Full Episode: Final Days of the 2023 Legislative Session, Judicial Ethics in NY's Courts

Full transcript of Final Days of the 2023 Legislative Session, Judicial Ethics in NY's Courts

Dan Clark: We are now in the final days of this year's legislative session. Lawmakers are scheduled to wrap up for the year this coming week on June 8th. Usually by now, we'd have a sense of what the legislature wants to do before they leave, but this year that's not the case. That’s because the state budget was a month late. 

That gave lawmakers just five weeks to finish out the session. Usually, they'd have about two months. So, there's been a lot less time this year to tackle tough issues. In the last few weeks of session, bills that would give tenants more rights and allow wine in grocery stores, for example, are not expected to pass. But at least one big bill has some momentum.

That's the Clean Slate Act, which we've covered a lot in the past few years. It would allow criminal convictions to be automatically sealed after a waiting period if someone has served their entire sentence, including probation, and has remained crime free. For misdemeanors, you'd have to wait three years after the end of your sentence for the conviction to be sealed under the current version of the bill. For felonies, it would be seven years and sex offenses would not be eligible. 

Those numbers could change in a final version of the bill. If lawmakers can reach a deal before the end of next week. Senate Majority Leader Andrea Stewart-Cousins said this week that they're almost there.

Andrea Stewart-Cousins: Well, we are definitely working on clean slate. We are definitely negotiating. I think we're pretty close because it was at first the time, and I believe everybody kind of agreed on the time and so I do believe we're very close.

DC: But on clean slate, the bigger fight is in the Assembly, the state Senate already passed it last year. Supporters have been working to win votes in the Assembly where it's had less support, and that campaign has been effective. Assembly Speaker Carl Heastie said this week that he's optimistic they'll reach an agreement.

Carl Heastie: Each year trying to come up with something that the Governor, the Assembly, and the Senate can all be happy with. I guess that I think we're very close. I'm very optimistic we'll get something done.

DC: Let's start there and unpack the rest of the week with our panel. Jon Campbell is from WNYC and Gothamist and Ashley Hupfl from The Daily Gazette. Thank you both for being here.

So, on clean slate, this is a complicated bill because of its history. I should say we've been in a situation where this is the third year, I feel like clean slate has become almost a thing, and then something weird torpedoes it at the last minute. Two years ago, what they told us was it was technical things in the bill, technical reasons why the bill couldn't move forward. Last year it just didn't seem to have enough support. So, this year, I'm kind of wondering if this is like lawmakers cry wolf, you know? What do you think, John? Is this actually going to happen?

Jon Campbell: Well, you have the Governor, the Senate Leader and the Assembly Leader all saying that they supported in concept, and we spoke to all three of those people this week in some form or fashion or our colleagues in New York City did, and they all seem to suggest that they are right at the finish line for clean slate.

Now, this has happened before. This happened last year with, as you just said. There were some issues about education and whether the State Department of Education would have access to some of these old records, but essentially what it would do is seal criminal records after a period of time when people have been released from incarceration. Everybody's saying the right things, but it's not over till it's over and it gets that vote.

DC: If it doesn't pass this year, I really don't see it passing next year. In an election year where every member of the legislature is up for reelection, I think especially in places like Long Island and in the suburbs, I think they're really cognizant right now of policies that they're passing this year, next year that may affect those elections.

How do you think that plays into this Ashley? The politics of criminal justice reform on the capital versus how the public views it.

Ashley Hupfl: Well, I was going to say that we heard from the leaders, but one missing voice is Governor Kathy Hochul. I think probably one of the biggest hold ups will be her, given the fact that when she was running against Lee Zeldin he did a lot better than people expected because he hammered home the criminal, the crime statistics, and things like that. That's the same fear that she could have with another challenge going forward.

DC: I think she did come in on clean slate in New York City this week, but I don't know exactly what she said.

JC: She said that she supports it in concept, that she's optimistic that it's going to get done before the end of the legislative session, which as of now is scheduled for Thursday. It could bleed into Friday or beyond. God forbid.

