2018 Annual Conference Niagara Falls, New York

Judicial Ethics and Disciplinary Issues

September 25, 2018 Presented by: This program has been approved for credit in New York State Robert H. Tembeckjian, Esq. for all attorneys including those who are Hon. Michael Mohun Newly Admitted (less than 24 months) and adminstered by 2.0 MCLE Ethics the Onondaga County Bar Asssociation.

JUDICIAL ETHICS AND DISCIPLINARY ISSUES ♦♦♦ NEW YORK STATE MAGISTRATES ASSOCIATION

ANNUAL MEETING ♦ SEPTEMBER 25, 2018 ♦ NIAGARA FALLS, NY ♦♦♦ HON. MICHAEL M. MOHUN, JUDGE COUNTY COURT, WYOMING COUNTY ROBERT H. TEMBECKJIAN, ADMINISTRATOR COMMISSION ON JUDICIAL CONDUCT ♦♦♦ PART I: CURRENT ISSUES IN JUDICIAL ETHICS & DISCIPLINE

NY Times & LA Times Articles on the Judicial Independence 1 Recall of Judge Aaron Persky1

Removal Determination as to Rochester What Takes So Long? 2 City Court Judge Leticia Astacio2

Bill to Expand Suspension Authority, Proposed Legislation 3 Accelerate/Open Commission Proceedings3

PART II: HOW TO AVOID THE JUDICIAL CONDUCT COMMISSION

4 Overview of Commission 4 Slide Show 5 An Overview of the Commission5

Undue Delays 6 Gilpatric6

Civility/Demeanor 7 Romano7

Failing to Cooperate 8 O’Connor8

Audit & Control; Staff Supervision 9 Roller,9 Halstead10

Driving While Intoxicated 10 Landicino,11 Astacio12

Ex Parte Communications 11 Young,13 Ayres14

Asserting Prestige of Office 12 LaBombard,15 Ayres16

CONSULT THE ADVISORY COMMITTEE ON JUDICIAL ETHICS17 AND THE CITY, TOWN AND VILLAGE COURTS RESOURCE CENTER18

1 Appended 2 http://cjc.ny.gov/Determinations/A/Astacio.htm 3 Appended 4 http://cjc.ny.gov/General.Information/SCJC.SlideShow.pdf 5 Appended 6 13 NY3d 586 (2009) 7 93 NY2d 161 (1999) 8 http://cjc.ny.gov/Determinations/O/OConnor2.htm 9 http://cjc.ny.gov/Determinations/R/roller.htm 10 http://cjc.ny.gov/Determinations/H/Halstead.htm 11 http://cjc.ny.gov/Determinations/L/Landicino.htm 12 http://cjc.ny.gov/Determinations/A/Astacio.htm 13 19 NY3d 621 (2012) 14 30 NY3d 59 (2017) 15 11 NY3d 294 (2008) 16 30 NY3d 59 (2017) 17 http://www.nycourts.gov/ip/acje/index.shtml 18 http://www.nycourts.gov/courts/townandvillage/

NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT

Robert H. Tembeckjian has been Administrator and Counsel to the New York State Commission on Judicial Conduct since 2003 and has been on the staff of the Commission since 1976. He received an A.B. from Syracuse University, a J.D. from the Fordham University School of Law, and an M.P.A. from Harvard University’s Kennedy School of Government. He was a Fulbright Scholar to Armenia in 1994, teaching graduate courses and lecturing on constitutional law and ethics at the American University of Armenia and Yerevan State University. Mr. Tembeckjian served on the Advisory Committee to the American Bar Association Joint Commission to Evaluate the Model Code of Judicial Conduct from 2003 to 2007 and served on the editorial board of the Justice System Journal, a publication of the National Center for State Courts. He has also served on various ethics committees of the New York State Bar Association and the New York City Bar Association and on the boards of the Association of Judicial Disciplinary Counsel, the Westwood Mutual Funds, the United Nations International School, and the Civic Education Project.

