Article

ECBA Attorneys Published in The New York Times, “Another Venue for Sexual Harassment Claims”

Zoe Salzman, Elizabeth Saylor, and Alanna Kaufman‘s Letter to the Editor, “Another Venue for Sexual Harassment Claims,” was published in The New York Times  on October 31, 2017. In the letter, the attorneys advise victims of workplace sexual harassment to speak out and bring their case to the  New York City Commission on Human Rights.  To read The New York Times  article, click here. Salzman, Saylor, and Kaufman specialize in the representation of victims of sexual harassment.

 

Article

ECBA Founder Richard Emery’s Column on Judges Using Their Office for Private Interests

This week, the New York Law Journal published a two-part column by ECBA Founder Richard Emery addressing the persistent issue of judges who use the power and prestige of their office to benefit themselves and others.

In part one, Emery discusses the problematic trend of the New York State Commission on Judicial Conduct’s decisions on this matter. In his review of recent cases, Emery demonstrates the Commissions’ troubling leniency in disciplining judges using their office for personal benefit. He argues that this inability to properly address and punish this misconduct not only sets a dangerous precedent for judges, but also damages public perceptions of judicial integrity.

In part two, Emery focuses on precedents set by the Court of Appeals in judicial discipline cases. Tracing precedents set in recent decades, Emery ends his review with an encouraging analysis of the Matter of Ayres, a case from this month that signals the Court of Appeals’ increasing lack of tolerance for judge misconduct that threatens the public’s confidence in the judiciary. The decision bolsters Emery’s view that  despite the need for some constraints on the investigation and discipline of judges, these individuals must still be bound to the strictest standards of conduct.

Read part one of the column here, and part two of the column here.

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Richard Emery: Demystifying the Operations of the Commission on Judicial Conduct

By Richard Emery

Most judges choose their calling animated by a desire to serve and do justice, notwithstanding relatively low pay and, too often, poor facilities and inadequate administrative support. Most judges take great pride in knowing the law, solving the fascinating intellectual puzzles posed by many cases, and administering justice with an even hand. Taking on exalted roles in their local communities, judges render decisions in criminal and civil disputes for their fellow citizens where liberty and livelihood hang in the balance. In the quest to give meaning to life as a lawyer, it is hard to conceive of a more gratifying and significant career than that of a judge. The respect that goes with the title “Your Honor” is not only a critical component of the deference necessary to an effective justice system, but also the well-deserved salutation for the unwavering commitment to the law and justice that every good judge must have.

Regrettably, it is also occasionally the case that some judges allow the title and their power to
undermine their behavior on and off the bench in ways that degrade the office. It is a heady function, being a judge. The obsequiousness of lawyers and litigants, as well as members of the public more generally, to anyone with the title “judge” can sometimes weaken the restraint necessary to behave “judiciously.” Moreover, in the face of the inevitable emotions in fraught court proceedings, and even under the ordinary stresses of a judge’s private life, the special status of judges in our society can make it difficult to comport with appropriate demeanor and restraint.

The focus of this column will be the processes and decisions of the New York State Commission on Judicial Conduct (Commission) as well as the Advisory Committee on Judicial Ethics (Advisory Committee). The Commission adjudicates allegations of judicial misconduct and, in so doing, has created a body of judicial disciplinary precedent. The Commission is mandated by the New York State Constitution, Article 6, §22, and authorized by the Judiciary Law Article 2A.
The Advisory Committee, by contrast, opines prospectively for judges who request guidance when faced with ethical quandaries, giving a judge who follows the Advisory Committee’s opinion a safe harbor. Judiciary Law Article 7A §212(2)(l).

The impetus for writing about what these bodies do and how they function, and the interplay between them, is borne of my 13 years as a member of the Judicial Conduct Commission. The attempt here will be to demystify for the Bar and beyond these otherwise opaque arms of New York state government. Ideally, this occasional column will address the perception that the Commission disciplines judges as a secretive body that operates with little accountability, and that the Advisory Committee opines on judicial ethics unmoored to any apparent neutral principles beyond its own precedents. The goals of the column are to help judges navigate the frequent ethical shoals that all judges face and, more generally, to provide a framework for understanding the judicial disciplinary process. Thus, I will begin with an attempt to reveal in some detail how the Commission on Judicial Conduct operates.

Judicial Disciplinary Process

Judicial ethics and discipline in New York start with the Rules of Judicial Conduct (Rules). The Chief Administrator of the Courts, with the approval of the Court of Appeals, issues the Rules, which run the gamut from hortatory requirements of impartiality and independence (22 NYCRR 100.1, 100.3) to regulating in excruciating detail the circumstances in which a judge is prohibited from lending her name to the letterhead of a membership organization (22 NYCRR 100.4(C)(3)(b)(iv)). They address conflicts (22 NYCRR 100.3(E),100.4 et seq.), behavior on and off the bench (22 NYCRR 100.2,100.4), participation in electoral politics (22 NYCRR 100.5), special circumstances for part-time judges who practice law (22 NYCRR 100.6(B)), as well as myriad specific prohibitions and authorizations that frequently confront judges. A first step in understanding the judicial disciplinary process is familiarity with the Rules. But that is only the beginning.