DC:  No, I don't want that. I don't even want to speak that.

JC: But this is the big-ticket item that is being debated. A lot of other things just aren't. Housing policy, for example, which was supposed to be the big-ticket item of the entire session, it seems like nothing's going to get done on that front. Clean slate is the one where everybody's kind of holding out hope.

DC: Right, there's a lot of smaller bills that I think are like kind of in a stage of discussion, but they may not make it by the end of next week. Ashley, want to start with you on this one? What are you watching over these final days? I mean, there's a lot to watch, but I don't think a lot to watch that's going to be successful.

AH: One thing that I found very interesting, I was talking to Assembly Majority Leader Crystal Peoples-Stokes of course, someone who has a fair amount of power in the chamber after they passed a bill to divert the supply chain holed up with cannabis cultivator licenses. She said she believes that they could eliminate the potency tax, which is a tax on cannabis, that the higher the potency, the higher the tax.

Just a side note, Senator Cooney also has a bill and he's the chair of the new Cannabis Committee. He wants to see that eliminated. Peoples-Stokes said she thinks it'll get done by the end of the year, and part of the reasoning is that we saw in the budget there were a lot of measures to crack down on the illicit market.

She says that would help with that and prevent people from going to Massachusetts to buy the same product for a cheaper price.

DC: That's obviously going to lead to a drop in revenue from the cannabis market. Is there any sense that they replace it with anything or we just don't know right now?

AH: Well, at least the store owner I spoke to, Upstate Cana Company in Schenectady, and they want that gone. It's not the revenue, they want people in the door because they're worried about the same things that the lawmakers are, and they think it'll actually gain them more revenue because more people will be coming in the doors.

DC: Yeah, and cannabis has been this issue where it's kind of evolving as the state continues to roll it out. There's an interesting proposal that we were talking about before we went on-air about how some lawmakers, including Senator Cooney, want to eliminate the excise tax on medical cannabis, which we covered a few weeks ago.

John, I want to go to you now. What are you looking at over the next week, you mentioned housing? 

JC: Yeah. 

DC: So the housing deal fell apart in the budget, but there was, I guess, some hope after the budget by some lawmakers that they might be able to come together on something at the end of the year.

JC: Yeah, and what you see right now is New York City Mayor Eric Adams and his top aide really pushing for some on the margin housing issues. Things like a 421a extension. That's a tax credit for developers who have a certain percentage of affordable units in their developments in New York City that expired. They're trying to either extend it or just grandfathered in projects that were in the pipeline that that suddenly were no longer eligible for that tax credit.

But that’s long been a controversial issue in Albany because there is a good segment of the legislature that believes it's essentially a handout to developers. You saw Mayor Adams on Thursday, have a press conference and go on to Brooklyn where he painted it as a necessity for Albany to do that or to make it easier to convert offices into apartments in New York City, and that's something that he's holding out hope for. But you know, Carl Heastie the Assembly Speaker told us that he doesn't really see either house picking off this item or that item on housing. He thinks it has to be a more comprehensive package, and that's not something that's going to get done by next week.

DC: I think the most controversial item in that potential package that could have formed was the Good Cause eviction bill. That is a bill that I generally say as something that would require a good cause for an eviction, but I don't define that because the bill is more complicated than just that.

It also includes a kind of faux rent cap. I don't know the phrasing exactly. I think it's on if rent increases by 3% or more than inflation, something like that.

JC: Yeah, and that is designed so that you can't a landlord can't effectively evicted tenant by hiking the rent by 20%, 50% whatever. So, it is essentially it would limit annual rent increases and you would need a bona fide reason for a landlord to evict a tenant. 

That is something that the landlords absolutely hate, but the tenant organizations love. This is really where you get into this issue, where tenants are pushing for one thing, landlords are pushing for another. The governor and legislators are all stuck in the middle, and that's part of the reason why nothing's getting done.

