The Volokh Conspiracy

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New York Judiciary Law Does Allow Commission To Investigate Judge Who Resigns

The investigation of the soon-to-resign Chief Judge of New York can continue.


Recently, Janet DiFiore, the Chief Judge of New announced that she would resign at the end of August. In June, the New York State Commission on Judicial Conduct served Judge DiFiore with a written complaint that alleged she used her position of proper to influence a disciplinary proceeding.

Can the investigation continue after she resigns? The Wall Street Journal said no:

The formal complaint could have led to a hearing before the commission, which has the power to privately caution judges or issue public admonitions or censures. The commission can also remove judges from office. However, it has no jurisdiction over jurists once they leave office, meaning her resignation effectively ends the investigation.

I don't think that's right. Anticipating this issue, this morning I asked this question of Rebecca Roiphe (New York Law School) and Bruce Green (Fordham Law School). They pointed me to two cases that suggest the Commission can maintain jurisdiction.

First, Matter of Hedges (New York 2013) explained:

* Judiciary Law § 47 provides the Commission and this Court with continued jurisdiction over a judge who resigns from office to prevent the judge from circumventing removal and then seeking judicial office in the future (see Matter of Backal, 87 N.Y.2d 1, 7 [1995]).

Second, Matter of Backal (New York 1995) stated:

That the Constitution was designed to include former Judges within the persons subject to removal for misconduct is apparent from its provisions governing the consequences of removal from judicial office. Article VI, § 22 (h) of our Constitution provides that a Judge "removed by the court of appeals shall be ineligible to hold other judicial office." The grant of continued jurisdiction over a resigned Judge contained in Judiciary Law § 47 provides the Commission and this Court with an indispensable means to enforce the constitutional "ineligibility" mandate against those Judges who, by resigning, might otherwise attempt to circumvent that bar and seek future office to the public's detriment. Moreover, petitioner's position that resignation and a promise not to seek future office clears the slate would encourage Judges to disregard the high standards of conduct they are bound to observe and "avoid the consequences of removal for cause by racing to resign"– a practice rejected by this Court (Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386, 395). Petitioner's view also ignores the greater institutional goals sought to be achieved by the constitutional provisions governing judicial discipline.

As I read these precedents, the Commission can retain jurisdiction even after the Chief Judge resigns. With this precedent, the Commission can disqualify DiFiore from holding office again in the future. To use an (inapt) analogy, the Senate managed to try President Trump even after he left office, in an effort to prevent him from holding office again in the future. (My views on the Impeachment Disqualification Clause are not relevant here).

Now why did I think to look up this issue? At least two federal judges apparently resigned while they were under investigation for misconduct: Alex Kozinski and Boyce Martin. Under the rules for federal judges, the investigation does conclude upon resignation. But, apparently, New York law operates differently for judges.

It is unclear if former-Governor Cuomo could have been impeached after he resigned. Come to think of it, Sheldon Silver, the New York Assembly Speaker resigned while he was under investigation to avoid removal. I'm sensing a pattern with New York apex officials.