Most cases of judicial discipline start with a complaint to the Commission by a litigant, lawyer,
concerned citizen or judge. Some complaints are generated by the Commission itself based on
information that comes to its attention. The complaint triggers an exacting due process analysis that follows the Operating Procedures and Rules of the Commission (Commission Rules). 22 NYCRR 7000 et seq. A rotating sub-committee of members reviews each new complaint—between 1,500 and 2,000 every year—which is accompanied by a staff memo. See Commission 2017 Annual Report, http://www.scjc.state.ny.us/Publications/AnnualReports.htm. Of these, the Commission dismisses around 90 percent of the complaints and votes to investigate about 10 percent.

It is fair to say that during the 13 years I sat on the Commission the decision to initiate an investigation was carefully vetted by members before a vote. Each member is painfully aware of the enormity and intimidating consequences of the decision to inform a judge that he or she is being investigated. After investigation is authorized, the Commission staff may send the judge a letter with questions and, if necessary, schedule an Investigative Appearance (IA), where a judge is questioned under oath by a Commission attorney, with a Commission designated referee presiding. Judges, of course, may be and should be represented, though judges must personally retain counsel. The financial impact can be a major factor in how judges react to the Commission decision to investigate.

Investigations vary in length, some taking a few months and others taking a year or more. They are supervised by a Commission appointed administrator, with oversight by the Commission. When completed, Commission staff submits a report to the Commission recommending either dismissal, a confidential letter of dismissal and caution, or formal charges. Last year, of the cases resolved after investigation, the Commission authorized charges against 11 percent of the judges investigated, cautioned 17 percent and dismissed 52 percent. The remainder either resigned, were not reelected or left office for other reasons when their terms expired. Id. at 3. As might be expected, the uncertainty of this phase of Commission proceedings takes an emotional toll on many judges.

Charges

Charges generally fall into one of three categories: allegations of misconduct while acting as a judge; allegations of misconduct off the bench inconsistent with being a judge; and allegations of violating rules governing the judicial campaign process. Sanctions, if formal charges are ultimately sustained, range from private caution, public admonition or censure, to removal from office.

When formal charges are authorized, the nature of the relationship between the Commission vis-à-vis the staff transforms into the classic adjudicative versus prosecutorial roles. At this point, Commission staff no longer advises or communicates ex parte with the Commission about the case. The Commission acts as adjudicator between adverse parties—the staff as prosecutor versus the respondent judge. Notwithstanding this “separation of powers,” the Commission, as the administrative body in charge of judicial discipline, remains ultimately responsible for all aspects of every case.

As a practical matter, judges who are formally charged usually either enter into negotiations with
Commission staff to reach an Agreed Statement—a plea—or they defend, filing an answer denying the factual allegations or disputing the assertion that the alleged facts constitute misconduct. Any such answer triggers a hearing before a referee. On occasion, a stipulated resignation is negotiated, where the judge agrees not to hold judicial office in the future.

Agreed Statements

Agreed Statements, which can be negotiated at any stage after formal charges, raise some of the
thorniest questions for the Commission. Jud. Law 44(5); 22 NYCRR 7000.6(d). What are essentially pleas bargains that in the criminal justice system have no precedential weight are, in Commission jurisprudence, final decisions of the Commission and, at least in theory, constitute precedent to the same extent as Commission decisions after contested hearings. Agreed Statements generally contain stipulated facts, an acknowledgment of misconduct, and a joint recommendation as to the sanction.

[…]

Though there is natural tendency in administrative settings to defer to staff, the Commission members sometimes bridle at staff’s proposed dispositions and have rejected a significant number of Agreed Statements. When an Agreed Statement is rejected, a revised one is often negotiated with a different penalty, or with additional facts. E.g., Matter of Risdale, 2012 NYSCJC Annual Report 148 (Emery dissent). Occasionally, the Commission will decide that a hearing is required for factual development, usually to enable the Commission to fix the appropriate penalty. E.g., Matter of Dixon, 2017 NYSCJC Annual Report 100; Matter of Landicino, NYSCJC 2016 Annual Report 129.

Hearings

When the alleged misconduct may warrant removal, or negotiations for an Agreed Statement are
unsuccessful, a hearing is held before a Commission referee. The Commission has a panel of available referees, who are highly-respected lawyers and retired judges willing to serve for a very modest sum ($250 per day). Hearings are governed by Commission Rules. 22 NYCRR 7000.7. The hearing is preceded by specified, quite liberal, mutual discovery. Staff has the burden proving misconduct by a preponderance of the evidence. Nonjury evidentiary rules apply. After post-hearing briefing, the referee submits a report to the Commission with findings and conclusions on each charge of misconduct, but refrains from any sanction recommendation.

