NY Judges Are the Targets of Rising Number of Complaints

By John Caher
New York Lawyer
New York Law Journal
October 12, 2006

ALBANY-Complaints against New York judges increased for the sixth straight year in 2005 as the Commission on Judicial Conduct received a record number of gripes and commenced a record-breaking 260 formal investigations, according to an annual report released yesterday.

The report shows that the watchdog agency rendered 30 disciplinary determinations and public sanctions last year, its highest total since a ticket-fixing scandal in 1981. It voted to remove four judges, to publicly censure 15 and to admonish five. Additionally, it investigated and privately cautioned two appellate judges whose identities were not revealed in the report. The commission has never publicly disciplined an appellate judge.

All told, the commission received a total of 1,565 complaints, the most ever, resulting in 260 probes.

But commission administrator and counsel Robert H. Tembeckjian said he is reluctant to "read too much into any single year's numbers." Mr. Tembeckjian suspects the spike in complaints may be attributable to more people being aware of the commission and its work than any decline in judicial ethics.

"I think it reflects that the legal community and the public at large are more aware of the commission and its role. As a result, the overall quality of in-coming complaints has improved, which in turn has resulted in more investigations and public disciplines," he said. "Although over time the arc of complaints and investigations is rising, there are always downturns. We are under no external or internal pressure to keep the numbers up every year. We just take the cases as theycome."

With a budget of $2.6 million and a full-time staff of 28, the agency spent about $1,667 per complaint last year. In contrast, the commission had 63 staffers and a budget that amounted to $2,564 per complaint in 1978. Its budget has increased an average of 1.5 percent annually over nearly three decades as its number of attorneys and investigators has dwindled. In 1978, the commission had 18 investigators and 21 attorneys; last year it had 10 attorneys and seven investigators.

See the number of complaints each year since 2001.

"One negative consequence of the Commission's lack of adequate resources is that cases take longer to complete," the agency said in the annual report. "This means not only that disciplinary consequences for judges whose misconduct is established can be delayed, but also that judges who are innocent of the claims made against them remain under a cloud of suspicion longer than appropriate."

It is unclear if the commission is likely to fare better under a new governor than it has during the 12 years George E. Pataki has occupied the executive chamber.

John Faso, the Republican nominee for governor, said it is too early to say whether he would support increasing the commission's budget.

"We have to evaluate the workload and make a decision accordingly to make sure they are using the resources they have most efficiently," said Mr. Faso, an attorney and former Assembly minority leader. "It does seem the process sometimes moves slowly, but with lawyers involved . . . "

Mr. Faso suggested that reforming the judicial selection process could reduce the number of complaints.

"I know that some of the cases they deal with have to do with judicial campaigns and one of the things I think we should do . . . is move toward nonpartisan elections for Supreme Court justices, and that might reduce the need for some of these disciplinary procedures," Mr. Faso said.

He acknowledged that much of the commission's work involves town and village justices who are not lawyers. Many officials and court reform advocates would end that tradition, and require that all judges hold a law degree. But Mr. Faso is reluctant to take that step.

"I think it is a tradition that, on balance, has worked reasonably well," he said. "There are obviously some glaring exceptions to that, and there has been increasing concern, but I am not sure that creating a 'professional, full-time' judiciary [in the town and village courts] is the way to go. I know many town justices who perform their duties capably and with discretion and who are perfectly capable of administering the garden variety cases that come through the town courts."

There was no immediate reaction from Democratic nominee Eliot Spitzer or his campaign.

As usual, a high proportion of the complaints - more than 40 percent last year - attacked allegedly improper rulings and were dismissed at the outset because the commission does not review judicial determinations. But complaints also were lodged against judges accused of bias, improper political activity, corruption, intoxication, rights violations and offensive demeanor.

By far, nonlawyer town and village justices generated the most investigated complaints, 112. But there were also 247 complaints against Supreme Court justices resulting in 32 investigations and 13 reprimands or cautions.

See a breakdown of the complaints by bench.

Call for Public Hearings
The commission reiterated its call for public disciplinary hearings and asked for the power to suspend judges without pay.

For several years, the commission has argued that formal proceedings should be open to the public, as they were in New York until 1978 and as they are in 35 other states. Chief Judge Judith S. Kaye also has called for open hearings, but the Legislature has never acted and many judges remain fervently opposed. The commission, however, suggests that openness would ultimately benefit both the public and the judiciary.

"It is not unusual for word to spread around the courthouse, particularly as the hearing date approaches," the commission said. "Respondent-judges themselves often consult with judicial colleagues, staff and others, revealing the details of the charges against them and seeking advice. As more 'insiders' learn of the proceedings, the chances for 'leaks' to the press increase, often resulting in published misinformation and suspicious accusations as to the source of the 'leaks.' In such situations, both confidentiality and confidence in the integrity of the disciplinary system suffer."

The commission also is calling for a constitutional amendment that would permit the suspension of judges for misconduct. Now, the only alternatives are removal from office and permanent banishment from the judiciary, a public reprimand or a private sanction. In some cases, most recently Matter of William A. Carter  (NYLJ, Oct. 3),the commission has bemoaned the fact that it cannot suspend a judge.

"Some misconduct is more severe than would be appropriately addressed by a censure, yet not egregious to the point of warranting removal from office," the commission said.

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