This is the second of two columns analyzing judicial discipline imposed upon judges who attempt to further private interests by invoking their judicial office. The first column reviewed cases—recent and since its inception—of the New York State Commission on Judicial Conduct concluding that, in the overwhelming majority of cases, the sanctions imposed fell short of removal from office and, therefore, do not effectively support the public perception of the integrity of the judiciary. This column focuses on Court of Appeals' precedents in this category of judicial discipline and reviews the basis for holding judges accountable for their off-bench actions.

Court of Appeals Precedents

The Court of Appeals has frequently reviewed Commission disciplinary decisions for misconduct based upon using the prestige of judicial office to advance private interests. Matter of Lonschein, 50 N.Y.2d 569 (1980) is the leading case. There, a Supreme Court justice telephoned a deputy counsel at the Taxi and Limousine Commission, asked about the status of a friend's license application, said it was being unfairly delayed and asked the official to expedite the matter. A few days later the judge told the deputy counsel that his friend's application was still being delayed and “deserves to be heard.”

The Court of Appeals held that the judge “placed the prestige of his office behind the request,” Id. at 572. Although the judge “never asserted his judicial office in seeking special consideration,” he “was aware that the deputy counsel knew of his position and should have realized that his requests would be accorded greater weight by an administrative official than they would have been had petitioner not been a judge.” Id. at 572-73. The court stated:

Members of the judiciary should be acutely aware that any action they take, on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved (Matter of Kuehnel v. State Comm. on Judicial Conduct, 49 N.Y.2d 465, 469). There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. Thus, any communication from a Judge to an outside agency on behalf of another, may be perceived as one backed by the power and prestige of judicial office.

Id. at 572.

The court further stated that “[j]udges must assiduously avoid those contacts which might create even the appearance of impropriety.” Id.

Notably, the court reduced the sanction from censure to admonition. It said that the judge was motivated by “a sincere, albeit misguided, desire to accommodate a dear friend” and that there was “no suggestion of malevolent or venal motive but a strongly felt desire to remedy a perceived injustice to a friend.” Id. at 573.

In Matter of Shilling, 51 N.Y.2d 397 (1980), which followed Lonschein by a few months, a New York City Civil Court judge, who was a trustee of an agency seeking a permit to operate an animal shelter, made several calls to a city official in which he identified himself as a judge, asked why the permit had not been granted, said that the department should stop impeding the application and told the official that he had “more political clout” than the official. The judge told another city official in a threatening manner that the department was abusing its authority; he also contacted ASPCA officials in an effort to have summonses against the agency dropped. When the matter was heard in court, Shilling approached the judge handling the case and discussed the pending matter, impugning the motives of the ASPCA and the city agency. Outside the courtroom, he loudly and angrily told ASPCA officials and others that he was a judge and had “friends in high places.” On review of the Commission's determination of censure, the court increased the sanction to removal.

The court stated that the judge's conduct was “clearly more egregious” than that in Matter of Lonschein, where the judge “never asserted his judicial office and did no more than request expedition of the license] application”; in contrast, Shilling asked the ASPCA to dismiss charges and asked for preferential treatment of the shelter, which was “clearly contrary to the spirit and purpose of the regulatory provisions being enforced.” Id. at 403. The court rejected the judge's argument that his acts had “nothing to do with my judicial position,” stating that “'[any] conduct, on or off the Bench, inconsistent with proper judicial demeanor subjects the judiciary as a whole to disrespect and impairs the usefulness of the individual Judge to carry out his or her constitutionally mandated function'.” Id. at 402. The court concluded that the conduct in its totality, including the judge's threatening language, “invective and pressure politics” and “the spectacle of a person identifying himself as a Judge and speaking in loud and threatening tones of his friends in high places,” showed “a blatant lack not only of judgment but also of judicial temperament.” Id. at 399, 403-04.

