Richter v. State Commission on Judicial Conduct

Weiss, J. (concurring).

I concur in the majority’s opinion that petitioner’s testimony before the commission has rendered these proceedings moot. I write *791only because I believe that while the issue presented is not of the type that should be reserved as an exception to the mootness doctrine (Matter of Hearst Corp. v Clyne, 50 NY2d 707), a sufficiently useful purpose would be served in this instance by elaboration upon the statutory limitations of investigations as circumscribed by section 44 of the Judiciary Law and the decisions in the four cases all entitled Matter of Nicholson v State Comm. on Judicial Conduct (67 AD2d 649; 68 AD2d 851; 72 AD2d 48; 50 NY2d 597). The lesson of the Nicholson cases is clear, not to be subject to sophistry. The statute requires a predicate for any investigation, i.e., a written complaint. Subdivision 1 of section 44 provides for written complaints received from the public, and subdivision 2 covers written complaints originating within the commission. Nowhere does the statute either provide or envision widespread or limitless investigation beyond the specific charge set forth in a written complaint. It is beyond cavil that the State has an overriding interest in the integrity and impartiality of the judiciary (Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597, supra). There can hardly be a higher governmental interest than the State’s interest in the quality of its Judges (Landmark Communications v Virginia, 435 US 829, 849). But the jurisdictional basis for any investigation into possible judicial misconduct has been stated by the Legislature to be a written complaint which “shall serve as the basis for such investigation” (Judiciary Law, § 44, subd 2). Coincidence being fate’s major weapon, a letter written by petitioner was found in the files of another Judge under investigation by the commission. The letter sought favorable consideration for one Wesley E. Yeomans on a speeding charge. The commission filed a written administrator’s complaint on May 25,1978 charging wrongful conduct in the Yeomans matter, to which charge petitioner admitted guilt. Then, commencing in January, 1979, the commission conducted a four-month search of petitioner’s records and discovered 48 additional incidents, unrelated to the Yeomans matter, which it alleged to comprise wrongful conduct. This investigation, made without any additional written complaint, was without a jurisdictional basis. Petitioner appeared and testified before the commission on March 26, 1980 concerning the 48 additional alleged wrongful acts. A second formal administrator’s complaint, filed June 12, 1980, could not and did not cure the jurisdictional defect which tainted the investigation.