Article

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.

Article

Federal Court Halts Construction on Pier 55

On behalf of clients The City Club of New York, Robert Buchanan, and Tom Fox, ECBA won a victory in federal district court against “Pier 55,” a proposed island performance venue in the Hudson River in Manhattan. The court ruled that the U.S. Army Corps of Engineers was wrong to issue a permit for the project under the Clean Water Act because the project did not need to be built in a waterway to achieve its most important goals. Construction has now been halted. The court’s decision was covered by the New York Times, New York Daily News, and Curbed, among others. ECBA lawyers Richard Emery, Elizabeth Saylor, and Doug Lieb represent the City Club and the other petitioners. Read more about ECBA’s work on this project here and here.

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Appeals Court Blocks Construction of “Diller Island” Project

The Appellate Division, First Department granted a preliminary injunction today halting construction of the controversial $130 million Pier 55 project on the West Side of Manhattan until it rules on whether the project is lawful. Work crews began pre-construction work on the 2.7-acre landscaped island yesterday and were to begin placing concrete pilings on July 5.

ECBA represents The City Club of New York, Tom Fox, and Robert Buchanan in several actions to challenge the project. Petitioners contend that the project fails to comply with the Hudson River Park Act, and that the environmental review process was inadequate under the State Environmental Quality Review Act.  Richard D. Emery, a partner at ECBA, said: “This project is illegal because the Hudson River Park Trust cut corners, deceived the Legislature, and gave away public parkland to a private entity without the proper checks and balances. Today’s decision confirms that Diller Island would cause irreparable harm to the Hudson River and to the public, and that we are likely to succeed in stopping it for good.”

In issuing the preliminary injunction, the Appellate Division made an initial, and tentative, determination that petitioners are likely to succeed on the merits; that petitioners and the public will likely suffer irreparable harm if the injunction is not granted; and that the balance of equities tips in petitioners’ favor.

Petitioners are represented by Richard D. Emery, Elizabeth S. Saylor, and Doug Lieb.

Read coverage of the injunction in The New York Times, Crain’s, the New York Daily News and the Village Voice.

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Ten ECBA Attorneys Named as Super Lawyers; Two Named as Rising Stars

ECBA is proud to announce that partners Richard EmeryAndrew CelliMatthew Brinckerhoff, Jonathan AbadyIlann MaazelEarl WardHal Lieberman, Dan Kornstein, Andrew Wilson, and Elizabeth Saylor were named as Super Lawyers for 2016. Partner Debra Greenberger and associate Hayley Horowitz were named as Rising Stars. The Super Lawyers list is issued by Thompson Reuters. A description of the selection methodology can be found here.

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Court Approves Settlement in Cooper Union Case

Justice Nancy Bannon of the New York Supreme Court approved the settlement in ECBA’s case challenging the decision to charge tuition at The Cooper Union. ECBA represents the Committee to Save Cooper Union (CSCU), a group of alumni, faculty, and students which filed suit in May 2014, arguing that charging tuition violated the trust established by Peter Cooper and seeking to reinstitute free tuition.  After the CSCU filed suit, the New York Attorney General launched an investigation into the mismanagement of the school finances.   The settlement, which includes CSCU, the Attorney General, and the school, requires the college to commit to exploring the return to free tuition; establish a free education committee on the board of trustees; increase student, alumni, and faculty representation on the board; establish  the Associates of Cooper Union; and accept the oversight of an independent financial monitor.

In approving the settlement agreement, Justice Bannon wrote that the plan agreed upon “will most effectively accomplish the general purposes of Peter Cooper’s trust in the context of the present financial position of The Cooper Union.”  ECBA lead attorney Richard D. Emery said: “We are extremely optimistic that within a matter of years, the vision of Peter Cooper can be once again in place.”

Read coverage of the settlement approval in The New York Times here.

ECBA attorneys Richard D. Emery, O. Andrew F. Wilson, and Zoe Salzman represented the Committee to Save Cooper Union.

