Judicial Reports: Policing the Judge Police: Part II

Policing the Judge Police: Part II

Judicial Reports by Jesse Sunenblick - jsunenblick@judicialstudies.com - June 18, 2008

Litigants are prevented, under the doctrine of judicial immunity, from suing jurists over the content of their decisions. But when it comes to discipline, the Commission on Judicial Conduct doesn't feel similarly constrained. Like the internal affairs division of a police department, the Commission on Judicial Conduct suffers criticism from both those who accuse it of permissiveness and others who claim it’s too harsh. But three recent, and contentious, removal cases highlight an additional area of controversy: whether the Commission threatens the core of judicial independence by infringing on jurisprudence itself.

The doctrine of judicial immunity precludes litigants from suing judges just because they don't like a given ruling. Shouldn’t the same protection extend to the realm of discipline? “There’s a fairly serious theoretical issue in terms of when does judicial discretion end, and when does it become misconduct,” said Lawrence Goldman, the Commission’s Chairman from 1990 to 2006. “Even though areas of law can cross ethical lines, concerning misconduct there should be a wide swath. Judges should be able to commit mistakes within reason — you don’t want a judge scared to death that he will face the commission if he rules a certain way.”’

MISTAKES VERSUS MISCONDUCT

In 2005, Goldman wrote what ranks among the Commission’s most fervent dissents, taking exception to the ouster of former Brooklyn Surrogate Court Judge Michael Feinberg for awarding sweetheart guardianship appointments to a friend. While the Court of Appeals unanimously upheld the Commission’s recommendation — at a time when the entire Brooklyn bench was under the microscope — Goldman argued that most of Feinberg’s errors fell within accepted practice.

Goldman agreed with the Commission’s main finding that Feinberg inexplicably neglected to obtain affidavits of legal services from Rosenthal. But as for the other charges — that Feinberg’s 8 percent flat fee topped an administrative (but not canonized) norm of 6 percent, and was excessive — Goldman doubted they rose to the level of misconduct. He pointed out that judges routinely exceeded the norm (albeit with proper documentation), and argued that the judicial canon’s “fair value” clause concerning the awarding of excessive fees didn’t apply, because fair value in this case was subjective. So, was the Commission, which is charged only with investigating ethics breaches, right to extend its reach on the affidavit charge?

“I am absolutely convinced the Commission was off," said Goldman. "All Feinberg did that he was guilty of was not requiring proper affidavits. There was an aura, certainly, to the case. But as for what he actually did wrong, and how what he did wasn’t different from accepted practice, I think censure was appropriate. If anything, censure may have been a little harsh. As I think I said in the dissent, this was a matter of law.” “The Court of Appeals has said that judicial error and ethical misconduct are not mutually exclusive,” said Robert Tembeckjian, the Commission’s Administrator. “There are certain acts that may be errors of law, but since they violate a fundamental right, they may be misconduct, too.”

WHOSE DISCRETION?

Goldman raised another recent decision from which he’d dissented, that of former Troy City Court Judge Henry Bauer. The Commission removed Bauer for repeatedly, and even brazenly, setting excessive bail for defendants whose return to court he sought to ensure. The Bauer case had many twists and turns. They included his attorney’s allegation that the investigation was a plot instigated by the American Civil Liberties Union. “Bauer’s bail decisions were horrendous,” said Goldman. “But my own sense is that the Commission should tread very, very softly in areas of judicial discretion. Not that they should be excluded from taking action, but they should be very careful. Frankly, there’s a reasonable argument as to whether the Commission should have been going after a judge for bail decisions.”

Three dissenters on the Court of Appeals — which barely upheld the Commission’s verdict — said just that. “The Commission’s allegation that petitioner set excessive bails impinges on his discretion as a judge and is, in our opinion, outside the Commission's scope of authority,” wrote Judge Susan Philips Read. “I think the Commission wanted to reinforce the idea that bail was a good thing. They just didn’t understand what was going on in that man’s courtroom,” said Bauer’s attorney, Robert P. Roche, who maintains that each allegedly excessive bail was imposed upon defendants with histories of bail jumping. “Bail wasn’t the issue. The issue was whether he had a right to exercise judicial discretion. And the answer is, absolutely.

“How many Commissioners ever sat as a Justice of the Peace?” Roche continued “Two. They had no experience with bail issues. Half are retired Court of Appeals or Appellate Division Judges with no concept of what we’re talking about. “The Commission doesn’t have to prove jack. All they have to do is allege. And it doesn’t matter if you deny or not, because nothing and everything violates the code.” Tembeckjian has a different take. “A judge has to follow certain statutory guidelines in considering bail. If it is being misused for coercive or punitive purposes, that's a fundamental violation. No judge has total discretion to set bail however they see fit.”

CANON FODDER

For all the mind-numbing details in New York’s Code of Judicial Conduct, the five canons leave much to the imagination. This is particularly true of the infamous Canon Two, which states, “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s actions.”