Post-Hearing Proceedings

The scene next shifts to the Commission itself, which provides an opportunity for briefs and oral
argument. Commission staff argues to the Commission that the record supports misconduct and either agrees or disagrees with the referee’s report. Staff also recommends a specific penalty. The respondent judge either denies misconduct altogether or admits some misconduct and seeks a lower penalty.

After reviewing the record and the briefing, as well as analysis by the Commission clerk who is wholly independent of staff, Commission members hear argument by staff and respondent’s counsel. 22 NYCRR 7000.6(g)-(l). A crucial component of this phase is the judge’s personal presentation. It is not mandatory, but any judge who forgoes this opportunity may regret it. Judges who subject themselves to Commission questions and who are perceived as sincere and convincing in explaining their actions or a basis for leniency are very often successful in countering the staff’s recommendations.

For anyone who has been privy to these confidential proceedings, the animated questioning and
thorough preparation of Commission members manifest the rigorous commitment to fairness of these appointed, independent commissioners. In my view, the fact that final appearances before the Commission are confidential by law (unless the judge waives confidentiality) does the judiciary, the Bar and the public as a whole a serious disservice, perpetuating the star chamber
reputation of the Commission that is counterfactual and is entirely the fault of statutorily mandated confidentiality. However, no doubt, secrecy, in some cases, preserves the reputations of some judges from the troubling details of their specific cases, even if those judges are ultimately publicly disciplined.

Deliberations are careful and thoughtful, guided by the Commission chair. Despite vigorous debates, many decisions are ultimately unanimous, though dissents and concurring opinions are also frequent. Staff gets little or no deference in contested cases. Referee findings get more deference, but even these are sometimes rejected. Members make a concerted effort to follow precedent as to what behavior constitutes misconduct, guided by prior determinations and Court of Appeals’ decisions that have interpreted and applied the ethical rules. But as to penalty, results are far more ad hoc, usually correlated to the degree of good faith that the respondent judge conveys. Judges who can project a serious commitment to duty, a capacity not to re-offend and who admit their errors and apologize may be treated leniently and even, in a close case, avoid removal.

It is only when the Commission’s written decision is filed and served on the judge that the rest of the judiciary, the Bar and the public learn of any determination, and then only if public discipline is imposed. In the 13 years I served, there was not a single breach of secrecy.

Decisions of the Commission are delivered to the Court of Appeals and become final in 30 days
unless the judge appeals to the court. The Commission’s decisions are rarely overturned by the court. In the last 15 years, the Court of Appeals has affirmed 21 Commission decisions, reduced the sanction in two cases and remitted one case for a more fully developed record.

Conclusion

In the future, this column will analyze and, hopefully, reveal the strengths and vulnerabilities of the judicial disciplinary process. The effort here has been to set the stage. There are many competing dramas at play when judges are judged. Among them are what rights a judge must sacrifice to uphold confidence in the judicial system, especially when judges are elected; how to support judicial independence in the face of rigorous Commission oversight; at what point do judges betray their special role of trust by wielding power for personal gain; the role of judicial discipline as contrasted with appellate review of legal error; and many other issues in the thicket of competing values that judges constantly face. These controversies inevitably emerge from the judicial role, its power and how judges are selected. The questions these controversies pose are endlessly fascinating and, in most cases, defy resolution. If for no other reason than their importance to all of us, the goal here will be to explore them and focus debate about them.

Reprinted with permission from the May 18, 2017 edition of the New York Law Journal© 2017 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.

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American Bar Association Publishes Article by Sam Shapiro

On March 3, 2017, the American Bar Association published an article by Sam Shapiro  examining organizational standing for groups that have been adversely affected by government policy. Mr. Shapiro’s analysis details the circumstances in which aggrieved organizations have legal standing to bring suit, and argues that a creative understanding of these circumstances is necessary in order to expand the pool of potential plaintiffs and counter unlawful conduct and policies.

To read Sam Shapiro’s article, “A Refresher on Organizational Standing,” click here.

Article

Washington Post Publishes Op-Ed by Jonathan Abady and Ilann Maazel on Recount Effort

The Washington Post published an opinion piece by ECBA partners Jonathan Abady and Ilann Maazel about the Jill-Stein-sponsored and ECBA-led recount effort in Wisconsin, Michigan, and Pennsylvania. They urge Americans not to “ignore the lessons of the past weeks and preserve the status quo that is our broken voting system.”

Read the piece here.

Article

Daniel Kornstein Published in the New York Law Journal

On July 20, 2016, Daniel Kornstein penned an insightful examination of the 2016 presidential campaign in the New York Law Journal. In his thought-provoking analysis, Kornstein ponders the corrosive influence of political defamation and negative campaigning on American democracy, and discusses whether or not the law should play a role in curtailing the threat posed by candidates’ dishonest and inflammatory comments.

To read Daniel Kornstein’s article titled, “Political Defamation and Democracy,” click here.

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