New York State Bar Recommends A Softer Approach To Judicial Discipline

In other words, let our judges harm the people of New York State, and stop getting in their way (not that judicial discipline happens at all, anyway)

Betsy Combier

January 28, 2011
New York Bar Seeks Limits on Investigations of Judges
By WILLIAM GLABERSON

The New York State Bar Association recommended on Friday that the state adopt sweeping changes in the judicial-discipline system that could make it more difficult for judges to be removed from the bench. The 77,000-member bar association has no legal authority, but its action is expected to begin a contentious battle over the issue in Albany.

Critics had said that the proposal, put forth by a Manhattan lawyers group, the New York County Lawyers Association, was framed to help judges facing charges and did not reflect the views of the public.

But at its annual meeting in Manhattan, the state bar association, through its House of Delegates, accepted many parts of the proposal, effectively promising to work for changes in state law. Some of the recommendations would require legislation or amendments to the State Constitution.

The broadly framed proposal would divide the state agency that investigates judges, the New York State Commission on Judicial Conduct, into two parts, one to prosecute judges and one to rule on the charges.

It would also give judges early notice of investigations, would permit them to question investigators’ witnesses before any hearing and would add new limits on how much the commission could expand an investigation after an initial complaint. The bar association also called for the state to pay for lawyers for judges who are charged with misconduct.

The judicial conduct commission investigates about 250 judges a year, and it publicly disciplined 15 judges last year. There are about 3,500 full- and part-time judges in the state.

During a debate on Friday in the 298-member House of Delegates, some delegates said they knew of no problem with New York’s current judicial-discipline system, but for others, “it’s very important that we support our judges,” as one delegate put it.

Dennis R. Hawkins, a delegate who is the executive director of the Committee for Modern Courts, a group that has focused on court issues for decades, noted that the proposal made no mention of a decades-old recommendation that judicial discipline hearings be open to the public. The hearings are secret under state law, and many judges favor keeping them closed.

James B. Kobak Jr., the president of the New York Country Lawyers’ Association, said his group would study the secrecy requirement.

The president of the state bar association, Stephen P. Younger, said changes in the judicial discipline procedure were needed “to protect those who are charged unfairly.”

But Robert H. Tembeckjian, the administrator of the judicial conduct commission, said the commission would oppose the proposed changes. He said that if they were adopted it “would be harder to investigate and discipline judges who have committed misconduct.”

Mr. Tembeckjian was at the bar association meeting on Friday, at the Hilton New York. But he was not permitted to address the meeting. He said it was “absurd that they would not let me speak.” But Mr. Younger said the commission’s views had been considered and the association “followed its standard procedure” in hearing only from its own delegates.

Still, during the debate, the Manhattan lawyers’ group backed down on two divisive proposals.

The association withdrew a proposal to require “clear and convincing evidence” to prove judicial misconduct and dropped a proposal that would have required investigators to “accord judges the highest degree of respect” when looking into misconduct.

Instead, the delegates passed a provision that would merely suggest that everyone involved with judicial-conduct investigations “treat each other with respect.”

The Manhattan lawyers’ association agreed to the change after a New York City lawyer, Mark H. Alcott, suggested it during the debate.

Mr. Alcott, a former state bar association president, said proposing that investigators must treat judges with the highest degree of respect “could cause a perception problem,” making it appear that the lawyers’ group wanted favorable treatment for judges.