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ECBA Settles Case Challenging Tuition at The Cooper Union

A case brought by ECBA against the Board of Trustees of The Cooper Union, disputing the decision to charge tuition for the first time in the school’s history, has settled.  ECBA represents the Committee to Save Cooper Union (CSCU), a coalition of current and prospective students, alumni, and faculty.  CSCU filed suit in May 2014, arguing that charging tuition violated the trust established by Peter Cooper and seeking to reinstitute free tuition, to provide a full accounting and to implement greater oversight.  As a result of the CSCU lawsuit, the Attorney General of the State of New York launched a confidential investigation into The Cooper Union, which culminated in the settlement announced today.

The settlement agreements, which will be filed today with the Court and which the Court is expected to approve at a hearing on September 14, include a consent decree signed by the CSCU, the Attorney General, and The Cooper Union, as well as a cy pres petition by the Attorney General.  The agreements impose an independent financial monitor; establish a Board committee made up of alumni, students, and faculty that is dedicated to developing a plan for the return to free tuition; require the school’s leadership to make a good faith effort to return to free; and expand the presence of alumni, students, and faculty on the Board of Trustees.

ECBA lead attorney Richard D. Emery explained: “A tragic chapter in this great school’s history has ended. For the past several years, a lack of fiscal restraint, conflicts of interest and a failure of educational vision banished Peter Cooper and his spirit from the school he founded. Cooper built a completely free, merit-based learning institution that encouraged free thinking and produced some of our nation’s greatest minds in the arts and sciences.  These recent years abandoned those values in favor of financial manipulation and debt. Because of the litigation settled today, Peter Cooper is back. Justice for Peter Cooper and all those who benefited from his great experiment is now a promise that must be kept.”

Read more about the settlement in coverage by the Wall Street Journal and the New York Times.

The CSCU Petitioners were represented by ECBA attorneys Richard D. Emery, O. Andrew F. Wilson, and Zoe Salzman.

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Port Authority Police Union Sues Over Searches of Officers’ Cellphones

ECBA filed suit in federal court on behalf of the Port Authority of New York & New Jersey Police Benevolent Association and a former police officer against the Port Authority alleging unconstitutional searches. The suit alleges that the Port Authority unlawfully seized and searched Port Authority police officers’ private cell phones during an investigation into possible criminal conduct. The searches came just months after the Supreme Court ruled in Riley v. California that searches of private cell phones implicate the Fourth Amendment, at least when those searches occur incident to arrest. The plaintiffs are represented by ECBA’s Richard D. Emery, O. Andrew F. Wilson, and Ted Oxholm.

To read the New York Times’ coverage of the filing, click here.

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$5 Million Settlement Awarded to Brothers Starved by their Foster Parents

Emery Celli Brinckerhoff & Abady settled a $5 million lawsuit against the Division of Youth and Family Services (“DYFS”) for neglecting to remove four brothers from the custody of foster parents who had been systematically starving their adopted children. Under the care of the Jackson parents, the oldest brother, age 19, stood at four feet tall and weighed 45 pounds. The three younger brothers, ages 14, 10, and 9, each weighed less than 40 pounds. The DYFS placed the children in the custody of the Jackson family and made numerous visits to the family home. Despite contact with the obviously abused children and warnings from case workers, the DYFS failed to remove the boys from the Jacksons’ custody. The three youngest brothers were represented by ECBA founding partner Richard Emery. To read the New York Times’ coverage of the settlement, click here.

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Emery, Celli, Brinckerhoff, Abady, Ward and Maazel Named 2014 “Super Lawyers”

The New York Super Lawyers Magazine has named ECBA’s Richard D. Emery, Andrew G. Celli, Matthew D. Brinckerhoff, Jonathan S. Abady, Earl Ward, and Ilann M. Maazel “Super Lawyers,” and Debra L. Greenberger a “Rising Star.” For more information, please access superlawyers.com.

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