Sunday, February 22, 2009

Judge Garson and Misconduct

Prosecuting judges for ethical violations: are criminal sanctions constitutional and prudent, or do they constitute a threat to judicial independence?
By: Abramovsky, Abraham,Edelstein, Jonathan I.
Publication: Fordham Urban Law Journal
Date: Wednesday, March 1 2006

On April 29, 2004, the Kings County Supreme Court made legal history by dismissing eight counts of an indictment against then-Justice Gerald Garson. (1) In six of these counts, Justice Garson was accused of receiving reward for official misconduct under Section 200.25 of

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the New York Penal Law, in that he allegedly obtained or agreed to obtain a benefit in return for violating his duty as a public servant. (2) This is hardly an unusual charge to be leveled against an allegedly corrupt public official, but in Justice Garson's case, the "duty" he was accused of violating was based purely upon the New York State Code of Judicial Ethics. Specifically, it was alleged that Justice Garson acted criminally by conducting improper ex parte communications and by accepting fees for referring unrelated cases to a private attorney. (3)
This was only the second time in New York, and the fourth time anywhere in the United States, (4) that a judge was prosecuted for violating ethical strictures that were not explicitly forbidden by a penal statute. In all three previous cases, the appellate courts held that such attempts were improper, characterizing them as violations of the principles of separation of powers and judicial independence. (5) In the Garson case, however, the Kings County District Attorney was ready to try again, claiming that a 1977 amendment to the New York State Constitution explicitly incorporated the ethical rules into the duties of a judge. (6)

The Kings County Supreme Court rejected this argument, holding that the considerations of judicial independence, separation of powers, and constitutional vagueness that informed the previous cases were still valid. (7) This decision was affirmed by the Second Department of the Appellate Division, (8) but leave to appeal was granted by the New York Court of Appeals. (9) If the highest court in New York upholds the arguments of the District Attorney's office, it will mark a dramatic shift of power from judges to prosecutors, with local prosecutorial agencies having the ability to selectively pursue indictments against judges for violations of broadly-worded ethical rules. Moreover, by shifting judicial disciplinary authority toward the District Attorney's office, it would undermine separation of powers as well as the role of disciplinary boards in regulating the American judiciary.

Accordingly, this Article will examine the constitutional and practical issues surrounding prosecutions of judges for ethical violations. The first part of this Article will focus on the Garson prosecution as an example of unwarranted prosecution of judges for violation of ethical codes. The second part will examine cases elsewhere in the United States in which judges and other public officials have been prosecuted for violations of ethical codes. This part will also analyze the manner in which the courts have dealt with considerations of constitutional vagueness, judicial independence, separation of powers, and the potential for vindictive prosecutions. Finally, the third part will discuss the threats to judicial independence that exist even under the current American legal framework, as well as the growing tendency to blur the line between civil and criminal liability. The Article will conclude that these factors, in combination with the fact that the code of judicial ethics was never intended to be a basis for criminal liability, militate against the use of such codes to define offenses under New York law.


The investigation of Kings County Supreme Court Justice Gerald Garson was a product of an ongoing probe into corruption in the Brooklyn courts. On January 24, 2002, Justice Victor I. Barron was indicted on charges of demanding a $115,000 bribe to approve a settlement in favor of an infant. (10) The indictment, which was the result of a two-year investigation, opened a Pandora's box of charges against other Brooklyn judges. Within two months of the indictment, no fewer than eight judges in Kings County were under investigation for activities ranging from nepotism, patronage, and outright bribe-receiving, to moonlighting as private counsel. (11) A twenty-nine member commission headed by Professor John D. Feerick of Fordham Law School was empaneled to recommend reforms to enhance judicial ethics throughout the state. (12) On February 8, 2002, Justice Ann T. Pfau, a long-time official in the New York Office of Court Administration and a key assistant to Chief Administrative Judge Jonathan Lippman, was appointed administrative judge in Kings County Supreme Court with a mandate to clean up an alleged culture of corruption. (13) Her appointment led to additional internal probes of judges, private attorneys, and Brooklyn public officials with ties to the courts. (14)

It was during this period that Frieda Hanimov, a matrimonial litigant in Brooklyn, became dissatisfied with her treatment by Justice Garson. Hanimov, whose matrimonial action was pending in front of Justice Garson, had lost custody of her children to her husband. She was then allegedly told by her attorney, Paul Siminovsky, that she had lost the case because her husband had bribed the judge, and that she could obtain a more favorable ruling if she made a better offer. Siminovsky introduced her to Nissim Elmann, a Brooklyn businessman who was allegedly able to influence Garson by bribing him.

At that point, Hanimov contacted the Kings County District Attorney and became, in her words, an "undercover mom." (15) In cooperation with the District Attorney's office, she conducted a number of consensual recordings of conversations with Elmann and Siminovsky. These recordings focused the District Attorney's investigation on an alleged conspiracy in which Elmann, Siminovsky, Justice Garson, and his clerk Paul Sarnell gave favorable matrimonial rulings in return for bribes.

As a result of information provided by Hanimov, the District Attorney's office obtained permission to conduct electronic surveillance and video recording in Judge Garson's robing room. (16) A number of conversations between Garson and Siminovsky were recorded, but none of them yielded evidence of bribery. (17) Instead, they yielded evidence of certain ethical improprieties, including improper ex parte conversations and acceptance of referral fees for referring unrelated cases to Siminovsky. (18) In addition, the monitoring of Justice Garson's robing room and wiretaps on Siminovsky's and Elmann's cell phones revealed that Siminovsky frequently treated Garson to meals and drinks, although there was no evidence that these meals were exchanged for any judicial favors. (19)

On February 24, 2003, Siminovsky was arrested, following which he agreed to cooperate with the prosecution and was debriefed. (20) At that time, he stated that he had obtained favorable treatment in return for benefits, but was unable to provide specific instances. (21) He did, though, make allegations that would form the basis of later charges against Judge Garson, stating that he had provided the judge with meals and drinks in exchange for ex parte advice and that he had given the judge fees for referring matrimonial clients to him. (22) Justice Garson, however, did not preside over any of the cases he referred to Siminovsky. (23) Therefore, the referral fees constituted private transactions between attorneys rather than transactions made in return for favorable judicial treatment of Siminovsky's clients. (24)

At the time of his debriefing, Siminovsky also agreed to have his conversations recorded. Pursuant to this agreement, prosecutors recorded him engaging in ex parte discussions with the judge. (25) In addition, he was recorded via video surveillance placing a box of cigars in Justice Garson's desk. (26)

Shortly thereafter, the Kings County District Attorney's office obtained an indictment charging Justice Garson with several counts of official misconduct, (27) receiving reward for official misconduct, (28) and receiving unlawful gratuities. (29) This indictment was later withdrawn in substantial part and superseded by another indictment. (30) The top count of the second indictment was bribe-receiving in the third degree, (31) a Class D felony punishable by up to seven years' incarceration, predicated upon Justice Garson's receipt of cigars from Siminovsky. (32) The precedent-setting aspect of the indictment, however, lay in the six counts of receiving reward for official misconduct. Of these, five were predicated upon Justice Garson's alleged receipt of referral fees, and the sixth was grounded upon the alleged receipt of benefits for conferring ex parte advice. (33)

Under New York law, the offense of receiving reward for official misconduct is committed when a public servant "solicits, accepts or agrees to accept any benefit from another person for having violated his duty as a public servant." (34) As the prosecution acknowledged, there was no statute, in the Penal Law, Judiciary Law, or elsewhere, defining receipt of private referral fees or conferral of ex parte advice as a violation of a judge's duties as a public servant. (35) Instead, the prosecution contended that the duties of a judge, for purposes of the official misconduct statute, could also be defined by the ethical rules promulgated by the Chief Administrator of the Courts. (36) Specifically, the prosecution contended that the New York code of judicial conduct prohibited both the rendering of ex parte advice (37) and the lending of the prestige of judicial office for private purposes, (38) and that violations of these prohibitions in exchange for a benefit could be punished under the Penal Law. (39)

Justice Garson's attorneys sought dismissal of these charges through several procedural devices. These included a plenary action for prohibition under Article 78 of the Civil Practice Law and Rules and a pretrial omnibus motion in the Kings County Supreme Court. (40) In making these motions, the defense contended that the District Attorney's use of ethical rules as a predicate for charges of receiving reward for judicial misconduct was barred by the Court of Appeals' 1979 decision in People v. La Carrubba. (41) In La Carrubba, a Suffolk County Court judge was charged with official misconduct based on her dismissal of a traffic ticket issued to a personal friend. (42) As in the Garson case, the prosecution in La Carrubba alleged that this action constituted a violation of the Code of Judicial Conduct, and therefore of a duty clearly inherent in the nature of the defendant's office. (43)

The Court of Appeals in La Carubba disagreed. It began by analyzing the history of the official misconduct statute, which was a consolidation of more than thirty prior statutes punishing specific acts of misconduct by public servants. (44) The court noted that it "[did] not appear ... that any of these sections was ever used as the basis for proceedings against a Judge to enforce ethical standards or any duty not prescribed by statute." (45)

The Court of Appeals then addressed the prosecution's main contention: that the rules of judicial ethics defined a duty so clearly inherent in the nature of a judge's office that violation thereof could be punished as a crime. It rejected that argument in the following terms:

Our address to this contention begins with noting that "[it] is for
the legislative branch of a state or the federal government to
determine, within state or federal constitutional limits, the kind
of conduct which shall constitute a crime and the nature and
extent of punishment which may be imposed therefor." Even by
explicit provision the Legislature may not delegate the essentially
legislative function of definition of a substantive criminal
offense. In the present instance, however, there has not even
been an attempted delegation by the Legislature, for it has
neither incorporated nor otherwise adopted the provisions of
the Code of Judicial Conduct. Here the attempt is by the District
Attorney alone, unaided by any legislative enactment, to
import a definition of judicial duty based on ethical standards....
While there can be no doubt of the authority of bar
associations to promulgate enforceable ethical standards or of
the Appellate Division to incorporate such standards in rules of
court, neither the bar associations nor the Appellate Division is
empowered to discharge the legislative responsibility to define
the elements of a crime. (46)
The court noted further that ethical rules and penal statutes serve different purposes, and that the promulgation of ethical rules did not give fair notice to judges that violation might be subject to criminal penalties. (47) In addition, the court noted the special role of the Commission on Judicial Conduct in disciplining judges, and found that it would be both unseemly and damaging to judicial independence to have prosecutors "jockey" with the commission for a role in judicial discipline. (48) Therefore, the La Carrubba court concluded that unless judicial conduct was explicitly prohibited by statute, it could not be used as the basis for a charge of official misconduct under the Penal Law. (49)