In Matter of Kiley, 74 N.Y.2d 364 (1989), the Court of Appeals reduced the Commission's sanction determination from removal to censure, allowing the judge to remain on the bench. Judge Kiley interceded on behalf of the defendants in two criminal proceedings. In one case, he initiated ex parte communications with the prosecutors and with the presiding judge on behalf of the son of a friend, telling them prior to the arraignment that he had previously represented the defendant and that the defendant had a good record of appearing in court and had “recent tragedies” in his family. In the other case, which came before Kiley after a long-time friend had informed him that the defendant was a colleague's son, he summoned both the prosecutor and a supervisor into his chambers and asked the ADA why he was not offering an Adjournment Contemplating Dismissal. He told the supervisor that he had once worked with the defendant's father and that that disposition would be “appreciated.”

Reducing the sanction, the court stated that while the judge's conduct “showed extremely poor judgment,” “we do note that his involvement in the Hopkins matter was motivated by his sympathy for the plight of the Hopkins family, and that petitioner sought only to help his friends through another emotional trauma. Petitioner was not motivated by personal gain, and totally absent from his conduct was any element of venality, selfish or dishonorable purpose … .” Id. at 370.

And in Matter of LaBombard, 11 N.Y.3d 294 (2008), we see the flip side of this equation. LaBombard, a town justice, contacted the judge handling the case in which his step-grandson was charged with a felony. Knowing that the other judge was aware of his judicial status, LaBombard told the judge that his relative was a “good kid” and made remarks that “ gave] the impression that the codefendants were more culpable than his relative].” In another incident, after a traffic accident, he “repeatedly and gratuitously told the other motorist that he was a judge, suggesting that because of his judicial status, she must have been in the wrong and had caused the accident.” Id. at 296.

Removing the judge from office, the Court of Appeals stated: “ His] intervention on behalf of his step-grandson in a matter pending in another court, as well as his invocation of his judicial status in the wake of the motor vehicle accident, suggest a willingness to misuse his judicial office for personal advantage—a quality that is antithetical to the judicial role.” Id. at 299. Clearly, LaBombard had a self-aggrandizing subjective intent that the court saw as the critical factor supporting removal.

Almost four decades ago, the court admonished or censured three judges for seeking special consideration for defendants in traffic cases and/or granting such requests. Matter of Dixon, 47 N.Y.2d 523 (1979); Matter of Bulger, 48 N.Y.2d 32 (1979); Matter of Dier, 48 N.Y.2d 874 (1979). A few years later, signaling that ticket-fixing would now be treated more severely, the court removed a judge for a single instance of such behavior. Matter of Reedy, 64 N.Y.2d 299 (1985). While noting that Reedy had previously been censured for similar conduct, the court stated that “ticket-fixing is misconduct of such gravity as to warrant removal, even if this matter were petitioner's only transgression.” Id. at 302.

But the next year, in Matter of Edwards, 67 N.Y.2d 153 (1986), the court reduced the sanction from removal to censure for one incident of ticket-fixing, involving a judge who interceded in his son's traffic case. Notably, although Edwards did not make a specific request for special treatment for his son (he asked the judge handling the case about procedures and said, “Any assistance you may render will be greatly appreciated”), the court stated that “[t]he absence of a specific request for favorable treatment or special consideration is irrelevant.” Id. at 155. In reducing the sanction, the court cited as mitigation his unblemished record in 21 years as a judge and that his “judgment was somewhat clouded by his son's involvement,” that he was cooperative and that he “forthrightly admitted the impropriety of his conduct.” Id.

Although these sanctions might be viewed as inconsistent, “[j]udicial misconduct cases are, by their very nature, sui generis,” Matter of Blackburne, 7 N.Y.3d 213, 219-20 (2006), and, as in sentencing in criminal cases, a calibration of aggravating and mitigating factors is applied. As a prerequisite for removal, the court appears to require aggravating factors such as subjectively selfish motives (absent in Kiley, present in LaBombard), prior discipline (Reedy), multiple incidents and/or a demeanor component (Shilling), or the failure to recognize serious misconduct (absent in Edwards, present in Shilling).

However, in the latest Court of Appeals' decision, just this month—Matter of Ayres—a town justice used his judicial clout in an effort to help his daughter get her traffic ticket dismissed. He attempted to get the case moved to another judge because he thought the judge assigned was biased and Ayres asked a clerk, who knew him as a judge, to transfer the case, and then called the co-judge directly and asked him to handle the case. After these efforts were unsuccessful, he attended a pre-hearing conference with his daughter during which he referred to his judicial position and told the prosecutor that if the ticket were in his court he would dismiss it. In addition, he engaged in ex parte communications with a court to which one of his decisions was appealed, denigrating the appellant and counsel.

