The chair of New York's Senate Judiciary Committee is planning to introduce a reform bill that would close a loophole that allowed Chief Judge Janet DiFiore, shown here in June 2016, to evade scrutiny by resigning. (AP Photo/Hans Pennink)
The expanded jurisdiction and transparency reforms — sought by the commission since its creation in 1978 — are finally seeing movement after Law360's revelations that DiFiore left office while under investigation for allegedly interfering in a critic's disciplinary proceeding, effectively shuttering the case against her.
"Judges should not be exempt from misconduct charges simply because they resign or retire," Hoylman said in a statement to Law360. "To build the public's trust in the judiciary, we must ensure that judges and justices are held accountable by a truly independent, transparent process and body."
A legislative memo justifying the need for the new law explicitly states that passage of the bill will "prevent judges and justices from escaping the [commission's] jurisdiction simply by retiring or resigning."
Currently, the watchdog must either freeze a case or scramble to discipline a judge who resigns while facing scrutiny. The commission can only pursue judges after their resignation if they hope to achieve their most severe sanction, a permanent ban from office, and they have just 120 days to do so.
"The Commission on Judicial Conduct can be an effective tool against misconduct and malfeasance, but this legislation is needed to close loopholes and increase investigative transparency," Hoylman added in his statement.
DiFiore has denied her Aug. 31 exit was linked to the ethics case. She declined to comment through a spokesperson.
The new law "to increase the independence, transparency and jurisdiction of the Commission on Judicial Conduct" also seeks to bypass any meddling by the governor in its annual budget, allowing the executive only to comment on its request, before forwarding it along to the legislature.
The commission suffered from anemic budgets for years, leaving staff positions unfilled even as it reduced its fleet of cars, canceled cell phone plans and slashed its stenographer budget. Hoylman noted that he had increased the commission's budget for the first time in recent years "which has contributed to the clearing of additional investigations in the CJC's caseload."
As the commission is not an executive branch agency, its annual budget request should be made directly to lawmakers who have often increased the "inadequate amount recommended by prior governors," commission counsel and administrator Robert H. Tembeckjian told Law360 on Tuesday.
"While Governor Hochul has supported the Judicial Conduct Commission, some of her predecessors did not," he added.
"It's been a long time coming, but the recent scandal with the chief judge has certainly sped things up," a senior legislative official told Law360, requesting anonymity to speak candidly about the bill's prospects.
The senior official told Law360 that the proposal has support among the senate leadership and executive branch, although there is some hesitation over removing executive control over the watchdog's budget.
State Assembly Judiciary Chair Charles Lavine declined to comment.
Representatives for the governor did not immediately respond to requests for comment. A state court spokesperson declined to comment.
The commission was established in 1978 as a constitutionally independent body with oversight over the judiciary and the exclusive power to discipline and remove judges, subject to review by the state's high court, the Court of Appeals.
Before the commission existed, judicial conduct hearings were public, Tembeckjian told Law360 on Tuesday. When Albany lawmakers began crafting the new watchdog agency, judges lobbied for increased secrecy.
"Naturally, the judiciary, the judicial associations, the Office of Court Administration and the judicial establishment were all in favor of making our proceedings confidential, and that's ultimately what won out," Tembeckjian said. "But our position then and throughout has been that we should be like the majority of states when formal disciplinary charges are authorized, that that should be a public proceeding."
The commission's top attorney noted that the judicial conduct commissions in 38 U.S. states unseal their ethics cases once there are formal charges against a judge.
"Judicial disciplinary proceedings, once started, should run their course," Tembeckjian said. "They should be open to the public, which would promote confidence in the administration of justice and encourage people to come forward, because they'd see the process actually works."
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
