N.Y. Comp. Codes R. & Regs. tit. 22 § 7000.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 7000.6 - Procedure upon a formal written complaint

(a) Applicable law. If the commission determines that a hearing is warranted, the procedures to be followed are those set forth in section 44, subdivision 4, of the Judiciary Law.

(b) Answer. A judge who is served with a formal written complaint shall serve a verified answer within 20 days of service . The answer shall contain denials of those factual allegations known or believed to be untrue. The answer shall also specify those factual allegations as to the truth of which the judge lacks knowledge or information sufficient to form a belief, and this shall have the effect of a denial. All other factual allegations in the charges are deemed admitted. The answer may also contain affirmative and other defenses and may assert that the specified conduct alleged in the formal written complaint is not improper or unethical. Failure to answer the formal written complaint shall be deemed an admission of its allegations.

(c) Summary determination. Either party may move before the commission for a summary determination upon all or any part of the issues being adjudicated, if the pleadings, and any supplementary materials, show that there is no genuine issue as to any material fact and that the moving party is entitled to such decision as a matter of law. A motion for summary determination may be served in the same manner as a formal written complaint. If a summary determination is granted, the commission shall provide reasonable opportunity for the submission of briefs and oral argument with respect to possible sanctions.

(d) Agreed statement of facts. Subject to the approval of the commission, the administrator and the respondent may agree on a statement of facts, conclusions of law and a recommended sanction, and may stipulate in writing that the hearing shall be waived. In such a case, the commission shall make its determination upon the pleadings and the facts, conclusions and recommendation set forth in the agreed statement.

(e) Subpoenas. Only the referee designated by the commission is empowered to issue subpoenas for a Commission hearing pursuant to a formal written complaint. If Commission counsel or the judge who is the subject of a formal written complaint wishes to subpoena a witness or books, records, documents or other evidence, a request must be made to the referee on notice to the opposing side, affording a reasonable opportunity to be heard. The referee shall grant reasonable requests for subpoenas.

(f) Motions.

(1) The commission shall decide the following motions:

(i) a motion for summary determination;

(ii) a motion to dismiss a formal written complaint or any portion thereof ;

(iii) a motion to confirm or disaffirm the findings of the referee;

(iv) a motion made prior to the appointment of the referee, except that the commission may refer such motion to the referee when such referral is not inconsistent with the other provisions of this section ; and

(v) a motion to alter an action taken or order issued by the commission.

(2) The referee designated by the commission shall decide all other motions.

(3) In deciding a motion, the commission members shall not have the aid or advice of the administrator or commission staff who has been or is engaged in the investigative or prosecutive functions in connection with the case under consideration or a factually related case.

(4) Motions to dismiss a formal written complaint must be made within 30 days of service of the formal written complaint upon the respondent.

(5) Motions for the disqualification of a referee are to be made to that referee within 10 days of the parties being notified of the designation of the referee. The opposing party must respond to the motion within 10 days of service of the motion. The referee must decide the motion within 10 days of final submission . The commission will hear appeals from the referee's decision on the motion within 10 days thereof. All proceedings will be stayed until the commission has rendered its decision.

(6) Motions for reconsideration of a commission determination must be made within 30 days of service of the determination upon respondent. In a motion to reconsider on grounds of newly discovered evidence, the moving party must demonstrate that the proffered evidence, if introduced at the hearing before the referee or otherwise properly before the commission, (1) would probably have resulted in a different determination and (2) could not have been discovered in time to introduce at the hearing or otherwise be properly before the commission prior to the rendering of the determination. The commission reserves the authority to direct a hearing before a referee for the purpose of evaluating the newly discovered evidence.

(7) Moving parties shall obtain a return date from the clerk of the commission for all motions to be decided by the commission.