The prosecution in Garson responded to the defendant's reliance on La Carrubba by arguing that it was no longer good law. Specifically, the prosecution relied upon a 1977 amendment to Article VI, Section 20 of the New York Constitution, which provided that judges shall "be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals." (50) The prosecution argued that, by promulgating this amendment, the New York Legislature explicitly incorporated the rules of judicial ethics into the duties of a judge, and violation of those rules after 1977 constituted a violation of a judge's duties as a public servant. (51) In addition, the prosecution argued that Justice Garson's case was distinguishable from La Carrubba because he was charged with receiving a benefit in return for his misdeeds. (52)

The defense countered by arguing that the 1977 constitutional amendment did not supersede La Carrubba. It noted both the Chief Administrator's statement that the judicial rules should not be used as a basis for criminal liability (53) and the Court of Appeals' statement that the legislature may not delegate the function of defining an offense "[e]ven by explicit provision." (54) Thus, the defendant contended that even an amendment to the state constitution providing that judges must be "subject to" the rules of judicial conduct could not operate as a delegation of the power to define a criminal offense. (55) Furthermore, the defense contended that because the rules of judicial ethics included broadly worded aspirational standards such as the requirement that judges act courteously and avoid even the appearance of impropriety, it could open the door to limitless prosecution. (56)

Finally, the defendant contended that Justice Garson's alleged receipt of a benefit did not constitute grounds for distinguishing his case from La Carrubba. (57) Specifically, he noted that even though La Carrubba was charged under section 195.00(2) of the Penal Law rather than section 195.00(1), this prong of the statute also required that the defendant obtain or seek a benefit on behalf of herself or a third person. (58) Moreover, he argued that the issue of receiving benefits was explicitly discussed by the La Carrubba court and found to be an insufficient reason to warrant the incorporation of ethical rules into the official misconduct statute. (59) Therefore, the defense contended that the judge's alleged receipt of a benefit did not constitute a valid basis to reject the holding of the La Carrubba court. (60)

On April 29, 2004, Justice Steven Fisher of the Kings County Supreme Court issued a decision dismissing the charges of receiving reward for official misconduct. (61) The court rejected the prosecution's argument that the 1977 constitutional amendment amounted to a legislative overruling of La Carrubba, holding that, even if the amendment conferred the power to define elements of crimes upon the Chief Administrator of the Courts, that "authority ... has not been effectively exercised." (62) The court noted that, in the preamble to the very rules that the prosecution sought to enforce as elements of official misconduct, the Chief Administrator explicitly stated that they were not designed as a basis for criminal prosecution. (63) This made it "evident ... [that] the Rules ... are intended to provide a structure for regulating judicial conduct through the Commission [on Judicial Conduct], and not through criminal prosecution." (64)

In addition, Judge Fisher noted that the Code of Judicial Conduct was "in large measure, a compilation of ethical standards, goals, and aspirations that are stated in broad and general terms." (65) These included, inter alia, requirements that judges act patiently and courteously with litigants, promote public confidence in the judiciary, and require high ethical standards of their staff. (66) The court concluded that "[t]he notion that Rules like these can define an element of a crime is untenable," in that they were too broadly worded to give fair notice of the conduct that was prohibited. (67)

Justice Fisher then examined the specific rules underlying the charges of receiving reward for official misconduct and concluded that they were precisely the type of generalized regulation that should not give rise to criminal liability. (68) He noted, for instance, that the rule against improper ex parte communications "list[ed] five separate and broadly-stated exceptions," and that due to its vagueness, it would be "problematic when employed to define an element of a clime." (69)

The rule against "lend[ing] the prestige of judicial office to advance the private interests of the judge or others" was also found by Judge Fisher to be too general to constitute a basis for criminal conduct. (70) The court noted, inter alia, that judges had been disciplined under this rule for "interced[ing] in ... criminal cases for the purpose of seeking lenient treatment for the defendants," (71) and that the Court of Appeals had extended it in some circumstances to unintentional conduct. (72) In sum, it determined that La Carrubba was still good law. (73)

Nor did the court accept the prosecution's contention that Justice Garson was "being prosecuted, not merely for violating a Rule, but for accepting a benefit for having done so." (74) It noted that "the Court of Appeals brushed aside a similar argument in La Carrubba," on the ground that most unethical conduct could be regarded as an attempt to obtain some sort of personal benefit. (75) Moreover, the court found that acceptance of a benefit is only one element of the offense with which Justice Garson was charged, and that such acceptance could not constitute criminal conduct unless the prosecution could separately prove that he violated his duties as a public servant. (76)

In sum, Justice Fisher found that "[t]he District Attorney has pointed to no instance in which a Judge in this State has been successfully prosecuted for a crime of which an essential element was the violation of a Rule of the Chief Administrator of the Courts," and that sanctions against judges for violating such rules had hitherto been applied only in disciplinary proceedings. (77) Therefore, the court held that the evidence before the grand jury was not legally sufficient to support the charges of receiving reward for official misconduct. (78)

The prosecution filed a notice of appeal from the trial court decision, and on March 18, 2005, the case was argued before the Second Department of the Appellate Division. (79) At oral argument, the prosecution contended that Justice Fisher's interpretation of the law would undermine the ability of the state government to attack corruption in the courts. (80) The Kings County District Attorney's representatives also argued that the trial court's interpretation would lead to discrepancies in which people who offered rewards to judges could be prosecuted while the judges who received the gratuities could not. (81) The defense countered that Justice Fisher's interpretation, which was consistent with La Carrubba, was necessary to preserve judicial independence and prevent prosecutorial overreaching. (82)

On April 25, 2005, the Second Department affirmed the Kings County Supreme Court's decision in a brief memorandum. (83) Citing La Carrubba, the court held that "[a]n indictment in which the defendant's duty as a public servant, an essential element of the crime of receiving reward for official misconduct, is defined solely by reference to the Rules of Judicial Conduct ... is insufficient." (84) Subsequently, however, the New York Court of Appeals granted the prosecution's application for leave to appeal, and a decision is still pending at the time of this writing. (85) The attitude of New York's highest court toward the continuing viability of La Carrubba thus remains to be determined.


The issues raised in Garson are relatively novel to American jurisprudence because there have been few attempts to prosecute public officials based solely on ethical violations. This is particularly true of attorneys and judges, who are traditionally subject to internal discipline and whose prosecution implicates separation of powers concerns. (86) For the most part, even serious ethical lapses by such officials have been punished administratively rather than through criminal prosecution, unless their acts fall within the ambit of a specific criminal statute. (87) Even in an extreme case, a Nebraska county judge who practiced in his own court was disciplined administratively because he was not shown to have taken bribes or otherwise acted corruptly. (88)

Beginning about 1960, however, several factors combined to create a public perception of a need for greater judicial discipline. (89) Prior to this time, it was widely believed that judicial rulings were guided by common-law precedent and the "broadly shared values" of society. (90) This belief began to erode during the upheavals of the civil rights era, as judges increasingly challenged both the precedent of prior courts and the consensus of society. (91) As the public became increasingly aware that judges had no ironclad rules to guide their decisions, it began to seek outside controls as a restraint on judicial power. (92)

These factors, in other words, "made it necessary to erect something new with which to convince the public, and perhaps even the judges themselves, of the special dignity and integrity of the bench." (93) In order to maintain full confidence in the often subjective nature of the judicial decision-making process, "[j]udges ... had to abide by 'standards of conduct on a plane much higher than those for ... society as a whole' in order to preserve 'the integrity and independence of the judiciary.'" (94) Judicial ethics, "in short, had to be made pure." (95)

One effect of such higher standards was the creation of formal judicial disciplinary commissions, such as the 1975 establishment of the New York Commission on Judicial Conduct. (96) Furthermore, in a number of cases, prosecutors sought to enforce these standards with the threat of criminal liability. (97) In most cases where prosecutors have sought to enforce ethical codes through criminal sanction, they have utilized penal statutes prohibiting official misconduct, contending that such ethical codes are part of public officials' duties. All but three of these cases have resulted in decisions in the defendants' favor, and the analysis of the courts has focused on three issues: separation of powers, the extent of legislative authority that can be delegated to administrative agencies, and the possibility of frivolous prosecutions.

A. Delegation of Legislative Authority

The decision most analogous to Garson, albeit one not involving a judge, may be the Minnesota case of State v. Serstock. (98) The defendant in Serstock, a deputy Minneapolis city attorney, was accused of "ticket fixing," but his activities did not involve the quid pro quo of dismissal for money normally associated with fixing tickets. (99) Instead, he "dismissed or wrongfully delayed numerous parking tickets and moving violations as a personal favor" for two local people to whom he was financially indebted, (100) and also improperly dismissed tickets charging offenses that occurred outside Minneapolis. (101) There was no indication that he received forbearance of his debts or any other financial consideration in return for these dismissals.