New York State Commission on Judicial Conduct 61 Broadway ♦ Suite 1200 New York, New York 10006 www.cjc.ny.gov 7/3/2014 Judicial Directory: Judge Bio

Judicial Directory

JUDGES OF THE TRIAL COURTS

Hon. Michael M. Mohun

Wyoming County Supreme Court 147 Main Street Warsaw, NY 14569 (585) 786-3148 ext. 126

Judicial Offices

Judge, County Court, Wyoming County (Multi-Bench:County, Surrogate's, Family), Elected, 2014 to 2023

Acting Village Justice of Warsaw , Wyoming County, 2003 to 2004

Acting Tow n and Village Justice of Perry, Wyoming County, 2002 to 2002

Tow n Justice of Bennington, 1998 to 2005

Other Professional Experience

Sole Practitioner

Brow n & Mohun, Partner

Mohun and Killelea, Partner

Admission to the Bar

NYS, Appellate Division, Fourth Department, 1981

Education

J.D., University of Buffalo Law School, 1980

B.A., SUNY at Buffalo, 1976

Professional & Civic Activities

Board Member, Attica Central School Board Member, 2011 to 2012

Presenter, NYS Bar Association Continuing Legal Education Programs, 2009 to Present

Presenter, Erie Institute of Law Continuing Legal Education Programs, 2009 to Present

Board of Directors, NYS Association of Criminal Defense Attorneys, 2010 https://iapps.courts.state.ny.us/judicialdirectory/Bio?JUDGE_ID=aW4LHEGWXY3vZ1CCfEKSCg%3D%3D 1/2 7/3/2014 Judicial Directory: Judge Bio Empire State Counsel Honoree, NYS Bar Association

Member, NYS Bar Association Criminal Justice Section, executive Committee, 2008 to 2011

Member, NYS Bar Association Special Committee on Procedures for Judicial Discipline, 2005 to 2011

Member, Eighth Judicial District Attorney Grievence Committee; Vice Chairman (2004-2009); Chairman (2009-2010)

Instructor, Tow n and Village Justice OCA Continuing Education Program, 2003 to Present

Board of Directors, University of Buffalo Law School Alumni Association

Coordinator, Wyoming County Mock Trial Team, 2006 to 2013

Advisor, Attica High School Mock Trial Team, 1987 to 2005

Life Fellow of NYS Bar Foundation, 2001 to Present

Member, NYS Bar Association House of Delegates, 2001 to 2002

Secretary/Treasurer, Wyoming County Magistrates Association, 1999 to 2001

President, Wyoming County Bar Association, 1998 to 2001

Web page updated: July 03, 2014

https://iapps.courts.state.ny.us/judicialdirectory/Bio?JUDGE_ID=aW4LHEGWXY3vZ1CCfEKSCg%3D%3D 2/2

California Voters Remove Aaron Persky, the Judge Who Gave a 6- Month Sentence for Sexual Assault

By Maggie Astor June 6, 2018

Aaron Persky, the California judge who drew national attention in 2016 when he sentenced a Stanford student to just six months in jail for sexually assaulting an unconscious woman, was recalled on Tuesday, according to The Associated Press. He is the first judge recalled in California in more than 80 years.

Judge Persky, 56, had served on the Santa Clara County Superior Court since 2003, and he began his most recent six-year term in June 2016.

In March 2016, a jury found Brock Turner, then 20, guilty on all three felony charges against him: sexual penetration with a foreign object of an intoxicated person, sexual penetration with a foreign object of an unconscious person, and intent to commit rape. The charges stemmed from Mr. Turner’s actions the year before, when he sexually assaulted a woman near a dumpster after she had blacked out from drinking.

The maximum sentence was 14 years. Judge Persky sentenced Mr. Turnerto six months, of which he served three before being released in September 2016. (Mr. Turner also received three years of probation and was required to register as a sex offender, and Stanford expelled him.)

The judge said he thought Mr. Turner would “not be a danger to others” and expressed concern that “a prison sentence would have a severe impact” on him. He did not mention the impact of the assault on the victim, known publicly only as Emily Doe, who described her suffering in a more than 7,000-word statement that went viral soon after it was published by BuzzFeed. The CNN host Ashleigh Banfield devoted more than 20 minutes of airtime to reading it almost in its entirety.