“It’s a lot like that U.S. Supreme Court justice talking about pornography,” said one judge who has appeared before the Commission. “You’re supposed to know it when you see it.” Another veteran of Commission proceedings put the appearances shoe on the other foot, arguing that the agency’s notorious insularity combined with the canonical vagueness to create a strong sense of arbitrary enforcement on its foot. “Lawyers and judges have to be like Caesar’s wife — beyond suspicion,” said Bill Cade, an attorney who has represented judges before the Commission for more than 30 years. “I have a duty to avoid even the appearance of impropriety. Well, with every single person — from the investigator to the prosecutor to the hearing officer — being controlled by the Commission, that doesn’t pass the smell test.”

Members of the American Bar Association, at least nominally, agree on the judicial canon question. In 2007 an ABA panel tried to repeal a parallel standard on appearances from its Model Codes of Judicial Conduct, which most states have adopted to varying degrees. Although conduct commissions rarely enforce such violations in isolation, an ABA commission updating the code found the clause sufficiently vague and rife with enough due process deficiencies to fall short of being an enforceable rule. Judges — many of whom are comfortable with the latitude that the canon affords — rallied to its defense and kept it on the books. But none other than New York’s Commission Administrator Tembeckjian, then a member of the ABA’s code commission, resigned in protest.

“Typically, before you impose a punishment on someone, they have to receive notice of the kind of conduct subject to a sanction,” said Mark Harrison, the ABA commission’s chairman. “When you talk about sanctioning somebody for the appearance, that’s too vague to notify the actor beforehand about what he’ll be sanctioned for. Something I don’t think is improper may strike you as improper.” It’s not just the appearances standard itself that can complicate a judge’s self-discipline. In 2003, Northern District Judge David N. Hurd found much of New York’s judicial code to be unconstitutionally vague, including its restrictions on partisan political activity and the provisions directing judges to observe “high standards of conduct” and act “in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Hurd’s decision was eventually reversed by the U.S. Court of Appeals for the Second Circuit, which ruled that federal courts owed “proper deference to New York’s paramount interest in regulating its own judicial system.”

COMMISSION AS DEFENDANT

The Hurd ruling came in a civil rights lawsuit filed against the Commission by former Albany Supreme Court Justice Thomas J. Spargo. He claimed that the Commission’s investigation of him for alleged campaign improprieties showcased certain First Amendment fissures in the canon’s complex election law rules. As with the claims of inappropriate Commission incursions into judicial decision making, the Spargo election law critique demonstrates the difficulty of differentiating ethics breaches from legal quagmires. Spargo, a Republican and noted election law attorney, had represented an Albany District Attorney candidate in his successful recount of a contested election — while serving as a part-time Town Judge before whom the DA would eventually appear.

There was more.

He had given the keynote speech at a Conservative Party fundraiser before officially registering as a candidate for the Supreme Court seat he eventually won. He publicized his role as an attorney hired to vet the Bush-Gore recount in Florida in 2000. And he had given $5000 each to politically-connected consultants during his run for Supreme Court, in which he was eventually cross-endorsed at judicial nominating conventions. In many ways, the Spargo case demonstrates the paradoxes of the State’s election system, which, Commissioner Richard Emery noted in an opinion, “metastasize the appearance of judgeships for sale and judgeships under party control by obliviously punishing penny ante partisan and financial campaign activities — nipping around the edges of the real problem — while, at the same time, like the proverbial ostrich, we permit judicial candidates to engage in financial and partisan activities which stain the majesty of their function.”

Emery objected outright to the veracity of the other charges and doubted whether the Commission should have brought a case against Spargo in the first place. “To make matters worse, this Commission subjects judicial candidates to the State’s confusing and ill-conceived campaign rules during the very season when candidates are required to pander to the powerful. This baroque dichotomy between their sublime aspirations of judicial excellence and the ridiculous rules to which they have to conform while they pirouette to the demands of politicians and titans of the bar must bend the minds of the best and idealistic judicial candidates like a pretzel. We are destroying the very institution we are trying to save. And the public, for all its self-preservative ignorance of the specifics, knows well enough what is going on.” Unfortunately, the comments barely registered, as Spargo was accused of soliciting legal defense funds from the plaintiff’s bar — the charge that ultimately sealed his fate. (He declined to appeal the Commission’s removal verdict.) But a conversation Spargo says he had with Tembeckjian before he allegedly started soliciting funds sheds some light on the Commission’s psychology in such matters.

“I was told right from the beginning that there will be no compromise — I can resign,” said Spargo. "They ground it out for the whole process. That’s the reason we did the Judge Hurd application. My attorney kept asking, and I kept asking my attorney, ‘What’s the offer?’ and it was always . . . I can resign.” Spargo’s case alone, then, encapsulated a legion of the criticisms leveled at New York’s judicial conduct oversight. It is an often, if necessarily, opaque process, with all-or-nothing disciplinary choices driven by vague canons that leave both the regulators and the regulated wondering which end is up. And take note: New York’s is considered one of the best in the nation.