A Sex Joke and Other Judicial Bad Behavior

By William Glaberson
New York Times
February 2, 2011

One judge who was driving drunk led the police on a half-mile chase, and when he was pulled over, asked for "professional courtesy."

Another said "good boy" when a man who wanted to file a lawsuit made an insulting comment about Jews.

A third repeatedly jailed people without any trial and talked at length from the bench about how the decoration on a woman’s T-shirt made him think of a male sex organ. "I’m bringing down the house," said the judge, Gilbert L. Abramson of Family Court in Saratoga County, evidently delighted with his own humor.

Those are a few of the cases that were handled over the last year by a secretive state agency, the New York State Commission on Judicial Conduct, that is at the center of a new dispute about the state’s judicial-discipline system. Last week, the 77,000-member New York State Bar Association called for major changes in the commission’s structure and operations after a Manhattan lawyers’ group criticized the panel as unfair to judges.

The state bar association’s position is expected to set off a campaign in Albany to change the system in ways that could make it more difficult to remove judges, for example by allowing them to question investigators’ witnesses before a hearing. The proposal would also break the commission into two separate agencies, one to prosecute judges and another to rule on the charges. It is also likely to prompt the first detailed review in decades of the way the state handles the roughly 1,800 complaints made against judges every year.

The complaints filed with the 11-member commission vary from nuisance accusations by people who lost cases to sobering claims about judges’ fixing cases and ignoring constitutional rights, the agency’s reports show. Because of the power wielded by the state’s 3,500 full- and part-time judges, any system of policing them would be delicate.

Last year’s cases provide a sample of the kinds of decisions that are now drawing statewide attention. The commission, which operates behind closed doors, removed only one judge in 2010, Judge Abramson of the Saratoga Family Court, who, according to the commission, made comments about the woman’s T-shirt that "were ribald and replete with sexual innuendo."

Two judges resigned while under investigation, including the town court justice in western New York who said "good boy" after the derogatory comment about Jews and another town court judge who the commission found had failed to sentence more than 100 convicted people.

Twelve judges were censured or admonished last year, including one who delayed resolving cases for up to five years, another who refused to handle cases until he received a pay increase, and one who threatened a man with jail for being rude to the judge’s wife. A Kingston City Court judge, James P. Gilpatric, was admonished after he did not even respond to letters from his administrative judge concerning long delays in deciding cases.

Privately, judges criticize the commission as an arrogant agency willing to destroy careers on flimsy evidence. But cases from last year show that other critics, including some of the commission’s own members, say the agency is far too lenient toward judges.

The judge who asked for special consideration when he was caught driving drunk, Gerard E. Maney, the supervising Family Court judge in Albany, was censured. But one of the commission members, Joseph W. Belluck, a Manhattan lawyer, wrote that it was "mind-boggling" that the judge would be left on the bench after making "a calculated effort" to ensure that the law "would not be applied to him personally."

In another case last year, Richard D. Emery, another commission member, wrote that it was "inexplicable" that the commission had left in office a nonlawyer town justice in Clinton County, in northern New York, who, the commission found, had fixed a ticket for a son of his boss in another job, and handled cases involving his own nephews.

In its decision in October leaving the justice, Jeffrey L. Menard, in office, the commission said that in a closed-door hearing, Justice Menard had said he probably should have sent the ticket of one of the nephews to another judge but it "wasn’t worth the hassle."

By leaving the justice in office, Mr. Emery wrote, the commission "leaves the public at risk."

In an interview this week, the chairman of the commission, Thomas A. Klonick, criticized as "unfortunate and kind of distressing" the way the Manhattan lawyers’ group, the New York County Lawyers’ Association, had reached its conclusions that the system was unfair to judges. "I believe they don’t understand the process of how the commission works," said Mr. Klonick, a lawyer and part-time town judge in Perinton, N.Y., near Rochester.

The president of the Manhattan lawyers’ association, James B. Kobak Jr., said his group had consulted people widely, but "beyond that I really don’t care to respond."

But the comments of Mr. Klonick, a Republican appointed to the commission by the state’s chief judge, showed that the effort to change the state’s judicial-discipline system is likely to meet resistance as the debate begins in Albany.

 

New York Bar Seeks Limits on Investigations of Judges

By William Glaberson
New York Times
January 28, 2011

The New York State Bar Association recommended on Friday that the state adopt sweeping changes in the judicial-discipline system that could make it more difficult for judges to be removed from the bench. The 77,000-member bar association has no legal authority, but its action is expected to begin a contentious battle over the issue in Albany.

Critics had said that the proposal, put forth by a Manhattan lawyers group, the New York County Lawyers Association, was framed to help judges facing charges and did not reflect the views of the public.

But at its annual meeting in Manhattan, the state bar association, through its House of Delegates, accepted many parts of the proposal, effectively promising to work for changes in state law. Some of the recommendations would require legislation or amendments to the State Constitution.

The broadly framed proposal would divide the state agency that investigates judges, the New York State Commission on Judicial Conduct, into two parts, one to prosecute judges and one to rule on the charges.

It would also give judges early notice of investigations, would permit them to question investigators’ witnesses before any hearing and would add new limits on how much the commission could expand an investigation after an initial complaint. The bar association also called for the state to pay for lawyers for judges who are charged with misconduct.

The judicial conduct commission investigates about 250 judges a year, and it publicly disciplined 15 judges last year. There are about 3,500 full- and part-time judges in the state.

During a debate on Friday in the 298-member House of Delegates, some delegates said they knew of no problem with New York’s current judicial-discipline system, but for others, "it’s very important that we support our judges," as one delegate put it.

Dennis R. Hawkins, a delegate who is the executive director of the Committee for Modern Courts, a group that has focused on court issues for decades, noted that the proposal made no mention of a decades-old recommendation that judicial discipline hearings be open to the public. The hearings are secret under state law, and many judges favor keeping them closed.

