Richard Emery

A word to the wise if the Commission on Judicial Conduct is investigating you: As you get on the elevator when you leave the Commission’s offices, don’t say, “This place is a f*****g clown show.” Matter of Terrence C. O’Connor, Comm. Determination (“Determination”), p. 5, fn. 3..

It might also behoove any judge in the crosshairs of the Commission to focus on the importance of walking the delicate line between a vigorous, aggressive defense, to which all judges are entitled by New York Court of Appeals’ precedent (see Matter of Kiley, 74 N.Y.2d364, 370-71 (1989); Matter of Hart, 7 N.Y.3d 1, 11 (2006)) and due process, and the temptation to be arrogant, hyper-technical or obfuscatory.

The recent removal of Civil Court Judge Terrence C. O’Connor, upheld by the Court of Appeals, makes the case in point. Matter of O’Connor, 2018 NY Slip Op 06852 (2018). What a review of the Commission Determination and the Court of Appeals’ opinion reveals is that Judge O’Connor would likely not have been removed but for his abysmal behavior in the face of the Commission’s efforts to investigate accusations of conduct that, by itself, would have a resulted in a lesser sanction.

Walking a Fine Line

Neither the Commission nor the Court of Appeals demands obsequiousness from judges investigated or even charged with misconduct. Indeed, the Court of Appeals has stated: “A judge need not adopt a posture of obeisance before the Commission or this Court.” Matter of Hart, 7 N.Y.3d at 11. Every judge gets respect for vigorously defending herself, as long as the judge does so while giving respect to the investigatory agency and process. This is no mystery. But for understandable, yet self-destructive, reasons worth exploring, some judges sabotage their best interests by refusing to cooperate and behaving obnoxiously in this unpleasant process. Judge O’Connor’s travail captures the pitfalls of failing to heed this delicate balance.

The O’Connor Case

The complaints against Judge O’Connor focused solely on behavior on the bench. Notably, except for flagrant abuses of power or violations of fundamental rights, on-bench behavior seldom results in removal. E.g., Matter of Hart, 7 N.Y.3d 1 (2006) (judge held a litigant in summary contempt because his lawyer insisted on making a record of an out-of-court encounter between the litigant and the judge) (censure); Matter of McLeod (2012) (judge used vulgar language to a defendant and convicted him without a guilty plea or trial) (admonition); Matter of Caplicki (2007) (judge made demeaning, inappropriate comments in court about a female attorney) (censure); Matter of Carter (2006) (judge left the bench to confront a defendant in the well of the courtroom and “appeared on the verge of initiating a physical confrontation”; in another case, he appeared to urge an officer to beat a defendant) (censure); Matter of Dye (2003) (after engaging in a contentious dialogue with a lawyer, judge asked the lawyer if he was Jewish; in another case he made inappropriate comments about the Catholic Church) (censure); Matter of Smith (1998) (judge repeatedly made “quips” that appeared to minimize charges and remarks that created the appearance of bias) (censure); Matter of Going (1997) (judge twice referred to a litigant as “nuts”) (admonition); Matter of Mahon (1996) (judge told a woman who came to court to pay her son’s fine that he did not want “mom or dad” to pay the fine and called her a “god-damn, interfering, middle-aged bitch” and her son a “stupid shit”) (censure); Matter of Ain (1992) (in a pre-trial conference, judge made inappropriate comments to an attorney of Arabic ancestry) (censure).

Judge O’Connor was accused of mistreating two lawyers who said “okay” after their witnesses’ answered even after the judge had warned them not to do so because, in the judge’s view, it signaled approval of the responses and thus was “leading.” Repeated “okays” led the judge to strike testimony in both cases that, in turn, resulted in dismissal of the lawyers’ cases. (In both cases the plaintiff was able to re-file. Determination, pp. 7, 9.)

In other cases, Judge O’Connor repeatedly subjected lawyers to harsh personal criticisms and insults in front of their clients. He made a series of insulting comments to one lawyer, culminating in telling her, “Maybe you should do something right for a change instead of just apologizing all the time, okay, counsel.” He told still another lawyer, after several nasty comments, “Is there some course in law school now, how to be discourteous and how to be rude? Because if there is, you must have gotten an A in it.” Determination, p. 11. Finally, in several cases, the judge granted counsel fees without either a request or hearing.

As bad as this behavior sounds, many judges have indulged their reactivity to lawyers and parties in ways that are far worse. Yet, the Commission and the Court of Appeals have rarely removed judges for even nasty, egregious behavior on the bench. See supra.

Judge O’Connor’s Failure to Cooperate

But the coup de grace for Judge O’Connor was his reaction to the Commission investigation and charges. Significantly, in the Commission Determination, the first charge is Judge O’Connor’s failure to cooperate. The Commission findings comprise a litany of gamesmanship and aggressive actions. During the investigation stage, the judge asserted his lawyer’s illness and subsequent death to delay for several months his appearance to testify under oath. Commission staff, after providing the judge with full discovery and several adjournments, eventually warned him that he would be charged with non-cooperation if he did not appear as scheduled. When he finally did appear, he came without a lawyer, refused to take an oath, and claimed he could not testify since he was unable to get records of his case from his deceased lawyer’s estate because an executor had not yet been appointed. (Departing the Commission office after that visit, Judge O’Connor made the above quoted “clown show” comment as he was entering the elevator. The Commission’s Determination quotes the comment but says that it did not consider this statement in making its decision (p. 5, fn. 3)). Then, given yet another adjournment and opportunity to testify, he sent a letter declining to appear and accusing the Commission’s Deputy Administrator of “blatant lies.”

