At present all Commission investigations and formal hearings are confidential by law. Commission activity is only made public at the end of the disciplinary process – when a determination of public admonition, public censure or removal from office is rendered and filed with the Chief Judge pursuant to statute – or when the accused judge requests that the formal disciplinary hearing be public.
The subject of public disciplinary proceedings, for lawyers as well as judges, has been vigorously debated in recent years by bar associations and civic groups, and addressed in newspaper editorials around the state that have supported the concept of public proceedings.
The process of evaluating a complaint, conducting a comprehensive investigation, conducting formal disciplinary proceedings and making a final determination subject to review by the Court of Appeals, takes considerable time. The process is lengthy in part because of the Commission’s painstaking efforts to render a determination that is fair, the lack of adequate funding and the attendant need for more staff, and the obligation to observe various due process requirements set forth in law. If the charges and hearing portion of a Commission matter were open, the public would have a better understanding of the entire disciplinary process. The very fact that charges had been served and a hearing scheduled would no longer be secret.
As it is, maintaining confidentiality is often beyond the Commission’s control. For example, in any formal disciplinary proceeding, subpoenas are issued and witnesses are interviewed and prepared to testify, by both the Commission staff and the respondent-judge. It is not unusual for word to spread around the courthouse, particularly as the hearing date approaches. As more “insiders” learn of the proceedings, the chances for “leaks” to the press increase, often resulting in published misinformation and suspicious accusations as to the source of the “leaks.” In such situations, both confidentiality and confidence in the integrity of the disciplinary system suffer.
For several years beginning in 1996, the Senate Judiciary Committee, chaired by Senator James Lack, has supported legislation that would make Commission proceedings public 30 days after formal disciplinary charges against the judge were served. (The 30-day period would coincide with the judge’s time to file a formal answer to the charges.)
The Commission itself has long advocated that post-investigation formal proceedings should be made public, as they were in New York State until 1978, and as they are now in 35 other states. The Commission hopes that the issue will be revived in the Legislature and not be diverted by ancillary matters or political disputes. The Commission also hopes that renewed efforts to enact such a public proceedings measure will succeed without encumbrances as have been suggested in the past, such as the unnecessary introduction of a statute of limitations or increase in the standard of proof from the present “preponderance of the evidence” standard to “clear and convincing evidence.”
From the 2002 Annual Report, pages 27-28