§ 44 — Complaint; investigation; hearing and disposition

§ 44. Complaint; investigation; hearing and disposition. 1. The\ncommission shall receive, initiate, investigate and hear complaints with\nrespect to the conduct, qualifications, fitness to perform, or\nperformance of official duties of any judge, and, in accordance with the\nprovisions of subdivision d of section twenty-two of article six of the\nconstitution, may determine that a judge be admonished, censured or\nremoved from office for cause, including, but not limited to, misconduct\nin office, persistent failure to perform his duties, habitual\nintemperance and conduct, on or off the bench, prejudicial to the\nadministration of justice, or that a judge be retired for mental or\nphysical disability preventing the proper performance of his judicial\nduties. A complaint shall be in writing and signed by the complainant\nand, if directed by the commission, shall be verified. Upon receipt of a\ncomplaint (a) the commission shall conduct an investigation of the\ncomplaint; or (b) the commission may dismiss the complaint if it\ndetermines that the complaint on its face lacks merit. If the complaint\nis dismissed, the commission shall so notify the complainant. If the\ncommission shall have notified the judge of the complaint, the\ncommission shall also notify the judge of such dismissal.\n 2. The commission may, on its own motion, initiate an investigation of\na judge with respect to his qualifications, conduct, fitness to perform\nor the performance of his official duties. Prior to initiating any such\ninvestigation, the commission shall file as part of its record a written\ncomplaint, signed by the administrator of the commission, which\ncomplaint shall serve as the basis for such investigation.\n 3. In the course of an investigation, the commission may require the\nappearance of the judge involved before it, in which event the judge\nshall be notified in writing of his required appearance, either\npersonally, at least three days prior to such appearance, or by\ncertified mail, return receipt requested, at least five days prior to\nsuch appearance. In either case a copy of the complaint shall be served\nupon the judge at the time of such notification. The judge shall have\nthe right to be represented by counsel during any and all stages of the\ninvestigation in which his appearance is required and to present\nevidentiary data and material relevant to the complaint. A transcript\nshall be made and kept with respect to all proceedings at which\ntestimony or statements under oath of any party or witness shall be\ntaken, and the transcript of the judge's testimony shall be made\navailable to the judge without cost. Such transcript shall be\nconfidential except as otherwise permitted by section forty-five of this\narticle.\n 4. If in the course of an investigation, the commission determines\nthat a hearing is warranted it shall direct that a formal written\ncomplaint signed and verified by the administrator be drawn and served\nupon the judge involved, either personally or by certified mail, return\nreceipt requested. The judge shall file a written answer to the the\ncomplaint with the commission within twenty days of such service. If,\nupon receipt of the answer, or upon expiration of the time to answer,\nthe commission shall direct that a hearing be held with respect to the\ncomplaint, the judge involved shall be notified in writing of the date\nof the hearing either personally, at least twenty days prior thereto, or\nby certified mail, return receipt requested, at least twenty-two days\nprior thereto. Upon the written request of the judge, the commission\nshall, at least five days prior to the hearing or any adjourned date\nthereof, make available to the judge without cost copies of all\ndocuments which the commission intends to present at such hearing and\nany written statements made by witnesses who will be called to give\ntestimony by the commission. The commission shall, in any case, make\navailable to the judge at least five days prior to the hearing or any\nadjourned date thereof any exculpatory evidentiary data and material\nrelevant to the complaint. The failure of the commission to timely\nfurnish any documents, statements and/or exculpatory evidentiary data\nand material provided for herein shall not affect the validity of any\nproceedings before the commission provided that such failure is not\nsubstantially prejudicial to the judge. The complainant may be notified\nof the hearing and unless he shall be subpoenaed as a witness by the\njudge, his presence thereat shall be within the discretion of the\ncommission. The hearing shall not be public unless the judge involved\nshall so demand in writing. At the hearing the commission may take the\ntestimony of witnesses and receive evidentiary data and material\nrelevant to the complaint. The judge shall have the right to be\nrepresented by counsel during any and all stages of the hearing and\nshall have the right to call and cross-examine witnesses and present\nevidentiary data and material relevant to the complaint. A transcript\nof the proceedings and of the testimony of witnesses at the hearing\nshall be taken and kept with the records of the commission.