After charges were served, Peter Bienstock, the Commission referee, gave Judge O’Connor every opportunity to cooperate in the proceedings, but the judge, still unrepresented but professing to want counsel, balked and stalled at every turn. He declined to participate in a pre-hearing conference by telephone because, he said, he was “not comfortable” speaking with the Commission staff. He also declined to communicate by email through his court email account because, he said, it was controlled by the Office of Court Administration. And he refused to provide another email address, asserting that he would only communicate with the staff and referee “in writing.” Comm Ex. 43.

After the referee scheduled a hearing to commence in six weeks, he reminded the judge that there was still ample time for him to retain a lawyer if he wished and warned him that “[t]his issue should not and will not cause delay of the hearing.” Comm. Ex. 45. Nonetheless, four days before the hearing, a lawyer made a request on the judge’s behalf for a three-month adjournment, which the referee denied. The judge did not appear at the hearing, claiming in a letter that was received after the hearing that he did not receive notice of the scheduled dates in the form required by statute. (He never claimed that he was unaware of the hearing dates, which his responses revealed he clearly knew.) He also did not appear at a later hearing scheduled by the referee to determine whether he had received notice; instead, he accused the referee of “acting in concert with the Commission’s attorneys to deprive me of my Constitutional Due Process rights.” He then ignored an offer to re-open the hearing. And he did not file a brief with the referee or appear for oral argument before the Commission.

The Commission Determination

The Commission’s Determination captures the crux of its quandary:

“[T]he Commission must balance two crucial interests: safeguarding the rights of judges to due process and the opportunity to present a defense to charges that can significantly impact their careers, and protecting the public interest in expeditiously investigating and sanctioning judicial misconduct, so as to ensure that the legal system operates in a fair and impartial manner. This difficult balancing act is made impossible when judges flout the Commission’s efforts, refuse to cooperate with its investigative proceedings, and engage in tactics clearly intended to hinder proper fact-finding. That is precisely what occurred in this case.”

Determination, p. 23.

What it left out is what Commission Chair Joseph Belluck and member Joel Cohen say in their concurring opinion:

“[R]espondent’s conduct in defying the Commission is hard to abide, but also hard to understand. Why did a long-tenured judge, who clearly knows better, set out on a campaign that is contemptuous of—indeed, to essentially ignore—the statutory authority of the Commission to require him to adhere to the rules, regulations and practices of the Commission?

Concurrence, p. 1 (emphasis in original).

Invoking rhetorical understatement, the concurring members say: “[I]t is quite possible that the Commission staff would not have sought respondent’s removal were it not for his resisting the many efforts of the Commission to gain his mandated cooperation … .” Id. The Commission’s attorney conceded as much when asked by Mr. Cohen at the oral argument what sanction he would be seeking absent the judge’s failure to cooperate: “[I]t was certainly a censure even without the Charge I.” Oral argument, p. 17.

With more than a hint of irony, the concurrence concludes: “[H]e must be treated with the same severity as would any litigant appearing before him … .” Concurrence, p. 2. Though I am not at all sure that he should be treated the same way he treated lawyers and litigants, we get the point.

Court of Appeals’ Affirmance

The Court of Appeals affirms but diverges somewhat from the Commission’s take on the case. The court places primary emphasis on the judge’s “sustained pattern of inappropriate behavior” on the bench and views his failure to cooperate as “significantly compound[ing]” his on-the-bench misconduct. Matter of O’Connor, 2018 NY Slip Op 06852 at p. 6. Notably, before even discussing his failure to cooperate, the court describes the standard of “egregious circumstances” that warrant removal in the context of this judge’s courtroom misconduct. Id. In fact, the way the court frames this portion of the opinion may portend a lower bar for future removals for misconduct on the bench.

Then, rather than describing the specifics of Judge O’Connor’s truculent behavior throughout the Commission’s proceedings, the court emphasizes the institutional imperative of respecting the Commission’s authority and function:

“Public confidence in the integrity of the judiciary has long been recognized as essential to its vitality as well as our overall system of government (see generally United States v Lee, 106 US 196, 223 [1882]). If the public trust in the judiciary is to be maintained, as it must, those who don the robe and assume the role of arbiter of what is fair and just must do so with an acute appreciation both of their judicial obligations and of the Commission’s constitutional and statutory duties to investigate allegations of misconduct (see NY Const, art VI, § 22; Judiciary Law, article 2-A). In short, willingness to cooperate with the Commission’s investigations and proceedings is not only required—it is essential.”

Id. at 8.

As the Belluck/Cohen concurrence for the Commission notes, the O’Connor case is a head-scratcher. The judge obviously reveled in his job, its powers and authority. Why would he give it up by being blatantly uncooperative and aggressively obnoxious in his defense? The Commission’s decision hints at one explanation for his lack of cooperation, suggesting that it was a “strategic,” “calculated attempt to delay the disciplinary proceedings,” perhaps in view of the impending expiration of his term of office. Determination, pp. 22, 23, 2. Or perhaps the original complaints against him provide a more instructive answer: His imperiousness infected his personal behavior and judgment, not only his courtroom demeanor. In some cases, judicial power can become a runaway train of heady self-indulgent excess that manifests itself by a judge doing violence to rules that he believes only apply to others.

What is clear from the O’Connor case is that whether a judge can get away with bullying or abusive conduct on the bench is no measure of whether those same tactics will succeed when the Commission investigates the judge’s actions. All of a judge’s considerable powers on the bench are of little consequence when the Commission exercises its constitutional and statutory power to conduct an investigation. Clearly, a vigorous defense is fine. But it has to be professional, non-defensive and ultimately judicious in its approach to the Commission or it will fail the “difficult balancing act.”

Richard Emery is a founding partner of Emery Celli Brinckerhoff & Abady and a civil rights and commercial litigator. He served on the Judicial Conduct Commission from 2004 until 2017.