Fundamental premise

The New York State Commission on Judicial Conduct has released the report on its activities in 2014.  The report contains extensive statistics (for example, the types of judges complained about) and comprehensive information about the Commission’s procedures and summarizes the its public cases (2 censures, 3 admonitions, and 7 stipulations to resign and never serve in judicial office) and private sanctions (23 private letters of dismissal and caution) issued in 2014.

As is its tradition, the New York Commission also includes “observations and recommendations” in its report, the only commission that does so.  The section discusses “topics of special note or interest that have come to [the Commission’s] attention in the course of considering complaints . . . for public education purposes, to advise the judiciary as to potential misconduct that may be avoided, and pursuant to its statutory authority to make administrative and legislative recommendations.”  The 2014 report discusses the Commission’s budget; fund-raising for charitable organizations (suggesting, for example, that judges should advise the leaders of a charitable organization “that they not use the judge’s name in fundraising appeals”); misleading judicial campaign advertisements (giving “fair notice” that “campaign materials phrased in a way to make it appear that a challenger already holds the particular office for which he or she is running” will “result in public discipline more readily than before”); and moving up the point at which disciplinary proceedings public.

The New York Commission is one of only 15 judicial discipline commissions that are required by law to keep confidential the formal complaints it may file after investigations and the fact-finding hearings it holds on those complaints.  The Commission has advocated more public access to its proceedings since 1978, and its arguments in favor of that reform, which it repeats in the 2014 annual report, are persuasive, not only for New York but for every jurisdiction.

The Commission emphasizes that confidential hearings are inconsistent with the “fundamental premise of the American system of justice, since the founding of the republic, that the rights of citizens are protected by conducting the business of the courts in public.”

Not only does the public have a right to know when formal charges have been [filed] by a prosecuting authority against a public official, but the prosecuting entity is more likely to exercise its power wisely if it is subject to public scrutiny.  A judge as to whom charges are eventually dismissed may feel his or her reputation has been damaged by the trial having been public.  Yet the historical presumption in favor of openness is so well established that criminal trials, where not only reputations but liberty are at stake, have been public since the adoption of the Constitution.

There are practical as well as philosophical considerations in making formal judicial disciplinary proceedings public.  The process of evaluating a complaint, conducting a comprehensive investigation, conducting formal disciplinary proceedings and making a final determination subject to review by the Court of Appeals takes considerable time.  The process is lengthy in significant part because the Commission painstakingly endeavors to render a determination that is fair and comports with due process.  If the charges and hearing portion of a Commission matter were open, the public would have a better understanding of the entire disciplinary process.  The very fact that charges had been served and a hearing scheduled would no longer be secret.

As it is, maintaining confidentiality is often beyond the Commission’s control.  For example, in any formal disciplinary proceeding, subpoenas are issued and witnesses are interviewed and prepared to testify, by both the Commission staff and the respondent-judge.  It is not unusual for word to spread around the courthouse, particularly as the hearing date approaches.  Respondent judges themselves often consult with judicial colleagues, staff and others, revealing the details of the charges against them and seeking advice.  As more “insiders” learn of the proceedings, the chances for “leaks” to the press increase, often resulting in published misinformation and suspicious accusations as to the source of the “leaks.”  In such situations, both confidentiality and confidence in the integrity of the disciplinary system suffer.

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