Tuesday, December 15, 2009

Judges May Be Penalized For "Lengthy, Inexcusable" Delays in Making Their Rulings

Judicial Tardiness Can Trigger Discipline, Ruling Concludes
By Joel Stashenko, December 16, 2009

ALBANY - Judges may be penalized for "lengthy, inexcusable" delays in making their rulings, but such misconduct must be determined based on the circumstances of the individual cases, the Court of Appeals ruled yesterday.

The 6-0 Court revisited its 1990 finding in Matter of Greenfield, 76 NY2d 293, in which it held that the Commission on Judicial Conduct lacked the jurisdiction to discipline a judge for failing to timely dispose of pending matters except where judges defied orders or falsified records.

Ruling on a commission recommendation to admonish Kingston City Court Judge James B. Gilpatric (See Profile) for his delays in making rulings from 2004 to 2008, the Court said that "a judge's failure to promptly dispose of pending matters is primarily a matter for administrative correction" within the court system.

"But after nearly twenty years of experience with Greenfield, we think it is not workable to exclude completely the possibility of more formal discipline for such behavior, in cases where the delays are lengthy and without valid excuse," the judges held in a per curiam ruling in Matter of Gilpatric, 196.

The Court of Appeals decision appears on page 25 of the print edition of today's Law Journal.

The Court added, "We now hold that lengthy, inexcusable delays may also be the subject of disciplinary action, particularly when a judge fails to perform judicial duties despite repeated administrative efforts to assist the judge and his or her conduct demonstrates an unwillingness or inability to discharge those duties."

The judges cautioned that the circumstances of each judges' delays must be examined to determine if misconduct is present.

"Statistics alone are insufficient to support a finding of misconduct; disciplinary action must be based on a record demonstrating a judge's persistent lack of action in response to administrative recommendations or warnings," the Court ruled.

In the case before it yesterday, the Court ordered that Judge Gilpatric's matter be sent back to the commission and that a referee be called in to gather a more complete record.

The Court said it could not determine whether a warning Judge Gilpatric received from the commission in 2004 about decision-making delays was sufficient to "render these delays misconduct as a matter of law." Nor could the Court determine from the record what help Judge Gilpatric was offered by court administrators to enable him to speed up his rendering of decisions, the judges held.

The commission ruling was based on papers submitted to it, but not stipulated to by Judge Gilpatric nor the commission. No hearing was held.

According to the commission's determination of admonishment, Judge Gilpatric failed to render decisions in 43 cases and four motions in a timely fashion between 2004 and 2008 (NYLJ, June 19).

One of the cases went 31 months without a ruling. In 24 of the matters, delays ranged from two months to six months after final submission and in 17 cases delays ranged from seven months to 14 months.

Judge Gilpatric's attorney, James E. Long, argued before the Court that decision-making delays, where bad faith is not involved, are a matter for the state court system to police through its administrative judges, not misconduct punishable by the Commission on Judicial Conduct (NYLJ, Nov. 18).

Mr. Long said yesterday he believes he can demonstrate before a commission referee that Judge Gilpatric's delays were largely due to the fact the judge received little or no support staff while a part-time Kingston City Court judge from 2004 to 2007.

"The cases that were delayed were not strictly run-of-the-mill small claims and City Court cases," Mr. Long said in an interview. "There were cases that were fully tried and deserved a written decision."

Judge Gilpatric cleared up his delays in 2008, when he received support staff after becoming a full-time City Court judge in Kingston, according to his lawyer.

'Rule of Reason'

Mr. Long argued that yesterday's ruling will "embolden" the conduct commission to cast a wider disciplinary net for judges who have been tardy in making rulings.

Under the Uniform City Court Act, judges have 30 days to rule from when a case is finally submitted and 60 days to decide motions.

Robert H. Tembeckjian, administrator of the conduct commission, said the Court had "substantially and appropriately" modified its 19-year-old precedent in Greenfield. He denied the commission would use the ruling to target judges for delays.

"The commission's approach is to regard the ethics rules as rules of reason and not impose discipline for minor infractions," Mr. Tembeckjian said. "In the area of delay, that means not to impose discipline where there wasn't some egregious violation."

In its 32-year history, the commission has publicly disciplined only 11 judges for delay, five before Greenfield and five afterward, Mr. Tembeckjian said yesterday.

Mr. Tembeckjian said traditionally court administrators handle the issue.

He said the Court's ruling was the first time the judges have remitted a matter back to the commission for a new hearing. The decision to do so appeared to run counter to the Court's finding in Matter of Shaw v. State Commission on Judicial Conduct, 96 NY2d 7 (2001), in which judges held they did not have jurisdiction to remit a matter back to the commission for reconsideration. Rather, according to that decision, they could only decide whether to affirm or reject the commission's recommendation to remove, censure or admonish judges.

Judge Gilpatric will start his new duties in January as a Supreme Court justice in the Third Judicial District following his election last month. He will travel to all seven counties in the Supreme Court district, but will be based in Kingston.

Chief Judge Jonathan Lippman took no part in yesterday's ruling.

@|Joel Stashenko can be reached at jstashenko@alm.com.

Tardiness Not a Matter Of Ethics, Judge Argues
By Joel Stashenko, New York Law Journal, November 18, 2009

ALBANY - Absent any aggravating factors, tardiness by judges in rendering decisions is a matter for court administrators to remedy, not the Commission on Judicial Conduct, the lawyer for a soon-to-be Supreme Court justice argued yesterday before the Court of Appeals.

Attorney James E. Long of Albany conceded that Judge James P. Gilpatric (See Profile) allowed some matters before his Kingston City Court to go on too long, especially the small claims matter that he took 31 months to decide.