DC: Yeah. I always blame it on the suburbs, and I don't know if that's true. I'm going to be honest with you, with Hochul’s plan for accessory dwelling units, for example, suburban lawmakers didn't like that. With her housing compact the requirement that localities build new housing every year or every couple of years, suburbs really didn't like that. So, I just don't know how they do anything that doesn't really directly benefit the suburbs from their view, I just don't know how it would shake out.

JC: Well, I mean, we talked earlier that that next year is in an election year. The suburbs are a crucial battleground in New York State, and if they weren't willing to do housing proposals that made suburban lawmakers mad this year, are they going to do that next year when they're on the ballot?

DC: I don't think so. I don't know. 

Ashley, I have about a minute and a half left. I want to talk to you kind of wonder about the politics of this because there isn't so much happening at the end of session as we were talking about. It's a little quieter than usual. Maybe clean slate happens, but besides that, not a lot. 

Like Jon just said, does that spell a quieter session next year? I mean, it's a very far time away so we can look into our crystal ball a little bit, I guess.

AH: I think it'll be the same next year. I think people are just kind of wiped out after the budget. It doesn't normally go until May. There was so much policy in it, and I got the sense from lawmakers that they're just kind of like checked out after that. They want to do one or two things and move on.

You know, by January, like you said, that's a long time. It was last year they had to come back because there are Supreme Court cases. Who knows what could pop up. Maybe because they're so low key this year, they'll come back ready and raring in January.

DC: Maybe in the meantime, there are opportunities for them to do things that aren't just coming here and passing bills We often see in the summer, more in the fall and into the December area, the whole public hearings on bills to kind of get ready for the upcoming legislative session so that when the bill comes up for a vote, they can say we had a hearing and this is what this person said and this is what that person said.

So that'll be interesting to watch in the fall because I think it will kind of inform where they go in the first few months of next year session. But let's not look too far ahead. We'll keep it there.

JC: We've still got this year’s session.

DC: Jon Campbell from WNYC and Gothamist, Ashley Hupfl from The Daily Gazette, thank you both so much.

Dan Clark: Turning now to a new edition of On the Bill, where we tell you about a bill out of Albany that you might not hear about otherwise. This week we're talking about S7117, which deals with the gaming compact between the Seneca Nation and the state.

Right now, the Senecas operate three casinos in western New York and a gaming compact with the state from 20 years ago gives them exclusive rights in that area. No one else can set up shop. But that compact is about to expire later this year.

That brings us to S7117. It's a bill that would keep that area exclusive for the Senecas and allow the governor to negotiate a new gaming compact at some point this year. The new compact will deal with things like exclusivity revenue from the casinos and more. And without this bill, the Senecas are worried the state will try to strong arm them into an agreement that they don't like. Tina Abrams is a counselor from the Seneca Nation.

Tina Abrams: The state leaders have a responsibility to address the inequities that native nations have faced for hundreds of years and to assure that we are treated as a full or equal partner in our agreements. Allowing this bill to go on pass would be a complete abdication of responsibility.

DC: We'll keep an eye on that bill in the final days of the session. 

Dan Clark: Judicial ethics is something that's been in the news a lot lately at the national level. You might have read about how Democrats in Congress won new ethics rules for the U.S. Supreme Court. That's after multiple news reports have tied Supreme Court Justice Clarence Thomas to Harlan Crow, a Republican megadonor. Thomas has denied that his relationship with Crow has influenced his work on the bench. 

Things work a little different here in New York. If a judge is accused of doing something wrong or unethical there's a special commission that investigates. It's called the State Commission on Judicial Conduct. It takes in complaints against judges, investigates them, and hands down sanctions when wrongdoing is found, and there's growing support at the Capitol to give the commission more teeth.

A new bill would do just that by expanding its power, making it more transparent and giving it more independence. We laid it all out this week with Bob Tembeckjian, administrator, and counsel of the Commission on Judicial Conduct.

DC: Bob, thank you so much for coming back. 

We're talking about this bill and we don't often see legislation that changes your work at the State Commission on Judicial Conduct because you're enshrined in the Constitution, which usually means when you want to make a change, you have to go through a whole constitutional amendment. This is not like that, and the way that I see it is this would give you more teeth, give you a little bit more transparency and a little bit more independence from the governor's office.

