Joel Cohen

There are, astonishingly, more than 3,000 judges in New York state. Many of us in urban and suburban counties who typically deal with full-time judges might be surprised to learn that about two-thirds of this state’s judges are part-time—they serve in town and village courts in counties most of us have never visited or even heard of (unless we were unfortunate enough to have been issued a traffic ticket while driving upstate). Perhaps even more surprising, not all of this state’s 1,850 town and village judges are lawyers, or even educated as lawyers. Indeed, about 60 percent are not. Most of the judges in this state are elected; others are appointed by the governor or by other elected officials. Many are experienced; many are inexperienced; but all are entrusted with significant power to make decisions affecting our daily lives.

And power they have. There are business disputes, and fights with local government, for sure. But judges also deal with individuals, most often concerning very personal claims—discrimination, personal injuries, traffic issues (including whether to allow forfeiture of an automobile), disputes between neighbors, landlord/tenant issues, domestic relations, child custody. These are often the kinds of cases that most aggravate the disputants when the judge rules or seems to side against them. And that is just in civil court. Bail, hearings to suppress evidence, sentencing—imagine the decisions a judge must make in the criminal arena, often involving young people (someone’s child) or youthful offenders or substance abuse.

So what happens when litigants, or lawyers, appearing before a judge say to themselves “What just happened?” When the judge has acted in a way that the litigant or lawyer thinks is inappropriate—call it, non-judicial—they can make a complaint to the New York State Commission on Judicial Conduct. The Commission, too, may open an investigation if it learns on its own—maybe through the press, a social media post or a video that has gone viral—that a judge has acted inappropriately. The Court of Appeals has held every judge, whether admitted to the bar or not, to the same ethical standards.

With that standard in mind, the Commission reviews more than 2,000 complaints a year. Some of the complaints the Commission receives are meaningful and serious; some are baseless; many, frankly, are in between. But all need to be evaluated and considered. And—while this may be objectionable to some—the investigations are considered in private and the matter is never made public unless and until several things happen. There will first be a thorough investigation by the Commission’s executive staff at the direction of the Commission; the Commission will determine that there is a sufficient basis to authorize formal charges; the charges will be sustained after a full adversarial hearing before an independent referee; and, after a briefed argument heard before the Commission members, the Commission concludes that a public determination is warranted. Alternatively, after formal charges have been served, the parties may jointly stipulate as to facts and a recommended sanction, which is subject to the Commission’s approval. If the Commission determines that public discipline is warranted, a determination is filed with the Court of Appeals, and becomes public when the judge sees it. If the judge challenges the sanction determined by the Commission, it is the court that will ultimately decide the result.

The Commission’s annual report, which is posted on its website, is invaluable to understanding the nature and scope of the Commission’s work—the number of complaints received, the dispositions (judges can be privately cautioned before or after formal charges) and those instances where the Commission determines that a judge should be publicly censured, admonished or even removed from office.

So who makes up this Commission—who judges the judges? And isn’t that ultimately critical to how cases are handled? Appointments to the 11-member Commission are made by the governor, the chief judge of New York and the four legislative leaders. Each member serves a four-year term, and most of the 11 spots are specifically designated for either a judge (with specific requirements for an appellate division justice and a town or village court justice), a member of the bar who is not a judge or retired judge, or an individual who is not a lawyer or judge at all. And to be clear, no one who serves on this body is compensated for their work.

The process begins with an executive staff that is, bar none, the best I have worked with, headed by Administrator and Counsel Robert H. Tembeckjian, who supervises the Commission’s investigative, prosecutorial and administrative office, and by Clerk of the Commission Jean M. Savanyu, who reports independently to the Commission members. After the staff’s recommendations are made in detailed and often exhaustive memoranda and the Commission has authorized an investigation, the Commissioners thereafter review status reports on investigative developments, putting the brakes or, indeed, the gas pedal on subsequent steps based on the staff’s reports. Remember, the Commission is a body that includes sitting judges, who can often relate, favorably or unfavorably, to what confronted the accused judge (or her shortcomings in dealing with it), as well as lawyers and non-lawyers who bring a different perspective to the allegations under review. Because the Commission works as a body, there is no room for zealots to “push” investigations for idiosyncratic reasons or dabblers who wish to brush off complaints just because they somehow empathize with the accused.

Do the Commissioners always agree? Frequently but not always, and there are sometimes vigorous, confidential debates over the complaints and cases resulting from them. And while it might have been, on occasion, excruciating to listen to an extended debate about what seemed to be a minimal point that had caught the attention of one of 11 independently-minded Commissioners, I acknowledge that others must have found me equally excruciating when I latched onto a “nit.” But I have found, unfailingly, that each and every one of the members asked their questions, made their points and argued (however politely) because they (we) were seeking to get the rulings and decisions just right.

While someone in public life under investigation—you know who I mean—likes to use the word “witch hunt” to describe an investigation focused on him, I found no such hunts at the Commission—and no politics involved in the process. Members will routinely recuse themselves if they have close ties with, or had dealings with the judge under scrutiny, or if there might be even the appearance of a conflict. The Commission looks at each case on its merits, and while misconduct complaints are often sui generis, the Commission tries to act consistently in enforcing broadly-worded ethical standards.

The system isn’t perfect—none is.  And there are real questions about the procedure itself. For example, a proceeding will be private unless the judge is to be publicly sanctioned or—which has occurred on extremely rare occasions—the judge chooses to waive confidentiality while the matter is pending. Should the public be told when there is a complaint and the Commission decides not to proceed, or if the Commission decides that a judge’s misconduct is marginal and in light of her years of unblemished service the judge deserves only a private warning? As it stands, these decisions are not publicly reported.

The Commission can recommend that a judge be censured or removed. Nothing in between. Shouldn’t the Commission be permitted to recommend a suspension, a removal for a period of time? And should the Commission’s power to discipline end if a judge resigns (or agrees to not run again if her term is about to expire) upon learning that charges have been brought, so she can avoid the potential bad publicity by walking away? The current answer to that is mixed—the Commission has authority to continue proceedings against a judge who resigns for 120 days after the resignation, but only to file a determination of removal. When judges leave office for other reasons—e.g., because the judge’s term expired, or the judge was not re-elected—the Commission has no authority to discipline.

And who should pay the legal fees incurred by a judge who it is determined did nothing wrong, or even if she did do wrong? The answer to that currently is that judges will not be indemnified for the cost of defending themselves. As in criminal proceedings, does the prospect of having to pay legal fees force a judge to “plead guilty” as it were, by forcing her to accept the Commission’s recommendation and admit misconduct? This is an important issue, and I’m not altogether sure where I might come out on it.

Now that my second term on the Commission is over, having ended last week, and the new guy has taken my seat at the table, I am suddenly unchained from the restraints of being part of an institution. And in my emancipation, I can honestly say that I never observed, in my eight years on the Commission, a judge (or a complainant) who was shortchanged or given short shrift (people who know me know I would say so if I felt otherwise). Everyone was given a fair shake by both the executive-staff investigators and the Commission itself. The Commission’s biggest fault: spending too much time sometimes trying to get every single issue and matter right. Not nearly a fault at all.

Joel Cohen served two four-year terms on the Commission on Judicial Conduct from 2010 until March 31, 2018. He is of counsel at Stroock & Stroock & Lavan, and is the author of “Blindfolds Off: Judges On How They Decide” (ABA Publ., 2014).