The New York Times by William Glaberson - 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.