The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4398
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 8, 2023
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- 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  requiring  the  state
   commission  on  judicial conduct to transmit its annual budget request
   to  the  governor  for  inclusion  in  the  executive  budget  without
   revision;  to complaints regarding judges; and to extending the juris-
   diction of the state commission on judicial conduct as to  judges  who
   resign or retire while under investigation or formal charges
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.  Section 42 of the judiciary law is amended by adding a new
 subdivision 7 to read as follows:
   7. TO TRANSMIT ITS ANNUAL BUDGET REQUEST TO THE GOVERNOR FOR INCLUSION
 IN THE EXECUTIVE BUDGET WITHOUT REVISION BUT WITH SUCH RECOMMENDATION AS
 THE GOVERNOR MAY DEEM PROPER.
   § 2. Subdivision 4 of section 44 of the judiciary  law,  as  added  by
 chapter 156 of the laws of 1978, is amended to read as follows:
   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]
 FORMAL WRITTEN complaint with the commission within twenty days of  such
 service.  THE  FORMAL  WRITTEN  COMPLAINT  AND ANSWER, AND THE RECORD OF
 PROCEEDINGS THEREAFTER, INCLUDING THE HEARING AND ANY PROCEEDINGS BEFORE
 THE COMMISSION, SHALL BE PUBLIC. 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 FORMAL WRITTEN 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09076-01-3

 S. 4398                             2
 
 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 documents which the commission
 intends  to  present  at such hearing and any written statements made by
 witnesses who will be called to give testimony 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 FORMAL WRITTEN  complaint.
 The  failure  of  the commission to timely furnish any documents, state-
 ments 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  presence  thereat
 shall be within the discretion of the commission. [The hearing shall not
 be  public unless the judge involved shall so demand in writing.] At the
 hearing the commission may take the testimony of witnesses  and  receive
 evidentiary  data and material relevant to the FORMAL WRITTEN 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  rele-
 vant  to  the FORMAL WRITTEN 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.
   § 3. Section 45 of the judiciary law, as amended by chapter 35 of  the
 laws of 1983, is amended to read as follows:
   § 45. Confidentiality of records. [1.] Except as hereinafter provided,
 all  complaints,  correspondence, commission proceedings and transcripts
 thereof, other papers and data and records of the  commission  shall  be
 confidential and shall not be made available to any person except pursu-
 ant to section forty-four of this article. The commission and its desig-
 nated  staff personnel shall have access to confidential material in the
 performance of their powers and duties. If the judge who is the  subject
 of  a  complaint  so  requests  in  writing, copies of [the] ANY PENDING
 complaint, [the transcripts of hearings by the  commission  thereon,  if
 any]  ANY  DOCUMENTS  MADE PUBLIC PURSUANT TO SECTION FORTY-FOUR OF THIS
 ARTICLE, and the dispositive action of the commission  with  respect  to
 [the]  ANY  complaint  RESULTING  IN  A  CAUTION,  ADMONITION,  CENSURE,
 REMOVAL, RETIREMENT, OR RESIGNATION FROM JUDICIAL  OFFICE,  such  copies
 with any reference to the identity of any person who did not participate
 at any such hearing suitably deleted therefrom, except the subject judge
 or  complainant,  shall  be made available for inspection and copying to
 the public, or to any person, agency or body designated by such judge.
   [2. Notwithstanding any provision in  this  section,  the  commission,
 with  the  consent  of  the  applicant,  shall provide the record of any
 proceeding pursuant to a formal written complaint against  an  applicant
 for  judicial appointment in which the applicant's misconduct was estab-
 lished, any pending complaint against an applicant, and  the  record  to
 date  of  any  pending proceeding pursuant to a formal written complaint
 against an applicant for judicial appointment:
   (a) to the commission on judicial nomination  established  by  article
 three-A  of  this chapter, with respect to applicants for appointment to
 the court of appeals;
   (b) to the governor with respect to all applicants whom  the  governor
 indicates are under consideration for any judicial appointment; and
 S. 4398                             3

   (c)  to  the temporary president of the senate and the chairman of the
 senate judiciary committee with respect to  all  nominees  for  judicial
 appointments which are subject to the advice and consent of the senate.]
 The  commission  shall  respond within fifteen days of a request for the
 information provided for in this [subdivision] SECTION.
   §  4.  Section 47 of the judiciary law, as added by chapter 156 of the
 laws of 1978, is amended to read as follows:
   § 47. Resignation OR RETIREMENT not to divest commission or  court  of
 appeals  of  jurisdiction.  The jurisdiction of the court of appeals and
 the commission pursuant to this article shall  continue  notwithstanding
 that  a  judge  resigns OR RETIRES from office after a [determination of
 the commission that the judge be removed from office has been  transmit-
 ted  to  the  chief  judge  of  the  court  of  appeals,] FORMAL WRITTEN
 COMPLAINT AUTHORIZED PURSUANT TO SECTION FORTY-FOUR OF THIS ARTICLE  HAS
 BEEN  SERVED  ON  THE  JUDGE  or  in any case in which the [commission's
 determination that a judge should be removed from office shall be trans-
 mitted to the chief judge of  the  court  of  apppeals]  FORMAL  WRITTEN
 COMPLAINT  IS  SERVED  ON THE JUDGE within one hundred twenty days after
 receipt by the chief administrator of the courts of the  resignation  OR
 RETIREMENT  of  such  judge.   Any determination by the court of appeals
 that a judge who has resigned OR RETIRED should be removed  from  office
 shall  render  such  judge ineligible to hold any other judicial office.
 The chief administrator of the courts shall give written notice  to  the
 commission  of  the  resignation  OR  RETIREMENT of any judge who is the
 subject of an investigation within five days after his receipt thereof.
   § 5. This act shall take effect immediately.