“He has made Judges dependent on his Will, for the tenure of their offices, and the amount and payment of their salaries.” The Declaration of Independence
“We are extremely fortunate to have two such outstanding jurists to fill these critically important positions. Judges Kamins and DiMango are widely esteemed members of New York’s legal community, innovative leaders who bring the perfect blend of experience, skills and wisdom to their respective posts.” Chief Administrative Judge A. Gail Prudenti, December 17, 2013.
How is that working out?
On March 14, 2013, the Unified Court System’s Advisory Committee on Judicial Ethics decided that a judge could not sign a petition asking to make some laws more consistent with the Constitution. This applied even if the judge signed without divulging his judicial status. After all, that would be an appearance of impropriety (22 NYCRR 100.2), not promoting public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]), and lending the prestige of judicial office to advance the private interests of the judge or others (22 NYCRR 100.2[C]). I was reminded of that particularly close reading of a judge’s political behavior when I learned about the guy who had taken my dream job. Remember last year when the Numero Tres in the hierarchy of the Judicial System, just behind Chief Judge Lippman and Chief Administrative Judge Prudenti left to be the Executive Director of the Sanctuary for Families? That organization had just received $308,637 of taxpayer money thanks to the vote of Judge Prudenti on an Oversight Board. So, who could blame her? Well the Administrative Judge job opened up and I thought I was the perfect candidate. “Chief of Policy and Planning for the New York State Courts” requires you to “work with judges throughout the state to develop strategies and programs to improve the delivery of justice in the trial courts, as well as provide training and support for the Integrated Domestic Violence, Drug Treatment and other Problem-Solving Courts.” It oversees 300 problem solving courts, and who is better with problem solving courts than me? It comes with a nifty OCA car and a driver! Unfortunately the Powers that Be thought that Barry Kamins would be better than me. Darn. And just who is Barry Kamins? He is a Supreme Court Justice and the former Chair of the Ethics Committee in the 2nd and 11th Judicial Districts. For many years he has been the chairman of the New York State Bar Association Committee on Professional Discipline. He taught young prosecutors legal ethics. So you know Judge Kamins knows his stuff about ethics and all. Who wouldn’t appoint him? That’s just what Chief Administrative Judge Prudenti did with the approval of Judge Lippman last December. Welcome aboard, meet your new driver, and by the way here’s an extra $10,000 in salary.
So, it came as a surprise that Judge Kamins popped up in a City of New York Department of Investigation Report called “Regarding Misconduct by Former Kings County District Attorney Charles J. Hynes, Justice Barry Kamins and Others.” Holy smokes. It seems that a review of 300 of Judge Kamins’ e-mails (mostly from his official judicial e-mail account) and 800 of DA Hynes’ e-mails revealed that Justice Kamins engaged in political activity by advising DA Hynes about his reelection campaign, issues of trials with the Kings County DA’s office and provided Hynes with legal advice about a lawsuit involving his political campaign. How could that be? Is there another Judge Kamins out there? It seems that a few weeks before his ascension, Judge Kamins was e-mailing DA Hynes about how to handle a political opponent in a debate, advising how to word a statement about the primary, writing of speaking to a New York Times editorial board member and a New York Law Journal Editor in Chief about the campaign. The report gives specific quotes from Judge Kamins’ e-mails and concludes, “Many of these e-mails demonstrate that Judge Kamins engaged in political activity as a sitting judge, i.e. by advising Hynes regarding his campaign, and engaged in ex parte communications with Hynes regarding matters actively being prosecuted by the KCDA [Kings County District attorney].” They conclude that Judge Kamins used the prestige of his judicial office to advance Hynes’ political interests. The report states that this conduct “implicate various provisions of the Code of Judicial Conduct.” No kidding.
So, there you have it, chapter and verse of actual violations of the very Code of Judicial Conduct that the Commission on Judicial Conduct prosecutes for far less egregious conduct. And the good thing here is that all the work has been done by an independent board with all the proof anyone would need. So, I’m sure Judge Kamins was immediately removed from the bench and faces discipline both as a jurist and a lawyer, right?
Well, not exactly. For their part, OCA immediately stripped Judge Kamins of his Administrative Judgeship, took away his car, driver and raise. Then Judge Kamins went on vacation, using up his store of free time, so he hasn’t been serving the public as a Supreme Court Judge in a while. But the response from the Commission has been silence. I had the pleasure of speaking about this with the Director of Communications of the Unified Court System who called me 70 minutes after I sent in one of my annoying Freedom of Information Law requests. After answering my inquiries, he added the following: (a) After removing Judge Kamins as an Administrative Judge, there is nothing further OCA can do as that is the job of the Commission on Judicial Conduct and (b) historically, the Commission has not been very quick to act on complaints of judicial misconduct.
As for (a), I am sure it should be a source of comfort and relief to the local Supreme Court Judges that OCA has now confirmed that they can’t do anything to you. You heard it here first. You can ignore all those stupid forms about motions, trial schedules et alia and every annoying regulation and rule that detracts from your real job of dispensing justice to the people who elected you. Just go back to trying cases and shepherding people through the system so their issues can be resolved quickly and fairly. If OCA doesn’t like how you do business, who cares? They cannot do anything to you. They said so themselves.
As for (b), it depends on your definition of quick. The Commission has the power to initiate its own investigations under the Judiciary Law, and it does so frequently. They can ask a judge to appear within three days. They even have the power to move for a summary determination of the matter if the misconduct is clear. As for the historical speed of the Commission, when they want to, they can file a complaint within one month of the offending conduct and move for a summary determination one month later.
So, what’s the problem? Why is OCA so quick to let us know that these things take time, when they really don’t? All of the necessary proof has been served up on a platter for the Commission. Vacation or not, Judge Kamins remains a sitting Supreme Court Justice. Or is there a different standard for Executive Administrative Judges than the rest of the Town, Village, County and Supreme Court Justices of the Empire State? That can’t be, can it? Does it matter that the Chief Judge appoints 3 of the 11 members of the Commission? I doubt it. After all, the payment of hundreds of thousands of dollars to a charity considering the hiring of an Executive Administrative Judge is not lending the prestige of judicial office to advance the private interest of another. No, that was for the delivery of legal services to the poor, even though the organization is an active lobbyist for maintenance guidelines and other legislation. After all, it’s not like the judge is signing a petition. That would be wrong. Maybe it’s just that it’s summertime, and the living is easy.
At least my dream job is once again available, so where do I sign up?
Advisory Committee on Judicial Ethics Opinion 13-17
This was the award for the 2013-2014 state fiscal year. It raised to over $800,000 the amount awarded over three years. The full name is the Oversight Board for Judiciary Civil Legal Services in New York. I can’t wait to see what they award this year.
Judiciary Law, Article 2-A, Section 44(2).
Judiciary Law, Article 2-A, Section 44(3).
Commission Rules 7000.6(c)
Matter of Cooley, September 9, 1980.
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