senate Bill S249

Requires that an explanation as to the reason or reasons for the dismissal of a complaint be provided to the complainant

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 09 / Jan / 2013
    • REFERRED TO JUDICIARY
  • 08 / Jan / 2014
    • REFERRED TO JUDICIARY

Summary

Requires that an explanation as to the reason or reasons for the dismissal of a complaint be provided to the complainant.

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Bill Details

Versions:
S249
Legislative Cycle:
2013-2014
Current Committee:
Senate Judiciary
Law Section:
Judiciary Law
Laws Affected:
Amd ยง44, Judy L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S1713
2009-2010: S6264A

Sponsor Memo

BILL NUMBER:S249

TITLE OF BILL:
An act
to amend the judiciary law, in relation to explanation of reasons for
dismissal of complaints

PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this legislation is to make judicial disciplinary
proceedings more open to public scrutiny by amending section 44
of the judiciary law.

SUMMARY OF SPECIFIC PROVISIONS:
Section 44(1) of the judiciary law is amended to indicate that if a
complaint against a judge is dismissed, the Commission on Judicial
Conduct must provide the basis for the determination.

Section 44(4) of the judiciary law is amended to indicate that
disciplinary hearings shall be open to the public unless the
complainant requests that the hearing be dosed. If the commission is
acting in its capacity as a complainant, it may not request that the
hearings be closed.

Section 44(6) of the judiciary law is amended to indicate that if a
complaint is dismissed after a hearing, the Commission on Judicial
Conduct must provide the basis for the determination.

JUSTIFICATION:
This legislation will bring more openness and transparency to the
process of judicial discipline in New York State. This bill will
allow the Commission on Judicial Conduct to provide the basis for
dismissing complaints rather than simply stating "There was
insufficient indication of misconduct ". When a complaint details
numerous allegations against a judge, even when those allegations are
incorrect or unsubstantiated, the claimant has a right to know why
those allegations failed. This legislation will help to bring closure
to claimants seeking to bring charges against judges in New York.
This legislation will also open the judicial disciplinary process.
Judges are public officials whose actions on the Bench should be
subject to public scrutiny. Thirty-five states
currently provide for public hearings once charges have been brought
against a judge. The United States Supreme Court stated in Waller v
Georgia, 467 US 39,46 (1984) that "Openness in court proceedings may
improve the quality of testimony, induce unknown witnesses to come
forward with relevant testimony, cause all trial participants to
perform their duties more conscientiously and generally give the
public an opportunity to observe the justice system." This bill will
provide the public with such opportunities to observe the system and
ensure that fairness and the Rule of Law are followed in judicial
disciplinary proceedings. Most legal proceedings from simple hearings
on speeding tickets to capital murder cases are heard throughout New
York in open courts. This legislation continues that trend of
openness and sunshine by removing the shroud of confidentiality
surrounding judicial disciplinary proceedings in New York.


As Victor Kovner of the Fund for Modern Courts observed "The need for
openness and transparency at the hearing stage will provide the
public with greater opportunity to understand and witness the process
at disciplinary hearings. Confidence in the process is essential to
the success of the system. It will provide a judge with an
opportunity to be heard in public thus removing any rumor or innuendo
that might remain after a private hearing, that might linger after
the Commission exonerates a judge."

PRIOR LEGISLATIVE HISTORY:
S.1713 of 2011
01/11/11 REFERRED TO JUDICIARY
01/04/12 REFERRED TO JUDICIARY

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   249

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
  printed to be committed to the Committee on Judiciary

AN ACT to amend the judiciary law, in relation to explanation of reasons
  for dismissal of complaints

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 44 of the judiciary law, as added by chapter 156 of
the laws of 1978, is amended to read as follows:
  S  44.  Complaint;  investigation;  hearing  and  disposition.  1. The
commission shall receive, initiate, investigate and hear complaints with
respect to the conduct, qualifications, fitness to perform, or  perform-
ance  of  official  duties  of  any  judge,  and, in accordance with the
provisions of subdivision d of section twenty-two of article six of  the
constitution,  may  determine  that  a  judge be admonished, censured or
removed from office for cause, including, but not limited to, misconduct
in office, persistent failure to perform his duties, habitual  intemper-
ance and conduct, on or off the bench, prejudicial to the administration
of justice, or that a judge be retired for mental or physical disability
preventing  the  proper  performance of his judicial duties. A complaint
shall be in writing [and signed by the complainant and, if  directed  by
the  commission, shall be verified]. Upon receipt of a complaint (a) the
commission shall conduct an investigation of the complaint; or  (b)  the
commission may dismiss the complaint if it determines that the complaint
on  its  face lacks merit. If the complaint is dismissed, the commission
shall [so notify] PROVIDE  THE  BASIS  FOR  THE  DETERMINATION  FOR  THE
DISMISSAL  TO the complainant. If the commission shall have notified the
judge of the complaint, the commission shall also notify  the  judge  of
such dismissal.
  2. The commission may, on its own motion, initiate an investigation of
a  judge with respect to his qualifications, conduct, fitness to perform

