The Judicial Ethics Forum (JEF)

The well-regarded New York State Commission on Judicial Conduct recommended censure for family court Judge Gerard Maney after the judge performed an illegal u-turn to avoid a sobriety checkpoint and repeatedly informed the officers of his judicial position.  The Judge requested that the officers give him a “professional courtesy” as a result of his judgeship.  The Commission found this conduct to be in violation of the New York Rules Governing Judicial Conduct §100.2(C), which states that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  (The Commission also found the judge to have violated Rules 100.1, 100.2(A), 100.4(A)(2), and 100.4(A)(3).)  Despite the judge’s twenty-year-long-incident-free record, the Commission determined that a censure was appropriate.   

In addition to the “professional courtesy” bit, the case is interesting in two further ways.  First, three members concurred in the result, but wrote separately to express remorse about the Commission’s decision to draw negative inferences from the judge’s decision not to testify at the hearing.  That is indeed a controversial inference, but the New York Court of Appeals has blessed it.  See, e.g., In re Reedy, 475 N.E.2d 1262 (N.Y. 1985).  The second interesting feature of the case is the point of the two-member dissent.  As the dissent noted, the Commission can decide either to (as here) censure a judge or remove a judge (suspension is not an option).  All members seemed to agree that a censure was too lenient, but the majority apparently believed that the next step up (removal) was too harsh.  For middle-ground conduct, then, the majority assumed that the Commission should round down (to censure), while the dissent argued that the Commission should round up (to removal). 

The full opinion can be read here.

Judge Ray McKoski has just published a thorough work on the ever-controversial appearance of impropriety standard.  Here is the abstract: 

Judges are required to forego a litany of professional and personal behaviors deemed to be inconsistent with the role of the neutral magistrate. For example, codes of judicial conduct prohibit ex parte communications, the misuse of office, public commentary on prohibited topics, and participation in certain social, religious, and political activities.

In addition to specific rules barring actual improprieties, it is commonly believed that a broader disciplinary standard is necessary to fully safeguard the public’s faith in the judiciary. As a result, under virtually every state judicial code, discipline may be imposed upon a judge for conduct which may not violate a particular rule but which is thought to create “an appearance of impropriety.”

This Article examines the disciplinary use of the appearance of impropriety standard from a theoretical and practical standpoint. The history and development of the standard is explored together with the most debated aspect of the rule—whether the “appearance of impropriety” prohibition can survive a vagueness challenge. The inescapable conclusion is that it cannot. A cost-benefit analysis further discloses that the disadvantages of the rule clearly outweigh its oft-touted but, nevertheless, illusory benefits. It is proposed that the use of the appearance standard as a disciplinary rule should be discontinued or, in the alternative, that a limiting construction should be placed on the “appearance of impropriety” thereby supplying the specificity needed to meet due process requirements.

Raymond J. McKoski, Judicial Discipline and the Appearance of Impropriety: What the Public Sees Is What the Judge Gets, 94 Minn. L. Rev. 1914 (2010).