Breaking the Gavel: Judicial Misconduct in NY

David Lombardo: For more than four decades, the state Commission on Judicial Conduct has been responsible for policing jurists all over the Empire State. From town justices to members of the state's top court. In addition to being empowered to investigate the conduct of judges, the state constitution also gives them authority to impose punishments.

With all the attention paid to the judiciary in recent months, including the former chief judge leaving office amid a cloud of allegations, we wanted to tell you more about this obscure commission. So, for more on the issue, New York Now's Dan Clark spoke with Robert Tembeckjian, the commission's administrator.

Dan Clark: Bob, thank you so much for being here.

Robert Tembeckjian: My pleasure. Thank you for the invitation.

DC: Of course, any time.

When we talk about judicial misconduct, I feel like it's defined differently by different people. I think there is generally what we would know is misconduct, but other things that we may not know. When we're talking about judicial misconduct, what does that entail? What's the scope of that?

RT: Well, there are promulgated rules of ethics that bind every judge in New York State. There are 3500 judges throughout the New York State Unified Court System, and they're all bound by the rules governing judicial conduct, which cover a broad range of ethical constraints. Judges have to be free of conflicts of interest, they have to avoid using the influence of their office for private gain, either for themselves or others. They have to act at all times in a manner that promotes public confidence in the integrity and the impartiality and the independence of the judiciary, and that's on and off the bench. 

When judges violate these constraints, they are subject to discipline for it, not only in New York, but throughout the country. Every state has a disciplinary system that enforces ethics rules on judges.

DC: When we're talking about this, it's not necessarily a complicated process. As you were describing it, it kind of reminds me of my role as a journalist, right? As a journalist, I am objective, I can't have conflicts of interest, I have to stay impartial. That's what we're talking about here with judges. With a process, it starts with a complaint made to the commission I'm assuming?

RT: That's right. Anybody can make a complaint. The only requirement in the laws that it be in writing, it doesn't have to be sworn. But the commission itself can also initiate an inquiry on its own if it comes to learn of potential misconduct committed by a judge, which can happen in any number of ways. We can read about it in the newspaper. We can come across it while we're investigating a different complaint, but a complaint initiates the process. 

There is an 11-member commission which retains me as their chief executive officer that reviews all the complaints that come in and they determine whether or not, if true, the allegations would constitute misconduct, in which case we will investigate. In fact, we average now about 2000 complaints a year, and in 2022, we hit an all-time high of about 2400.

DC: Wow. Why do you think that is before we go back to the process? People are very interested in courts and judges these days. Is that why you think or…

RT: I think it's part of the reason. Nationally with controversial decisions from the U.S. Supreme Court, with recent controversy in New York over the governor's nomination of a chief judge, there is much more interest and sophisticated knowledge by the public about the courts, the significance of the courts in our in our legal system and in our life. 

Very important decisions are made by courts, from trial courts all the way up to appellate courts.

I think the proliferation of information over electronic media has also had a role. Every time the commission disciplines a judge, we put it on our website, we issue a press release, and it tends to get coverage in the local press to where the judge who is disciplined happens to work or reside.

The fact that over 44 years the commission has publicly disciplined over 900 judges impresses, I think, on the public that there is a place that you can go to make a complaint that will be seriously regarded and examined.

So, all of these things, I think, contribute to the numbers going up. I don't think it necessarily means that judges are committing more misconduct than they used to, but that the public is more sophisticated about the resources available to them to redress their grievances.

DC: So, talk to me about after a complaint is made, the commission reviews it. What does that process look like? Because you do some sort of investigation, and you get to the bottom of the facts.

RT: Quite extensively. If the commission’s authorized an investigation, then it will be assigned to one of our three offices. We have offices in New York City, Albany, and Rochester, and we divide our caseload geographically, as opposed to structurally. So, if the complaint is in the Rochester area, in the fourth department let's say, our Rochester office handles it. 

We will look at court records, interview witnesses, examine documents, we might look at financial records depending on the nature of the complaint. We will take testimony from witnesses, we will ask the judge often to respond to the complaint, either in writing or by coming in for sworn testimony.

We do an investigation that is similar, if you're analogizing this to criminal law, to what a grand jury does before an indictment. They will go through the materials, they will look at the relevant witnesses, and they'll try to come to a conclusion, as we do, whether or not the original complaint is substantiated and if the allegations are serious enough that if proven at trial, they should result in the public discipline of a judge.

If that happens, then the commission will authorize formal disciplinary charges. That's sort of equivalent to an indictment.

DC: Okay.

RT: The judge is then served with the formal complaint and the rules of evidence take over. The judge files an answer, there is a hearing before an impartial referee. We can stipulate to the facts or contest the facts of the hearing, but if it goes to a hearing, it's just like a non-jury trial anywhere else in New York.

DC: It's a live hearing?

RT: It's a live hearing. Witnesses are called, documents are introduced, witnesses are examined and cross-examined, but instead of a jury determining guilt or innocence, there is a referee who files a written report to the commission. Then both sides get to argue whether the referee's report should be accepted and what the discipline should be.

Now, I should say that under the law in New York, this entire process, as I've described it, is confidential.

DC: Which is kind of why you're here, to tell lay it out because it is confidential, you're right.

