Cooperation with a Commission inquiry or proceeding is mandatory, not optional. Such conduct as failing to respond to letters of inquiry, failing to produce documents, court audio recordings or other materials when requested, and failing to appear for testimony when summoned, subject a judge to disciplinary consequences without regard to the nature of the complaint that gave rise to the inquiry. A judge who refuses to cooperate risks removal from office even if the facts of the underlying complaint would not necessarily warrant such a severe result.
In March 2018, the Commission determined to remove from office a New York City Civil Court judge for the underlying conduct alleged in a complaint of persistent intemperance and for his willful failure to cooperate with the Commission’s inquiry. Matter of O’Connor, 2019 NYSCJC Annual Report 182, accepted, 32 NY3d 121 (2018). In the course of the inquiry, the judge inter alia did not respond to written Commission inquiries, refused to take an oath to tell the truth when he appeared at the Commission for testimony during the investigation, and refused to participate in the disciplinary hearing when formal charges of misconduct were filed against him.
In upholding the Commission’s removal determination, the Court of Appeals upheld the underlying demeanor charges against the judge and affirmed the principle that a judge is obliged to cooperate with the Commission. Underscoring a judge’s responsibility to promote public confidence in the integrity of the judiciary, and noting the Commission’s constitutional and statutory authorities, the Court declared:
In short, willingness to cooperate with the Commission’s investigations and proceedings is not only required – it is essential. Here, in addition to a sustained pattern of inappropriate behavior in the courtroom, petitioner repeatedly failed to appear before the Commission, and engaged in other conduct demonstrating his unwillingness to cooperate fully with the investigation. Under all of the relevant circumstances, and considering petitioner’s conduct as a whole, we conclude that the determined sanction of removal is warranted. 32 NY3d at 129.
In doing so, the Court underscored and cited its own precedents:
Indeed, it is well settled that, when a judge fails to cooperate with an investigation of the Commission – which is vested with the statutory authority to ‘require the appearance of the judge involved before it’ [statutes omitted] – that dereliction can be a significant aggravating factor in determining the appropriate sanction for misconduct (see Matter of Mason, 100 NY2d at 60; see Matter of Cooley, 53 NY2d at 66). 32 NY3d at 129.
From the 2020 Annual Report, pages 24-25.