Judicial-Conduct and Judicial-Disability Proceedings, judicial misconduct includes “conduct occurring outside the performance of official duties” which “might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.” Rule 3(h)(2).
These standards are informed, where appropriate, by the precepts of the Code of Conduct for United States Judges, which are “in many potential applications aspirational rather than a set of disciplinary rules.” Commentary on Rule 3. Under the Code of Conduct, “[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Code of Conduct for United States Judges, Commentary on Canon 2A. In 2008, the Judicial Conference of the United States promulgated the Rules for Judicial-Conduct and Judicial-Disability Proceedings in order to “guid[e] the various officers and bodies who must exercise responsibility under the Act.” Commentary on Rule 1. Rule 3 further defines judicial misconduct. It first provides a litany of specific conduct that qualifies as “misconduct.”
See Rule 3(h)(1)(A)–(G). Cognizable misconduct may involve a judge’s official duties, see Rule 3(h)(1), or, in some circumstances, conduct occurring outside the performance of official duties, see Rule 3(h)(2). Cognizable misconduct nevertheless includes “conduct occurring outside the performance of official duties” which “might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public confidence in the courts among reasonable people.” Rule 3(h)(2). This provides the starting point for our analysis see, for example, In re Charges of Judicial Misconduct, 404 F.3d 688 (2d Cir. Judicial Council 2005). Judicial misconduct is not limited to violations of the law, as the Act and Rules make clear, but may occur whenever a judge engages in “conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a); Rule 3(h)(1). A judge’s conduct may be judicially imprudent, even if it is legally defensible.
The aspirational goals of the Canons in the Code of Conduct for United States Judges The committee, chaired by Justice Stephen G. Breyer, was charged with 10 assessing how the judicial branch has administered the Judicial Conduct and Disability Act and what steps could be taken to handle and investigate misconduct complaints more effectively. The rules are designed to promote simplicity, fairness, and the just determination of litigation, and to eliminate unjustifiable expense and delay.http://www.uscourts.gov/uscourts/FederalCourts/Publications/English.pdf See The Judicial Conduct and Disability Act Study Committee, 28 counsel judges to avoid allowing their personal or professional conduct to cause public embarrassment to the judiciary. Canon 2(A) provides that “[a] judge . . . should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The Commentary on Canon 2(A) explains: Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges.
A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. The Code of Conduct “is in many potential applications aspirational rather than a set of disciplinary rules.” See, e.g., Commentary on Rule 3 (“Ultimately, the responsibility for determining what constitutes misconduct under the statute is the province of the judicial council of the circuit . . . .”); see also Code of Conduct for United States Judges, Commentary on Canon 1 (“Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable application of the text and should depend on such factors as the seriousness of the violation, the intent of the judge, whether there is a pattern of improper activity, and the effect of the improper activity on others or on the judicial system.”).
See Code of Conduct for United States Judges, Canon 2A; Commentary on 11 Canon 2A (“A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. . . . The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.”). The Judicial Conduct and Disability Act is “remedial legislation, designed 12 primarily to correct aberrant behavior, not to punish judges.”
See Jeffrey N. Barr & Thomas E. Willging, Decentralized Self-Regulation, Accountability, and Judicial Independence Under the Federal Judicial Conduct and Disability Act of 1980, 142 U. Pa. L. Rev. 25, 93 (1993). See Richard L. Marcus, Who Should Discipline Federal Judges, and How?, 149 F.R.D. 375, 385–86 (1993) (“[T]he objective of the Act was to improve judicial performance. Thus it is not surprising that complaints under the Act seem to have had a more wide-ranging effect in prompting ‘corrective actions’ than in provoking formal discipline.”). 91 F.3d 1416: See In Re Charge of Judicial Misconduct the Committee pointed out that respondent’s conduct may well have violated Canon 2 B of The Code of Conduct for United States Judges.
This Canon directs a judge to avoid the appearance of impropriety. The commentary to that Canon states that a judge should avoid lending the prestige of his office to advance the private interests of family or friends in litigation. The fact that a judge’s conduct violates the Canons, however, does not necessarily mean that it constitutes judicial misconduct. See In re Charge of Judicial Misconduct, 62 F.3d 320 (9th Cir.1995). “Judicial discipline under the Act is not, and was never meant to be, coextensive with judicial ethics as embodied in the Canons.” Id. at 322. This is not to say the Canons are not important. They are. As a judiciary, we should do all we can to educate and motivate judges to achieve the aspirational goals of the Canons. But the judicial misconduct procedures were not meant to be nor are they designed to enforce those goals.
Misconduct Rule 1(c). Despite the imprecision of the language, however, it is clear that it is intended to deal with misconduct relating to the judicial office or judicial conduct. The legislative history of the statute states that “[c]omplaints relating to the conduct of a member of the judiciary which are not connected with the judicial office or which do not affect the administration of justice are without jurisdiction and therefore outside the scope of this legislation.” S.Rep. No. 96-362, at 3,reprinted in 1980 U.S.C.C.A.N. at 4317. Claims of judicial misconduct are reviewed to determine whether the court’s comments evidenced partiality. People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996). It is well settled that the discretion vested in the court is judicial and that an abuse thereof is open to review by this court.
Dever v. Dever, 50 R.I. 179, 146 A. 478. A court has discretionary authority to amend its prior decision. See Weber v. Roadway Exp., Inc., 199 F.3d 270, 276 (5th Cir. 2000). “A void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally” – The law is well-settled that a void order or judgment is void even before reversal. Vallely v Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920) “Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.”
Old Wayne Mut. I. Assoc. v McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850); Rose v Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808).Orders or “[j]udgments entered contrary to due process are void.” Neylan v. Vorwald, 121 Wis.2d 481, 488, 360 N.W.2d 537, 540 (Ct. App. 1984) (citations omitted). There is no time limit or laches on an attack on a judgment as void. State v. Lindsey, (1952) 231 Ind. 126, 106 N.E.2d 230; Wright & Miller, supra at § 2862.
In re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992) (“if the order i[f] void, it may be attacked at any time in any proceeding.”) Evans v Corporate Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (2nd Dist. 1990) (“a void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally.”) Oak Park Nat. Bank v Peoples Gas Light & Coke Col, 46 Ill.App.2d 385, 197 N.E.2d 73, 77 (1st Dist. 1964) (“that judgment is void and may be attacked at any time in the same or any other court, by the parties or by any other person who is affected thereby.”).
A void judgment is vulnerable to a direct or collateral attack regardless of the lapse of time. Davidson Chevrolet, Inc. v. City and County of Denver, supra [137 Colo. ___, 328 P.2d 379]. a void judgment amounts to nothing and has no force as res judicata. Arkansas State Highway Commission v. Coffelt, 301 Ark. 112, 782 S.W.2d 45 (1990). Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock, 437 N.E.2d 392 (Ill.App.3 Dist. 1982). A void judgment cannot constitute res judicata.
Denial of previous motions to vacate a void judgment could not validate the judgment or constitute res judicata, for the reason that the lack of judicial power inheres in every stage of the proceedings in which the judgment was rendered. Bruce v. Miller, 360 P.2d 508, 1960 OK 266 (Okla. 12/27/1960). To determine whether a judge’s act is a “judicial” one, the Court is to consider four factors: (1) whether the act complained of is one normally performed by a judge; (2) whether the act occurred in the courtroom or an appropriate adjunct such as the judge’s chambers; (3) whether the controversy centered around a case pending before the judge; and (4) whether the act arose out of a visit to the judge in his judicial capacity.” Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir.1993).