In the absence of any evidence of bribery, the prosecution charged Serstock with misconduct as a public officer under Minnesota law. (102) This statute prohibits a public officer, while acting in his official capacity, from performing "an act which he knows is in excess of his lawful authority or which he knows he is forbidden by law to be done in his official capacity." (103) The prosecution's theory was that "Serstock knew [his] actions were in excess of his lawful authority ... because they were 'flagrant violations' of the Code of Professional Responsibility and the Ethics Code of the Minneapolis City Attorney." (104) As in Garson, the prosecutor argued that these ethical codes "may be used to define the 'lawful authority' which may not be 'exceeded' by a public officer," and that "a violation of either of these codes of conduct by a Minneapolis city attorney is ipso facto a violation of [the official misconduct statute]." (105)

The Minnesota Court of Appeals disagreed. Although it suggested that a "properly promulgated rule or regulation of an administrative agency" may have the force of law and define a legal duty, (106) it noted that the ethical code promulgated by the Minnesota Supreme Court was prefaced by an order providing that violations "shall be subject to discipline or disbarment in the manner provided by rules of this court." (107) Thus, the court concluded that "[v]iolations of the code were therefore intended to subject an attorney to disciplinary proceedings, not criminal charges," and that there was no indication that the legislature intended ethical violations without more to "form the basis of a criminal charge of official misconduct against a public attorney." (108)

The court further held that the ethics code of the Minneapolis City Attorney's office "is not the product of any type of legislative function [but] is simply the conditions of employment which are required of employees by their employer." (109) Moreover, permitting criminal prosecution solely for violation of the ethical code might give rise to irresponsible charges:

An examination of the conduct which would become criminal
under the State's theory demonstrates the impossibility of its
position. The Ethics Code of the Minneapolis City Attorney
prohibits city attorneys from giving "rude" or "discriminatory
treatment" to any person; they may not "lose impartiality" or
"impede government efficiency." Attorney employees cannot
engage in any other employment without giving notice, nor "accept
any gift." They cannot engage in any "infamous, immoral
or notoriously disgraceful conduct," make public comment on
any matter of "office policy" or lobby for or against any proposed
legislation. We do not think the legislature intended such
actions by public attorneys to be crimes under section 609.43(2).
In addition, we are unwilling, in this instance, to rely upon
prosecutorial discretion as the sole safeguard between public
attorneys and a multitude of dubious criminal charges. (110)
Therefore, "an allegation that a public attorney simply violated an 'ethics code' promulgated by his employer does not state a criminal offense" under the Minnesota official misconduct statute. (111)

The Court of Appeals did find, however, that Serstock could be prosecuted for exceeding his geographic jurisdiction, which was established by statute rather than by disciplinary rule. (112) The matter was then taken to the Minnesota Supreme Court, which extended the Court of Appeals' holding by dismissing the indictment outright. (113) The en banc court agreed with the Court of Appeals' reasoning that it was not intended to have either the Code of Professional Responsibility or the Minneapolis ethics code form the basis of criminal prosecution. (114) The Minnesota Supreme Court also voiced concern that, by requiring proof of an ethical violation as part of the prosecutor's burden, such prosecutions would require lower courts to determine whether ethical violations occurred and compromise the Supreme Court's role as the sole arbiter of attorney discipline. (115)

The Serstock decision therefore involved circumstances remarkably parallel to those of Garson--that is, an ethical code that was promulgated under statutory authority but specifically stated that it was not intended as a basis for criminal prosecution. (116) As the prosecutor in Garson noted, this set up a potential paradox. (117) On the one hand, such an ethical code is promulgated by an agency that has been given the statutory power to define an attorney's duty, and a violation of the code by a public attorney would arguably be tantamount to a violation of his public trust. On the other hand, the authors of the code specifically stated that they did not intend it to define public officers' duties for purposes of criminal liability. The Serstock court resolved this dilemma by treating the delegation of legislative power as total; for example, that the code in its entirety was an expression of legislative policy, including the limitations on its use for prosecutorial purposes. (118)

This resolution could provide a blueprint, not only for Minnesota and New York, but for the twenty-five other states whose codes of judicial ethics are modeled after the 1990 ABA Model Code of Judicial Conduct. The preamble to that code, which has been adopted verbatim in twenty-seven states, provides that it is "designed to provide guidance to judges ... and to provide a structure for regulating conduct through disciplinary agencies," but "is not designed or intended as a basis for civil liability or criminal prosecution." (119) By the reasoning of Serstock, the adoption of this language by a court or administrative body that is legislatively empowered to regulate judicial conduct is tantamount to its adoption by the legislature itself. Accordingly, adoption of the 1990 Model Code represents a legislative decision to remove ordinary ethical violations from the ambit of the criminal law.

A closer question is presented in the twenty-two states where the code of judicial ethics is silent as to whether it is intended to be enforced by criminal sanction. (120) This question was answered in the negative by the Supreme Court of Louisiana in State v. Perez, (121) in which a district attorney and judge were prosecuted for colluding in the unlawful discharge of a grand jury. (122) The Plaquemines Parish district attorney, Leander Perez, was accused of official misconduct in connection with a grand jury that was investigating corruption in the parish. (123) After the grand jury foreman received a letter suggesting that members of the district attorney's family be indicted for illegal real estate transactions, Perez met with the supervising judge, Eugene E. Leon, Jr., and agreed that the grand jurors be discharged. (124) Subsequently, Perez empaneled another grand jury and secured indictments of the letter's author and the former grand jury's foreman. (125)

When the truth came out and Perez and Leon were themselves indicted, they moved for a writ of prohibition enjoining their prosecution, which the Louisiana Court of Appeal granted. (126) On appeal, the Supreme Court reinstated some of the charges, which accused Perez and Leon of violating certain duties imposed upon them by statute. (127) However, the court rejected the prosecution's argument that Disciplinary Rule 7-103 of the Louisiana Code of Professional Responsibility "imposed an affirmative duty on the district attorney not to institute the extortion charges against [the foreman and letter-writer] in bad faith and without probable cause." (128) Instead, it held that in light of the traditional discretion afforded to district attorneys in bringing criminal charges, a charge of malfeasance could not be based on an ethical rule alone without a specific "provision of law." (129) The Florida courts have similarly held, although the state judicial code of ethics is silent as to the imposition of criminal liability, that ethical violations alone cannot form the basis for prosecuting a county judge. (130)

In Iowa, the code of judicial conduct is unique in providing that ethical violations can subject judges "to the imposition of criminal and civil penalties in the manner provided by law." (131) There is no reported decision, however, in which an Iowa judge has ever been prosecuted solely for a violation of the code of ethics. And even if such a prosecution were instituted, it would not necessarily pass muster in the courts. In Delaware, for instance, a court dismissed charges of official misconduct against a state banking commissioner that were predicated solely upon his violation of administrative conflict-of-interest rules, even though the legislature had provided that "[s]ome standards of this type are so vital to government that violation thereof should subject the violator to criminal penalties." (132) The court concluded that, absent a legislative determination as to which ethical lapses might warrant criminal sanction, the conflict-of-interest rule could not be considered a "duty ... [so] clearly inherent in the nature of [the defendant's] office" as to be a basis for an official misconduct charge. (133)

The courts of Illinois have indicated in dicta that public attorneys may be charged with official misconduct based on a violation of any "statute, supreme court rule, administrative rule or regulation, or tenet of the Code of Professional Responsibility." (134) Moreover, the Illinois courts have held that an administrative regulation need not contain an explicit penalty clause in order to form the basis of an indictment for official misconduct. (135) This liability, however, is predicated upon the same reasoning set forth in Serstock--that an administrative agency acting under legislatively granted rule-making authority "gives expression to legislative policy." (136) Given that the Illinois Code of Judicial Conduct, unlike its ethical rules for attorneys, explicitly states that it is not intended as a basis for prosecution, (137) this rationale may only preclude Illinois judges from being prosecuted for ethical violations only.

Perhaps the only true exception to the general rule of non-prosecution for purely ethical violations is the state of Wisconsin. Two recent Court of Appeals decisions in Wisconsin have held that official misconduct prosecutions could be predicated on ethical rules or even employee handbooks. In State v. Chvala, (138) the defendant, a state senator, was accused of using public employees to conduct private political work on behalf of himself and the Democratic Party. (139) In October 2002, he was charged with official misconduct on the theory that, inter alia, the Senate Policy Manual prohibited legislative workers from being assigned to campaign work during duty hours. (140)

Citing a commission report providing that a public employee's duty "may be imposed by common law, statute, municipal ordinance, regulation and perhaps other sources." (141) the Wisconsin Court of Appeals found that "a legislator's duty under [the official misconduct statute] may be determined by ... the Senate Policy Manual." (142) Therefore, a legislative rule prohibiting "political activity [by state employees] during working hours," combined with explanatory materials issued by the Clerk of the Senate, were found to define the defendant's legal duties sufficiently for criminal liability. (143) The companion case of State v. Jensen, (144) which involved similar charges against several Republican members of the State Assembly, likewise found that the Assembly Employee Handbook, various explanatory notes and an opinion of the State Ethics Board were sufficient sources of legal duty to form the basis of official misconduct charges. (145)

On June 22, 2004, the Wisconsin Supreme Court granted leave to appeal in both Chvala and Jensen. (146) Three of the seven judges recused themselves from consideration of the merits. (147) Of the remaining four, two voted to reverse on vagueness grounds while two voted to affirm. (148) Because the court was evenly divided, the Court of Appeals rulings stood, (149) but their value as precedent has been greatly weakened. (150)

Moreover, the Wisconsin cases are not entirely analogous to those involving judges, because the ethical rules of a legislature are distinguishable from those of the judiciary. Given that the determination of criminal liability and punishment is a uniquely legislative province, a legislative body can be presumed to know what sanctions it intends to impose at the time it establishes a rule. If the legislature believes that the sole sanction for rule violations should be internal discipline, it has full power to exempt its members from criminal liability. Where legal and judicial ethics are at issue, however, silence is more ambiguous. American case law to date provides slim support for the argument that codes of judicial ethics can form the basis of prosecution absent specific statutory authorization.

B. Possibility of Frivolous Prosecutions

Another concern cited by courts in limiting criminal liability is the possibility of prosecutions for minor, innocuous ethical violations. Although this possibility exists with respect to nearly all public ethical codes, it is especially great where legal or judicial ethics are concerned. This is because codes of ethics for lawyers and judges are, and are intended to be, expressions of values as well as concrete rules of conduct. (151)

The preamble to the 1990 ABA Model Code of Judicial Conduct, for instance, states that it contains both binding obligations and "hortatory" rules, designed to foster the principle that "judges ... must respect and honor the judicial office as a public trust." (152) The Model Code of Professional Responsibility is even more explicit:

The Model Code is designed to be adopted by appropriate agencies
both as an inspirational guide to the members of the profession
and as a basis for disciplinary action when the conduct of a
lawyer falls below the required minimum standards stated in the
Disciplinary Rules. (153)
As such, even the mandatory Disciplinary Rules--which, unlike the Canons and Ethical Considerations, are explicitly intended to form the basis of disciplinary action--contain such broad and generalized requirements as avoiding "even the appearance of impropriety" (154) and refraining from the use of letterheads that are not "in dignified form." (155) Likewise, judges cannot hold membership in organizations that practice unlawful discrimination (156) and "shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others." (157) If these are enforced as the basis of criminal liability, then discourteous judges or lawyers with undignified letterheads might potentially become felons.