So, you get to that point and the referee is there, when you get to the point where it should be accepted or rejected is that a decision by the commission?

RT: That's by the full commission. It sits like an appellate court, it reads the entire record, it hears oral argument by my staff and the judge's attorney, it will examine the trial record, it'll ask questions of the lawyers and of the judge, and then it will ultimately render a written decision that is filed with the New York State Court of Appeals, which, as you know, is the highest court in New York State.

Then and only then does it become public. At that point, the entire record retrospectively also becomes public. So, if you go onto our website and you look at a decision involving a particular judge, you'll see the decision. In the more recent cases, you'll see all of the documentation that also went with it.

DC: What are the potential outcomes once you have agreed to authorize an investigation when you go through the hearing, once the report is accepted? There are a few different options for how judges can be disciplined.

RT: That's right. A judge can be privately cautioned in a situation where the misconduct is not deemed to have been egregious enough to warrant a public discipline, or the judge can be publicly reprimanded, either an admonition or the more severe public censure, or the judge can be removed from office for the most egregious misconduct, retired for a disability, or we can negotiate a permanent public resignation stipulation in which the judge agrees without admitting guilt, that they will leave the bench and they will never come back.

In those cases, we would have sought removal had the process gone all the way through, but rather than effectuate an entire and rather lengthy process before the discipline is imposed and the result becomes public, if the judge is willing to accept the resignation early in the process, we will do that.

Now, we've publicly disciplined over 900 judges since 1978 when the commission went to effect and that includes over 300 who were either removed or who agreed to permanently leave the bench and never come back.

We've had over 600 censures and we've issued somewhere in the neighborhood of about 1900 of these private cautionary letters, which are almost more educational and advisory than they are disciplinary. It gives the judge the chance to sort of correct moderate or less significant misconduct rather than through a public disciplinary system or process.

DC: That's not necessarily the last stop if a judge is going to be removed, they can challenge that before the Court of Appeals. What does that look like?

RT: When a judge is publicly disciplined, they have the right to have the state's highest court review the record and the court can impose the same discipline that the commission did, it can impose a different discipline, or it could throw the case out altogether.

The court will set a schedule for briefs, there will be an oral argument, and then they'll render a decision.

Since 1978, we've been up to the court 101 times, and in 100 of those cases, the court has agreed with the commission that there was misconduct and there should be discipline. In the only case where they decided not to discipline the judge, who incidentally had had been accused and found to have delayed rendering decisions in multiple cases for years at a time without excuse, 20 years later, the court revisited the issue and agreed that the commission should be engaged in disciplining judges who engage in lengthy delays without valid excuse. 

So, the one time we lost in the Court of Appeals, upon review 20 years later we got them to reverse.

DC: That's interesting.

It's a lot of work that you do in these three offices across the state. You're getting all of these complaints, most of all time last year. Do you have the funding to do it?

RT: We need more resources than we currently have, although we are in reasonably good shape now. The reason we need the resources is because our caseload is constantly increasing, as the public becomes more aware of how to file a grievance against a judge, our work expands. So even though we publicly disciplined 25 judges last year, which was the most since 2009, our number of cases pending stayed pretty static at about 190 because we got almost 500 complaints more last year than we did the year before. So, our resources are really stretched.

We currently have a budget of about $7 million and I've asked for an increase to about 8 million so that we can add some more investigators and more I.T. staff.

During the pandemic, we were able to adjust by having most of our activities conducted electronically, virtually, online. We started doing depositions that way, we actually conducted numerous full-fledged hearings that way. 

So, while the court system in many respects came to a halt until it kind of figured out how to deal with the pandemic and a lot of law firms and offices slowed down the pace of their activities because they had to readjust. We were relatively small and agile enough to be able to effectively redirect almost all of our engagements into virtual depositions and virtual hearings. Even non-sworn interviews.

DC: It’s probably much easier to schedule those virtual appearances, and that, I hope, improves efficiency.

RT: It certainly has, but our I.T. staff is pressed to the limit. We have essentially one full-time I.T. guy handling all three offices and dealing with a staff of 46 people, all of whom have, electronic services, and it's funny because, I've been with the commission long enough to remember when the electric typewriter was an I.T. advancement.

Of course, now we are so into the 21st century and it takes a lot of effort and individuals to be able to keep this system functioning.

DC: It does, and you were one of them. 

You have these three offices, Albany, Rochester, New York City. I'm assuming the New York City office is probably the busiest?

RT: It's the principal office that handles the complaints in the first and second departments.

DC: Well, it's important work what you're doing.

RT: We try to.

DC: I think looking at judges in this way is something that the public doesn't necessarily know about in a lot of regard. So, I have to thank you for coming on to explain it to us.

RT: I appreciate the invitation and the opportunity to help educate the public.

DC: Of course, any time. Bob Tembeckjian, the administrator and counsel of the Commission on Judicial Conduct. Thank you.

RT: Thank you.

More information about the commission and a full listing of their decisions can be found on their website, https://cjc.ny.gov/.

THIS INTERVIEW IS A TRANSCRIPT OF THE ORIGINAL BROADCAST VERSION OF THIS CONVERSATION AND HAS BEEN EDITED FOR CLARITY.