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02249-01-3

S. 249                              2

or the performance of his official duties. Prior to initiating any  such
investigation, the commission shall file as part of its record a written
complaint,   signed  by  the  administrator  of  the  commission,  which
complaint shall serve as the basis for such investigation.
  3.  In  the course of an investigation, the commission may require the
appearance of the judge involved before it, in  which  event  the  judge
shall  be  notified  in  writing  of  his  required  appearance,  either
personally, at least three days prior to such appearance, or  by  certi-
fied  mail,  return  receipt requested, at least five days prior to such
appearance. In either case a copy of the complaint shall be served  upon
the  judge  at  the  time of such notification. The judge shall have the
right to be represented by counsel during any  and  all  stages  of  the
investigation in which his appearance is required and to present eviden-
tiary data and material relevant to the complaint. A transcript shall be
made  and  kept  with  respect  to all proceedings at which testimony or
statements under oath of any party or witness shall be  taken,  and  the
transcript of the judge's testimony shall be made available to the judge
without  cost. Such transcript shall be confidential except as otherwise
permitted by section forty-five of this article.
  4. If in the course of an  investigation,  the  commission  determines
that  a  hearing  is  warranted  it  shall  direct that a formal written
complaint signed and verified by the administrator be drawn  and  served
upon  the judge involved, either personally or by certified mail, return
receipt requested. The judge shall file a written answer  to  [the]  the
complaint  with  the  commission within twenty days of such service. If,
upon receipt of the answer, or upon expiration of the  time  to  answer,
the  commission  shall direct that a hearing be held with respect to the
complaint, the judge involved shall be notified in writing of  the  date
of the hearing either personally, at least twenty days prior thereto, or
by  certified  mail,  return receipt requested, at least twenty-two days
prior thereto. Upon the written request of  the  judge,  the  commission
shall,  at  least  five  days prior to the hearing or any adjourned date
thereof, make available to the judge without cost copies  of  all  docu-
ments  which  the  commission intends to present at such hearing and any
written statements made by witnesses who will be called to give testimo-
ny by the commission. The commission shall, in any case, make  available
to  the  judge  at least five days prior to the hearing or any adjourned
date thereof any exculpatory evidentiary data and material  relevant  to
the complaint. The failure of the commission to timely furnish any docu-
ments,  statements  and/or  exculpatory  evidentiary  data  and material
provided for herein shall not affect the  validity  of  any  proceedings
before  the  commission  provided that such failure is not substantially
prejudicial to the judge. The complainant may be notified of the hearing
and unless he shall be subpoenaed as a witness by the judge,  his  pres-
ence thereat shall be within the discretion of the commission. The hear-
ing  shall [not] be public [unless the judge involved shall so demand in
writing]. HOWEVER, THE COMMISSION  MAY  CLOSE  THE  PROCEEDINGS  TO  THE
PUBLIC  AT  THE REQUEST OF THE COMPLAINANT UNLESS THE COMPLAINANT IS THE
COMMISSION ITSELF PURSUANT TO SUBDIVISION TWO OF THIS  SECTION.  At  the
hearing  the  commission may take the testimony of witnesses and receive
evidentiary data and material relevant to the complaint. The judge shall
have the right to be represented by counsel during any and all stages of
the hearing and shall have the right to call and cross-examine witnesses
and present evidentiary data and material relevant to the complaint.   A
transcript  of  the proceedings and of the testimony of witnesses at the
hearing shall be taken and kept with the records of the commission. SUCH