The Commission unanimously voted to remove the judge (see Part I of this column), and the Court of Appeals agreed, adopting what appears to be a guide for deciding what constitutes “'truly egregious circumstances'” warranting removal, at least, in cases of judges using their office to serve their private interests. What the court deems the “guiding principle'” is a “'general rule [that] intervention in a proceeding in another court should result in removal.'” The court added that “the inability to recognize the seriousness of one's misconduct and the failure to heed a prior warning are significant aggravating factors and can be grounds for removal as well.”

Upholding the Commission's removal of Ayres, and the language of the court's opinion, could signal an increasing lack of tolerance for personal conduct unbecoming of a judge that poses a threat to the public's confidence in the integrity of the judiciary. The emphasis on the misconduct itself, rather than purported mitigation and “acceptance of responsibility” for misconduct after-the-fact, may augur a new day that re-emphasizes the importance of public perception of the integrity of the judiciary as the primary value in judicial conduct sanction determinations. If so, this would replace a line of precedent which inexplicably focuses more on mitigation, based on the judge's state of mind, rather than the actual misconduct which degrades the judge and the judiciary as a whole. In Ayres, the court repeatedly emphasizes the “duty [of a judge] to act 'in such a manner as to inspire public confidence in the integrity, fair-mindedness and impartiality of the judiciary.'” If the court is now recognizing this interest as overriding, we should expect more removals from office for private interest misconduct.

Off-Bench vs. On-Bench Statistics

From 2004 to the present, by a back-of-the-envelope analysis, there have been 25 removals of judges: 15 involving on-bench misconduct, five for misconduct off- bench, and five that included both kinds of conduct. Four of the removals included violations of Rule 100.2(C). (These totals do not include the pending Ayres case.) The four removals include three cases based on misconduct both on and off the bench (Matter of Spargo (2006) (judge solicited contributions to his legal defense fund); Matter of Halstead (2011) (judge used court envelopes in connection with pending traffic charges against her); Matter of LaBombard, supra) and Matter of Schilling (2012), which involved two incidents of ticket-fixing. In Schilling, a town justice and Office of Court Administration employee who was involved in judicial training allowed favoritism that resulted in the voiding of her own traffic ticket and, years later, initiated a surreptitious “scheme” that led to the “disappearance” of a ticket issued to a judicial colleague's wife.

Over the same time frame, there have been 94 admonitions or censures for on-bench misconduct, 61 for off-bench misconduct, and 12 that involve both types of misconduct. So, the total number of disciplines (removal, censure or admonition) over that period—192 cases—include 109 for on-bench misconduct, 66 for off-bench misconduct and 17 cases with both kinds of conduct; percentage-wise, 57 percent of the disciplinary dispositions were for on-bench misconduct, 34 percent for off-bench misconduct, and 9 percent include both.

Another way to look at it is that of the 192 cases, 66 percent involve at least some on-bench misconduct, and 43 percent involve at least some off-bench misconduct.

Of the 83 cases with off-bench misconduct, 32 included the use of judicial influence to further the private interests of the judge or others. The remaining 51 cases included other types of off-the-bench misconduct, such as alcohol-related driving offenses or other criminal conduct, prohibited political activity, improper business activity or practice of law, misconduct as an attorney, and commenting on pending cases.

Judgeship: Right or Privilege?

Determinations of the severity of sanction for misconduct off the bench should be primarily driven by the effect of a judge's misconduct on the public's confidence in the judiciary. Whether judges are elected or appointed, each system of judicial selection is calculated to enhance and uphold public confidence in the judiciary. Because judges are indispensable components of a system based on separation of powers with the obligation to check both executive and legislative power, their office is a privilege, and not vested with any right to keep that office, except not to be removed in the absence of fair process.

