VIA FEDERAL EXPRESS

January 30, 2003

Circuit Executive of the Sixth Circuit

503 U.S. Post Office & Courthouse

Cincinnati, OH 45202

Re: Judicial Misconduct Complaint

Dear Sir or Madam:

Judicial Watch, Inc. is a non-profit, non-partisan, tax exempt Section 501(c)(3) public interest educational foundation that seeks to educate the American people about the workings of the government and the judiciary.

We are writing to draw your attention to what may constitute judicial misconduct on the part of Chief Judge Boyce F. Martin, Jr. of the United States Court of Appeals for the Sixth Circuit. We became aware of this potential judicial misconduct in several news articles and in the dissenting opinions in In re Byrd, Jr., 269 F.3d 578 (6th Cir. 2001) and Grutter v. James, 288 F.3d 732 (6th Cir. 20002). The conclusions reached in these news articles and the judicial opinions themselves have created concern about the integrity of Chief Judge Martin’s actions in these two cases. It appears from reading these publications and opinions that Chief Judge Martin may have engaged in conduct prejudicial to the effective and expeditious administration of the business of the court by manipulating established court procedures so as to accomplish his personally desired result.

In the following statement of facts, Judicial Watch, Inc. has attempted to lay out the specific instances of possible judicial misconduct by Chief Judge Martin in Byrd and Grutter. The alleged facts surrounding these incidents warrants an investigation into the conduct of Chief Judge Martin.

In re Byrd, Jr., 269 F.3d 578 (6th Cir. 2001)

Byrd is a case surrounding convicted murderer John W. Byrd and his subsequent death penalty sentence. Byrd was convicted in 1982 and his case has traveled through the court system. In 2001 Byrd’s case came before the Sixth Circuit once again on the issue of Byrd’s entitlement to a second petition of habeas corpus. A three-judge panel split 2-1 denying Byrd’s request for a second petition of habeas corpus. The denial came four days before the scheduled date of his execution. On September 10, 2001 an eight-day stay of execution was ordered by a member of the panel. On that same day, Judge Danny Boggs, requested a vote on whether the matter should be heard en banc. According to the one of th dissenting opinions, the active members of the Court had until 2 P.M. on September 11, 2001 to cast their votes on whether to give en banc consideration to the eight-day stay. This is the point where Judicial Watch’s concern begins.

It appears from reading the dissenting opinions in Byrd, that prior to the close of balloting, the Clerk of the Court was instructed to enter an order staying Byrd’s execution for thirty days. Byrd, 269 F.3d at 582 (Boggs, J., dissenting opinion). This result appears to have been accomplished through Chief Judge Martin’s personal interference with the balloting procedure. From the description of the events of September 10th and 11th in the dissenting opinions of Byrd, Chief Judge Martin contacted several members of the Court to advocate for a thirty-day stay despite the fact that the vote before the Court was whether to give en banc consideration to the eight-day stay. Id. According to the dissenting opinions, several members of the Court were never contacted by Chief Judge Martin and did not even discover the change in the ballot until after the order was delivered granting the thirty-day stay. Id. at 582 - 584 (Boggs, J., Batchelder J., and Suhrheinrich, J., dissenting).

Each of the dissenting judges express concern that Chief Judge Martin obtained his thirty-day stay by means of secrecy instead of clearly established procedures. Id. If in fact Chief Judge Martin is manipulating court processes in this manner to accomplish his own agenda, not only would this amount to judicial misconduct, but the public perception of such actions would inevitably tarnish the image of the Sixth Circuit as a whole.

This is not the only matter of concern in Byrd. In October 2001, a majority of the Sixth Circuit voted to remand Byrd’s case to a special master for “development of the factual record sufficient to permit a consideration of a petition to file a second habeas corpus petition,” due to new evidence Byrd alleged to have discovered. Id. at 595 (Boggs, J., dissenting). Byrd was remanded to a special master for an evidentiary hearing despite the fact that a majority of the September 2001 panel had already denied Byrd’s request for a second habeas corpus petition and despite the fact that a second habeas corpus petition was clearly improper. See 28 U.S.C. § 2244(b)(3)(E), see also In re King, 190 F.3d 479, 482 (6th Cir. 1999). The State of Ohio filed a motion to stay the evidentiary hearing while the petition for writ of certiorari was pending. According to the facts in the case, several other pleadings were filed in response to the State of Ohio’s motion. All responses appear to have been filed by November 2, 2001 and the vote was set for November 5, 2001, the same day the evidentiary hearing was to take place.

Despite the passage of several days, the Byrd justices allege that the pleadings were not distributed to the individual members of the Court until November 5, 2001. Byrd, 270 F.3d 984 (6th Cir. 2001). From the facts it appears that the individual court members did not receive the pleadings until only a few hours prior to the vote and several hours after the evidentiary hearing had already begun. Id. The State of Ohio’s motion was effectively mooted. In one dissenting opinion, the justice claims that it was at the direction of Chief Judge Martin that the motions were withheld until such time as an inquiry was made by one of the Court members regarding their existence. Id. at 984 (Bogg, J., dissenting). The three written opinions also state that Chief Judge Martin made no attempt to explain the delay after he distributed the pleadings. Id. at 984 (Batchelder, J., concurring). Judge Surheinrich stated that it was the “most bizarre process this Court has ever seen.” Id. at 984.

