Richter v. State Commission on Judicial Conduct

85 A.D.2d 790, 445 N.Y.S.2d 307, 1981 N.Y. App. Div. LEXIS 16607

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 1981
• Status: Published

Opinions

Appeals (1) from an order of the Supreme Court at Special Term (Kahn, J.), entered September 18, 1980 in Greene County, which, in a proceeding pursuant to CPLR article 78, denied the respondent commission’s motion to dismiss the petition and granted petitioner relief in the nature of prohibition limiting respondent’s examination of petitioner with respect to its investigation of him, and (2) from an order of said court, entered February 18,1981 in Greene County, which denied respondent’s motion for renewal and rehearing of its prior motion to dismiss the petition. In our view, this proceeding became moot when petitioner testified before the State Commission on Judicial Conduct on March 26, 1980 concerning the 48 additional instances which were not contained in the original complaint. This testimony was voluntary and was not compelled by subdivision 3 of section 44 of the Judiciary Law. That provision, which authorizes the commission to require a Judge under investigation to appear before it and testify under oath, must be read in conjunction with subdivision 2 of section 44 which limits the scope of any investigation to matters contained in the complaint. Thus, since the 48 incidents which petitioner made the subject of this article 78 proceeding were not mentioned in the complaint, the commission was without power to require petitioner’s testimony on these matters. Accordingly, since petitioner voluntarily gave testimony to the commission concerning these incidents, this proceeding, which seeks to prohibit such testimony, should have been dismissed as moot upon the commission’s subsequent motion for renewal and rehearing. Order entered February 18, 1981 reversed, on the law and the facts, without costs, motion for renewal and rehearing granted, and, upon rehearing, petition dismissed as moot. Appeal from order entered September 18, 1980 dismissed, as moot, without costs. Mahoney, P. J., Sweeney, Kane and Casey, JJ., concur; Weiss, J., concurs in the following memorandum.