The position of “judge” is exalted and respect for its functions is a prerequisite to its effectiveness. Upholding the integrity of the judiciary is a value that is hard to overstate in our system, where judges have to have the authority, and actually have the obligation, to trump the democratic dictates of their coordinate branches. Thus, the argument that judges have any personal right to stay in office when their behavior threatens perceptions of judicial integrity has little weight in the calculus of the degree to which a judge should be punished for off the bench misconduct.

It is well-established that a judgeship is a privilege, not a right. A state is not required to allow a judge to occupy a state judicial office. Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497 (1944). “The privilege of occupying such an office is one granted by a state, not a right secured by constitutional mandate. It is clearly evident from the pertinent court decisions that a state may require a public servant to account for the performance of his duties upon pain of dismissal … .” Napolitano v. Ward, 457 F.2d 279, 284 (7th Cir. 1972), cert. denied, 409 U.S. 1037, reh. denied, 410 U.S. 947 (1973). “Since [a judge] does not have a constitutional right to hold public office in the first instance, relieving him temporarily from his duties and subsequently affording him a full opportunity to be heard does not offend the due process clause of the fourteenth amendment.” Gruenburg v. Kavanagh, 413 F. Supp. 1132, 1136 (E.D. Mich. 1976).

Accounting for a state's right to regulate the judiciary for the benefit of the public, the district court in Gruenburg stated: “Nothing in the federal constitution mandates that a state must permit a judge to hold judicial office unhampered by standards of conduct. A state that creates a public office can set standards of conduct for the state officer.” Id. at 1135. Another district court put it somewhat differently: “The public has a right to inquire whether a member of its judiciary, invested with a public trust, is worthy of that trust … . In effect, [the judge] is arguing that he has a federal right to remain as a judge regardless of his conduct. But there is no constitutional right to public office, United States v. Field, 193 F.2d 92, 106 (2d Cir 1951) (separate opinion of Frank, J.) … .” Napolitano v. Ward, 317 F. Supp. 83, 84-85 (N.D. Ill. 1970).

It appears that every state that has addressed this question has reached similar conclusions. La Fever v. Ware, 211 Tenn. 393, 397 (1963); In re Martin, 302 N.C. 299, 317 (1981); In re Seitz, 441 Mich. 590, 625 (1993); In re Mathesius, 188 N.J. 496, 525 (2006); In re Coffey's Case, 157 N.H. 156, 170 (2008); In re Hogdon, 189 Vt. 265, 274 (2011). Thus, a high bar for judging the personal behavior of judges who corrode respect for their office, or the judiciary as a whole, is a legitimate and compelling standard for evaluating misconduct off the bench. And use of the office to serve private interests is an all too frequent abuse that warrants severe discipline primarily because public perception of the integrity of the judiciary is put at risk.

Conclusion

Disciplining judges should always trigger serious concerns for jeopardizing judicial independence. But, except in rare cases, the imperative of judicial independence should not be a concern in disciplining judges for off-bench misconduct. And a judge who misuses the robe for personal gain, benefit or influence deserves the most serious sanction, presumptively removal, for conduct that brings the judiciary and his or her office into disrepute.

There must always be constraints on investigations and discipline in cases that tread upon privacy or other aspects of a judge's personal life. But off the bench, as the Court of Appeals has reminded, a judge's every act is accorded “heightened deference” and they are bound to the strictest standards of personal conduct (“Wherever he travels, a Judge carries the mantle of his esteemed office with him, and, consequently, he must always be sensitive to the fact that members of the public, including some of his friends, will regard his words and actions with heightened deference simply because he is a Judge.” Matter of Steinberg, 51 N.Y.2d 74, 81 (1980); “[T]hroughout this entire incident petitioner, 'although off the bench remained cloaked figuratively, with his black robe of office devolving upon him standards of conduct more stringent than those acceptable for others'.” Matter of Kuehnel, 49 N.Y.2d 465, 469 (1980)). The Commission and the Court of Appeals should rarely excuse judges who leverage their office for personal gain.

Richard Emery is a founding partner of Emery Celli, Brinckerhoff & Abady. He was a member of the New York State Commission on Judicial Conduct from March 2004 until April 2017.

