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.