\n 5. Subject to the approval of the commission, the administrator and\nthe judge may agree on a statement of facts and may stipulate in writing\nthat the hearing shall be waived. In such a case, the commission shall\nmake its determination upon the pleadings and the agreed statement of\nfacts.\n 6. If, after a formal written complaint has been served pursuant to\nsubdivision four of this section, or during the course of or after a\nhearing, the commission determines that no further action is necessary,\nthe complaint shall be dismissed and the complainant and the judge shall\nbe so notified in writing.\n 7. After a hearing, the commission may determine that a judge be\nadmonished, censured, removed or retired. The commission shall transmit\nits written determination, together with its findings of fact and\nconclusions of law and the record of the proceedings upon which its\ndetermination is based, to the chief judge of the court of appeals who\nshall cause a copy thereof to be served either personally or by\ncertified mail, return receipt requested, on the judge involved. Upon\ncompletion of service, the determination of the commission, its findings\nand conclusions and the record of its proceedings shall be made public\nand shall be made available for public inspection at the principal\noffice of the commission and at the office of the clerk of the court of\nappeals. The judge involved may either accept the determination of the\ncommission or make written request to the chief judge, within thirty\ndays after receipt of such determination, for a review thereof by the\ncourt of appeals. If the commission has determined that a judge be\nadmonished or censured, and if the judge accepts such determination or\nfails to request a review thereof by the court of appeals, the\ncommission shall thereupon admonish or censure him in accordance with\nits findings. If the commission has determined that a judge be removed\nor retired, and if the judge accepts such determination or fails to\nrequest a review thereof by the court of appeals, the court of appeals\nshall thereupon order his removal or retirement in accordance with the\nfindings of the commission.\n 8. (a) The court of appeals may suspend a judge or justice from\nexercising the powers of his office while there is pending a\ndetermination by the commission for his removal or retirement, or while\nhe is charged in this state with a felony by an indictment or an\ninformation filed pursuant to section six of article one of the\nconstitution. The suspension shall continue upon conviction and, if the\nconviction becomes final, he shall be removed from office. The\nsuspension shall be terminated upon reversal of the conviction and\ndismissal of the accusatory instrument.\n (b) Upon the recommendation of the commission or on its own motion,\nthe court may suspend a judge or justice from office when he is charged\nwith a crime punishable as a felony under the laws of this state, or any\nother crime which involves moral turpitude. The suspension shall\ncontinue upon conviction and, if the conviction becomes final, he shall\nbe removed from office. The suspension shall be terminated upon reversal\nof the conviction and dismissal of the accusatory instrument.\n (c) A judge or justice who is suspended from office by the court shall\nreceive his judicial salary during such period of suspension, unless the\ncourt directs otherwise. If the court has so directed and such\nsuspension is thereafter terminated, the court may direct that he shall\nbe paid his salary for such period of suspension.\n (d) Nothing in this subdivision shall prevent the commission from\ndetermining that a judge or justice be admonished, censured, removed, or\nretired pursuant to subdivision seven of this section.\n 9. In its review of a determination of the commission, the court of\nappeals shall review the commission's findings of fact and conclusions\nof law on the record of the proceedings upon which the commission's\ndetermination was based. After such review, the court may accept or\nreject the determined sanction; impose a different sanction including\nadmonition, censure, removal or retirement for the reasons set forth in\nsubdivision one of this section; or impose no sanction.\n 10. If during the course of or after an investigation or hearing, the\ncommission determines that the complaint or any allegation thereof\nwarrants action, other than in accordance with the provisions of\nsubdivisions seven and eight of this section, within the powers of: (a)\na person having administrative jurisdiction over the judge involved in\nthe complaint or; (b) an appellate division of the supreme court; or (c)\na presiding justice of an appellate division of the supreme court; or\n(d) the chief judge of the court of appeals; or (e) the governor; or (f)\nan applicable district attorney's office or other prosecuting agency,\nthe commission shall refer such complaint or the appropriate allegations\nthereof and any evidence or material related thereto to such person,\nagency or court for such action as may be deemed proper or necessary.\n 11. The commission shall notify the complainant of its disposition of\nthe complaint.\n