From the written opinions in Byrd, there does not appear to have been a logical reason for Chief Judge Martin’s delay in distributing the motions. It is logical to conclude however, that by delaying the distribution of the pleadings until after the evidentiary hearing had already begun, Chief Judge Martin effectively ensured that the evidentiary hearing would go forward. This is a matter of great concern. It would indeed be judicial misconduct if Chief Judge Martin deliberately withheld the properly filed pleadings from the members of the Court in order to affect the outcome. Judicial Watch, Inc. respectfully requests that these concerns be investigated.

Grutter v. James, 288 F.3d 732 (6th Cir. 20002)

Grutter concerns the University of Michigan School of Law’s admission policy. The plaintiffs in the case challenged the admission policy as discriminatory. Plaintiffs were successful in the district court, and defendants and intervenors appealed to the Sixth Circuit. On May 14, 2002, counsel petitioned the Court to consider the appeal en banc. However, according to the dissenting opinions in Grutter and the Procedural Appendix (“Appendix”) to the case, Chief Judge Martin delayed distribution of the petition to the individual members of the Court. Grutter, 288 F.3d at 232 (Procedural Appendix). In fact, it is alleged, that Chief Judge Martin withheld the petition for five months. Id.

In addition to the allegation that the petition itself was withheld, the Appendix alleges that Chief Judge Martin withheld a June 4, 2001 order that acknowledged the petition and ordered the petition be held in abeyance until it was fully briefed. Id at 236. From a reading of the Appendix, it is logical to conclude that the members of the Court were not aware of the petition until October 2001, five months after the petition was submitted.

This conclusion is important considering the events that took place during the five months Chief Judge Martin allegedly knew about the petition, but failed to circulate it or acknowledge it to the other Court members. As set forth in the Appendix, on July 1, 2001 Judge Alan Norris declared senior status, and on August 15, 2001 Judge Richard Suhrheinrich declared senior status. Under court guidelines, Judges Norris and Suhrheinrich were therefore unable to vote on the petition or sit on any en banc review.

After Judges Norris and Suhrheinrich declared senior status, the Sixth Circuit was left with nine voting members. It is also a fact that both Judges Norris and Suhrheinrich were conservative judges appointed by Republicans. Whatever Chief Judge Martin’s motive in withholding the petition for five months, the fact remains that the case was decided, en banc, by a margin of 5-4 and was decided just after two conservative Republican judges became ineligible to vote on the petition or participate in the en banc review. It would appear that Chief Judge Martin may have deliberately withheld the petition until the make-up of the Court was such that a result would be favorable to his views. This would undoubtedly constitute judicial misconduct.

In addition to what appears to be Chief Justice reconstructing the Court, the Grutter Appendix also points out another item of concern. The June 4, 2001 order issued by Chief Judge Martin allegedly not circulated to the members of the Court, stated that once the case was fully briefed the Court would decide whether it should be consider the appeal en banc or refer it to a three-judge panel. Id. Despite this order, on August 23, 2001 the Appendix points out that Chief Judge Martin referred the appeal to a three-judge panel outright. Id. It is a fact that the Sixth Circuit has clearly established procedures regarding panel selection.

Importantly, the appeal was a second appeal of the same matter and, under 6th Circuit I.O.P. (b)(2), the original panel determines whether a second appeal should be submitted to it for decision or assigned to another panel at random. When the original panel includes a district judge, as in this case, the remaining two circuit judges must decide whether the judge should be recalled for the new panel or whether a third Court of Appeals judge should be drawn to fill out the panel, provided that, if oral argument is scheduled, the draw shall be made from the judges of the Circuit Court scheduled to sit at that time. Either way, the Sixth Circuit requires that any vacancies be filled randomly.

The Appendix demonstrates however, that the three-judge panel was not configured according to I.O.P. (b)(2). The original panel from 1999 consisted of Judges Karen Nelson Moore, Martha Craig Daughtrey and a visiting senior district judge, Judge David Stafford. The panel that received the August 23, 2001 referral from Chief Judge Martin consisted of: Judges Moore and Daughtrey, members of the original panel, and Chief Judge Martin. Id. at 236-37. It appears that Chief Judge Martin simply appointed himself to fill the vacancy left by visiting Senior District Judge David Stafford. I.O.P. 34(b)(2) clearly allows for Judge Stafford to be recalled as a member of the original panel. However, if the remaining two original panel members, Justices Moore and Daughtrey had decided to not recall Judge Stafford, I.O.P. (b)(2) clearly states that the vacancy is to be filled randomly.

As with the ultimate make-up of the en banc Court, Chief Judge Martin’s motives cannot be declared with certainty. However, the appearance of impropriety and judicial misconduct is great, and the fact remains that the Internal Operating Procedures of the Sixth Circuit were not followed.

From reading the dissenting opinions and Appendix in Grutter, it appears that Chief Judge Martin manipulated court processes and clearly established Sixth Circuit procedures in order to effect the outcome of at least two cases before the Court. The apparent intention to manipulate court procedures in order to effect the outcome of a case must be investigated.

Chief Judge Martin’s actions have become a matter of public concern as can be seen in the news articles attached to this letter. Indeed, his actions have caused enough of a concern that fellow judges have written dissenting opinions and a procedural appendix outlining Chief Judge Martin’s apparent misconduct. In order to protect the appearance of justice and protect the integrity of the Court, we respectfully ask that these disturbing allegations of manipulation and disregard of the Court’s rules by Chief Judge Martin be investigated.

Thank you for your cooperation.

Sincerely,

JUDICIAL WATCH, INC.

Thomas Fitton,

President