So let's go through it section by section and I’m going to have you talk about how it is now and then how this bill would make it. 

There are three main sections, one would allow commission proceedings to go public when a judge is formally charged with a complaint. I know that these documents do become public at the end when you've made a decision. Is that how it works now? When do things kind of get into the public eye?

Robert Tembeckjian: Currently when the commission is investigating a complaint of ethical misconduct by a judge, the complaint, our investigation, any transcripts, testimony, documents that are collected in the course of that inquiry, any hearing on formal disciplinary charges, any oral argument before the full commission is all confidential by law. New York is in the minority of states where that is so. 

In 38 other states, formal complaints of misconduct against judges are made public and that is similar, by the way, to what it would be like for legislative and executive branch officers as well. If they are formally charged under their own ethical processes with misconduct those charges become public. Judges being public officials, in the Commission's view, and this is something we've been advocating since 1978, when the Commission first went into effect. Formal disciplinary charges against the judge should be made public because the public has a right to know.

DC: So that's when they when they're accused of misconduct. So is it just want to quickly is filed or you have to see the complaint say we're going to investigate this and then it becomes public under this legislation.

RT: Under this legislation, and this is what we've been advocating for. At the conclusion of an investigation, if the commission determines that formal charges are warranted, that's the point at which the matter would become public, not when a complaint comes in, not one we're investigating. So, if you analogize this to a criminal inquiry, for example, a grand jury investigation would be confidential, but if the grand jury indicts a criminal defendant, that becomes public. So, this is roughly analogous to that 

All of our investigative work would remain confidential. The frivolous complaints, the unsubstantiated complaints would never become public, but only if a complaint is substantiated and the Commission on Judicial Conduct decides that formal disciplinary charges should occur, that's the point at which the matter would become public under this legislation.

DC: So, people know more about what you're doing, transparency's great. I want to move on to the next section of the bill that I want to talk about. This is about your jurisdiction when judges resign from office. So, if a judge currently is accused of misconduct informally, not with a formal complaint to you, but if they're accused of misconduct and resign, you can't really do anything about it.

RT: That's true. Under current law, if a judge resigns, we have 120 days to complete the entire process that an ordinary course would take a year or a year and a half. Then only if the final result would be removal from office, so if it's not the most egregious misconduct, even if the judge is guilty of it, we have no authority under current law to discipline the judge once the resignation takes place.

Currently we can admonish a judge publicly, censure a judge publicly, file a decision that the judge should be removed or, in the case of a disability, be retired, but under the current statute, if the judge resigns, we can only proceed if it's a removal and only if we can conclude the entire proceeding in 120 days. This legislation would open that up.

DC: Now, I'm assuming that wouldn't be retroactive. So, if we found out that a judge who was on the bench five years ago was accused of misconduct but they've resigned or retired, you can't then go back and say, hey, that was bad, you shouldn't have done that, and you cannot again, seek judicial office.

RT: That's true. We have a long constitutional tradition in our country of not essentially imposing ex post facto laws, or rules, or requirements.

So, if a judge was the subject of an investigation and it ended because the judge resigned five years ago, two years ago, and there was no formal discipline imposed, that matter will remain confidential forever, or unless the judge, for whatever reason, chooses to waive confidentiality and make it public. That doesn't happen very often as you might imagine. 

Over 900 disciplinary proceedings over the course of our history since 1978, only about a dozen judges have waived confidentiality for the process to be opened before there was a final result. It's just not something that is perceived to be in their best interest to do.

DC: Now, I'm assuming this wouldn't bring too many more cases onto your caseload at the commission, but checking on the budget with a request was fulfilled for you, even if you are taking on a few more complaints here and there, do you have the bandwidth right now to take that on?