S. 249                              3

TRANSCRIPT SHALL BE AVAILABLE TO  THE  PUBLIC  UNLESS  THE  HEARING  WAS
CLOSED AT THE REQUEST OF THE COMPLAINANT.
  5.  Subject  to  the approval of the commission, the administrator and
the judge may agree on a statement of facts and may stipulate in writing
that the hearing shall be waived. In such a case, the  commission  shall
make  its  determination  upon the pleadings and the agreed statement of
facts.
  6. If, after a formal written complaint has been  served  pursuant  to
subdivision  four  of  this  section, or during the course of or after a
hearing, the commission determines that no further action is  necessary,
the complaint shall be dismissed and the complainant and the judge shall
be  so  notified in writing.  THE COMMISSION SHALL PROVIDE THE BASIS FOR
THE DETERMINATION FOR THE DISMISSAL TO THE COMPLAINANT.
  7. After a hearing, the commission  may  determine  that  a  judge  be
admonished,  censured, removed or retired. The commission shall transmit
its written determination,  together  with  its  findings  of  fact  and
conclusions  of  law  and  the  record of the proceedings upon which its
determination is based, to the chief judge of the court of  appeals  who
shall  cause  a copy thereof to be served either personally or by certi-
fied mail,  return  receipt  requested,  on  the  judge  involved.  Upon
completion of service, the determination of the commission, its findings
and  conclusions  and the record of its proceedings shall be made public
and shall be made available  for  public  inspection  at  the  principal
office  of the commission and at the office of the clerk of the court of
appeals. The judge involved may either accept the determination  of  the
commission  or  make  written  request to the chief judge, within thirty
days after receipt of such determination, for a review  thereof  by  the
court  of  appeals.    If  the commission has determined that a judge be
admonished or censured, and if the judge accepts such  determination  or
fails  to  request a review thereof by the court of appeals, the commis-
sion shall thereupon admonish or censure  him  in  accordance  with  its
findings.  If  the  commission has determined that a judge be removed or
retired, and if the judge accepts such determination or fails to request
a review thereof by the court of appeals, the  court  of  appeals  shall
thereupon  order  his removal or retirement in accordance with the find-
ings of the commission.
  8. (a) The court of appeals may suspend a judge or justice from  exer-
cising  the  powers of his office while there is pending a determination
by the commission for his removal or retirement, or while he is  charged
in  this  state  with  a felony by an indictment or an information filed
pursuant to section six of article one of the constitution. The  suspen-
sion  shall  continue  upon  conviction  and,  if the conviction becomes
final, he shall be removed from office. The suspension shall  be  termi-
nated  upon  reversal  of the conviction and dismissal of the accusatory
instrument.
  (b) Upon the recommendation of the commission or on  its  own  motion,
the  court may suspend a judge or justice from office when he is charged
with a crime punishable as a felony under the laws of this state, or any
other crime which involves moral turpitude. The suspension shall contin-
ue upon conviction and, if the conviction becomes  final,  he  shall  be
removed from office. The suspension shall be terminated upon reversal of
the conviction and dismissal of the accusatory instrument.
  (c) A judge or justice who is suspended from office by the court shall
receive his judicial salary during such period of suspension, unless the
court  directs  otherwise. If the court has so directed and such suspen-

S. 249                              4

sion is thereafter terminated, the court may direct  that  he  shall  be
paid his salary for such period of suspension.
  (d)  Nothing  in  this  subdivision  shall prevent the commission from
determining that a judge or justice be admonished, censured, removed, or
retired pursuant to subdivision seven of this section.
  9. In its review of a determination of the commission,  the  court  of
appeals  shall  review the commission's findings of fact and conclusions
of law on the record of the  proceedings  upon  which  the  commission's
determination  was  based.    After such review, the court may accept or
reject the determined sanction; impose a  different  sanction  including
admonition,  censure, removal or retirement for the reasons set forth in
subdivision one of this section; or impose no sanction.
  10. If during the course of or after an investigation or hearing,  the
commission  determines  that  the  complaint  or  any allegation thereof
warrants action, other than in accordance with the provisions of  subdi-
visions  seven  and  eight  of this section, within the powers of: (a) a
person having administrative jurisdiction over the judge involved in the
complaint [or;]; OR (b) an appellate division of the supreme  court;  or
(c)  a  presiding justice of an appellate division of the supreme court;
or (d) the chief judge of the court of appeals; or (e) the governor;  or
(f)  an applicable district attorney's office or other prosecuting agen-
cy, the commission shall refer such complaint or the appropriate allega-
tions thereof and any evidence  or  material  related  thereto  to  such
person,  agency  or  court  for  such  action as may be deemed proper or
necessary.
  11. The commission shall notify the complainant of its disposition  of
the complaint.
  S 2. This act shall take effect immediately.

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