But Mr. Long asked the Court of Appeals whether the Third Judicial District's administrative judge, George B. Ceresia Jr., could have done more to help Judge Gilpatric clear a backlog of late cases and prevented the Gilpatric matter from going to the Commission on Judicial Conduct, which recommended that the judge be admonished.

"So what should the commission do when they get a complaint from a member of the public [of judicial delay]?" Judge Carmen Beauchamp Ciparick asked Mr. Long yesterday.

"They should go to the administrative judge, your honor," Mr. Long responded. "They should not be attacking Judge Gilpatric and disciplining him. They should go to the administrative judge and say, 'What's needed here? What education is needed so that the judge doesn't do this? Did you feel there was any reason to intervene?'"

But Judge Victoria A. Graffeo noted that Judge Gilpatric had been cautioned in the past by the commission about late decision-making and that Judge Ceresia had also made inquiries about late cases that Judge Gilpatric listed in his quarterly reports to the administrative judge. Judge Graffeo asked about the extent of Judge Gilpatric's obligation to the litigants who often had to wait months for the judge to rule in their cases.

"Possibly he should have reached out and asked his administrative judge for help, 'Send another judge down, I've got a backlog that I can't keep up with up,'" Mr. Long said.

"Thirty-one-and-a-half months in a small claims decision? ... Over two years, almost three?" Judge Ciparick asked.

"That I would have to submit, judge, literally gets lost in the cracks," Mr. Long replied. "But is that judicial misconduct warranting discipline by the commission?"

Judge Gilpatric, in Matter of Gilpatric v. State Commission on Judicial Conduct, 196, is challenging the admonishment recommendation by the commission for failing to render decisions in 47 cases within prescribed time limits from July 2004 to March 2008.

Judge Gilpatric argued that the delays occurred almost exclusively in a period when he was a part-time city court judge who did not have a law clerk or a secretary. He was also establishing, at Judge Ceresia's direction, the first Kingston Domestic Violence Court during the same period, the judge argued.

Judge Gilpatric was elected on Nov. 3 as a Supreme Court justice in the Third Judicial District and will take that bench starting in January.

Questioning by the judges yesterday indicated that the matter would likely hinge on the Court's interpretation of a 1990 precedent, Matter of Greenfield, 76 NY2d 293.

Aggravating Factors

In that ruling, the Court held that the Commission on Judicial Conduct does not have jurisdiction to sanction a judge for ruling delays unless, as an aggravating factor, the judge has "defied administrative directives" or has "attempted to subvert the system."

Mr. Long contended that the 2004 letter of caution from the commission to Judge Gilpatric was not an aggravating factor that brought the commission into play.

Commission Administrator Robert H. Tembeckjian, arguing yesterday for the commission, said a February 2004 confidential letter of caution to Judge Gilpatric was clearly an "aggravating factor" under Greenfield that gave the agency the authority to step in.

"Aggravation was met," Mr. Tembeckjian said. "It is aggravation if you are cautioned and persist."

Mr. Tembeckjian said it is the job of the commission to discipline judges for unnecessary delays in rendering rulings if the aggravating factors outlined in Greenfield are met.

He said the commission has shown "enormous discretion" in sanctioning judges for late rulings.

Since the inception of the agency in 1978, Mr. Tembjeckian said only 11 judges have been publicly disciplined for making tardy rulings out of some 1,600 complaints received for delay. Another 70 private letters of caution have gone out to judges, Mr. Tembjeckian said.

Most of the complaints were dismissed without action.

"Greenfield has essentially wiped out the field of delay unless there is some aggravation," Mr. Tembeckjian.

Mr. Tembeckjian said Greenfield does not apply to the town and village court justices because they are not required to periodically report case delays to administrative judges like state judges are.

Mr. Long, in turn, told judges yesterday that Mr. Tembeckjian is eager to have them make significant changes to Greenfield, if not scrap it altogether, so the commission can gain additional regulatory authority over town and village justices who are significantly behind on their decision-making.

Mr. Long said that if the Court upholds Greenfield, he should win the case on behalf of Judge Gilpatric because the precedent does not give the commission the authority to intervene.

"I'll be the hero amongst the town and village judges, because that is what this is really about," Mr. Long contended. "What they want you to do is reverse Greenfield so that the Commission on Judicial Conduct can start lining up the firing squad for the town and village judges."

After arguments, Mr. Tembeckjian disputed that the commission is seeking greater authority over justice courts.

"A prosecutor doesn't bring charges against everyone who jaywalks," Mr. Tembeckjian said. "The commission doesn't bring charges or scrutiny to every allegation of a minor transgression."

According to the commission (NYLJ, June 19), Judge Gilpatric failed in 43 cases, most of which were small claims matters, to make decisions within 30 days of final submission as required under the Uniform City Court Act §1304.

The bulk of those rulings were issued within two to six months after final submission, though the commission found that one matter went 31 months before a determination was made.

In four other cases between March 2005 and February 2008, the commission found the judge failed to rule on motions within the 60-day limit spelled out in both the Uniform City Court Act §1001 and §4213(c) of the Civil Practice Law and Rules.

Though time limits are established in both the Uniform City Court Act and the Civil Practice Law and Rules, neither statute establishes penalties if judges miss deadlines, or designates whether court administrators or the Commission on Judicial Conduct should enforce the rules.

Twice during the 2004-2009 period, the commission found that Judge Gilpatric failed to respond to inquiries from Judge Ceresia about delay in cases. In four instances, the commission found that litigants wrote letters to the judge inquiring about delays.

In making its 8-1 determination recommending admonishment, the commission held that Judge Gilpatric's conduct constituted a pattern of "persistent or deliberate neglect of his judicial duties."

@|Joel Stashenko can be reached at jstashenko@alm.com

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