This is the second of two columns analyzing judicial discipline imposed upon judges who attempt to further private interests by invoking their judicial office. The first column reviewed cases—recent and since its inception—of the New York State Commission on Judicial Conduct concluding that, in the overwhelming majority of cases, the sanctions imposed fell short of removal from office and, therefore, do not effectively support the public perception of the integrity of the judiciary. This column focuses on Court of Appeals' precedents in this category of judicial discipline and reviews the basis for holding judges accountable for their off-bench actions.

Court of Appeals Precedents

The Court of Appeals has frequently reviewed Commission disciplinary decisions for misconduct based upon using the prestige of judicial office to advance private interests. Matter of Lonschein, 50 N.Y.2d 569 (1980) is the leading case. There, a Supreme Court justice telephoned a deputy counsel at the Taxi and Limousine Commission, asked about the status of a friend's license application, said it was being unfairly delayed and asked the official to expedite the matter. A few days later the judge told the deputy counsel that his friend's application was still being delayed and “deserves to be heard.”

The Court of Appeals held that the judge “placed the prestige of his office behind the request,” Id. at 572. Although the judge “never asserted his judicial office in seeking special consideration,” he “was aware that the deputy counsel knew of his position and should have realized that his requests would be accorded greater weight by an administrative official than they would have been had petitioner not been a judge.” Id. at 572-73. The court stated:

Members of the judiciary should be acutely aware that any action they take, on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved ( Matter of Kuehnel v. State Comm. on Judicial Conduct , 49 N.Y.2d 465, 469). There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. Thus, any communication from a Judge to an outside agency on behalf of another, may be perceived as one backed by the power and prestige of judicial office.

Id. at 572.

The court further stated that “[j]udges must assiduously avoid those contacts which might create even the appearance of impropriety.” Id.

Notably, the court reduced the sanction from censure to admonition. It said that the judge was motivated by “a sincere, albeit misguided, desire to accommodate a dear friend” and that there was “no suggestion of malevolent or venal motive but a strongly felt desire to remedy a perceived injustice to a friend.” Id. at 573.

In Matter of Shilling, 51 N.Y.2d 397 (1980), which followed Lonschein by a few months, a New York City Civil Court judge, who was a trustee of an agency seeking a permit to operate an animal shelter, made several calls to a city official in which he identified himself as a judge, asked why the permit had not been granted, said that the department should stop impeding the application and told the official that he had “more political clout” than the official. The judge told another city official in a threatening manner that the department was abusing its authority; he also contacted ASPCA officials in an effort to have summonses against the agency dropped. When the matter was heard in court, Shilling approached the judge handling the case and discussed the pending matter, impugning the motives of the ASPCA and the city agency. Outside the courtroom, he loudly and angrily told ASPCA officials and others that he was a judge and had “friends in high places.” On review of the Commission's determination of censure, the court increased the sanction to removal.

The court stated that the judge's conduct was “clearly more egregious” than that in Matter of Lonschein, where the judge “never asserted his judicial office and did no more than request expedition of the license] application”; in contrast, Shilling asked the ASPCA to dismiss charges and asked for preferential treatment of the shelter, which was “clearly contrary to the spirit and purpose of the regulatory provisions being enforced.” Id. at 403. The court rejected the judge's argument that his acts had “nothing to do with my judicial position,” stating that “'[any] conduct, on or off the Bench, inconsistent with proper judicial demeanor subjects the judiciary as a whole to disrespect and impairs the usefulness of the individual Judge to carry out his or her constitutionally mandated function'.” Id. at 402. The court concluded that the conduct in its totality, including the judge's threatening language, “invective and pressure politics” and “the spectacle of a person identifying himself as a Judge and speaking in loud and threatening tones of his friends in high places,” showed “a blatant lack not only of judgment but also of judicial temperament.” Id. at 399, 403-04.

