How Judges Hide From Justice
By ROBERT H. TEMBECKJIAN
The commission censured a Westchester Family Court judge who attempted to influence other judges and court workers on behalf of friends in two divorce and custody cases, and who testified in a manner she conceded was inaccurate. It also censured a Brooklyn Criminal Court judge for coming off the bench in unprovoked anger and grabbing and screaming at a defense lawyer. Finally, it censured a Manhattan Civil Court judge for presiding over a personal injury case involving a litigant who was also a lawyer with whom she continued to socialize, and to whom she awarded a fiduciary appointment worth about $80,000 in fees, while the case was pending. Reasonable people may differ with these decisions. As the prosecutor of judicial misconduct cases in New York, I myself am sometimes at odds with the commission. Yet while some criticized the removal as severe, and others derided the censures as lenient, most tended to miss the context and nuance of the deliberations. The subtleties of an individual disciplinary decision tend to get short shrift in the news. Were the press and public able to follow along as these cases unfolded, the disciplinary process would not seem so sudden and mysterious, and citizens would be better informed along the way. For example, the case against the Brooklyn Surrogate's Court judge lasted 22 months, and the record was over 13,000 pages long. It would be difficult, if not impossible, to capture the complexities of such a proceeding in a single article that reported the final result.
New York's chief judge, Judith Kaye, proposed legislation in 2003, which the commission endorsed, to open up the disciplinary process at the point when a judge is formally charged with misconduct. Unfortunately, the Legislature did not act. Perhaps the commission's recent decisions might spur the Senate and Assembly to revisit the issue. The more citizens know about what goes on at the commission, the more likely they will appreciate that no case is as cut and dried as a critic may suggest. The press and public could follow the arguments as they develop, rather than try to digest them all at once when the decisions are rendered. Moreover, an open proceeding would shed important light on the rare instance in which a formal charge against a judge is dismissed without any disciplinary action. It would provide the public with the means to assess that a dismissal was deserved and the system was honest. In short, a public process would transform judicial discipline from a secretive game to one in which the commission's judgments were open to scrutiny and improvement as we went along, while there was time enough to make a difference. Public confidence in the judiciary, and in the disciplinary system that holds them accountable, requires nothing less. Robert H. Tembeckjian is administrator of and counsel to the New York State Commission on Judicial Conduct.