In the majority of states, the judicial disciplinary commission has authority to recommend or initiate the suspension of a judge from office in either or both of the following circumstances: as an interim measure while a disciplinary inquiry against the judge is pending, or as the final discipline upon a formal finding that the judge engaged in misconduct. In New York, the Commission does not have such power. As discussed below, the power to suspend is addressed in limited fashion in the State Constitution.

Interim Suspension of Judge Under Certain Circumstances
The State Constitution empowers the Court of Appeals to suspend a judge from office, with or without pay as it may determine, under certain circumstances:

  • while there is pending a Commission determination that the judge be removed or retired,
  • while the judge is charged in New York State with a felony, whether by indictment or information,
  • while the judge is charged with a crime (in any jurisdiction) punishable as a felony in New York State, or
  • while the judge is charged with any other crime which involves moral turpitude.

New York State Constitution, Art.6, §22(e–g).

There is no provision for the suspension of a judge who is charged with a misdemeanor that does not involve “moral turpitude.” Yet there are any number of misdemeanor charges that may not be defined as involving “moral turpitude” but that, when brought against a judge, would seriously undermine public confidence in the integrity of the judiciary. Misdemeanor level DWI or drug charges, for example, would seem on their face to fall in this category, particularly where the judge served on a criminal court and presided over cases involving charges similar to those filed against him or her.

Fortunately, it is rare for a judge to be charged with a crime, but it does occasionally happen. In 2008, a newly-elected Surrogate’s Court Judge was indicted for allegedly violating campaign finance laws, and was suspended with pay by the Court of Appeals pending trial.1

There are non-felony and even non-criminal categories of behavior that seriously threaten the administration of justice and arguably should result in the interim suspension of a judge. Such criteria might well include significant evidence of mental illness affecting the judicial function, or conduct that compromises the essence of the judge’s role, such as conversion of court funds or a demonstrated failure to cooperate with the Commission or other disciplinary authorities.

The courts already have discretion to suspend an attorney’s law license on an interim basis under certain circumstances, even where no criminal charge has been filed against the respondent. All four Appellate Divisions have promulgated rules in this regard. Any attorney under investigation or formal disciplinary charges may be suspended pending resolution of the matter based upon one of the following criteria:

  • the attorney’s default in responding to the petition or notice, or the attorney’s failure to submit a written answer to pending charges of professional misconduct or to comply with any lawful demand of this court or the Departmental Disciplinary Committee made in connection with any investigation, hearing, or disciplinary proceeding, or
  • a substantial admission under oath that the attorney has committed an act or acts of professional misconduct, or
  • other uncontested evidence of professional misconduct.

Rules of the Appellate Division, First Department, §603.4(e)(1).2

The American Bar Association’s Model Rules for Judicial Disciplinary Enforcement suggest a broader definition of the type of conduct that should result in a judge’s suspension from office. For example, rather than limit suspension to felony or “moral turpitude” cases, the Model Rules would authorize suspension by the state’s highest court for:

  • a “serious crime,” which is defined as a “felony” or a lesser crime that “reflects adversely on the judge’s honesty, trustworthiness or fitness as a judge in other respects,”
  • “any crime a necessary element of which … involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft or an attempt, conspiracy or solicitation of another to commit a ‘serious crime’,” and
  • other misconduct for which there is “sufficient evidence demonstrating that a judge poses a substantial threat of serious harm to the public or to the administration of justice.”

It would require an amendment to the State Constitution to expand the criteria on which the Court of Appeals could suspend a judge from office. The Commission believes that the limited existing criteria should be expanded. We recommend that the Governor and Legislature consider so empowering the Court.

Suspension from Judicial Office as a Final Sanction
Under current law, the Commission’s disciplinary determinations are limited to public admonition, public censure or removal from office for misconduct, and retirement for mental or physical disability.

Prior to 1978, when both the Constitution and the Judiciary Law were amended, the Commission – or the courts in cases brought by the Commission – had authority to determine that a judge be suspended with or without pay for up to six months. Suspension authority was exercised five times from 1976 to 1978: three judges were suspended without pay for six months, and two were suspended without pay for four months.

Since 1978, neither the Commission nor the Court of Appeals has had the authority to suspend a judge as a final discipline. While the legislative history of the 1978 amendments is not clear on the reason for eliminating suspension as a discipline, there was some discussion among political and judicial leaders at the time suggesting that, if a judge committed misconduct serious enough to warrant the already momentous discipline of suspension, public confidence in the integrity of that judge was probably irretrievably compromised, thus requiring removal. There was also concern about the effect on court administration and public finances, especially in less populous counties and in the town and village courts, where it would be difficult to arrange and pay for temporary replacements, and where case management would be uprooted twice: when the temporary judge arrived and again when he or she left.

Nevertheless, at times the Commission has felt constrained by the lack of suspension power, noting in several cases in which censure was imposed as a sanction that it would have suspended the disciplined judge if it had authority to do so. Some misconduct is more severe than would be appropriately addressed by a censure, yet not egregious to the point of warranting removal from office. In several recent cases – Matter of Gerard E. Maney and Matter of Donald P. Martineck in 2010, Matter of Cathryn M. Doyle in 2007, Matter of William A. Carter in 2006, Matter of Ira J. Raab in 2003 – the Commission explicitly stated that it chose to censure the judge because it lacked the power to suspend.

As it has done previously, the Commission suggests that the Governor and Legislature consider the merits of a constitutional amendment, providing suspension without pay as an alternative sanction available to both the Commission and the Court of Appeals.

1 The suspension was lifted after the judge was acquitted. The Commission subsequently censured the judge for the violating the campaign activity constraints of the Rules Governing Judicial Conduct. Matter of Nora Anderson, 2013 Ann Rep 75 (Comm on Jud Conduct 2012).

2 See also, Rules of the Appellate Division, Second Department, §691.4(l)(1), Rules of the Appellate Division, Third Department, §806.4(f)(1), and Rules of the Appellate Division, Fourth Department, §1022.20(d)(3)(d).

From 2017 Annual Report, pages 19-22.