This concern was relied upon by the Florida Court of Appeals in Clayton v. Willis, which granted an injunction prohibiting prosecution of a county judge for violation of ethical and procedural rules. (158) The defendant, Judge Wiley Clayton, had incurred the wrath of the district attorney by, inter alia, releasing criminal defendants on their own recognizance ex parte, conducting plea colloquies without the presence of the prosecution, and failing to assess the minimum penalties for traffic offenses. (159) Rather than referring these matters to the judicial disciplinary committee, the district attorney's office indicted Clayton on twenty-three misdemeanor counts of misconduct in office, as well as two unrelated felony charges. (160)

As the Court of Appeals found, the charges against Judge Clayton represented an extraordinary abuse of power that "reveal[ed] the principal weakness of the grand jury system--the propensity of well-intentioned laymen in the hands of an irresponsible prosecutor to be led down any path." (161) Indeed, the prosecution was not brought under any statute but under the common law of England, which was incorporated into Florida criminal law in areas "where there is no existing provision by statute." (162) After a survey of English cases dating from the eighteenth and nineteenth centuries, the Court of Appeals concluded that the common law crime of misconduct in office, when predicated on discretionary acts, required proof of a corrupt motive. (163) The court additionally found that, even if the common law offense could be interpreted to include such acts, it was unconstitutional as applied to violations of judicial ethics:

This court is concerned about the prosecutor's use of the indictment
process in this case to level charges which are fatuous and
patently without merit. For example, in the absence of bribery
or corrupt influence, it cannot be a crime for a judge to release a
defendant on his own recognizance; it cannot be a crime for a
judge to hear a case not assigned to him; it cannot be a crime to
withhold adjudication of guilt or waive courtroom appearances;
it cannot be a crime to fail to have a court reporter present on
all occasions; it cannot be a crime to amend a judgment or correct
a record; it cannot be a crime to dismiss a criminal case or
to fail to fingerprint a defendant. If these matters are crimes,
virtually every judge in Florida, including the respondent, is subject
to indictment at the whim and caprice of a disgruntled or
ambitious state attorney. (164)
The court "firmly reject[ed] and repudiate[d] these contentions" (165) and adamantly stated that the criminal courts are not the place to deal with such trivialities. Accordingly, it dismissed the charges against Judge Clayton, without prejudice to consideration by a judicial disciplinary board. (166)

C. Separation of Powers

Separation of powers is a concern in any criminal prosecution brought against a public employee, but especially so where the defendant is a judge. In cases where administrative officials or law enforcement officers are prosecuted, the executive branch is prosecuting members of a different agency. A criminal prosecution of a judge, however, sets up a direct confrontation between the executive and the judiciary. As such, this raises the possibility of selective prosecution by the executive to intimidate judges or to punish judges whose attitudes and rulings are deemed contrary to government interests.

Separation of powers concerns, along with the need to prevent frivolous prosecutions, played a critical part in the Clayton decision. The opinion of the Florida Court of Appeals was permeated with the concern that "disgruntled or ambitious" prosecutors might take advantage of nebulous ethical rules to intimidate or obtain revenge against judges. (167) Terming the case a "classic example of ... misuse of the judicial process for political purposes," (168) the court concluded its holding by "observ[ing] that the complete independence of the judiciary of this country is essential to the preservation of the Constitution." (169) The court stated further that "'[i]t should never be forgotten that one of the first charges contained in the Declaration of Independence was that the tyrannical sovereign ... made Judges dependent on his Will alone, for the tenure of their offices.'" (170) Therefore, in order to protect the constitutional separation of powers, the Clayton court required proof of a corrupt motive where a judge was charged with common law misfeasance as opposed to an offense defined by statute. (171)

Likewise, in Serstock, the Minnesota Supreme Court cited separation of powers concerns in dismissing a case brought against a deputy city attorney. (172) Although the city attorney's office was part of the executive rather than the judicial branch, any prosecution predicated on violations of the code of legal ethics implicated the courts' authority over disciplinary actions against attorneys. (173) Specifically, the court was "concerned that adopting the Code of Professional Responsibility or the Rules on Professional Conduct as a guideline for the misconduct statute would disrupt [the] court's sole authority to determine attorney discipline." (174) In other words, prosecution of public attorneys for ethical violations alone would, at least under some circumstances, place prosecutors or lower courts in the position of arbiters of legal ethics, and would undermine the Supreme Court's exclusive jurisdiction to construe ethical rules. (175)

In Chvala and Jensen, though, the Wisconsin Court of Appeals, whose decisions were affirmed by the Supreme Court of Wisconsin, held that separation of powers did not bar prosecution of legislators for violation of the legislative code of ethics. In Chvala, the defendants, who were members of the Wisconsin State Senate, contended that the separation of powers doctrine precluded them from being prosecuted for violating Senate policies regarding the personal use of legislative staff, (176) The Court of Appeals, however, determined that the separation of powers considerations relevant to prosecution of legislators were embodied in the "speech and debate" clause of the Wisconsin Constitution, which protected only acts integral to the legislative process. (177) Accordingly, the court found that the use of Wisconsin Senate staff for private campaign work, in violation of Senate ethical rules, was not an activity protected by the speech and debate clause. (178)

The Wisconsin Court of Appeals also engaged in an analysis of whether the prosecution of legislators for violating internal rules would infringe on the legislature's "core zone of exclusive authority," either through executive interference with the legislature's functioning or through the judicial interpretation of legislative rules. (179) It determined that, since the rules in question involved public funds and were not integral to the legislative process, they fell within a zone of power shared by the executive branch. (180) Moreover, because the legislative rules were clear on their face, their interpretation by the courts would violate no constitutional prerogative of the legislature. (181) The companion case of State v. Jensen, (182) which involved substantially similar prosecutions directed at members of the Wisconsin House of Representatives, engaged in an identical analysis and came to the same conclusions with respect to House rules. (183)

It should be noted, though, that even the Chvala and Jensen courts indicated that separation of powers might bar prosecution for ethical violations under certain circumstances--that is, where the ethical rules in question involve core areas of power belonging to a non-executive branch. (184) In the case of the judiciary, separation of powers might therefore bar official misconduct prosecutions predicated on violation of ethical rules that are integral to the process of judging. These would include, inter alia, rules requiring judges to be faithful to the law in rendering decisions, to maintain order and decorum in the courtroom or to refrain from engaging in certain ex parte communications. (185) This means that, even under the Chvala rationale, it is likely that a court would look askance at a prosecution such as that in Clayton, where a vengeful prosecutor essentially indicted a judge for making erroneous legal decisions. (186)

Chvala and Jensen, which involved legislators, are also distinguishable in other respects from cases involving judges. Given that legislators have the power to enact and repeal criminal statutes, they are in a unique position to determine the scope and application of such statutes. If a state legislature wishes to rewrite the state's official misconduct statute so as to preclude prosecutions of its members for violating internal ethical rules, it can do so at any time. Thus, since legislators control the degree to which such statutes apply to them, separation of powers concerns are less of a concern when they are prosecuted. In contrast, judges cannot unilaterally rewrite criminal statutes, and separation of powers considerations become especially compelling when they are prosecuted by executive officials based on a broad interpretation of a statute enacted by the legislature.

Moreover, given that executive agencies have more day-to-day interaction with the courts than with the legislature, the potential for a chilling effect from cross-branch prosecutions is greater when a judge is charged. Legislatures establish the legal and policy framework within the executive must operate, but the courts scrutinize--and sometimes overturn--its daily activities. Thus, an adversarial mindset often develops within the executive in which courts are seen as obstructing justice. (187) As such, it is exceptionally important that boundaries on prosecuting judges be created and enforced.

It is, of course, necessary to prosecute judges on certain occasions. Judges are no more above the law than members of the executive and legislative branches, and a judge who engages in bribe-receiving or similar criminal conduct threatens the integrity of the government as a whole. Nevertheless, separation of powers considerations argue compellingly in favor of limiting such prosecutions to cases where judges are given clear statutory warning that their acts are subject to criminal penalty.


It is apparent from the above discussion that American courts have shown great reluctance to expand the scope of prosecutorial discretion in cases involving judges. Indeed, in the absence of a clear penal statute, the courts have been even less willing to hold judges criminally liable for official misconduct than they have with public officials from the executive and legislative branches. It is contended that this reluctance is entirely appropriate in light of the policies underlying criminal law, the practical concern with preventing vindictive prosecutions and, constitutional principles of judicial independence.

A. Criminal Liability for Violations of Judicial Ethics Would Not Serve the Purpose of the Criminal Law

Professor Sanford Kadish has argued that "the criminal law is a highly specialized tool of social control ... that when improperly used it is capable of producing more evil than good." (188) Historically, the criminal law has "expressed both a moral and a practical judgment about the societal consequences of certain activity." (189) This judgment was twofold: that the act was inherently immoral, and that it caused harm to society at large rather than only to particular individuals. (190) In contrast, wrongs done to specific individuals without culpable intent were "for amelioration in the tort system." (191)

Over time, a third category of prohibited conduct arose: behavior that was not intrinsically immoral but was regulated "to serve some perceived public good." (192) Typically, this behavior was controlled through civil and administrative regulations. (193) In recent decades, however, criminal sanctions have increasingly encroached into the regulatory and tort spheres, prompting the criticism that the law has become "overcriminalized." (194)

As set forth above, American rules of judicial ethics generally fell into the category of administrative or regulatory offenses, to be punished by professional discipline. (195) This may be due in part to the fact that the rules contained in ethical codes go far beyond what is traditionally viewed as immoral. Many rules of judicial ethics are designed to maintain the decorum and public stature of the judiciary rather than to prevent immoral conduct. (196) Others were designed to "put a fence around the law," (197) to prohibit conduct that appears improper or is conducive to impropriety while not being immoral in itself. (198) Thus, criminal enforcement was reserved for acts specifically made punishable by the legislature, while enforcement of other ethical regulations was left to courts and professional disciplinary boards. (199)

The extension of criminal penalties to such essentially regulatory offenses poses serious problems of equity. (200) Professor Sara Sun Beale has noted that "common features of overcriminalization" include the following five pitfalls: "(1) excessive unchecked discretion in enforcement authorities, (2) inevitable disparity among similarly situated persons, (3) potential for abuse by enforcement authorities, (4) potential to undermine other significant values and evade significant procedural protections, and (5) misdirection of scarce resources (opportunity costs)." (201) If the discretion of law enforcement authorities is sufficiently unrestrained, criminal penalties for such regulatory offenses may be "'so wantonly and so freakishly imposed' that [they are] like being hit by lightning." (202)

Overcriminalization and its attendant ills also offend the principle of nullum crimen sine lege, or "no crime ... without law." (203) Since regulatory offenses tend to be broadly defined and subject to discretionary enforcement, (204) they are vulnerable to judicial expansion without adequate warning to defendants. (205) This is especially so in the case of an offense such as the New York official misconduct statute, which is subject to almost limitless expansion depending on prosecutors' and courts' interpretation of the "duties of a public servant." (206) Such judicial interpretation, if left unchecked, can effectively amount to ex post facto lawmaking. (207)

The excesses of overcriminalization frequently result from prosecutorial authorities' attempts to expand their duties from the punishment of crime to more general protection of the public good. (208) Such a "policy-oriented approach in the area of criminal law runs contrary to the fundamental customary principle nullum crimen sine lege." (209) Indeed, the signs of such a policy-based approach in the Garson case are apparent from the prosecution's arguments for applying criminal sanction to violations of judicial ethics. (210) Specifically, the prosecutors contended that criminal sanctions were necessary to protect the integrity of the bench, and to assist state agencies in maintaining clean government. (211) These are fundamentally regulatory goals, of the type that are commonly achieved through civil and administrative enforcement and professional discipline. By claiming the right to act in furtherance of these goals and interpreting the official misconduct statute accordingly, the Kings County District Attorney's office effectively assumed a regulatory mandate despite the fact that the sanctions at its command were inappropriate for such a role. (212)

Prosecutors' assumption of a regulatory mandate may also lead to overcriminalization in that they lack the technical expertise to regulate the bench. If prosecutions for violations of judicial ethical codes are permitted, relatively few cases are likely to come to prosecutors' attention directly. Instead, as with the Garson case, the matters will be brought to the prosecutors' notice by disgruntled parties or counsel. (213) In order to determine whether to bring charges in such cases, the prosecutors will have to sift through conflicting accounts of the incident and determine whether the judge has acted permissibly or crossed the line into unethical conduct.