James B. Kobak Jr., the president of the New York Country Lawyers’ Association, said his group would study the secrecy requirement.

The president of the state bar association, Stephen P. Younger, said changes in the judicial discipline procedure were needed "to protect those who are charged unfairly."

But Robert H. Tembeckjian, the administrator of the judicial conduct commission, said the commission would oppose the proposed changes. He said that if they were adopted it "would be harder to investigate and discipline judges who have committed misconduct."

Mr. Tembeckjian was at the bar association meeting on Friday, at the Hilton New York. But he was not permitted to address the meeting. He said it was "absurd that they would not let me speak." But Mr. Younger said the commission’s views had been considered and the association "followed its standard procedure" in hearing only from its own delegates.

Still, during the debate, the Manhattan lawyers’ group backed down on two divisive proposals.

The association withdrew a proposal to require "clear and convincing evidence" to prove judicial misconduct and dropped a proposal that would have required investigators to "accord judges the highest degree of respect" when looking into misconduct.

Instead, the delegates passed a provision that would merely suggest that everyone involved with judicial-conduct investigations "treat each other with respect."

The Manhattan lawyers’ association agreed to the change after a New York City lawyer, Mark H. Alcott, suggested it during the debate.

Mr. Alcott, a former state bar association president, said proposing that investigators must treat judges with the highest degree of respect "could cause a perception problem," making it appear that the lawyers’ group wanted favorable treatment for judges.

 Proposal to Revamp Judicial-Conduct Agency Draws Fire

By William Glaberson
New York Times
January 25, 2011

New York judges have long seethed privately about the New York State Commission on Judicial Conduct, the state agency that disciplines and removes them for offenses like fixing cases, jailing people illegally and awarding excessive legal fees to friends.

"Judges think it is a kangaroo court," said Terence L. Kindlon, an Albany lawyer who has represented several judges at the commission.

This week, judges may get an important ally, as the 77,000-member State Bar Association is to consider a sweeping proposal to restructure the commission that could make the prosecution of judges more difficult. If approved by the association, it would be the first major plan in decades to revamp New York’s judicial discipline system.

One proposed change would require "clear and convincing evidence" to prove misconduct. Another would impose a new rule directing investigators from the commission to "accord judges the highest degree of respect" when they are the subject of an investigation.

But the move to change the process is itself coming under fire. Critics say the proposal takes into account judges’ complaints but not the views of the public. This gives the appearance, some say, that behind closed doors, the state’s judges shaped the plan.

"There’s at the very least an issue of perception when judges are consulted behind closed doors about a proposal to change disciplinary hearings that affect judges," said Adam Skaggs, a lawyer at the Brennan Center for Justice at New York University, an organization that has worked prominently on judicial-selection issues but was not consulted.

The State Bar Association, which is conducting its annual meeting in Manhattan this week, has no legal power, but its endorsement would be seen as the start of a campaign to change state law.

The 11-member Commission on Judicial Conduct, which includes appointees of the governor, the Legislature and the courts, is a feared but little-understood agency that conducts investigations and decides whether to admonish, censure or remove judges. It is required by law to hold hearings in secret, in part to shield judges from embarrassment.

The proposal on the agenda of the state bar’s governing House of Delegates is being pressed by the New York County Lawyers’ Association, a 9,000-member group based in Manhattan that includes judges in its membership. Officials from the association said they had studied the Commission on Judicial Conduct for more than three years.

But advocacy groups that work on New York court issues and the commission’s top legal official said in recent interviews that the county lawyers’ association had not considered the views of those who might be affected by judicial misconduct. "On balance," said Robert H. Tembeckjian, the commission’s administrator, "these proposals are skewed to what would be in the interests of judges, as opposed to what would be in the public’s interest."

James B. Kobak Jr., the president of the lawyers’ association, said his group’s proposal was independent and came about because "the public ought to be sure there is a good, fair, thorough procedure in place." He added that his group was not making its proposal because "it was advanced by judges."

Among the other suggested changes to New York law, the plan would permit lawyers representing judges to question investigators’ witnesses before a hearing and would require the commission to give judges notice when an investigation begins. The commission noted in a written argument that such early notice of an investigation could give judges the opportunity to destroy evidence, as it said a few judges had in the past.

The proposal would also provide state money to pay for lawyers to defend judges facing disciplinary charges and would split the agency into two parts, separating the prosecutorial and decision-making functions.

In a 2009 report, the county lawyers’ association noted that it had consulted judges in reaching its conclusions and suggested that the commission "lacks adequate neutrality," adding there were questions about "the fundamental fairness of the process."

But Mr. Tembeckjian said the study of the commission by the county lawyers’ association was "much too closed."

Victor A. Kovner, the chairman of the Committee for Modern Courts, a leading court-reform group in the state for decades, said his group had not been consulted.

The committee has been arguing for many years that the commission’s proceedings should be opened to the public, but many judges favor keeping the proceedings secret. The lawyers’ association proposal now before the state bar includes no mention of that issue.

Mr. Kovner said that "it was disappointing" that the lawyers’ association plan did not discuss ending the secrecy of judicial disciplinary proceedings.

Asked if the lawyers’ association had consulted advocacy groups, Mr. Kobak, the association’s president, said, "I don’t think we necessarily knew this was an issue of concern" to those groups.

Mr. Kobak added that his association had worked with the commission and said its procedures were already fairer as a result. He cited the publication of the commission’s rules for use by lawyers defending judges as one example.

But David Demarest, a State Supreme Court justice in St. Lawrence County, said questions remained about the commission’s fairness. "Any time you have an agency that acts as both prosecutor and adjudicator, it’s problematic," he said.

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