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 admonition, censure, removal or retirement from office is rendered and filed with the Chief Judge pursuant to statute – or when the accused judge waives confidentiality.*
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 supported in newspaper editorials around the state. 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.
As the Commission has consistently advocated since 1978 and commented upon in several Annual Reports, we restate the argument here for a change in the law regarding confidentiality.
It has been a fundamental premise of the American system of justice, since the founding of the republic, that the rights of citizens are protected by conducting the business of the courts in public. Not only does the public have a right to know when formal charges have been preferred by a prosecuting authority against a public official, but the prosecuting entity is more likely to exercise its power wisely if it is subject to public scrutiny. A judge as to whom charges are eventually dismissed may feel his or her reputation has been damaged by the trial having been public. Yet the historical presumption in favor of openness is so well established that criminal trials, where not only reputations but liberty are at stake, have been public since the adoption of the Constitution.
There are practical as well as philosophical considerations in making formal judicial disciplinary proceedings public. 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 significant part because the Commission painstakingly endeavors to render a determination that is fair and comports with due process. 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. Respondent-judges themselves often consult with judicial colleagues, staff and others, revealing the details of the charges against them and seeking advice. 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.
It should be noted that even if Commission disciplinary proceedings were made public, the vast majority of Commission business would remain confidential. In 2016, for example, out of 1,944 new complaints received, 420 preliminary inquiries conducted and 177 investigations commenced, 13 Formal Written Complaints were authorized. Eight were carried over from 2015. Those 21 combined, as to which confidential investigations found reasonable cause to commence formal disciplinary proceedings, would have been the only pending matters made public last year.
On several occasions in recent years, the Legislature has considered bills to open the Commission’s proceedings to the public at the point when formal disciplinary charges are filed against a judge. Such legislation has had support in either the Assembly or the Senate at various times, although never in both houses during the same legislative session. The Commission continues to advocate and work with the Legislature, the Governor and the Chief Judge toward enactment of a public proceedings law.
*The Commission has conducted over 800 formal disciplinary proceedings since 1978. Twelve judges have waived confidentiality in the course of those proceedings. Two others waived confidentiality as to investigations.
From the 2017 Annual Report, pages 18-19.