Kopf: US District Judge John Adams Was A Jerk, But Does That Make Him Nuts?

On August 14, 2017, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (the Committee) considered the petition filed by United States District Judge John R. Adams seeking a review of an Order of the Judicial Council of the Sixth Circuit (Judicial Council) finding Judge Adams committed misconduct as understood within the meaning of the Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351-64, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings (“Rules”) (amended Sept. 17, 2015). See here for a well-written and thorough news article summarizing the matter and here for the rulings of the Committee and the Judicial Council.

The Committee made a decision of first impression that is both extremely important and yet chilling:

In this matter of first impression under the Judicial Conduct and Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings, we reject Judge Adams’s constitutional and statutory challenges to the Judicial Council’s finding that he committed misconduct and directing him to undergo a mental health examination. For the reasons discussed, the Act and the Rules authorized the Special Committee’s request that Judge Adams submit to such an examination, the Special Committee was justified in making the request based on its findings concerning Judge Adams’s behavior, and Judge Adams’s objections to the examination do not justify his failure to cooperate in the investigation.

Committee Opinion, at pages 38-39.

However, the Committee reversed the Judicial Council’s decision stripping the judge of his cases for two years. The Committee wrote:

Because the Judicial Council did not include in its Order any specific findings regarding whether Judge Adams’s conduct has adversely affected his ability to discharge the adjudicative duties of his office, we vacate the portion of the Judicial Council’s Order that prohibits the assignment of new cases to Judge Adams for two years and transfers Judge Adams’s current cases to other judges.

Id. at p. 40.

Yet, the Committee made clear that Judge Adams was properly compelled to undergo an independent mental health examination, and he had better comply:

Having rejected Judge Adams’s objections, we anticipate that Judge Adams will expeditiously comply with the Judicial Council’s Order, as affirmed by this Committee, that he submit to a mental health examination by a psychiatrist selected by the Special Committee. This examination should seek evidence as to whether Judge Adams is able to discharge the duties of a federal district court judge, which necessarily includes his adjudicative duties. Once the examination is completed, the Judicial Council should consider the results, along with any records or other examination results submitted by Judge Adams, to determine whether additional action by the Judicial Council is appropriate. In addition to its consideration of any examination results, the Special Committee may conduct further investigation into Judge Adams’s conduct on the bench, including interviews with litigants, lawyers, and court staff, as part of its investigation into Judge Adams’s ability to discharge his adjudicative duties as a federal district court judge.

Id. at p. 39.

At this point you might be scratching your head. If he had to undergo a mental health evaluation, but he should not be stripped of his cases, how do those two things square? Indeed, the Committee stressed that: “Significantly, none of the evidence submitted at the hearing regarding Judge Adams’s mental health specifically addressed Judge Adams’s behavior with respect to litigants or in adjudicating cases.” Id. at p. 13.

I am going to be plain-spoken and provide you with a greatly condensed and summarized version of the facts. Judge Adams treated his colleagues very, very badly. He was especially nasty to magistrate judges. He improperly threatened an MJ with a contempt sanction for failing to get a report and recommendation on a Social Security case to the judge within the time required by the judge’s standing order. He isolated himself, despite good-faith efforts by his colleagues to patch things up, he refused to participate meaningfully in court governance and he childishly sniped at his colleagues. In a word, he was a jerk.

The decision of the Judicial Council and the Committee that the judge engaged in misconduct by treating his colleagues in this manner was clearly correct, as he significantly screwed up the district court’s internal functioning. The public reprimand was entirely justified. Judge Adams should be ashamed of himself.

But was there, and is there now, a sufficient reason to think Judge Adams is nuts, thus properly requiring him to submit to an extremely intrusive mental health examination[i] by experts not of his own choosing? I am of two minds.[ii]

I spent a significant amount of time in my law practice dealing with psychiatrists and psychologists. I represented a group of clinical psychologists on an ongoing basis. I had occasion to defend one of the most significant financial contributors to the University of Nebraska in a civil suit seeking to have her declared incompetent. In that successful defense, I spent a lot of time with psychiatrists and neurologists. I served as the law member of the Dawson County Mental Health Board that imposed civil commitment orders. I spent an enormous amount of time consulting with one of the foremost clinical and forensic psychologists in the country, whose particular expertise was neuropsychology, to advance a defense in a criminal case.