The sentence, and the backlash to it, prompted California lawmakers to enact mandatory minimum sentences in sexual assault cases, and to close a loophole in which penetrative sexual assault could be punished less harshly if the victim was too intoxicated to physically resist. Judge Persky was later cleared of any official misconduct.

Talk of a recall campaign began almost as soon as Judge Persky handed down his sentence, and early this year, the Santa Clara County registrar announced that supporters of a recall — led by Michele Dauber, a law professor at Stanford whose daughter is friends with Emily Doe — had collected enough signatures to put the question on Tuesday’s ballot. Among the effort’s most prominent backers were Anita Hill and Senator Kirsten Gillibrand of New York.

In a statement filed with the county registrar, Judge Persky — who previously worked as a prosecutor — said he had a legal and professional responsibility to consider alternatives to imprisonment for first-time offenders.

“As a judge, my role is to consider both sides,” he said in the statement. “It’s not always popular, but it’s the law, and I took an oath to follow it without regard to public opinion or my opinions as a former prosecutor.”

The campaign against Judge Persky caused discomfort even among some Californians who disagreed with the controversial sentence. They argued that recalling him would have a chilling effect on judicial independence, making other judges reluctant to be lenient in cases where leniency might be appropriate.

Follow Maggie Astor on Twitter: @MaggieAstor.

Recall of judge in Stanford swimmer sex assault case is first since 1932 By MAURA DOLAN and SHELBY GRAD JUN 06, 2018 | 7:45 AM

California voters made history Tuesday, recalling a judge for the first time since 1932.

Santa Clara County Judge Aaron Persky was tossed from office, the latest legacy from the Brock Turner case. Turner was a swimmer convicted of sexual assault. Persky’s sentencing of Brock stirred national outrage, and the recall effort.

Q: What was the Turner case about?

Turner attacked an unconscious woman behind a garbage bin on the Palo Alto university's campus in January 2015.

At his sentencing, the Ohio native faced up to 14 years in prison. Prosecutors sought a six-year prison term.

Persky opted for the lighter prison term and also sentenced Turner to three years of probation. At the time, he said a lengthier penalty would have a "severe impact" on Turner.

Public criticism of the sentence escalated when the unidentified victim's 12-page, single- spaced letter that she read aloud in court went viral after it was published by the media. She excoriated the judge for giving Turner "a soft time-out, a mockery of the [seriousness] of the assaults."

"The seriousness of rape has to be communicated clearly, we should not create a culture that suggests we learn that rape is wrong through trial and error," she wrote. "The consequences of sexual assault needs to be severe enough that people feel enough fear to exercise good judgment even if they are drunk, severe enough to be preventative."

Amid uproar, Persky, who was appointed to the bench by Gov. in 2003, later voluntarily moved to civil court.

Q: How were battle lines divided in the recall?

The legal community has largely opposed the recall, calling it a threat to judicial independence.

More than 90 California law professors, including 20 from Stanford’s law school, have signed a statement opposing it. They say it will encourage judges to give tougher sentences and perpetuate mass incarceration.

Stanford law professor Michele Landis Dauber, who is a family friend of the victim in the Turner case, was the public face of the recall.

Recall proponents accuse Persky of being easy on criminals who come from privileged backgrounds in sexual assault and domestic violence cases.

Instead of seeing Turner as “a calculated, lying, unrepentant sex predator,” Dauber said, Persky, “refracted through the lens of privilege, sees a good kid who made a mistake.”

Persky said in an interview with The Times that he was concerned about the chilling effect a successful recall would have.

“I think it is critical to prevail because if the recall wins, it is sort of a blueprint for judicial recalls in the future,” Persky said.

Q: What is the legacy of Turner case?

The Turner case sparked much discussion — and some legal changes — on how courts deal with sexual assault.

In 2016, Gov. Jerry Brown signed bill broadened the power of judges to treat sex crimes as rape at sentencing and agreed that the crime’s punishment must include time in state prison.

