S T A T E O F N E W Y O R K
________________________________________________________________________
4132
2015-2016 Regular Sessions
I N S E N A T E
March 2, 2015
___________
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
or the performance of his official duties. Prior to initiating any such
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09116-01-5
S. 4132 2
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. 4132 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. 4132 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.