RT: This legislation should not change the numbers at all. It will not increase our workload, nor will it diminish our workload. What it would do is make a part of our work public earlier than it is now. Statistically, numerically, the numbers would stay the same. Last year we got 2400 complaints. We publicly disciplined 25 judges. I don't expect those proportions to change. But of those 25, they would have all become known to the public earlier than they were if this legislation had been in effect.

DC: Let's look at the third part, which is it's kind of the drier subject, I guess, but it's really important. It's your budget. So, every year you come up with what you would like from the legislature and the governor in terms of your budget. They work it out and decide behind closed doors how much you're going to get.

This change would allow you to submit your budget request to the governor's office, and then usually the governor's office can change it and say, no, we're not going to go to the legislature with that request. This would kind of reverse that and just say you have a budget request. The governor is going to just send it to the legislature unchanged, but she can recommend that there may be changes. Do you think that that would be a better way to do things? 

RT: Yes. It is also something that we've been advocating for some time.

Our agency is not an executive branch agency. We're in the judiciary article of the Constitution. We have an entirely judicial branch function. We investigate complaints against judges, and we publicly discipline judges. That's all we do.

However, because of our responsibility to impose discipline on judges, it was decided I think, appropriately back in 1978, that the judicial branch should not control our budget. If the very officers of whom we have disciplinary authority could control our budget, there would be an opportunity for them to diminish our effectiveness by literally holding back the funds. Right.

DC: You wouldn't have the resources to do what you need to do.

RT: Right. So way back in 1978, Governor Hugh Carey decided with the agreement of the then Chief Judge Charles Breitel and the Commission, that the Commission's budget should be recommended to the legislature by the executive. Governor Carey was very supportive of the commission, as I must say, Governor Hochul has been she's been in office for a couple of years now, and each of the budgets that she has presented vis-à-vis the Judicial Conduct Commission has been the result of a collaboration.

We've discussed with her staff what we think is an appropriate request for us, and I'm happy to say that they have agreed in that request, and that's the way they have proposed it to the legislature. Other governors have not done that, and it has forced us to go over their heads directly to the legislature, which is something that no other agency whose budget is presented in the executive budget can do.

If the governor proposes a budget for the Department of Criminal Justice, Information Services and their director doesn't like it, the option is suck it up and take it or go over the governor's head and see how fast you are looking for another line of work, because you report to the governor and the governor says this is what the budget ought to be, that's the way it ought to be. 

I'm not constrained by that because the governor doesn't appoint the administrator of the Commission, nor does the governor appoint the chair of the Commission. We have 11 commission members, and the governor only appoints four of them, so not even a majority. Others are appointed by the legislative leaders and by the Chief Judge.

So, this provision would literally mirror the way the judicial budget is presented to the judiciary. The governor presents the judicial budget with comment, but without amendment to the legislature, and then the Chief Administrative Judge and the Chief Judge will negotiate with the legislature on what that request should be and we're asking for the same because we are a judicial branch entity, and the executive branch shouldn't be controlling the disciplining of judicial officers via the power of the purse.

DC: It'll be entirely up to the legislature and the governor, I guess in negotiations at the end of the budget negotiations.

RT: That's right. I wouldn't have a seat at that table, but at least the budget that we requested would have gone in as we asked for it, and then they could deal with it on the merits.

DC: This has passed the Senate, so we'll see where it ends up in the Assembly. Bob, Tembeckjian from the Commission on Judicial Conduct. Thank you so much.

RT: Thank you, Dan. It's always nice to be here.

DC: A reminder that next week is the last scheduled week of this year's legislative session. We’ll let you know if that bill and anything else important moves.

Catch this week's show on your local PBS member station, or watch on YouTube, Facebook, or using the free PBS app anytime after Friday.

On This Week's Edition of New York NOW:

• Next week is the last week of this year's legislative session. We'll tell you what to expect.
• Jon Campbell from WNYC/Gothamist and Ashley Hupfl from the Daily Gazette have more news and analysis from the week.
• Judicial ethics is in the national spotlight, but should New York expand its own judicial ethics watchdog? Robert Tembeckjian, head of the state's Commission on Judicial Conduct, joins us to discuss.