Backers said the harsher consequences for sex crimes help strengthen a criminal justice system that often fails and places blame on victims.

But some crime victim advocates and associations said the new laws will disproportionately affect poor and minority defendants who receive little or no legal representation.

6/6/2018 New York State Assembly | Bill Search and Legislative Information A10112 Text:

STATE OF NEW YORK ______

10112--A

IN ASSEMBLY

March 15, 2018 ______

Introduced by M. of A. KOLB -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee

AN ACT to amend the judiciary law, in relation to investigations of the state commission on judicial misconduct and authorizing the removal of judges who are convicted of certain misdemeanor crimes and/or parole violations

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. Section 44 of the judiciary law is amended by adding a new 2 subdivision 2-a to read as follows: 3 2-a. If the commission initiates an investigation based upon a felony 4 or misdemeanor conviction of a judge, the commission is required to 5 provide a written determination within one hundred twenty days of the 6 start of the investigation recommending that the court of appeals either 7 admonish, censure, suspend or remove a judge or justice from office, 8 unless the commission dismisses the complaint in its entirety. 9 § 2. Subdivision 4 of section 44 of the judiciary law, as added by 10 chapter 156 of the laws of 1978, is amended to read as follows: 11 4. If in the course of an investigation, the commission determines 12 that a hearing is warranted it shall direct that a formal written 13 complaint signed and verified by the administrator be drawn and served 14 upon the judge involved, either personally or by certified mail, return 15 receipt requested. The judge shall file a written answer to the [the] 16 complaint with the commission within twenty days of such service. If, 17 upon receipt of the answer, or upon expiration of the time to answer, 18 the commission shall direct that a hearing be held with respect to the 19 complaint, the judge involved shall be notified in writing of the date 20 of the hearing either personally, at least twenty days prior thereto, or 21 by certified mail, return receipt requested, at least twenty-two days 22 prior thereto. Upon the written request of the judge, the commission 23 shall, at least five days prior to the hearing or any adjourned date 24 thereof, make available to the judge without cost copies of all docu- 25 ments which the commission intends to present at such hearing and any

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15082-02-8

http://www.assembly.state.ny.us/leg/?default_fld=&leg_video=&bn=A10112&term=&Summary=Y&Actions=Y&Text=Y 2/3 6/6/2018 New York State Assembly | Bill Search and Legislative Information A. 10112--A 2

1 written statements made by witnesses who will be called to give testimo- 2 ny by the commission. The commission shall, in any case, make available 3 to the judge at least five days prior to the hearing or any adjourned 4 date thereof any exculpatory evidentiary data and material relevant to 5 the complaint. The failure of the commission to timely furnish any docu- 6 ments, statements and/or exculpatory evidentiary data and material 7 provided for herein shall not affect the validity of any proceedings 8 before the commission provided that such failure is not substantially 9 prejudicial to the judge. The complainant may be notified of the hearing 10 and unless he or she shall be subpoenaed as a witness by the judge, his 11 or her presence thereat shall be within the discretion of the commis- 12 sion. The hearing shall [not] be public [unless the judge involved shall 13 so demand in writing]. At the hearing the commission may take the 14 testimony of witnesses and receive evidentiary data and material rele- 15 vant to the complaint. The judge shall have the right to be represented 16 by counsel during any and all stages of the hearing and shall have the 17 right to call and cross-examine witnesses and present evidentiary data 18 and material relevant to the complaint. A transcript of the proceedings 19 and of the testimony of witnesses at the hearing shall be taken and kept 20 with the records of the commission. 21 § 3. Paragraphs (b) and (c) of subdivision 8 of section 44 of the 22 judiciary law, as added by chapter 156 of the laws of 1978, are amended 23 to read as follows: 24 (b) Upon the recommendation of the commission or on its own motion, 25 the court may suspend a judge or justice from office when he is charged 26 with a crime punishable as a felony under the laws of this state, or any 27 other crime which involves moral turpitude. Crimes involving moral 28 turpitude, for the purposes of this subdivision, shall be defined as a 29 misdemeanor or felony that reflects adversely on the judge's honesty, 30 trustworthiness or fitness; any violation of the terms of probation or 31 post-release supervision from a prior felony or misdemeanor conviction; 32 and/or any willful repeated misconduct. The suspension shall continue 33 upon conviction and, if the conviction becomes final, he shall be 34 removed from office. The suspension shall be terminated upon reversal of 35 the conviction and dismissal of the accusatory instrument. 36 (c) A judge or justice who is suspended from office by the court shall 37 not receive his or her judicial salary during such period of suspen- 38 sion[, unless the court directs otherwise. If the court has so directed 39 and such suspension is thereafter terminated, the court may direct that 40 he shall be paid his salary for such period of suspension]. 41 § 4. This act shall take effect immediately.