(g) Hearings. Hearings shall be held at a commission office or such other place as the parties and referee may agree or the clerk of the commission shall direct. The commission may require that any hearing be conducted virtually and may publish protocols for determining when and how such a virtual hearing should be conducted. The referee shall set a prompt hearing date, regulate the course of the hearing, make appropriate rulings, set the time and place for adjourned or continued hearings and, consistent with paragraphs (k) and (l) of this section, fix the time for filing briefs and other documents, and shall have such other authority as specified by the commission, not inconsistent with the provisions of article 2-A of the Judiciary Law.

(h) Discovery.

(1) Upon the written request of the respondent, the administrator shall, at least 10 days prior to the hearing or any adjourned date thereof, make available to the respondent without cost electronic copies of all documents which the administrator intends to present at such hearing, a list of the witnesses the administrator intends to call to give testimony, and any written statements of witnesses who will be called to give testimony by the administrator. The administrator shall, in any case, make available to the respondent at least 10 days prior to the hearing or any adjourned date thereof, any exculpatory evidentiary data and material relevant to the formal written complaint. The failure of the commission to furnish timely any documents, statements and/or exculpatory evidentiary data and material provided for herein shall not affect the validity of any proceedings before the commission, provided that such failure is not substantially prejudicial to the respondent.

(2) Upon the written request of the administrator, respondent shall, at least five days prior to the hearing or any adjourned date thereof, make available to the administrator without cost electronic copies of all documents that respondent intends to present at such hearing, a list of the witnesses respondent intends to call to give testimony and any written statements of witnesses who will be called to give testimony by respondent.

(i) Burden of proof and rules of evidence at hearing.

(1) The attorney for the commission has the burden of proving, by a preponderance of the evidence, the facts justifying a finding of misconduct.

(2) At the hearing, the testimony of witnesses may be taken and evidentiary data and material relevant to the formal written complaint may be received. The rules of evidence applicable to civil nonjury trials shall be followed.

(3) At a hearing, counsel for a witness may be present while the witness is testifying and may request permission of the referee to consult with the witness, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.

(j) Post-hearing procedures. Within a reasonable time following a hearing, the commission shall furnish to the respondent, without cost, an electronic copy of the transcript of the hearing.

(k) The respondent and the administrator shall be afforded a reasonable opportunity to present to the referee written argument on issues of law and fact. The respondent and the administrator may file briefs and proposed findings with the referee no later than four weeks after their receipt of the transcript of the hearing. For good cause, the referee may grant a reasonable extension or may shorten the period. The referee shall set dates for service and filing of briefs and proposed findings and may, in the referee's discretion, require the parties to serve and file an electronic copy of such documents.

(l) The referee shall submit a report to the commission with proposed findings of fact and conclusions of law. No recommendation shall be made with respect to a sanction to be imposed by the commission. The referee shall endeavor to submit such report:

(i) no later than 30 days after receipt of the briefs referred to in subdivision (k) of this section, or

(ii) no later than 30 days after failure of the respondent or the administrator to file such brief within the time prescribed in subdivision (k) of this section. The clerk of the commission may grant reasonable extensions of time for submission of the referee's report. an electronic copy of the referee's report shall be sent to the administrator and the respondent.

(m) Following service of a formal written complaint upon the respondent, the respondent may request and authorize in writing that a copy of any determination filed by the commission with the Chief Judge of the Court of Appeals and served by the Chief Judge upon the respondent pursuant to section 44, subdivision 7, of the Judiciary Law, and a copy of any correspondence sent by the Chief Judge to the respondent, be forwarded by the Chief Judge to the respondent's counsel. The commission shall make available to the respondent a form for such request and authorization.

(n) Following the appearance of counsel representing a judge in any matter before the commission, at any stage of the proceeding, such counsel may not withdraw as counsel in the matter without the permission of the commission.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 7000.6

Amended New York State Register April 18, 2018/Volume XL, Issue 16, eff. 4/18/2018

Amended New York State Register May 8, 2019/Volume XLI, Issue 19, eff. 5/8/2019

Amended New York State Register December 28, 2022/Volume XLIV, Issue 52, eff. 12/28/2022