§ 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
performance 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
intemperance 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 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
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
certified 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
evidentiary 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
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 complaint. The failure of the commission to timely
furnish any documents, 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 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 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.

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.

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
certified 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
commission 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
findings of the commission.

8. (a) The court of appeals may suspend a judge or justice from
exercising 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 suspension shall continue 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.

(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
continue 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
suspension 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
subdivisions seven and eight of this section, within the powers of: (a)
a person having administrative jurisdiction over the judge involved in
the complaint 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 agency,
the commission shall refer such complaint or the appropriate allegations
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.