This is not a task that criminal prosecutors are equipped to perform, particularly where the judge's conduct falls into a gray area in the ethical code. The difficulty of resolving such ambiguous conduct has been noted in the related area of attorney ethics, particularly where an attorney's ethical obligations intersect with the criminal law. (214) Specifically, it has been noted that attorneys who assert privilege over corporate documents in the context of criminal investigations have sometimes been treated by prosecutors as conspirators in a cover-up. (215) In such circumstances, it has been noted that "there are often real difficulties in determining whether [attorneys' conduct] should be treated as a crime ... a tort, a violation of procedural rules, a professional ethics violation, or as merely aggressive (and perhaps even commendable) litigation tactics." (216)

The judging process is not immune from such ethical gray areas. Although judges are required to refrain from partiality, (217) they are by no means passive actors in the litigation process. (218) Twentieth-century reforms to American rules of civil procedure have increasingly cast judges as "manager[s] of the case," with an active role in moving the litigation through the pretrial process and facilitating a settlement. (219)

The limits of this facilitating role are in controversy within the judicial profession. Some commentators, for instance, argue that judges are entitled to conduct ex parte conversations with litigants during settlement negotiations, including discussion of the reasonableness of settlement offers and the probable strength of their opponents' case. (220) Others, in stark contrast, believe that such conduct is unethical and amounts to coercion of the parties and their attorneys. (221) This dispute cannot be resolved by reference to the plain language of the code of judicial ethics, since the rule governing ex parte communications does not explicitly speak to settlement negotiations. (222) Indeed, the rule contains a catchall exception permitting judges to "initiate and consider ex parte communications when authorized by law to do so," thus providing courts with authority to adjudicate the ethical boundaries of such communications. (223)

Given the uncertain boundaries of permissible ex parte communication by judges, the bludgeon of criminal liability is uniquely unsuited to enforce these limits. Moreover, prosecutors' offices lack the technical expertise to make judgments about when judges may communicate ex parte and when they may not. This is a judgment more appropriately made by judicial conferences and disciplinary boards and enforced through rulemaking and professional discipline. It is not the kind of dispute that can or should be resolved by prosecutors acting on the complaint of parties or attorneys who feel that a judge has wronged them. Applying the criminal law in these and similar areas constitutes the inappropriate use of criminal sanction by an authority not technically equipped for regulatory enforcement. This can hardly be described as fair either to the judicial process or the judges who face such inappropriate criminal charges.

B. Prosecutions for Judicial Ethics Violations Would Chill Impartial Judging

The possibility of vindictive prosecutions, as exemplified by the Clayton case, (224) would constitute a great concern if prosecutors had open-ended discretion to indict judges for ethical violations. Indeed, prosecutions of sitting judges even for explicitly criminal conduct are controversial, at least in the federal context. Since the United States Constitution guarantees federal judges life tenure and provides a specific means of removal via impeachment, (225) it has been argued that the government is constitutionally forbidden from prosecuting judges unless and until they have been impeached. (226)

Although life tenure is not guaranteed to most state judges, impeachment or similar removal procedures are contained in most state constitutions. In addition, the interests protected by such procedures--judicial independence and separation of powers--are recognized as fundamental state constitutional values. (227) The same considerations that militate against prosecution of sitting federal judges are present whenever a judge is subjected to prosecution, regardless of the jurisdiction in which charges are filed.

Some commentators have contended that separation of powers and judicial independence can be adequately protected by prosecutorial discretion. In the aftermath of the impeachment of United States District Judge Alcee Hastings, for instance, former Justice Department prosecutor Reid H. Weingarten argued that the exacting centralized review processes of the Department of Justice would preclude the possibility of vindictive prosecutions. (228) Given that the rulings of the federal judiciary have become an increasingly politically charged issue, and that the ultimate decision as to whether to prosecute a federal judge lies with a politically appointed Attorney General, there is some room to quibble with Weingarten's conclusion. Even if Weingarten is correct in the federal context, however, many or even most state prosecutorial agencies do not have a review process similar to that undertaken by the Department of Justice. In many states, including New York, criminal prosecutions are conducted primarily by county officials, (229) who are answerable only to their county electorates and are not subject to meaningful review by higher officials. As such, there are fewer constraints on local prosecutors who might be tempted to indict judges in order to pursue political rivalries or remove judges who rule against them too frequently.

The history of the removal processes that do exist in New York provides empirical evidence that local prosecutors have been willing to use them for vindictive purposes. One of the most striking examples is that of former Kings County Supreme Court Judge Lorin Duckman. (230) Judge Duckman aroused the opposition of the District Attorney's office due to his perceived leniency toward criminal defendants and brusqueness with prosecutors. Accordingly, the District Attorney began to keep a dossier on Judge Duckman, obtaining transcripts of numerous court appearances in order to use them against him at an opportune time. (231)

Such an opportune occasion arose when Judge Duckman granted the routine bail application of Benito Oliver, who appeared in his court on misdemeanor charges. (232) Three weeks later, while he was out on bail, Oliver fatally shot his girlfriend, Galina Komar. (233) The shooting prompted a media storm focusing on Judge Duckman, whose perceived leniency toward Oliver was portrayed as a contributing cause of Komar's death. (234) Former Justice Vito Titone of the New York Court of Appeals described the ensuing events:

The lurid newspaper coverage was followed only a few days
later by a letter from the State Senate Majority Leader to the
State Commission on Judicial Conduct demanding that petitioner's
fitness be investigated immediately. At the same time,
Governor Pataki initiated his own "investigation" of petitioner.
These actions by two of the State's most powerful elected officials
were part of a larger political climate in which Judges were
increasingly being scapegoated. Beginning around the time of
the Komar killing and continuing throughout the spring and fall
of 1996, journalists specializing in sensational reportage and
politicians anxious to capitalize on public fear combined to lay the
blame for urban crime at the feet of "criminal coddling" Judges.
As the onslaught from the media continued, the Governor's office
sent representatives to the Kings and Bronx County District
Attorneys offices, apparently to obtain additional negative
background material on Judge Duckman. These representatives
were given access to one or more files containing transcripts of
proceedings before Judge Duckman, which appear to have been
ordered and preserved for some unspecified future use. Notably,
some of these transcripts involving dismissed criminal
charges were shown to the Governor's investigators without regard
to the confidentiality rules that apply to sealed records.
Having collected a list of complaints from trial assistants about
petitioner's handling of their cases and his mistreatment of
individual prosecutors, the investigators compiled a nine-page
report that was ultimately forwarded to the Judicial Conduct
Commission. (235)
This media storm was followed by an ultimatum from Governor Pataki to the New York Commission on Judicial Conduct, demanding that it "remove [Judge Duckman] from office within 60 days or the Governor would initiate impeachment proceedings before the State Senate." (236) The Commission quickly buckled to the pressure of the Governor and the Legislature and initiated disciplinary proceedings against Judge Duckman. (237) Those proceedings ended, as preordained, with the judge's removal. (238)

The disciplinary sanction was ultimately upheld by a 5-2 majority of the New York Court of Appeals. (239) In a strong dissent, however, Justice Titone noted the ominous connotations of the events surrounding Judge Duckman's removal:

The implication of the present disciplinary proceeding is that
Judges whose rulings displease the political powers that be may
be subjected to a modern-day witch hunt in which their records
are combed for indiscretions, their peccadillos strung together to
make out a "substantial record" of misconduct and their judicial
"sins" punished with the ultimate sanction of removal from office.
Indeed, in this case, the inference that petitioner has been
removed at least in part because of his interest in protecting
individual defendants' rights is reinforced by the Commission's
emphasis on his purportedly antiprosecution bias and his statements
criticizing the District Attorneys' policies. It is clearly
contrary to the goal of judicial independence to suggest that a
Judge may be singled out for discipline because of his or her
expressed views on questions affecting the criminal justice
system. (240)
Noting that "[t]here are few among us who have the courage and fortitude to take judicial stands at the risk of public humiliation and loss of office," Justice Titone warned that the proceeding would have a chilling effect on judicial independence in New York. (241) As he stated, "[a] precedent has now been set in which politicians and local prosecutors have demanded the removal of a widely respected sitting Judge for what they perceived as 'criminal coddling' and have succeeded in that demand." (242)

In at least three other cases, New York judges have faced other sanctions based on unpopular rulings. One such instance is the case of former Criminal Court Judge Bruce Wright, dubbed "Turn 'Em Loose Bruce" by New York City law enforcement officials due to his lenient bail rulings. (243) After Judge Wright released the accused shooter of a police officer on bail, pressure from the police union resulted in his permanent reassignment to civil cases. (244) A more recent example is the case of Judge Laura Blackburne, a Queens County Supreme Court judge who assisted a defendant in avoiding a courthouse arrest. (245) As with Judge Wright, a combination of media coverage and political pressure prompted her administrative reassignment to a civil part. (246)

Even federal judges have not been immune from political pressure over pro-defense rulings in criminal cases. One such instance in New York occurred when Judge Harold Baer, Jr. issued a ruling suppressing evidence in the cocaine trafficking prosecution of Carol Bayless. (247) What made this ruling even more controversial than most Fourth Amendment suppression rulings was that Judge Baer, Jr. characterized running from the police as an act that was not inherently suspicious and could, under certain circumstances, be reasonable. (248) The matter caught the attention of Congress, and after impeachment proceedings were threatened, Judge Baer, Jr. seized upon a prosecutorial reargument motion to reverse himself. (249)

These four examples demonstrate that judges who issue pro-defense rulings in criminal cases can often find themselves in the political line of fire. This has the potential to form a perverse synergy with the interests of prosecutors, who are frequent users of the courts in criminal cases and who benefit from any chilling effect on pro-defense rulings. The availability of sanctions such as removal, impeachment, and reassignment already creates the potential for such a chilling effect, but the effect would be enormously magnified if prosecutors could directly sanction disfavored judges by means of criminal indictment. This would not only place the ability to enforce political pressure in the hands of those who would benefit the most from its success, but it would threaten judges with the possibility of losing their freedom as well as their livelihoods.