http://www.assembly.state.ny.us/leg/?default_fld=&leg_video=&bn=A10112&term=&Summary=Y&Actions=Y&Text=Y 3/3

OVERVIEW OF THE NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT

♦♦♦

HON. MICHAEL M. MOHUN Wyoming County Court Judge 147 North Main Street Warsaw, New York 14569 (585) 785-3148, Ext. 126 [email protected]

and

ROBERT H. TEMBECKJIAN Administrator & Counsel NYS Commission on Judicial Conduct 61 Broadway, Suite 1200 New York, New York 10006 (646) 386-4800 [email protected]

♦♦♦

Annual Meeting NY State Magistrates Association Niagara Falls, New York September 2018 The New York State Commission on Judicial Conduct is the independent agency designated by the State Constitution to review complaints of misconduct against judges and justices for the State Unified Court System. Article VI, Section 22, of the Constitution allows that:

A judge may be admonished, censured or removed for cause, including but not limited to misconduct in office, persistent failure to perform his duties, habitual intemperance, and conduct on or off the bench, prejudicial to the administration of justice; or retired for mental or physical disability preventing the proper performance of his judicial duties.

See also 22 NYCRR 7000.9, which states that:

In evaluating the conduct of judges, the Commission shall be guided by (1) the requirement that judges uphold and abide by the Constitution and laws of the United States and the State of New York and (2) the requirement that judges abide by the Code of Judicial Conduct, the Rules of the Chief Administrator and the rules of the respective Appellate Divisions governing judicial conduct. The Rules Governing Judicial Conduct may be found at 22 NYCRR 100 et seq.

100.1 A judge shall uphold the integrity and independence of the judiciary. 100.2 A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities. 100.3 A judge shall perform the duties of judicial office impartially and diligently.

100.4 A judge shall so conduct the judge’s extra-judicial activities as to minimize the risk of conflict with judicial obligations. 100.5 A judge or candidate for elective office shall refrain from inappropriate political activity.

The Commission consists of 11 individuals – judges, lawyers and lay people – appointed by the Governor, Chief Judge and leaders of the Legislature. The Commission maintains offices in Albany, Rochester and New York City, with a paid staff of 39½, including 15½ attorneys and 6 investigators. There are approximately 3,350 judicial positions in the Unified Court System, filled by approximately 3,100 individuals:

Types of Court and Approximate Number of Judges Serving in Such Courts 1 Town & Village 1850 2 City Court 400 3 County Court 130 4 Family Court 150 5 District Court 50 6 Court of Claims 70 7 Surrogate Court 64 8 Supreme Court 326 9 Appellate Division/Court of Appeals 61 TOTAL 3101

Town and village court justices comprise roughly 60% of the state’s judiciary, a majority of whom are not attorneys.

In 2017, the Commission received 2143 complaints (a record), as to which 605 preliminary inquiries (another record) were undertaken, i.e. clarification interviews, legal research, transcript review, etc. While 148 new investigations were conducted, 1995 complaints (93%) were dismissed on initial review or after preliminary inquiry, which does not involve communication with the judge. Of those investigated, 83 (56%) concerned town and village justices and 65 (44%) concerned the balance of the judiciary.