Since then, as a judge, I have had frequent contact with psychiatrists and psychologists.[iii] On a personal level, and as I have revealed before, I regularly consult a psychologist (who is also a lawyer) for treatment of my long-standing issues of anxiety and depression. Thus, I think I know slightly more about mental health diagnoses and treatment than someone who spent a night at a Holiday Inn Express.

So far as I can tell, the only expert evidence that Judge Adams might be unbalanced is a statement from the forensic psychiatrist employed by the Judicial Council’s investigative arm. While the doctor could not render an opinion regarding the judge’s mental or emotional condition because of the judge’s refusal to cooperate, based upon what the investigators for the Judicial Council provided the doctor, he or she opined that there is “a reasonable basis for concern as to Judge Adams’[s] mental or emotional state. The data available so far do not suggest a mental state of psychotic proportions, but do suggest significant personality traits that may have contributed to the current concerns.Id. at p. 12. (Italics added by Kopf)

What is especially troubling is that “Judge Adams sought to introduce the testimony of a psychiatrist who had previously conducted a mental health evaluation of Judge Adams at his request, but the Special Committee excluded the psychiatrist from testifying because Judge Adams refused to produce any of the records underlying his psychiatrist’s evaluation.” Id. at p. 13.

In short, I am very disturbed by the decision to force the judge to undergo an intrusive independent mental health examination based upon the facts as I understand them.[iv] I see little justification for refusing the judge permission to present his psychiatrist to testify, even in the absence of the “records underlying” the evaluation.[v] If, after such testimony had been allowed and given, the Judicial Council doubted the validity of the doctor’s testimony because the doctor could not back up his or her testimony by an oral recitation of the bases for his opinion, that would have been a very different story.

Now, I will flip sides. Judge Adams should have willingly agreed to be examined by independent examiners. When you are a federal judge and a group of colleagues question your mental status, you owe it to the public, and especially the lawyers and the litigants, not to be a stubborn ass.

All of us who are fortunate to serve as federal judges owe the public transparency. That transparency will often require sacrifice. The federal judiciary has been afforded wide latitude to police itself, and that is particularly true when it comes to questions of disability.[vi] Judge Adams should care more about the federal judiciary writ large than he cares about himself. Sadly, it is evident that Judge Adams cares more about himself than he does the federal judiciary.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] This examination will be conducted by a forensic psychiatrist and experts in neuropsychology and neuroforensics. Committee Opinion, at p. 11. I would be very surprised if these experts did not insist upon brain imaging. See, e.g., Michael Demitri, M.D., Types of Brain Imaging Techniques, PsychCentral (2016).

[ii] By the way, that does not (necessarily) mean I am a schizophrenic.

[iii] See, e.g., United States v. Wehrbein, 61 F. Supp. 2d 958 (D. Neb. 1999) (imposing a time-served sentence, rejecting the opinion of the government’s expert, a board-certified psychiatrist in private practice, and relying upon the opinion of the defense expert, a forensic psychologist who was a faculty member at the University of Nebraska in both the clinical and law-psychology training programs).

[iv] Lawyers from Judicial Watch are representing Judge Adams. Judicial Watch issued a statement regarding the opinion of the Committee that in part stated:

His fellow judges, who described him as a ‘bright judge’ who writes ‘very good opinions,’ now seek to punish Judge Adams not because of any wrongdoing, but because he quite reasonably refused their Orwellian and unlawful demands that he submit to an invasive psychiatric evaluation. The same judges who demanded the evaluation refused to consider psychiatric evidence Judge Adams offered from two experts giving him a clean bill of health. In further retaliation for his complaints, Judge Adams was put through a harassing and malicious investigation that trampled his constitutional rights and smeared his reputation. Judicial Watch and Judge Adams are considering challenging this flawed decision in federal court.

[v] Anyone who knows anything about mental health evaluations understands that psychiatrists and psychologists gather reams of information from the subject, some of which may ultimately be of no significance, but at the same time can be highly embarrassing. Simple Example: A person who achieves normal scores on the Minnesota Multiphasic Personality Inventory (MMPI) (the gold standard for assessing personality traits and psychopathology) and clean MRI of the brain reveals sexual abuse as a child to the evaluator and the evaluator makes a note in the record.

