The judges’ secret court

July 21, 2022 The Albany Times Union Editorial

New York Court of Appeals Chief Judge Janet DiFiore, administers the oath of office to New York State senators during opening day of the 2019 legislative session in the Senate Chamber, at the Capitol, Jan. 9, 2019, in Albany, N.Y. AP file photo by Hans Pennink

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Chief Judge Janet DiFiore is under investigation; that much New Yorkers get to know. But they’ll find out precious little more for certain, even if the investigation leads to charges, thanks to the secretive process for disciplining judges in this state.

Only if Judge DiFiore is found guilty of an ethical breach or some other offense would the details become public. If not, the record would be essentially sealed, with no opportunity for public scrutiny.

That’s an extraordinarily secret process for any public servant accused of wrongdoing — a level of concealment that defendants who go before judges certainly don’t enjoy. It’s all the more extraordinary when one considers that Judge DiFiore is the chief judicial officer in the state, empowered to establish the standards and policies that all judges, from the local justice in the tiniest village on up, must abide by.

She is, for all intents and purposes, the head of the judicial branch of New York’s government. Imagine the governor, or the Assembly speaker, or the Senate majority leader charged with misconduct, and the public being told, “Sorry — none of your business.”

Dennis Quirk, President of the New York State Court Officers Association, speaks during a news conference in New York Wednesday, June 16, 2004.
AP Photo by Gregory Bull

To be clear, New Yorkers aren’t entirely in the dark on this. We do know that a complaint was filed with the Commission on Judicial Conduct by Dennis Quirk, president of the New York State Court Officers Association, because Mr. Quirk revealed that publicly. As the Times Union’s Robert Gavin reported, Mr. Quirk last year was involved in a disciplinary matter over an email he sent the chief judge objecting to her call for an investigation of allegations of racism and brutality among court officers. Mr. Quirk asked in the email how Judge DiFiore would like it if damaging stories about her personal life were “posted all over every court building in NYS.” The chief judge later wrote to his hearing officer to urge her to discipline Mr. Quirk, which he considered a violation of judicial ethics rules. The commission acknowledged in September that it would consider his complaint.

Judge DiFiore, it’s worth noting, announced her retirement just before her own investigation became public. The 66-year-old judge has seven years left on her 14-year term. Her spokesman insists the investigation and decision to retire are unrelated.

New York Court of Appeals Chief Judge Janet DiFiore, asks questions during oral arguments at the Court of Appeals, June 1, 2016, in Albany, N.Y. Di Fiore announced Monday, July 11, 2022, she will step down after more than six years presiding at the state’s highest court and overseeing the state court system.
AP Photo by Hans Pennink

It’s also important to note that we don’t know for a fact that the complaint from Mr. Quirk is what Judge DiFiore is being investigated for, or the entirety of it. It’s also important to note that — contrary to a statement from her spokesman implying that discussing the matter would be a breach of confidentiality — she has the option at any point in this process to allow it to become public. She has made the choice not to be transparent.

It should not be a judge’s option to shield themselves from public scrutiny, certainly not once they are formally charged, if it comes to that. The Commission on Judicial Conduct has, in fact, urged the Legislature to change the law to allow disclosure of charges once they’re filed, for the hearing process to be open. Perhaps lawmakers who now find themselves in the dark with the rest of us will finally see the light.