In Matter of Kiley, 74 N.Y.2d 364 (1989), the Court of Appeals reduced the Commission's sanction determination from removal to censure, allowing the judge to remain on the bench. Judge Kiley interceded on behalf of the defendants in two criminal proceedings. In one case, he initiated ex parte communications with the prosecutors and with the presiding judge on behalf of the son of a friend, telling them prior to the arraignment that he had previously represented the defendant and that the defendant had a good record of appearing in court and had “recent tragedies” in his family. In the other case, which came before Kiley after a long-time friend had informed him that the defendant was a colleague's son, he summoned both the prosecutor and a supervisor into his chambers and asked the ADA why he was not offering an Adjournment Contemplating Dismissal. He told the supervisor that he had once worked with the defendant's father and that that disposition would be “appreciated.”

Reducing the sanction, the court stated that while the judge's conduct “showed extremely poor judgment,” “we do note that his involvement in the Hopkins matter was motivated by his sympathy for the plight of the Hopkins family, and that petitioner sought only to help his friends through another emotional trauma. Petitioner was not motivated by personal gain, and totally absent from his conduct was any element of venality, selfish or dishonorable purpose … .” Id. at 370.

And in Matter of LaBombard, 11 N.Y.3d 294 (2008), we see the flip side of this equation. LaBombard, a town justice, contacted the judge handling the case in which his step-grandson was charged with a felony. Knowing that the other judge was aware of his judicial status, LaBombard told the judge that his relative was a “good kid” and made remarks that “ gave] the impression that the codefendants were more culpable than his relative].” In another incident, after a traffic accident, he “repeatedly and gratuitously told the other motorist that he was a judge, suggesting that because of his judicial status, she must have been in the wrong and had caused the accident.” Id. at 296.

Removing the judge from office, the Court of Appeals stated: “ His] intervention on behalf of his step-grandson in a matter pending in another court, as well as his invocation of his judicial status in the wake of the motor vehicle accident, suggest a willingness to misuse his judicial office for personal advantage—a quality that is antithetical to the judicial role.” Id. at 299. Clearly, LaBombard had a self-aggrandizing subjective intent that the court saw as the critical factor supporting removal.

Almost four decades ago, the court admonished or censured three judges for seeking special consideration for defendants in traffic cases and/or granting such requests. Matter of Dixon, 47 N.Y.2d 523 (1979); Matter of Bulger, 48 N.Y.2d 32 (1979); Matter of Dier, 48 N.Y.2d 874 (1979). A few years later, signaling that ticket-fixing would now be treated more severely, the court removed a judge for a single instance of such behavior. Matter of Reedy, 64 N.Y.2d 299 (1985). While noting that Reedy had previously been censured for similar conduct, the court stated that “ticket-fixing is misconduct of such gravity as to warrant removal, even if this matter were petitioner's only transgression.” Id. at 302.

But the next year, in Matter of Edwards, 67 N.Y.2d 153 (1986), the court reduced the sanction from removal to censure for one incident of ticket-fixing, involving a judge who interceded in his son's traffic case. Notably, although Edwards did not make a specific request for special treatment for his son (he asked the judge handling the case about procedures and said, “Any assistance you may render will be greatly appreciated”), the court stated that “[t]he absence of a specific request for favorable treatment or special consideration is irrelevant.” Id. at 155. In reducing the sanction, the court cited as mitigation his unblemished record in 21 years as a judge and that his “judgment was somewhat clouded by his son's involvement,” that he was cooperative and that he “forthrightly admitted the impropriety of his conduct.” Id.

Although these sanctions might be viewed as inconsistent, “[j]udicial misconduct cases are, by their very nature, sui generis,” Matter of Blackburne, 7 N.Y.3d 213, 219-20 (2006), and, as in sentencing in criminal cases, a calibration of aggravating and mitigating factors is applied. As a prerequisite for removal, the court appears to require aggravating factors such as subjectively selfish motives (absent in Kiley, present in LaBombard), prior discipline (Reedy), multiple incidents and/or a demeanor component (Shilling), or the failure to recognize serious misconduct (absent in Edwards, present in Shilling).

However, in the latest Court of Appeals' decision, just this month—Matter of Ayres—a town justice used his judicial clout in an effort to help his daughter get her traffic ticket dismissed. He attempted to get the case moved to another judge because he thought the judge assigned was biased and Ayres asked a clerk, who knew him as a judge, to transfer the case, and then called the co-judge directly and asked him to handle the case. After these efforts were unsuccessful, he attended a pre-hearing conference with his daughter during which he referred to his judicial position and told the prosecutor that if the ticket were in his court he would dismiss it. In addition, he engaged in ex parte communications with a court to which one of his decisions was appealed, denigrating the appellant and counsel.

