While Chief Judge Judith Kaye is busy writing op-ed pieces deploring the low pay for judges in New York, the New York State Commission on Judicial Conduct has been busy too, according to the New York Lawyer.
The New York State Commission on Judicial Conduct opened more investigations in 2006 and had more matters pending against judges than at any time in its 29-year history, according to its annual report, which was released Thursday [11/15/07].
New York has a lot of judges, so it’s not a terrible shock that there are a few who have turned out badly, though one would hope that the process can weed out the really bad ones before we give them the power to destroy people’s lives or do grave harm. But the numbers before the Commission are really shockingly high:
Overall, the commission received 1,500 complaints against judges last year. Since 1992, an average of 1,440 complaints have been filed annually against the state’s 3,400 judges and town and village justices.
To put these numbers into context, bear in mind that the Commission doesn’t get involved in bad decisions by judges, but only in violations of the Code of Judicial Conduct. It’s not that difficult a Code to follow, and if someone puts themselves into the position of being a judge of others, one would think they could figure out how to conduct themselves.
But here’s a statistic that is particularly disturbing: “Of the complaints, 314 were against town and village justices – 80 lawyers and 234 nonlawyers.” Following this to the end result, only 14 judges received public sanctions in 2006, and of those 14, ten were non-lawyer justices. I’ve already expressed my views on the continuation of the archaic use of non-lawyers as judges in local courts. They have to go.
But these numbers tell a very disturbing story about the rest of the system. One way to look at them is to conclude that most judicial complaints are meritless (the Commission dismissed 72% off the top) and that of the complaints pursued, impropriety by sitting lawyer judges is nearly non-existence (4 public sanctions out of 1,500 complaints covering 3400 judges).
I have trouble with this interpretation. Having talked about the work of this Commission, as well as having talked about the work of other bar committees that deal with judges (like those that approve judicial candidates, including sitting judges, for election), there is no doubt in my mind that the deference shown sitting judges, particularly the more powerful ones (Yes, Virginia, there are more powerful judges) allows impropriety to be swept under the carpet.
Non-lawyer local justices get called on the carpet for two reasons. First, they are far more likely to violate the Code because they have no concept of judicial ethics than lawyer judges. Second, they have no clout. There is no backlash from burning a non-lawyer local justice. They are powerless in the scheme of the court system. Easy picken’s, if you will.
“Real” judges, on the other hand, are not so easy. When complaints against them are pursued, they get pissed. And when they get pissed, the get even. That’s the great thing about being a judge; you have the power to get even. If a complaint is filed that isn’t going to bring a judge down, then expect to have one angry judge on your hands. Indeed, this is one of the reasons that the number of complaints is surprising in itself. Few lawyers will file complaints against a judge unless they are prepared to see their careers ruined and clients crushed. You’ve got to feel very strongly before taking on a burden like that.
For those of us in the trenches, we see and hear a lot of things from the bench that make us cringe. From the “soft-core” improprieties of inappropriate temperament to covert bias, judges are untouchable. To grieve is to commit professional suicide, because the Commission isn’t going out on a limb over anything that subjective or lightweight. Nobody is going to spit in the face of an angry bear, unless you want your head torn off.
This is not to suggest that there is rampant impropriety happening across the courtrooms of New York. The vast majority of judges I’ve been before are honorable, ethical and appropriate. While I occasionally disagree with their rulings (okay, often disagree), I cannot fault them at all for the performance of their office.
But there are some who have demeaned the bench by their conduct, and never been called on the carpet. There shouldn’t be any. Bear in mind, these are judges we are talking about, and it is hardly too much to expect that they be above reproach. Even when they don’t feel like it and have no fear that the Commission on Judicial Conduct would ever have the guts to challenge them.
UPDATE: Two more judges publicly censured, both non-lawyers. “Since 1978, the commission has censured 263 judges, 187 of them town or village justices.” Shocking.