by Judge Joan Shkane
This is a continuing discussion of Legal Myths and Reality, because those informed are the most successful.
MYTH: Judges in New York State police themselves and are not accountable to anyone.
REALITY: Judicial ethics are very much in the news currently, especially as it pertains to United States Supreme Court Justices, and, in particular, to Justice Clarence Thomas and his wife. Some find it astounding that the Justices in the highest court in the country are not subject to an ethical code or the scrutiny of an independent commission or watchdog. Without such a code there is no standard by which to measure and to judge conduct. Every state in the union has a form of independent judicial commission and a judicial ethics code, and it applies to all judges except the highest U.S. Court. The U.S. Supreme Court argues that they are a separate branch of government, like the executive branch (President and departments), and the Congress. Therefore, no one can direct or challenge their behavior, and only they can police themselves. Some ask “but have they”?
New York State has a Commission on Judicial Conduct. This is a panel made up of 11 members appointed as follows: 4 members appointed by the Governor; 3 by the Chief Judge of the Court of Appeals (our highest court); one each by the Speaker of the Assembly, the Minority leader of the Assembly, the Temporary President of the Senate (majority leader) and the Minority Leader of the Senate. The aim is, of course, to create a politically impartial and professional commission. It is governed by a chair, and an administrator. They must issue an annual report about their work, which is available to the public. They have the authority to discipline judges in all courts in New York, from town justices and administrative judges to the highest court, the Court of Appeals. The Commission is independent from any influence except their own judgement and understanding of the rigid New York Code of Judicial Ethics.
Judicial misconduct falls roughly into four types. It is conduct such as engaging in criminal behavior, improper use of a judge’s authority, publicly commenting on a pending or expected court case, and giving or receiving bribes or favors. A judge must respect and comply with the law and shall always behave in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge must treat all people in the courtroom with fairness and impartially, not showing favoritism to parties or their attorneys and witnesses. A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgement. Sometimes unethical conduct is difficult to discover and to prove. Therefore, a judge is an officer of the court and must avoid even the APPEARANCE of impropriety. A judge must disqualify (recuse) when the judge believes (s)he may have a conflict of interest and must not engage in private communication about the case with parties or witnesses, or their lawyers. A judge must execute judicial duties in a timely manner.
A complaint against a New York State judge can be filed online by going to the Commission website. The judge may then have a brief time to answer the complaint, and, if the Commission deems appropriate, they may order a hearing. A hearing may require witnesses under oath for both the complainant and the judge. The Commission will then make a ruling either dismissing the complaint or ordering a penalty against the judge. The harshest penalty is removal from office. The judge may appeal an unfavorable decision to the New York State Court of Appeals, our highest court. That Court will then rule on the appropriateness of the proceeding and act accordingly.
We mostly believe that we know the difference between right and wrong. However, that can be quite different from unethical conduct, and sometimes the line is very difficult to see. Therefore, New York State has a commission to assist New York judges and quasi-judicial officials. The Advisory Committee on Judicial Ethics is made up of judges and legal professionals. When a question of ethics arises, and a judge cannot find how to proceed, the judge may submit the question to the Committee who will quickly render advice, orally temporarily, and in writing shortly thereafter. If the judge follows the advice, and it turns out later to have been wrong advice, the judge is protected from defending her/his actions, and cannot be censured if the judge followed the advice.
The 1973 federal Code of Conduct for Federal Judges governs ethical conduct for all federal judges. Only U.S. Supreme Court justices are exempt. No mechanism exists to file a complaint against a Justice of the United States Supreme Court. These Justices serve in their offices during good behavior. They may serve as long as they choose and can only be removed from office by impeachment. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 empowered the Judicial Conference of the United States to investigate and police the judiciary and, if need be, request that the House of Representatives impeach a federal judge. However, since the U.S. Supreme Court holds the ultimate power to say if a law is Constitutional, then they necessarily have the last word even when it pertains to themselves.
MYTH: Lawyers and judges are the most important in the courtroom and no one else is indispensable.
REALITY: One of the most overlooked persons in the courtroom is the Court Stenographer. Maybe this is because they rarely speak! They are key to justice because they are the “guardians of the record”. The record is the transcript that shows every word spoken in the courtroom. The stenographer must certify as accurate the all-important transcription of the court’s proceedings. This is an integral part of every case in a court of record and is used by all appellate courts in reaching decisions on appeals, and by trial courts and lawyers to understand exactly what happened in a case. Juries often ask to have parts of the record re-read to them to aid in reaching a decision.
The position of court reporter is a hidden gem as a profession. Nationally there is a shortage of over 5000 court reports. They cannot be entirely replaced by technology, such as tape recorders, because the accuracy and certification by a real person is still needed. Reporting occurs not just in a courtroom, but in important depositions before and during a case. Institutions such as the National Football League use reporters in hearings. Because of the shortage of reporters, some federal courts are recruiting even before a student graduates from reporting school. During the month of February, the reporters celebrated National Court Reporters week. Sadly, many reporting schools have closed. There are fewer than five in New York State. Court reporting can be very lucrative. In addition to earning a comfortable salary with chance of advancement and benefits as a state worker, many reporters, retired or working during private time, make an attractive annual wage from producing transcripts privately. As I write this, one of my former reporters is spending the Winter in Florida, while continuing to work on transcripts. And she is doing it from the beach! Those interested in the law but not wishing to attend law school, should consider this profession.
Attention to legal myths can be important. They can be a starting point for developing an interest in the law. However, if specific legal issues are important in your life, for instance, regarding custody of children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.