[vi] Although no one (to my knowledge) has questioned my competency, when I turned 70 this last year, I had myself tested using the Dementia Rating Scale-2 (DRS-2) to set a cognitive baseline. I revealed the complete results and the evaluator’s interpretation to my colleagues. When I turn 75, I have promised my colleagues that I will undertake a complete workup at the University of Nebraska Medical Center to make sure that I don’t require a dribble cup. I have also provided the Chief Judge, the Clerk of Court and Chief Deputy with an irrevocable release that allows them access to any of my medical or mental health records or providers. Finally, I have instructed my staff to go directly to the Chief Judge should they witness significant medical or mental health issues. They are to do so without consulting me first. I like to think that in this respect I have put my money where my mouth is.

25 comments on “Kopf: US District Judge John Adams Was A Jerk, But Does That Make Him Nuts?

  1. B. McLeod

    Interestingly, there is no requirement that any of the legislators actually making laws not be nuts, as long as people vote for them.

    1. Patrick Maupin

      With legislators, one can always hope that Francis Galton’s wisdom of the crowds kicks in. With a judge, WYGIWYG*, and ut ain’t always pretty.

      * What you get is what you got.

  2. Curmudgeonly Ex-Clerk

    “Judge Adams should be ashamed of himself.” Unless, of course, he is mentally ill, in which case he may not be responsible for his conduct to some degree . (Still unfit for the bench, possibly, but not really culpable.)

    1. Richard Kopf

      CEC,

      Except for a very few of the recognized categories of mental illness, most mental illnesses do not preclude the existence of a culpable state of mind. A fair such number of illnesses don’t even amount to a reasonable basis for mitigation. If desired, I can go all DSM-5 on you, but otherwise, trust me.

      Perhaps your use of the words “may” and “possibly” acknowledge my point. If so, I apologize for being pedantic.

      All the best.

      RGK

      1. Curmudgeonly Ex-Clerk

        RGK,

        I think we might be talking about different things. If so, that’s in large part my fault for including “responsible” and lawyerspeak like “culpable” when that’s not what I had in mind.

        Let me try to do better:

        Mental illnesses may not exclude a culpable state of mind, and thus not excuse legal responsibility, or even be cause for mitigation. But a “culpable state of mind” and “mitigation” are legal concepts, whereas whether one is a “jerk” or should be “ashamed” are not legal judgments but moral ones. So what I tried but failed to say is more along the lines of: I think your moral judgments about Adams may be wrong in whole or part if he is in fact mentally ill; I’m not sure he necessarily should be “ashamed” if mental illness played a role in his acts.

        Better or worse?

        1. Richard Kopf

          CEC,

          I use “ashamed” in a normative sense. And, in that sense, I think even most crazy people can properly be called up short for “shameful” behavior. I also need to stress that many crazy people are honorable. I hope that helps.

          All the best.

          RGK

      2. losingtrader

        ” If desired, I can go all DSM-5 on you, but otherwise, trust me.”
        That’s better than going all MS-13 on him, but DSM-5 is a registered trademark.

        By the way, can you please provide a list of illnesses that would, ” preclude the existence of a culpable state of mind ?” Hopefully, it includes someone who cloned their dog 10 times.
        Asking for a friend.

        1. Richard Kopf

          losingtader,

          Anyone with Bullet-Mania–a compulsive love of the best dog in the world causing the sufferer to expend huge amounts of money to try to ensure that the pup never really dies–is an example of a little known, bizarre affliction that has struck only one person in the entire world, so far as we know.

          This is a “personality disorder not otherwise specified” (also known as personality disorder NOS or PDNOS) using the protocols established under the DSM-IV Axis II category of personality disorders.

          In the more woke DSM-5, this affliction is referred to as an “Unspecified Disorder” and it is used to enhance the specificity of an existing disorder or to provide an emergency diagnosis.

          In your friend’s case, I would apply the DSM-5 diagnosis, but treat it as an emergency disorder because the disorder has apparently fully resolved. That is, the money has been spent and the result achieved rendering your friend asymptomatic.

          I hope that helps. All the best.

          RGK, Honorary Fellow of The American College of Psychiatrists (and lover of all things B.)

  3. kemn

    Judge, I’m glad you don’t require a dribble cup (yet), but being in Nebraska, do you require a spittoon?

    Not being a legal scholar, are there procedures for removing a sitting federal judge because they’re a jerk? (at least because of a hostile work environment).

    Being a bit (ok, more than a bit) of a snark myself, I don’t know that simply being a jerk is a mental issue requiring a full psychiatric workup.