The Commission unanimously voted to remove the judge (see Part I of this column), and the Court of Appeals agreed, adopting what appears to be a guide for deciding what constitutes “'truly egregious circumstances'” warranting removal, at least, in cases of judges using their office to serve their private interests. What the court deems the “guiding principle'” is a “'general rule [that] intervention in a proceeding in another court should result in removal.'” The court added that “the inability to recognize the seriousness of one's misconduct and the failure to heed a prior warning are significant aggravating factors and can be grounds for removal as well.”

Upholding the Commission's removal of Ayres, and the language of the court's opinion, could signal an increasing lack of tolerance for personal conduct unbecoming of a judge that poses a threat to the public's confidence in the integrity of the judiciary. The emphasis on the misconduct itself, rather than purported mitigation and “acceptance of responsibility” for misconduct after-the-fact, may augur a new day that re-emphasizes the importance of public perception of the integrity of the judiciary as the primary value in judicial conduct sanction determinations. If so, this would replace a line of precedent which inexplicably focuses more on mitigation, based on the judge's state of mind, rather than the actual misconduct which degrades the judge and the judiciary as a whole. In Ayres, the court repeatedly emphasizes the “duty [of a judge] to act 'in such a manner as to inspire public confidence in the integrity, fair-mindedness and impartiality of the judiciary.'” If the court is now recognizing this interest as overriding, we should expect more removals from office for private interest misconduct.

Off-Bench vs. On-Bench Statistics

From 2004 to the present, by a back-of-the-envelope analysis, there have been 25 removals of judges: 15 involving on-bench misconduct, five for misconduct off- bench, and five that included both kinds of conduct. Four of the removals included violations of Rule 100.2(C). (These totals do not include the pending Ayres case.) The four removals include three cases based on misconduct both on and off the bench (Matter of Spargo (2006) (judge solicited contributions to his legal defense fund); Matter of Halstead (2011) (judge used court envelopes in connection with pending traffic charges against her); Matter of LaBombard, supra) and Matter of Schilling (2012), which involved two incidents of ticket-fixing. In Schilling, a town justice and Office of Court Administration employee who was involved in judicial training allowed favoritism that resulted in the voiding of her own traffic ticket and, years later, initiated a surreptitious “scheme” that led to the “disappearance” of a ticket issued to a judicial colleague's wife.

Over the same time frame, there have been 94 admonitions or censures for on-bench misconduct, 61 for off-bench misconduct, and 12 that involve both types of misconduct. So, the total number of disciplines (removal, censure or admonition) over that period—192 cases—include 109 for on-bench misconduct, 66 for off-bench misconduct and 17 cases with both kinds of conduct; percentage-wise, 57 percent of the disciplinary dispositions were for on-bench misconduct, 34 percent for off-bench misconduct, and 9 percent include both.

Another way to look at it is that of the 192 cases, 66 percent involve at least some on-bench misconduct, and 43 percent involve at least some off-bench misconduct.

Of the 83 cases with off-bench misconduct, 32 included the use of judicial influence to further the private interests of the judge or others. The remaining 51 cases included other types of off-the-bench misconduct, such as alcohol-related driving offenses or other criminal conduct, prohibited political activity, improper business activity or practice of law, misconduct as an attorney, and commenting on pending cases.

Judgeship: Right or Privilege?

Determinations of the severity of sanction for misconduct off the bench should be primarily driven by the effect of a judge's misconduct on the public's confidence in the judiciary. Whether judges are elected or appointed, each system of judicial selection is calculated to enhance and uphold public confidence in the judiciary. Because judges are indispensable components of a system based on separation of powers with the obligation to check both executive and legislative power, their office is a privilege, and not vested with any right to keep that office, except not to be removed in the absence of fair process.