The ability to indict judges for ethical violations in the absence of a clear penal statute governing their actions would open the door to exactly this scenario. Under the theory advocated by the Kings County District Attorney in the Garson case, for instance, Judge Duckman could have been prosecuted on misdemeanor charges for discourtesy to Assistant District Attorneys and erroneous dismissals of criminal cases, both of which were cited as ethical violations by the Commission on Judicial Conduct in removing him. (250) In other words, the door would be opened to exactly the sort of vindictive prosecutions undertaken by the Florida prosecutor in Clayton. (251) New York judges would be on notice that a sharp word to an Assistant District Attorney could potentially lead to jail time. (252)

Indeed, even unsuccessful prosecutions would have a chilling effect. The very process of commencing a criminal investigation against a judge would necessarily impact his ability to function impartially on the bench, and the necessity of defending against criminal charges would deplete his time and financial resources. The commencement of a criminal investigation for ethical lapses, even if it does not ultimately lead to conviction, could be an effective method of harassing disfavored judges in the event that such prosecutions are allowed.

Moreover, as Weingarten notes, the process of investigating a judge necessarily involves intrusion into his chambers. (253) This could potentially impact the integrity of the judging process, especially if judges become aware that their chambers might be under surveillance. Furthermore, surveillance of chambers could affect the rights of innocent parties to litigation, in the event that recorded chambers discussions are disclosed and made public during the course of a criminal proceeding. (254)

Therefore, an investigation that involves the traditionally confidential precincts of judicial chambers must involve a balancing of rights: society's interest in rooting out judicial corruption must be weighed against judicial independence and litigants' right to privacy. If there is evidence that a judge has committed an explicitly criminal act--for instance, accepting bribes or extorting kickbacks--then the intrusion on these individual rights may well be warranted. On the other hand, where the violation in question is merely ethical, the privacy interests of judges and litigants weigh much more heavily, and the resolution of such matters should be left to less intrusive administrative or disciplinary processes.

C. Separation of Powers Considerations Militate Against Holding Judges Criminally Liable for Mere Ethical Violations

The considerations counseling against an expansive interpretation of violations of judicial ethics as criminal offenses are also constitutional. Chief among them, as the Court of Appeals stated in La Carrubba, is the fact that designation of criminal offenses is a fundamentally legislative function that cannot be delegated, even explicitly. (255) The Legislature could, within the scope of its powers, make it a crime for a public official to disobey an existing code of ethics or administrative rule. (256) However, absent such an explicit pronouncement by the Legislature itself, a criminal offense cannot simply be implied based on the intersection of an ethical code and a broadly worded official misconduct statute.

Therefore, in the absence of actual legislative review and adoption of an existing ethical code as an element of a criminal offense, any imposition of criminal liability for violating administratively promulgated ethical rules would constitute an improper delegation. Indeed, the theory advocated by the prosecution in Garson involved several layers of delegation rather than only one. Specifically, the theory began with an official misconduct statute that made it a crime for a public servant to receive or agree to receive a "benefit" in return for violating his duty. (257) The prosecution then cited an amendment of the New York State Constitution--adopted considerably after the official misconduct statute was enacted-that made judges "subject" to the rules of the Chief Administrator of the Courts. (258) The final layer was the ethical code itself, which was promulgated by the Chief Administrator some time after the constitutional amendment. (259)

Significantly, at no point in this process was there any indication by the Legislature of an intent to criminalize ethical violations as such. At the time the official misconduct statute was incorporated into the New York Penal Law, there was no statewide code of ethics for judges, and there had been no attempts to prosecute judges for violation of the then-existing Appellate Division ethical rules. Indeed, as noted by Professor Nelson, the very idea of regulating judicial ethics through formal disciplinary rules was a relatively new one at the time. (260) There was no indication that, at the time the Legislature enacted the Penal Law, it intended anything more than a synthesis of previous statutes punishing specific and narrow types of misconduct by public servants. (261)

Nor, at the time of the constitutional amendment at issue, was there any discussion of imposing criminal liability upon judges. Indeed, there was no indication that the amendment was intended to apply specifically to rules of ethics. The state constitution, as amended, spoke broadly of making judges "subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals." (262) Such rules are not limited to the code of judicial ethics, but also include the uniform rules for administration of the trial courts, (263) which cover such matters as case assignments, calendar management, discovery, trial and motion practice, and court fees. (264) One doubts that any prosecutor would seriously suggest that a judge who calls a case out of order or grants post-note-of-issue civil discovery without good cause thereby commits the crime of official misconduct. (265)

Moreover, as stated by the New York Office of Court Administration in its history of the judicial system, this amendment was part of an overall constitutional amendment aimed at centralizing the New York State Unified Court System. (266) Although the Unified Court System was first created in 1962, (267) the fiscal crisis of the 1970s was a catalyst for substantial administrative reforms. In 1974, a statewide administrator was appointed for the first time to supervise all judicial assignments in New York. (268) In 1976, all judges, even in local courts, were made State employees. (269) This was followed up the next year by the constitutional amendment package, which "created a fully centralized system of court management under the direction of the Chief Judge and through daily control of the Chief Administrator/Chief Administrative Judge-essentially, a formal constitutional acknowledgment of the 1974 arrangement." (270)

Therefore, the overriding rationale of the 1977 amendment was the centralization of New York court administration in Albany. Instead of a patchwork of local courts, each operating according to their own rules, New York adopted a system under which uniform rules and a single management system would operate throughout the state. As part of this reform, the Legislature created a new constitutional office--that of Chief Administrator of the Courts--and empowered the holder of that office to make rules. Although one of the rules promulgated pursuant to this amendment was a code of ethics, the Senate and Assembly debates surrounding the amendment show that it was clearly directed at reforming court administration, with judicial ethics being an afterthought at most. (271) Moreover, there was no indication that anyone involved in the constitutional drafting process envisioned imposing criminal liability for violation of the Chief Administrator's rules, whether ethical or otherwise.

The code of ethics itself--the third and final link in the Garson prosecutors' chain--was likewise promulgated without any indication that violators would be held criminally liable. Indeed, the preamble to the code, which was modeled on the 1990 ABA Model Code of Judicial Conduct, (272) explicitly states that it is intended solely as a basis for judicial discipline and not for civil or criminal liability. (273) Thus, even if the combination of the official misconduct statute and the 1977 amendment somehow delegated the power to define criminal offenses to the Chief Administrator--which, under La Carrubba, they could not--the Administrator clearly did not regard himself as acting pursuant to such a delegation. Under these circumstances, no reasonable judge could be on notice that he might face criminal liability for violating the New York code of judicial ethics. (274)

It is thus clear that implied criminal liability for judicial ethical violations, through the duct of the official misconduct statute, fails to address either the constitutional vagueness test or the practical considerations of judicial independence and separation of powers. Moreover, the compromise suggested by the Wisconsin Court of Appeals in Jensen and Chvala--that judges may be prosecuted only for ethical violations that are not integral to the process of judging (275)--is constitutionally untenable. There is no readily apparent distinction between ethical rules that are integral to the judging process and those that are not. For instance, one of the ethical violations of which Justice Garson is accused--conducting improper ex parte communications--could be considered integral to the judicial process because it involves the resolution of pending cases, or it could be considered non-integral because it takes place outside normal courtroom channels. Ex parte discussions may, in fact, be integral under some circumstances--as when a judge confers individually with the counsel for each party during a settlement conference--but not others. Far from resolving the issue of when judges could be lawfully prosecuted for ethical lapses, a Chvala/Jensen compromise would only descend more hopelessly into unconstitutional vagueness.

If the New York State Legislature, or the legislature of any other state, wants to criminalize the violation of judicial ethical codes, the solution is simple: enact a penal statute that explicitly makes some or all such violations a criminal offense. The Legislature could have done so at any time, and its failure to take such a step--particularly after the clear notice given by the Court of Appeals' decision in La Carrubba--indicates that it considered the existing judicial disciplinary arrangements suitable. In the absence of any legislative judgment that the disciplinary tribunals established under the New York State constitution provide inadequate deterrence, the judgments in the La Carrubba and Garson cases remain sound.


The Garson prosecution represents the second occasion in New York on which a District Attorney's office has attempted to prosecute a judge for violating an ethical stricture that is not explicitly contained in a penal statute. As with the La Carrubba case a quarter-century before, the indictment of Justice Garson represents a clear instance of prosecutorial overreaching.

Judicial codes of ethics are intended to preserve the integrity and efficient administration of the court system rather than to serve as a basis for criminal liability and, as such, contain broadly worded aspirational standards rather than explicit prohibitions. As such, they are too vague to meet the constitutional requirement that accused judges be given fair notice of the acts for which they might be held criminally liable. The creation of a system under which prosecutors essentially act as judicial disciplinary authorities also infringes upon the principles of judicial independence and separation of powers.

Moreover, the experience of New York and other states indicates that allowing judges to be prosecuted for violating such open-ended ethical rules invites vindictive prosecutions against judges who are perceived as pro-defense or are otherwise disfavored. The ordeals of Wiley Clayton, Lorin Duckman, Bruce Wright, and other judges who have incurred the wrath of local prosecutors show that broadly-worded ethical codes are vulnerable to misuse for politically opportune reasons. The potential for such prosecutions to chill judicial independence far outweighs any societal interest in stricter enforcement of judicial ethics. Judges should be prosecuted when they have violated a specific penal statute, but on no other occasion.