    Is there any notation that the Committee might include people rubbed the wrong way by Judge Adams?

  4. Frank

    but the Special Committee excluded the psychiatrist from testifying because Judge Adams refused to produce any of the records underlying his psychiatrist’s evaluation

    The mere demand from the Special Committee might well constitute a HIPPA violation.

  5. Erik H.

    If you’re an attorney and you miss a deadline due to a clerical error; if you get ordered to show cause; and if you successfully defend: you win, and the order remains.

    If you’re a magistrate and you miss a deadline due to a clerical error; if you get ordered to show cause; and if you successfully defend: you are entitled to have the order stricken from the record as if it never existed. Finding in your favor (excusable error) is insufficient. Sealing the order is insufficient. Only striking it will do.

    There is no rule, of course, which addresses the issue. But failing to strike will breach the thin black line, and the next thing you know, you’ll be accused of a mental defect and your behavior is Exhibit A. Because, of course, any sane person would not cross the thin black line.

    Color me unconvinced.

    I think Judge Kopf has it wrong when he suggests “Judge Adams should have willingly agreed to be examined by independent examiners.” This reeks of a weaponized test. The judiciary (to the degree it wishes to police itself) may certainly follow Judge Kopf’s commendable lead and set out require evaluations for all of its members. But being a jerk is not the same as being insane. When an opposition group responds to alleged assholery with accusations of mental deficiency, it is a Stalinist tactic which requires full opposition.

    Similarly, when Judge Kopf says “Judge Adams should care more about the federal judiciary writ large than he cares about himself. Sadly, it is evident that Judge Adams cares more about himself than he does the federal judiciary.” I am not so sure. It is hard to argue that the judiciary is primarily concerned with litigants, given that it seems to primarily be concerned with Adams’ dismissal while simultaneously relying on the good nature of folks like Judge Kopf. If Adams believes he is being railroaded–which I am sure he does–then he would correctly fight this. A judiciary which railroads unpopular members is exceeding its authority.

    1. Richard Kopf

      Eric,

      Very well argued. I could offer some counter points but I would be repeating explicit and implicit portions of my post. I should not inflict that pain on you or on anyone else.

      By the way, the suggestion that the judiciary could demand that all judges undergo periodic mental (and I would add medical) examinations is a good one. It would require a great deal of refinement, but, generally speaking, the suggestion makes perfect sense. Sadly, I will tell you that this is never, ever going to happen.

      All the best.

      RGK

      1. Erik H

        Thank you; that’s the best compliment I’ve gotten all year.

        I agree testing will never happen, which is why I find your move all the more commendable.

        I concede that Adams may be acting from a desire for personal gain, from personal animosity, or from some other similarly nasty basis. That would obviously be wrong and censurable, though not necessarily indicative of mental illness.

        But from his own protests it seems more likely that he thinks his actions, although they cause distress and conflict, are required and just. In other words, he appears to feel that his refusal to bow to pressure and give in is somewhat akin to civil disobedience: he thinks the system is broken and he would rather expose the break than take his lumps.

        Do you think my read is incorrect? You appear to be arguing for a degree of conformity to preserve the system, and I entirely understand that as a goal. I may well be wrong in failing to give that sufficient weight.

        But although you are clear that you think he should take the exam, I can’t be certain whether you think he’s right. Are you closer to “even though it is unfair, you should accept punishment for the greater good”, or are you closer to “take your punishment, you deserve it?”

  6. Richard Kopf

    Kemn,

    Interesting questions.

    First, you can’t be removed simply because you are a jerk. If that was so, I would be long gone. In fact, absent impeachment, I doubt that an Article III judge can be “removed.” (There is an untested argument that the “good behavior” clause of Article III might be used to allow for “administrative removal” if the statutory authority was enacted to allow for removal of a federal judge without impeachment.) However, the Judicial Conference could effectively neuter a judge. That is, order that he or she not be permitted to do anything. The Judicial Conference can also request that a judge resign, and then waive the years of service requirements for an annuity to provide an incentive for the judge to get gone. Finally, the Judicial Conference could recommend impeachment to Congress.

    Second, the judge in question was not reprimanded for merely being a jerk. He was reprimanded for messing up the internal working of the court. Whether this alone would be a “high crime or misdemeanor” within the meaning of the impeachment provisions of Article II Section 4 of the Constitution seems doubtful.

