Corrupt Tembeckjian Continues Dirty Tricks

Ethics Panels Cross Swords On Questioning Of Trial Judge
Daniel Wise
The New York Law Journal by Daniel Wise - June 18, 2010

A judicial ethics advisory panel sharply criticized this week the New York State Commission on Judicial Conduct for asking a judge to respond to a complaint made by a party in an "ongoing" custody trial before the judge. The commencement of an investigation mid-trial poses a danger that a litigant will "manipulate" the conduct commission to "disrupt and essentially undermine the judicial process, threaten the judge's independence and defeat the purpose of the commission," the Committee on Judicial Ethics wrote in response to a request for guidance from an unidentified judge. The advisory committee described such a result as "deplorable." Yesterday, the administrator of the judicial conduct commission fired back, calling the criticism "gratuitous" and "unwarranted, particularly where, as here, it was offered without the benefit of the facts and circumstances that prompted the commission's inquiry of the judge in the first place." Read the judicial ethics advisory panel's opinion and the judicial conduct commission's response. Administrator Robert H. Tembeckjian's five-page letter was backed by all 10 members of the commission. Former Appellate Division, First Department, Justice George D. Marlow, the head of the 26-member judicial ethics advisory committee, said in an interview that Ethics Opinion 10-38 was the first in the committee's 23-year history "to disagree with the commission." Mr. Marlow said he could not comment on whether the commission's opinion was unanimous, but said its rules require that at least 14 members endorse an opinion. Mr. Marlow, now counsel at Gellert & Klein in Poughkeepsie, declined to discuss specifics of the opinion. "We disagree with [Mr. Tembeckjian's] interpretation. That's what the opinion says, and its speaks for itself. Beyond that, it would be inappropriate to comment," he said. The question posed by the judge—whether in light of the commission's inquiry it was required that he recuse himself from the case—was not controversial. The ethics committee cited a line of its opinions going back to 1994 for the proposition that a judge need not step aside when a complaint is filed in an ongoing trial as long as he or she can remain impartial. Nonetheless, the advisory panel wrote it "feels compelled to comment on the timing and nature of the commission's written communications with the judge." The possibility that a litigant may be filing a complaint with the conduct commission to try to influence future rulings or force the judge off a case raises an "important concern" that cannot be "ignored," the judicial ethics committee wrote. The opinion also took issue with the questions on matters such as the circumstances under which the judge denied adjournments, whether the judge dismissed and then reinstated the custody petition, and whether the judge refused to accommodate the attorneys' vacation and evening schedules. Such questions, the ethics panel said, raises a "serious concern" that the commission was intruding into an area that should be subject to appellate review, not a disciplinary body.

Judge's Inquiry

Opinion 10-38 was prompted by an inquiry from an unidentified judge who asked whether it was necessary to step down from a "hotly contested" bench trial of a custody issue because the conduct commission had forwarded a copy of an eight-page complaint filed by one of the parties and also asked the judge to respond to a series of questions. The advisory committee's opinions never disclose the name of the inquiring judge. Addressing the timing of the commission's inquiry, the advisory panel wrote that, as a general matter, the commission should not question a judge about a complaint concerning a pending matter until the matter is concluded. In this case, the panel added, the commission should "especially" stay its hand because the inquiring judge was conducting a bench trial. The ethics panel concluded that it "strongly endorses" a rule that would require the commission to hold the questioning of a judge "absent highly exceptional or emergent instances" where intervention is necessary to prevent "irreparable harm." Mr. Tembeckjian said in an interview that the commission adheres to such a rule. In his letter, he wrote, "as a general practice, the Commission refrains from communicating with a judge regarding a pending case, precisely to protect the judiciary's independence and to avoid being used by a complainant to force a recusal." There are exceptions, the letter added, and "obviously" the commission cannot defer a complaint indefinitely. Mr. Tembeckjian wrote that "regrettably" the ethics opinion described the timing of its inquiry as being "in the midst of trial." In fact, he wrote, seven months passed after the last trial session was held before the commission contacted the judge.

More Facts Disclosed

Mr. Tembeckjian also disclosed additional facts to demonstrate that the commission had acted with restraint. The commission first received a complaint about the judge's conduct in March 2009. In June 2009, the judge dismissed the case when one of the parties and his lawyer were 13 minutes late in returning from a luncheon recess. The judge subsequently restored the case, but no hearings have been conducted since June 2009. Meanwhile, according to Mr. Tembeckjian, the commission continued to interview witnesses and review transcripts. Only after narrowing the scope of its inquiry, based upon information turned up during the investigation, he wrote, did it forward the complaint and accompanying questions to the judge on Jan. 29, 2010. "Under those circumstances," Mr. Tembeckjian wrote, "the commission properly chose to inquire of the judge, rather than wait indefinitely." He acknowledged in the interview that the commission's procedures concerning complaints about pending matters are not in writing and are decided upon "a case by case basis." Mr. Tembeckjian also defended the questions posed to the judge as necessary to determine whether the conduct code had been violated, not whether the judge's rulings were correct. Mr. Tembeckjian wrote that it was likely that the ethics committee was not aware of all the facts that drove the commission's decision to question the judge. He noted that the committee had the power to ask the judge for information in addition to what had been submitted. He noted that based upon a teleconference Wednesday with Mr. Marlow, and the committee's two vice chairs, former First Department Justice Betty Weinberg Ellerin and Fourth Department Justice Jerome C. Gorski, he "gathered" there had been no follow-up with the inquiring judge. Mr. Marlow said the judicial ethics panel is empowered to ask for additional information from an inquiring judge, but he is restrained by law from commenting upon whether it did so. Mr. Tembeckjian also said that the ethics panel had not contacted the commission prior to issuing its opinion. Mr. Marlow said the ethics panel did not contact the conduct commission because "it would likely be seen as hypocritical for the committee to contact the commission in the middle of one of their investigations when we have criticized them for inappropriately intervening in an ongoing jury trial." Daniel Wise can be reached at dwise@alm.com.