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Only 21 judges of the state's 3,400 members of the judiciary received public sanction for misconduct during 2004 according to the annual report of the New York State Commission on Judicial Conduct but the watchdog panel received 1,546 complaints last year, the highest ever in its' 30-year history.
The commission authorized 255 full-fledged investigations in 2004, the most ever and conducted 415 preliminary inquiries which entailed interviewing attorneys involved, analyzing court files and reviewing trial transcripts.
Only two judges were removed from the bench in 2004, Troy City Court judge Henry Bauer, a lawyer; and non-lawyer C. Ernest Brownell, a part-time justice of the Junius Town Court, Seneca County.
The Court of Appeals upheld the commission's determination to removal Bauer, saying that he had engaged in a two-year pattern of serious misconduct that repeatedly deprived defendants of liberty without according them fundamental rights such as their right to counsel.
Brownell was removed fro mishandling a small claims action and for misappropriating court funds.
Robert Tembeckjian, chief counsel for the agency, said that the increase in complaints was due to more public awareness of the commission's function.
Ten judges were censured and eight were admonished. In addition, a case of judicial misconduct against Cheryl Coleman, former Albany city court judge, was disposed of by a stipulation made public after she resigned.
There were nine non-lawyers sanctioned and 12 lawyer-judges. Town and village justices are not required to be authorized to practice law.
Thirty-three confidential letters of dismissal and caution were also issued by the commission for such issues as improper ex parte communications, improper political activity, conflicts of interest, inappropriate demeanor, public comment about pending cases and failure to adhere to statutory and other administrative mandates.
Eight judges resigned while complaints were pending against them including Coleman who is now in private practice.
A large portion of the report was devoted to the ongoing case against Albany Supreme Court Justice Thomas Spargo who claimed First Amendment protection in charges which had been lodged against him by the commission, an argument which he lost in federal court. The formal complaint against Spargo for alleged improper political activity and for allegedly improperly soliciting lawyers for money for his legal defense fund is now proceeding.
The commission continued to call for public disciplinary hearings of misconduct charges once formal charges have been served on a judge. The panel has long recommended that the state Legislature amend the Judiciary Law to make the hearings public, saying that 38 other states do so.
Chief Judge Judith Kaye proposed legislation in 2003, as she had previously, to open the proceedings but the Legislature did not take action. In the past, such legislation has had support in either the Assembly or the Senate at various times, although never in both houses in the same legislative session.
Post-investigation formal proceedings were public in New York State until 1978. The Commission hopes that the issue will be revived in the Legislature and not be diverted by ancillary matters or political disputes. The Commission also hopes that renewed efforts to enact such a public proceedings measure will succeed without encumbrances as have been suggested by various legislators in the past, such as the unnecessary introduction of a statute of limitations or increase in the standard of proof from the present "preponderance of the evidence" standard to "clear and convincing evidence."
The commission also wants the authority to suspend a judge as an interim or final disposition in certain cases. Presently that option is held solely by the Court of Appeals.
The State Constitution empowers the Court of Appeals to suspend a judge from office, with or without pay as it may determine, under certain circumstances including while there is pending a commission determination that the judge be removed or retired, while the judge is charged with a felony, whether by indictment or information, while the judge is charged with a crime in any jurisdiction punishable as a felony in New York State, or while the judge is charged with any other crime which involves moral turpitude.
There is no provision for the suspension of a judge who is charged with a misdemeanor that does not involve "moral turpitude." Yet there are any number of misdemeanor charges that may not be defined as involving "moral turpitude" but that, when brought against a judge, would seriously undermine public confidence in the integrity of the judiciary. Misdemeanor level DWI or drug charges, for example, would seem on their face to fall in this category, particularly where the judge served on a local criminal court and presided over cases involving charges similar to those filed against him or her. Fortunately, it is rare for a judge to be charged with a crime, but it does happen. In early 1999, one part-time judge of a busy local court was arrested and charged with DWI and drug possession. The judge voluntarily suspended himself from office, did not run for re-election and formally vacated office at the end of the year, when he accepted a plea and sentence on the DWI charge that disposed of the drug charge.
There are non-felony and even non- criminal categories of behavior that seriously threaten the administration of justice and arguably should result in the interim suspension of a judge, the commission says. Such criteria might well include significant evidence of mental illness affecting the judicial function, or conduct that compromises the essence of the judge's role, such as conversion of court funds or a demonstrated failure to cooperate with the Commission or other disciplinary authorities. The courts already have discretion to suspend an attorney's law license on an interim basis under certain circumstances, even where no criminal charge has been filed against the respondent.
It would require an amendment to the State Constitution to expand the criteria on which the Court of Appeals could suspend a judge from office. The Commission believes that the limited existing criteria should be expanded and recommends that the Legislature consider so empowering the court. 9-30-05
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