Last year, I was chosen by the members of the Commission on Judicial Conduct to be its chair — an honor I accepted with great respect for both the Judiciary and the Commission.
In many ways, this is a fascinating time for the body charged with enforcing the rules governing judicial conduct, applicable to the 3,300 judges and justices of the state unified court system. Commission membership is at full strength for the first time since 2011 and more closely reflects the diversity of New York’s population than ever before. It is a remarkably active enforcement body, winnowing out thousands of complaints to ensure that the relatively small number of judges who engage in misconduct — wherever they sit — are subject to appropriate sanction. Every month, new issues, such as potentially problematic social media posts, present challenging questions for the Commission, as they do for the judiciary.
Nevertheless, the Commission is often misunderstood by both the judiciary subject to its ethics oversight, and a public anxious to hold judges accountable for what they see as improper conduct.
In many ways, this is understandable. The strict confidentiality rules governing the Commission’s investigative process render it a virtual black box. For judges, receipt of an investigatory inquiry — even one that will be speedily reviewed and promptly concluded in the judge’s favor — means anxiety and distraction at best, and significant expenditure of time and money at worst. As to complainants, even many of those with justifiable grievances will find their complaints dismissed as reflecting errors of law best addressed through the appellate process, rather than punished as misconduct.
When the Commission uncovers unethical conduct, its choice of sanctions is limited: short of removing a judge from office — something that is reserved for only the worst ethical violations — the most the Commission can do is issue a public statement of censure or admonition. While the disciplined judge may find it unduly harsh and embarrassing, the complainant may regard it as a “slap on the wrist” which leaves the perceived wrongdoer in place, continuing to preside over important cases.
I fully understand and am sympathetic to both of these concerns. But as one who has been on the Commission for eight years, and has seen its inner workings up close, I hope as chair to help both judges and the public see the backstory. The Commission’s staff is dedicated and earnest, preparing detailed and fair write-ups of all complaints, each accompanied by extensive documentation. Every Commissioner, working without compensation, spends countless hours reading and weighing the material before forming an opinion. No new investigation is initiated without detailed and often vigorous discussion among the commissioners, illustrating the remarkable extent to which every member has contemplated the matters at bar.
No discipline is ever imposed without long and careful deliberations that seek the proper balance between fairness and deterrence, and between providing the judiciary with clear ethical guidelines and appropriately recognizing the unique circumstances and equities in every case. Often, commissioners draft carefully reasoned dissents and concurrences, so as to air different points of view.
Very few get such a glimpse of the Commission’s processes, however. For the vast majority of the legal community and the public, we remain an opaque body, feared by some for stringency or condemned by others for softness. That is understandable, but also unfair, and not consistent with the care with which our staff and members treat their responsibilities.
We have tremendous respect for the Judiciary and understand that when a judge is the subject of a Commission investigation, it is unnerving and sometimes costly. We understand the burdens judges are under with ever-increasing caseloads and, in many cases, diminishing administrative support. And, we are empathetic to the fact that judges (indeed, all people) should not necessarily be judged by one error or omission, but rather in the context of an entire career and life.
We also appreciate that participants in the legal system and the public must have confidence that judges are behaving ethically, that the court system is accessible and impartial, and that ethical transgressions will be properly redressed. My goals as Commission chair include demystifying its workings and making sure its processes, policies and decisions are broadly understood by the bench, bar and public. To that end, my colleagues and I would welcome the chance to meet with judicial associations and other interested parties to talk about the Commission’s procedures, discuss some substantive issues that have presented themselves in recent years, and hear concerns. More frequent and open dialogue can only benefit both the Commission and the judiciary. Let us make sure such interactions occur in the years ahead.
Joseph W. Belluck, a partner in Belluck & Fox, is Chair of the New York State Commission on Judicial Conduct.