    Third, I agree in part that questioning the judge’s mental status on the facts as I understand them is a stretch. However, frankly, it may not be too much of a stretch. The judge’s jerky behavior is extremely odd and unusual when viewed from the perspective of the behavioral norms that exist behind the federal judicial curtain.

    Fourth, it may be that the judge rubbed some of the Sixth Circuit’s Judicial Council wrong as the investigation was expanded by the Acting Chief Judge of the Sixth Circuit to include the mental health component. But there is no such concern with the Judicial Conference Committee. And, overall, all the members of the Sixth Circuit Judicial Council Committee and the members of the Judicial Conference Committee are highly regarded. In short, I have no reason whatever to believe any of this resulted from personal animus on the part of any member of the two groups that made the decisions

    Hope this helps. All the best.

    RGK

    PS While there are no spittoons in the U.S. District Court for the District of Nebraska, I am told that each Justice on the United States Supreme Court has a spittoon next to his or her seat in the courtroom.

  7. Richard Weaver

    When Judge John McBride (ND Tex., Ft Worth Div.) was sanctioned by the Judicial Council for being a jerk he fought it to the bitter end. Amongst other arguments, he claimed that as an Article III judge, he could not be sanctioned in any manner other than impeachment. Frankly, he had the better of the legal argument, but obviously lost as he had to make his arguments to federal judges who would never strike down the Judicial Council’s misconduct oversight. The assorted pleadings do make entertaining reading.

  8. Richard Kopf

    Richard,

    Thank you very much for this comment. For those who would like allegedly inside information on the judge from practicing lawyers (and are willing to pay for it), the Almanac of the Federal Judiciary has a long entry on him that is, to put it charitably, unusually critical.

    All the best.

    RGK

  9. Al Iterate

    A recent newspaper article (which I will not link to here, per the rules) quoted Judge Adams as saying, in his defense, that the court transcripts the committee considered give a misimpression, because he conducts most of his proceedings off the record. Which itself is kind of damning when you think about it — and is, in my experience, a method some judges use precisely in order to cover up the extent of their inappropriate behavior.

  10. Richard Kopf

    Al Iterate,

    I almost never have unrecorded bench conferences unless the lawyers for both sides ask for one or I need to say something to the lawyers that would be embarrassing to one of them and irrelevant to the case if the conversation were recorded. (“To Defense counsel: Your pants are unzipped.”)

    Once in a great while, particularly in a criminal case, if I see a lawyer about to make a very serious but really dumb and unintended mistake I will call the lawyers to the bench so I can pass along a “heads up” without a recording. In brief, I try to help counsel avoid a professional gaffe but I don’t direct them what to do. It is more of a ” counsel think through what you are about to do, but it is your call.” Again, these conferences are very few and far between.

    I remember judges “going off the record” when I practiced law. I didn’t like it then and if I was feeling bold, I would explicitly request a recorded conference. However, the last criminal case I was involved with as a practicing lawyer involved a child rape case brought against a teacher–our client. The first prosecutor had been disqualified after his bad behavior during a deposition we were taking that was cutting the legs out from under his expert. The relationship between our side and the special prosecutor who took over was tense.

    The trial judge, in that case, was very experienced and hysterically funny. His off the record bench conferences were used I think to lighten the atmosphere. No harm was done, and, when tensions were about to boil over, the heat as between the opposing lawyers was tempered by the judge’s humorous remarks at the bench. Fair minded trial judges can be sneaky good in that way.

    All the best.

    RGK

  11. Anon

    Reminds me a little of the Caine Mutiny, Captain Qweege (did I spell it right?), and Jose Ferrer’s magnificent performance as the attorney representing Van Johnson’s character.

    Qweege wasn’t insane, just needed some help.

    I hope Judge Adams can allow himself to get some help so he can get back to work.

    Thank you for being so open about getting treatment for anxiety and depression. It’s a good example for others to get help when they need it, and not be ashamed. Frankly, I think everyone should see a therapist every so often, even if only for a check-up. I mean we go to the dentist every six months for a cleaning. (Although I’ve often wondered if that’s really necessary).

  12. Richard Kopf

    Anon.,

    Fun facts: Since I have dentures, my trips to the dentist have become less frequent. That is really a bad thing since my dentist, a tiny young woman, is a rodeo cowgirl in addition to being a DDS. She is great fun to talk to. Flyover country has certain unique benefits such as rodeo riding dentists.

    All the best.

    RGK

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