Troy (NY) City Court Judge Henry Bauer has been putting on quite a show this week (
As the TU explains:
“Normally, such a disciplinary proceeding would be conducted behind closed doors, as stipulated by the Legislature, which created the 11-member watchdog panel in 1974. The accused has a right to a trial before a judge and, if he or she requests, an open proceeding. But in the last 25 years, that has happened only nine times.”
“Whatever the outcome of the charges against Troy City Court Judge Henry Bauer, he deserves credit for wanting to face his accusers in public. The irony is, many of his accusers, and the state’s chief judge, want the same openness for all such proceedings, if only the state Legislature would agree.”
In a posting on June 25, 2003, this weblog agreed with proposals by the legal reform group HALT, regarding the attorney disciplinary system. HALT argues that attorney discipline must be tougher and quicker, and far more open — including having hearings open to the complainant and the public. Those arguments are even stronger with regard to misconduct by judges, who are public officials whose proper conduct and integrity are obviously crucial for our justice system.
In February 2002, the Times Union ran a 5-part editorial series on the judicial disciplinary process, called “Unequal Justice“. It’s still available online at no charge and well worth reading. (scroll down the Opinion page to locate the links). The individual segments in the series are:
In calling for reform, the closing editorial in the series discussed possible changes in the doctrine of judicial immunity, and then correctly asserts (emphasis added):
The first step toward any reform, however, must be to end the secrecy that now surrounds the commission’s investigations. Thirty-five other states already mandate open hearings for judges facing misconduct charges. But New York continues to shut the public out of proceedings that are clearly the public’s business.
The 2002 editorial also complained about political posturing and gridlock since attempts began in 1996 to open the hearings. Today’s editorial again decries cynical political antics that mouth support but undermine passage, and adds (emphasis added):
“The posturing is largely a reflection of the fact that most legislators are lawyers, and they fear that if judicial disciplinary hearings were opened to the public, similar hearings on attorney misconduct would be sure to follow.
“But that’s unfounded. Judge Bauer is not a private practice attorney. He’s a public servant, and it is only fitting that the charges leveled against him should be aired in public. That same principle should apply to all jurists in New York state, whether a part-time justice of the peace, or a Court of Appeals judge. Fittingly, the state’s chief judge, Judith Kaye, has long advocated such openness, and so do some members of the commission itself. It’s past time the Legislature did as well.”
- [Note: I hope the TU will someday publically endorse requiring open lawyer disciplinary hearings, too. Last month, the newspaper declined to publish my op/ed piece calling for such reform; its local competitor did publish it, and the article is available on this site, here.]
I’m afraid the TU is correct that it is, among other things, opposition from the bar that is preventing this reform. Earlier this year, the NYSBA’s House of Delegates debated and defeated a proposal by its own Special Committee on Public Trust and Confidence in the Legal System to open attorney discipline proceedings. (March/April 2003 State Bar News, member-only access to the document) In February, 2002, the House had also “declined to adopt” a similar proposal.
Unfortunately, in his first “President’s Message” column in the NYSBA Journal, their new President, A. Thomas Levin, appears to be signalling an analogous desire to keep the judicial misconduct process and hearings closed. After pointing out that the judicial system is “under the public scrutiny microscope at all times,” Levin takes the uncontroversial stance that “we should await the full airing of the facts before we reach conclusions about the built or innocence of any individual.” But, he then adds:
However, we must also recognize that the media, and the public, are under no such contraints, and do not respect them. Thus, in the public mind, those accused of judicial misconduct are guilty as charged. The disrespect this has generated for the judicial system, and the legal profession, is profoundly disturbing.
Frankly, I’m more “disturbed” by this demonstrated disrespect for the public. No matter how unsuccessful their reform efforts have been in state legislatures and within the organized bar, those calling for an open process of judicial and lawyer discipline seem to have the far better of this argument — that is, if the public and the client are really in charge.