ALBANY – With a shot-across-the-bow warning that “drinking and driving offenses almost always should and will result in disciplinary action,” the Commission on Judicial Conduct is cautioning judges to confront alcohol-related problems before they result in embarrassing or career-ending punishment.
The judicial watchdog agency, in an annual report issued this week, said several judges have been sanctioned for drunken driving and the problem is “of such gravity and arises with sufficient regularity” as to warrant special attention.
Over the years, the commission has investigated numerous judges for alcohol-related offenses.
Just a few months ago, the panel censured Sloatsburg Village Justice Thomas Newman Jr. who was involved in an alcohol-related accident, then attempted to escape from police and refused to take a breath analysis test. Newman immediately began treatment for alcoholism (NYLJ, Jan. 8).
In its report, the commission said that it all too often “takes an arrest or other serious public event for a judge to seek treatment for alcoholism or alcohol-fueled behavior,” despite the availability of bar association programs to assist attorneys with drinking issues.
The commission, without endorsing any particular program, encouraged “all who need assistance to take advantage of the opportunities that exist, before the effects of alcoholism exhibit themselves in behavior that must be addressed in a disciplinary setting.”
It noted that commission administrator Robert Tembeckjian has given judges time to complete a treatment program before recommending action to the agency.
“The successful completion of such a program would not obviate public discipline, but depending on the severity of the alcohol-fueled misbehavior, it could mitigate the degree of discipline imposed,” the commission said in its report.
Also in the annual report, the commission reminded judges to think twice before writing letters of reference or recommendation.
In June, the commission admonished Appellate Division, Fourth Department, Justice Nancy Smith for advocating for the parole release of a man serving a sentence for vehicular manslaughter. It was the first time the commission had ever publicly disciplined an Appellate Division judge (NYLJ, July 1, 2013).
Smith used official stationery to urge the parole board to release an inmate she described as a “friend” and “good person.” In fact, Smith had never met the inmate, whose mother is a friend of one of the judge’s relatives.
The commission, in the report, said that while an “ordinary letter of reference or recommendation” may be permissible in some instances, a judge can never use his or her office to seek special consideration for a friend or acquaintance. But it also suggested that judges need to be careful whenever they are asked to write a letter of recommendation.
For instance, while a judge may write a reference letter for a law school applicant, if the applicant or a relative has a case pending before the judge, it “would be wise to disclose the relationship to all parties and attorneys,” the commission said. Further, while a judge may provide a job reference for a former employee, “presiding over future cases involving the former staff member’s new employer may be problematic.”
The commission also used the annual report to remind judges of the importance of filing timely and accurate financial disclosure forms.
Last year, the commission for the first time disciplined a judge—Nassau County District Court Judge David McAndrews—for failing to submit a timely financial statement.
McAndrews was censured because his financial disclosure statement was filed nearly 11 months late and because he failed to cooperate with the commission in its investigation (NYLJ, July 2, 2013). There was no evidence that the disclosure statement was inaccurate.
The commission’s 2013 annual report also noted that:
• 1,770 new complaints were received last year compared with 1,785 in 2012. Over the last five years, the commission has received an average of 1,851 complaints annually.
• The vast majority of complaints against judges, about 88 percent, were initiated by criminal defendants and civil litigants. Fewer than 3 percent of the complaints came from attorneys, and less than 1 percent were from other judges.
Tembeckjian said it was “disappointing that lawyers and judges, who are best positioned to observe misconduct, are least likely to report it.”
“I suppose they are reticent to become known as troublemakers,” he said. “Ironically, it is not unusual after we’ve removed a judge for us to hear from lawyers and even judges who praise our action or belatedly reveal other misbehavior by the same judge. We don’t typically get such calls after an admonition or censure, perhaps because lawyers don’t want to antagonize a judge who is still on the bench and presiding over their cases.”
• The commission issued 17 public disciplinary determinations last year, including two removals, five admonitions, five censures and five matters where the judge resigned and agreed to never again hold judicial office. It sent 18 confidential letters of caution to judges whose questionable conduct did not rise to the level of public discipline.
• Only two judges were targeted for removal from office: Albany County Surrogate Cathryn Doyle (NYLJ, Nov. 15, 2013) and Middletown Town Justice Glen George. The Court of Appeals upheld the determination in the George matter and removed him from the bench (NYLJ, Dec. 11, 2013). Doyle’s appeal is slated for argument June 5.
Tembeckjian said the commission’s “very existence both tempers the judiciary and reassures the public.”
“I believe the judiciary as a whole has become significantly more sensitive to its ethical obligations since the constitutional amendment of 1978 created this commission, and the public has come to expect the Commission to take appropriate disciplinary action when judicial ethics rules are violated,” he said. “The immeasurably valuable result is greater public confidence in the integrity of the judiciary and the courts.”