The position of “judge” is exalted and respect for its functions is a prerequisite to its effectiveness. Upholding the integrity of the judiciary is a value that is hard to overstate in our system, where judges have to have the authority, and actually have the obligation, to trump the democratic dictates of their coordinate branches. Thus, the argument that judges have any personal right to stay in office when their behavior threatens perceptions of judicial integrity has little weight in the calculus of the degree to which a judge should be punished for off the bench misconduct.

It is well-established that a judgeship is a privilege, not a right. A state is not required to allow a judge to occupy a state judicial office. Snowden v. Hughes , 321 U.S. 1, 64 S. Ct. 397, 88 L. Ed. 497 (1944) . “The privilege of occupying such an office is one granted by a state, not a right secured by constitutional mandate. It is clearly evident from the pertinent court decisions that a state may require a public servant to account for the performance of his duties upon pain of dismissal … .” Napolitano v. Ward , 457 F.2d 279, 284 (7th Cir. 1972), cert. denied, 409 U.S. 1037, reh. denied, 410 U.S. 947 (1973). “Since [a judge] does not have a constitutional right to hold public office in the first instance, relieving him temporarily from his duties and subsequently affording him a full opportunity to be heard does not offend the due process clause of the fourteenth amendment.” Gruenburg v. Kavanagh , 413 F. Supp. 1132, 1136 (E.D. Mich. 1976).

Accounting for a state's right to regulate the judiciary for the benefit of the public, the district court in Gruenburg stated: “Nothing in the federal constitution mandates that a state must permit a judge to hold judicial office unhampered by standards of conduct. A state that creates a public office can set standards of conduct for the state officer.” Id. at 1135. Another district court put it somewhat differently: “The public has a right to inquire whether a member of its judiciary, invested with a public trust, is worthy of that trust … . In effect, [the judge] is arguing that he has a federal right to remain as a judge regardless of his conduct. But there is no constitutional right to public office, United States v. Field , 193 F.2d 92, 106 (2d Cir 1951) (separate opinion of Frank, J.) … .” Napolitano v. Ward , 317 F. Supp. 83, 84-85 (N.D. Ill. 1970).

It appears that every state that has addressed this question has reached similar conclusions. La Fever v. Ware , 211 Tenn. 393, 397 (1963); In re Martin, 302 N.C. 299, 317 (1981); In re Seitz, 441 Mich. 590, 625 (1993); In re Mathesius, 188 N.J. 496, 525 (2006); In re Coffey's Case, 157 N.H. 156, 170 (2008); In re Hogdon, 189 Vt. 265, 274 (2011). Thus, a high bar for judging the personal behavior of judges who corrode respect for their office, or the judiciary as a whole, is a legitimate and compelling standard for evaluating misconduct off the bench. And use of the office to serve private interests is an all too frequent abuse that warrants severe discipline primarily because public perception of the integrity of the judiciary is put at risk.

Conclusion

Disciplining judges should always trigger serious concerns for jeopardizing judicial independence. But, except in rare cases, the imperative of judicial independence should not be a concern in disciplining judges for off-bench misconduct. And a judge who misuses the robe for personal gain, benefit or influence deserves the most serious sanction, presumptively removal, for conduct that brings the judiciary and his or her office into disrepute.

There must always be constraints on investigations and discipline in cases that tread upon privacy or other aspects of a judge's personal life. But off the bench, as the Court of Appeals has reminded, a judge's every act is accorded “heightened deference” and they are bound to the strictest standards of personal conduct (“Wherever he travels, a Judge carries the mantle of his esteemed office with him, and, consequently, he must always be sensitive to the fact that members of the public, including some of his friends, will regard his words and actions with heightened deference simply because he is a Judge.” Matter of Steinberg, 51 N.Y.2d 74, 81 (1980); “[T]hroughout this entire incident petitioner, 'although off the bench remained cloaked figuratively, with his black robe of office devolving upon him standards of conduct more stringent than those acceptable for others'.” Matter of Kuehnel, 49 N.Y.2d 465, 469 (1980)). The Commission and the Court of Appeals should rarely excuse judges who leverage their office for personal gain.

Richard Emery is a founding partner of Emery Celli, Brinckerhoff & Abady. He was a member of the New York State Commission on Judicial Conduct from March 2004 until April 2017.