Proceedings are confidential, unless the judge waives confidentiality or the Commission renders a public disciplinary decision. See Judiciary Law Sections 44, 45. Complaints may be disposed of as follows:

• Dismissal. 22 NYCRR 7000.3(b) • Letter of dismissal and caution, containing contains confidential comments, suggestions and recommendations, made at the conclusion of an investigation. 22 NYCRR 7000.1(1), 7000.3(c)

• Letter of caution, containing confidential comments, suggestions and recommendations made at the conclusion of proceedings pursuant to a formal written complaint upon a finding that a judge's misconduct is established. 22 NYCRR 7000.l(m), 7000.7(d) • Admonition: a public disciplinary sanction. • Censure: a public disciplinary sanction • Removal from office: a public disciplinary sanction • Retirement for Disability: a public disposition A judge may enter into a stipulated resignation/retirement while a Commission inquiry or action is pending) The resignation terminates the Commission's and he judge promises not to seek or hold judicial office in the future.

Suspension. The Commission has no authority to suspend a judge, either while an inquiry is pending or as a final discipline. However, a judge may be suspended by the Court of Appeals while there is a pending determination for his/her removal or retirement, or where the judge is charged with a felony or an offense involving moral turpitude. Judiciary Law Section 44(8)(a), (b). A public discipline rendered by the Commission may either be accepted by the judge or reviewed by the Court of Appeals at the judge’s option. Judiciary Law Section 44(7). In 2017, the Commission rendered 16 public dispositions: 2 admonitions, 5 censures, 1 removal and 8 stipulated resignations.

ADVISORY COMMITTEE ON JUDICIAL ETHICS The Advisory Committee on Judicial Ethics, an entity of the Unified Court System, responds to inquiries from New York State judges regarding their prospective conduct. To request a judicial ethics opinion, please write to:

Advisory Committee on Judicial Ethics c/o Laura L. Smith, Chief Counsel 25 Beaver Street, Room 866 New York, New York 10004 (866) 795- 8343 (Phone) (212) 295-4881 (Fax)

A judge who relies upon a written advisory opinion of the Committee – based upon accurately presented facts – is presumed to have acted properly for purposes of a complaint received by the Commission on Judicial Conduct. See Judiciary Law Section 212(2)(1).

Principal Office Corning Tower, Suite 2301 61 Broadway, Suite 1200 400 Andrews Street, Suite 700 Empire State Plaza New York, New York 10006 Rochester, New York 14604 Albany, New York 12223 (646) 386-4800 (585) 784-4141 (518) 453-4600 www.cjc.ny.gov [email protected] Legal Authorities

Constitution: Art. 6, §22

Judiciary Law: §§40-48

Rules Governing Judicial Conduct: 22 NYCRR Part 100

Commission Operating Procedures & Rules: 22 NYCRR Parts 7000, 7001 Appointment to the Commission 11 Commission Members

• 1 must be a judge Governor • 1 must be a lawyer (appoints 4 members) • 2 must be non-lawyers

Chief Judge • 1 must be from Appellate Division (appoints 3 judge members) • 1 must be a town or village justice

Four Legislative Leaders • May be a lawyer or non-lawyer (each appoint one member) • May not be a judge or former judge Table of Organization

Commission Members

Clerk of the Administrator & Commission Counsel

Deputy Admin’r Deputy Admin’r Deputy Admin’r Deputy Admin’r Chief Administrative New York City Albany Rochester Litigation Officer

New York City Administrative Albany Office Rochester Office Office Staff Jurisdiction

The Commission has jurisdiction over 3,400 Judges and Justices of the State Unified Court System

No jurisdiction over: •Administrative Law Judges •Judicial Hearing Officers •NYC Housing Court Judges •Non -judges •Federal Judges Quick Overview of Complaint & Disciplinary Process Complaint received Initial review & inquiry by staff Commission reviews all complaints If Warranted: Investigation Formal charges filed against judge Due process proceedings Commission determination Review by Court of Appeals Confidentiality

Judiciary Law Sections 44 & 45 All proceedings are confidential unless: Judge waives confidentiality Commission determines to publicly discipline a judge Incoming Complaints