(1.) See People v. Garson, 775 N.Y.S.2d 827 (Sup. Ct. Kings County 2004), aff'd, 793 N.Y.S.2d 539 (App. Div. 2005), leave to appeal granted, 834 N.E.2d 1266 (N.Y. 2005).

(2.) Id. at 830; see also N.Y. PENAL LAW [section] 200.25 (McKinney 2005).

(3.) See infra notes 16-39 and accompanying text.

(4.) See infra notes 41-49, 98-187 and accompanying text.

(5.) See People v. La Carrubba, 389 N.E.2d 799, 801-03 (N.Y. 1979); see also Clayton v. Willis, 489 So. 2d 813, 818-20 (Fla. Dist. Ct. App. 1986); State v. Perez, 464 So. 2d 737, 743-44 (La. 1985).

(6.) See infra notes 50-52 and accompanying text.

(7.) Garson, 775 N.Y.S.2d at 842.

(8.) People v. Garson, 793 N.Y.S.2d 539 (App. Div. 2005).

(9.) See People v. Garson, 834 N.E.2d 1266 (N.Y. 2005). Just before this Article went to press, the case was decided. See People v. Garson, No. 02409, 2006 WL 796993 (N.Y. Mar. 30, 2006).

(10.) See William Glaberson & William K. Rashbaum, Indictment of a Brooklyn Judge Provides Details of Seemingly Routine Corruption, N.Y. TIMES, Jan. 25, 2002, at B3.

(11.) See Joe Mahoney, Judge: We'll Fix Courts, DAILY NEWS (N.Y.), Feb. 26, 2002, at 18; Editorial, Justice Betrayed is Justice Denied, DAILY NEWS (N.Y.), Feb. 8, 2002, at 44.

(12.) See Daniel Wise, Commission Recommends Reforms for Judicial Elections, N.Y.L.J., Dec. 4, 2003, at 1.

(13.) See Daniel Wise, Pfau Takes Pesce's Brooklyn Court Post, N.Y.L.J., Feb. 8, 2002, at 1.

(14.) See, e.g., In re Feinberg, 833 N.E.2d 1213 (N.Y. 2005) (removing Kings County Surrogate Michael Feinberg from the bench for giving lucrative guardianships to a close associate and permitting him to take excessive legal fees); see also In re Garson, 793 N.Y.S.2d 397 (App. Div. 2005) (requiring Justice Michael Garson, a cousin of Gerald Garson, to disgorge $163,000 he looted from his aunt's guardianship estate).

(15.) Ms. Hanimov awarded herself this appellation on her web site. Frieda Hanimov, Brooklyn DA's "Undercover Mom," (last visited Mar. 8, 2006).

(16.) See Eavesdropping and Video Surveillance Warrants, People v. Garson, 775 N.Y.S.2d 827 (Sup. Ct. Kings County 2004) (Nos. 3515/03, 5332/03) (dated Dec. 9, 2002) (on file with author). This order was subsequently renewed on February 3, 2003 and March 7, 2003.

(17.) See Affidavit in Support of an Application for an Eavesdropping and Video Surveillance Warrant at [paragraphs] 18-22, Garson, 775 N.Y.S.2d 827 (Nos. 3515/03, 5332/03) (dated Feb. 3, 2003) (on file with author) [hereinafter Feb. 3, 2003 Affidavit].

(18.) See id.

(19.) See id..

(20.) See Affidavit in Support of an Application for an Eavesdropping and Video Surveillance Warrant at [paragraphs] 15-16, Garson, 775 N.Y.S.2d 827 (Nos. 3515/03, 5332/03) (dated Mar. 7, 2003) (on file with author) [hereinafter Mar. 7, 2003 Affidavit].

(21.) See Mar. 7, 2003 Affidavit, supra note 20, at [paragraphs] 15-16.

(22.) See id.

(23.) See id.

(24.) See id.

(25.) See id. It should be noted that Deputy Chief Investigator Terra described Justice Garson's alleged conduct as unethical rather than criminal in nature, attesting that the recorded conversations demonstrated that he was prone "at the very least to violate the judicial and attorney code of ethics." See Feb. 3, 2003 Affidavit, supra note 17, at [paragraph] 24.

(26.) See Mar. 7, 2003 Affidavit, supra note 20, at [paragraph] 18.

(27.) See N.Y. PENAL LAW [section] 195.00 (McKinney 2005).

(28.) See id. [section] 200.25.

(29.) See id. [section] 200.35.

(30.) See Indictment No. 5332/03, People v. Garson, 775 N.Y.S.2d 827 (Sup. Ct. Kings County 2004) (Nos. 3515/03, 5332/03) (on file with author). The second indictment did not completely supersede the first, in that certain charges from the first indictment remained intact. The two instruments were subsequently consolidated.

(31.) See N.Y. PENAL LAW [section] 200.10.

(32.) See Indictment No. 3515/03, Garson, 775 N.Y.S.2d 827 (Nos. 3515/03, 5332/03) (on file with author); Indictment No. 5332/03, supra note 30.

(33.) See Indictment No. 3515/03, supra note 32; Indictment No. 5332/03, supra note 30.

(34.) See N.Y. PENAL LAW [section] 200.25. In contrast to the crime of bribe receiving, this offense relates to receiving gratuities for having violated one's public duty in the past, as opposed to striking a bargain to violate it in the future. See id. (practice commentary by William J. Donnino); see also Garson, 775 N.Y.S.2d at 831; People v. Stokner, 576 N.Y.S.2d 753, 753-54 (Crim. Ct. Queens County 1991).

(35.) See Memorandum of Law in Opposition to Petition for Writ of Prohibition at 11, Garson, 775 N.Y.S.2d 827 (Nos. 3515/03, 5332/03) (on file with author).

(36.) See Memorandum of Law in Opposition to Petition for Writ of Prohibition, supra note 35, at 11.

(37.) See N.Y. COMP. CODES R. & REGS. tit. 22, [section] 100.3(B)(6) (2005).

(38.) See [section] 100.2(C).

(39.) See Memorandum of Law in Opposition to Petition for Writ of Prohibition, supra note 35, at 11-12.

(40.) See, e.g., Memorandum of Law in Support of Petition for a Writ of Prohibition, Garson, 775 N.Y.S.2d 827 (Nos. 3515/03, 5332/03) (on file with author).

(41.) 389 N.E.2d 799 (N.Y. 1979).

(42.) See id. at 800-01.

(43.) See id. at 801.

(44.) See id.

(45.) Id.

(46.) Id. at 801-02 (citations omitted).

(47.) Id. at 802.

(48.) Id. at 803.

(49.) See id. at 802-03.

(50.) See N.Y. CONST. art. VI, [section] 20(b)(4).

(51.) See Memorandum of Law in Opposition to Petition for Writ of Prohibition, supra note 35, at 3-5.

(52.) See id. at 24-41.

(53.) See N.Y. COMP. CODES R. & REGS. tit. 22, [section] 100 (2005).

(54.) See La Carrubba, 389 N.E.2d at 801.

(55.) See Reply Memorandum of Law in Support of Petition for Writ of Prohibition at 14-24, People v. Garson, 775 N.Y.S.2d 827 (Sup. Ct. Kings County 2004) (Nos. 3515/03, 5332/03) (on file with author).

(56.) See id. at 24.

(57.) See id. at 5-15.

(58.) See id. at 5-15.

(59.) See id. at 5-15 (citing La Carrubba, 389 N.E.2d 799, 803 (N.Y. 1979)).

(60.) See id..

(61.) People v. Garson, 775 N.Y.S.2d 827, 843 (Sup. Ct. Kings County 2004), aff'd, 793 N.Y.S.2d 539 (App. Div. 2005), leave to appeal granted, 834 N.E.2d 1266 (N.Y. 2005).

(62.) Id. at 832.

(63.) See id. at 834 (citing N.Y. COMP. CODES R. & REGS. tit. 22, [section] 100).

(64.) Id.

(65.) Id. at 832.

(66.) See id. at 832-33 (citing N.Y. COMP. COMP. CODES R. & REGS. tit. 22, [subsection] 100.1, 100.2(A), 100.3(B)(3)).

(67.) Id. at 833.

(68.) See id. at 833-34.

(69.) See id. As an example of the potential overbreadth of the rule, Justice Fisher cited the disciplinary case In re Levine, 545 N.E.2d 1205 (N.Y. 1989), in which a judge was disciplined for "having communications with a non-party former political leader about an adjournment in a pending case." See Garson, 775 N.Y.S.2d at 833 (citing Levine, 545 N.E.2d at 1205). Given that many judges in New York are elected officials, it is apparent that criminalizing their ex parte communications with political figures might be seized upon as a convenient tactic by rival candidates for judicial office or prosecutors from the opposing political party.

(70.) See Garson, 775 N.Y.S.2d at 833-34 (quoting N.Y. COMP. CODES R. & REGS. tit. 22, [section] 100.2(C)).

(71.) Id. at 834 (citing In re Kiley, 546 N.E.2d 916 (N.Y. 1989)).

(72.) Id. (citing In re Sims, 462 N.E.2d 370, 375 (N.Y. 1984)).

(73.) Id. at 834-35.

(74.) Id. at 834.

(75.) Id. (citing People v. La Carrubba, 389 N.E.2d 799, 803 (N.Y. 1979)).

(76.) See id.

(77.) Id. at 834-35.

(78.) See id. The court upheld one count of official misconduct on the theory that Judge Garson had violated a statutory duty, imposed by Section 18 of the Judiciary Law, by accepting cigars in return for giving ex parte advice to Siminovsky. See id. at 835-36. It dismissed two other counts of official misconduct as duplicative, but let stand one count of receiving unlawful gratuities and one count of bribe receiving in the third degree. See id. at 830-31, 835-37.

(79.) See Daniel Wise, Prosecutors Argue to Restore Felony Counts Against Garson, N.Y.L.J., Mar. 21, 2005, at 1.

(80.) Id.

(81.) Id.

(82.) Id.

(83.) See People v. Garson, 793 N.Y.S.2d 539, 540 (App. Div. 2005).

(84.) Id. (citations omitted).

(85.) See People v. Garson, 834 N.E.2d 1266 (N.Y. 2005).

(86.) See infra notes 167-187 and accompanying text.

(87.) Needless to say, conduct that is violative of a specific criminal statute can be a basis for criminal prosecution even if it also constitutes a violation of an ethical rule. See, e.g., People v. Lynch, 674 N.Y.S.2d 894, 899 (Sup. Ct. Rockland County 1998) ("Ethical impropriety may coexist with criminal conduct and the existence of the former does not preempt the imposition of criminal sanctions for the violation of a penal statute."); see also William E. Nelson, The Integrity of the Judiciary in Twentieth-Century New York, 51 RUTGERS L. REV. 1, 36 (1998) ("No one has ever doubted that a judge who is caught accepting bribes to determine the outcome of cases should be thrown from the bench and sent to prison.").