Staff analyzes incoming complaints, conducts initial review and inquiry where necessary (e.g. interviews, document review)

The Commission receives over 1,900 complaints per year 10-Year Overview of Complaints

2500 2143 2025 1923 1855 1959 1944 2000 1818 1785 1770 1767

1500

1000 641 605 499 471 439 464 460 477 469 420 500 354 257 170 262 225 182 172 177 145 179 177 148

0 1978 ~ 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

New Complaints (Left) Preliminary Inquiries (Center) Investigations (Right) Commission Review of Complaints

 Commission reviews all incoming complaints, including results of initial reviews & inquiries

Considers complaints on its own motion and directs Administrator to file complaint Disposition of New Complaints

Commission may:

Dismiss complaint Refer to another agency (e.g. attorney grievance committee, District Attorney) Authorize investigation, including testimony from the judge The Investigation

After Commission Authorizes Investigation

Judge’s testimony Witnesses may be taken interviewed; Judge may present subpoenas issued, information to records reviewed Commission reviews results of investigation Commission

Complaint closed Letter of Formal Complaint pursuant to Referral to stipulation. Judge Dismissal and Written dismissed or another agrees to vacate Caution to Complaint closed judicial office and agency never seek nor accept judge against judge judicial office in the future. Stipulation becomes public. Three Stages of a Formal Disciplinary Proceeding

The following three charts depict the various stages involved in resolving a Formal Written Complaint:

pleadings and motions evidentiary hearing or stipulated agreement oral argument and Commission determination Court of Appeals review Formal Written Complaints

Commission authorizes Formal Written Complaint (i.e. Charges)

Charges drawn & verified by Administrator; served on judge

Judge may move to Judge files Answer dismiss charges

Administrator & Administrator & Administrator judge may judge submit Commission or judge move stipulate to close Agreed appoints a for summary case if judge Statement of referee to determination; resigns; Facts for preside at Commission Commission must Commission hearing decides approve approval Formal Written Complaints

Stipulation Agreed Summary The Hearing Judge agrees to Statement of Determination  Referee presides vacate office and  Rules of evidence never seek nor Facts  Post -hearing briefs  If granted, accept judicial to referee Stipulates as to facts, Commission office in the  Referee files report misconduct, and may entertains written and future. w/ Commission include sanction oral argument as to The stipulation, Findings of fact If no sanction in sanction and decision and  Agreed Statement, Conclusions of law order closing the  Commission entertains Commission matter, become entertains written and public written and oral argument as to sanction oral argument on referee’s report, sanction

Stage Two Commission Renders Determination Formal Written Complaints

Stage Three Commission Determination

Letter of Dismissal of Private Caution Charges

Removal from Retirement Admonition Censure Office for Disability Public

Review by Court of Appeals New York State’s Highest Court (at request of disciplined judge) A Brief History

The following pages offer a brief history of the development of the Commission system in New York Before there was a Commission...

Court on the Judiciary

(Ad hoc court for discipline of higher court judges)

Appellate Divisions (Discipline of lower court judges)

No permanent judicial disciplinary staff, office or procedures Temporary Commission (1974)

1974: New York State Legislature created a Temporary State Commission on Judicial Conduct, with limited authority to investigate complaints and recommend action against judges for engaging in misconduct. The Commission’s authority was expanded by constitutional amendments in 1976 and 1978 (following pages).

1960: California is Today: All 50 first to create a states and the judicial disciplinary District of commission. Columbia have a judicial disciplinary commission of some sort. Constitutional Amendment (1976)

 9 Commission Members  Powers:  Investigate complaints  Privately Admonish Judges  Commence Hearings before Court on the Judiciary and Appellate Division  Courts decide whether to Censure, Suspend or Remove Judges from office 2nd Constitutional Amendment (1978)

 11 Commission Members instead of 9  Powers:  Investigate complaints  Conduct formal disciplinary hearings  Determine that a judge be publicly admonished, censured, removed from office, retired for disability  Decisions are final unless disciplined judge seeks review in Court of Appeals For More Information Please Visit the Commission’s Website: www.cjc.ny.gov