(88.) See Neb. State Bar Ass'n v. Wiebusch, 45 N.W.2d 583, 595-96 (Neb. 1951).

(89.) See Nelson, supra note 87, at 34.

(90.) See id.

(91.) See id.

(92.) See id.

(93.) Id. at 34-35.

(94.) Id. at 35 (quoting Keuhnel v. State Comm'n on Judicial Conduct, 403 N.E.2d 167, 168 (N.Y. 1980)).

(95.) Id.

(96.) See Gerald Stern, Judicial Error That Is Subject to Discipline in New York, 32 HOFSTRA L. REV. 1547, 1548-49 (2004). Prior to the establishment of the Commission, judicial discipline was conducted on an ad hoc basis by the appellate courts. See id. It should be noted that Stern himself was the first chairman of the Commission, and was so influential concerning judicial discipline in New York that the tribunal was known colloquially as the "Stem Commission."

(97.) See infra notes 98-187 and accompanying text.

(98.) See State v. Serstock (Serstock I), 390 N.W.2d 399 (Minn. Ct. App. 1986), rev'd in part, State v. Serstock (Serstock II), 402 N.W.2d 514 (Minn. 1987).

(99.) Id. at 401.

(100.) See id. at 401 & n.1.

(101.) See id. at 401.

(102.) See id. (citing MINN. STAT. [section] 609.43(2) (1984)).

(103.) See id. at 402 (quoting MINN. STAT. [section] 609.43(2) (1984)).

(104.) Id. at 401.

(105.) Id. at 402.

(106.) Id. at 404 ("[A]n administrative agency exercising its rule-making power gives expression to legislative policy and thus performs a quasi-legislative function.") (citing People v. Samel, 451 N.E.2d 892, 896 (Ill. App. Ct. 1983)).

(107.) Id. at 403 (quoting Order of Minnesota Supreme Court (Aug. 4, 1970), reprinted in Minnesota Rules of Court 772 (West 1985)).

(108.) Id.

(109.) Id. at 404.

(110.) Id. Many commentators have noted the dangers of using essentially regulatory codes to enforce criminal liability. See, e.g., John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 200 (1991) ("[T]he criminal sanction is increasingly being used by regulators as a preferred enforcement tool without regard to the traditional limitations on its use."). Coffee argues that "[o]nce everything wrongful is made criminal, society's ability to reserve special condemnation for some forms of misconduct is either lost or simply reduced to a matter of prosecutorial discretion." Id. at 201.

(111.) Serstock I, 390 N.W.2d at 404.

(112.) See id. at 404-05.

(113.) See Serstock II, 402 N.W.2d 514, 515 (Minn. 1987).

(114.) See id. at 516-17. The court noted that, even assuming arguendo that the intent of the ethical provisions was ambiguous, the rule of lenity dictated that this ambiguity be resolved in the defendant's favor. Id. at 516 (citing State v. Haas, 159 N.W.2d 118, 121 (Minn. 1968)).

(115.) Id. at 517 n.2. The Minnesota Supreme Court additionally dismissed the count charging Serstock with exceeding his geographic jurisdiction, but did so on the technical ground that the indictment was insufficiently specific as to the statutory duty he violated. See id. at 518.

(116.) See supra notes 61-64 and accompanying text.

(117.) See supra notes 34-39 and accompanying text.

(118.) See Serstock I, 390 N.W.2d 399, 403-04 (Minn. Ct. App. 1986)

(119.) See MODEL CODE OF JUDICIAL CONDUCT pmbl. (1990).

(120.) The majority of these states have adopted codes of judicial ethics predicated on the 1972 ABA Model Code, which did not contain a preamble. Montana is cur rently the only state that has not adopted a code of ethics based on the 1972 or 1990 model codes. See Cynthia Gray, The Line Between Legal Error and Judicial Misconduct: Balancing Judicial Independence and Accountability, 32 HOFSTRA L. REV. 1245, 1246 n.4 (2004). Montana's ethical rules are still based largely on the ABA's 1924 Model Canons of Judicial Ethics.

(121.) State v. Perez (Perez II), 464 So. 2d 737 (La. 1985).

(122.) See id. at 739.

(123.) See id.

(124.) See id. at 739 & n.1. The letter "charged the [Perez] family ... with illegally obtaining oil properties of the Parish," and "observed that civil litigation [to recover the properties] would be lengthy and suggested that if the grand jury were to bring indictments against the Perezs ]sic], the family might be persuaded to return some of the oil properties." Id. at 739.

(125.) See id. at 739. The facts of the case, which set forth a classic tale of parish corruption, are set out at greater length in the Court of Appeal decision reviewed by the Louisiana Supreme Court. See State v. Perez (Perez I), 450 So. 2d 1324, 1327-35 (La. Ct. App. 1984).

(126.) See Perez I, 450 So. 2d at 1338-39.

(127.) Perez II, 464 So. 2d at 741-43, 744.

(128.) Id. at 741.

(129.) Id. at 744. The majority also rejected a concurring argument that, since the Louisiana attorney disciplinary rules were "rules of [the Supreme] court promulgated under its exclusive authority to regulate the practice of law, [they] have the force and effect of substantive law." See id. at 745 (Dennis, J., concurring). Louisiana courts have reached similar holdings in determining that police operations manuals and the state real estate commission's ethical rules did not define legal duties such that their violation could be prosecuted as malfeasance. See, e.g., State v. Passman, 391 So. 2d 1140, 1144 (La. 1980) (director of real estate commission could not be prosecuted for issuing licenses to friends without regard to their test scores, because he had no express statutory duty to institute and practice fair testing procedures); State v. Hessler, 570 So. 2d 95, 96-97 (La. Ct. App. 1990) (police officer who failed to follow procedures for protecting prisoners, resulting in an assault on a prisoner in his charge, could not be prosecuted for malfeasance).

(130.) See Clayton v. Willis, 489 So. 2d 813, 818-20 (Fla. Dist. Ct. App. 1986); see also infra notes 158-166 and accompanying text (discussing Clayton at length).

(131.) See IOWA CODE [section] 602.1609 (2004). The Iowa judicial ethics code is otherwise based on the 1972 ABA Model Code.

(132.) See State v. Green, 376 A.2d 424, 427 (Del. Super. Ct. 1977) (quoting DEL., CODE ANN. tit. 29, [section] 5802(2)). The rule allegedly violated by the defendant required him to disclose loans received from any business subject to state regulation. See id. at 428.

(133.) See id. at 428 ("Specification of such ethical standards and appropriate sanctions for their violation is a legislative function, not one to be performed by a court in a prosecution for official misconduct."). At least one Delaware court, however, has drawn a distinction in cases where the defendant profits personally from unethical conduct, holding that public officials have an inherent duty "not to profit personally from the services and property of [a] public agency." See Howell v. State, 421 A.2d 892, 897 (Del. 1980).

(134.) See People v. Weber, 479 N.E.2d 382, 383-84 (Ill. App. Ct. 1985).

(135.) See People v. Samel, 451 N.E.2d 892, 894, 896-98 (Ill. App. Ct. 1983) (police officer could be charged with official misconduct for procuring "the name and address of a specified vehicle registration number owner by means of a computer check ... for purposes other than that of law enforcement").

(136.) Id. at 896; see also supra notes 116-118 and accompanying text.

(137.) See ILL. SuP. CT. R., art. I, pmbl. (adopting the language of the 1990 ABA Model Code preamble); see also MODEL CODE OF JUDICIAL CONDUCT pmbl. (1990); supra note 119 and accompanying text.

(138.) 678 N.W.2d 880 (Wis. Ct. App. 2004), review granted, 684 N.W.2d 136 (Wis. 2004), aff'd, 693 N.W.2d 747 (Wis. 2005).

(139.) See id. at 885.

(140.) See id.


(142.) Id.

(143.) See id.; see also id. at 889-90 ("[The defendant's] duty as a legislator is sufficiently delineated in the Senate Policy Manual [and other sources] such that a reasonable person would be aware that using discretionary powers to obtain a dishonest advantage over others by waging partisan political campaigns with state resources violates one's duty as a public official.").

(144.) 681 N.W.2d 230 (Wis. Ct. App. 2004), review granted, 684 N.W.2d 136 (Wis. 2004), aff'd, 694 N.W.2d 56 (Wis. 2005).

(145.) See id. at 239-40. The language of the Assembly handbook and explanatory memoranda were essentially identical to the Senate materials at issue in Chvala. See Chvala, 678 N.W.2d at 888-89.

(146.) See State v. Chvala, 684 N.W.2d 136 (Wis. 2004); State v. Jensen, 684 N.W.2d 136 (Wis. 2004).

(147.) See Steven Walters, Three Justices Recuse Themselves; Bare Majority to Hear Two Cases Involving Legislator Misconduct, MILWAUKEE J. SENTINEL, Jan. 6, 2005, at B1. One of the three justices, David Prosser, stated that he was recusing himself because the defendants were former colleagues in the state legislature, while the other two justices did not specify their reasons for withdrawing. See id.

(148.) See State v. Chvala, 693 N.W.2d 747, 748 (Wis. 2005); State v. Jensen, 694 N.W.2d 56, 56 (Wis. 2005).

(149.) See Chvala, 693 N.W.2d at 748; Jensen, 694 N.W.2d at 56.

(150.) See Phil Brinkman & Dee J. Hall, High Court Ruling Lets Criminal Cases Proceed; Deadlock on Key Issue Lets Appeals Decision Stand, Win. ST. J., Mar. 24, 2005, at A1 (noting the lack of guidance provided by the Supreme Court rulings).

(151.) See infra notes 152-157 and accompanying text.


(153.) MODEL CODE OF PROF'L RESPONSIBILITY preliminary statement (1980).

(154.) Id. at DR 9-101.

(155.) Id. at DR 2-102(A).

(156.) MODEL CODE OF JUDICIAL CONDUCT Canon 2(C) (1990).

(157.) Id. at Canon 3(B)(4).

(158.) 489 So. 2d 813, 820 (Fla. Dist. Ct. App. 1986), appeal dismissed, 500 So. 2d 546 (Fla. 1986).

(159.) See id. at 820-28 (reproducing the indictment).

(160.) See id. at 814-15.

(161.) Id. at 819.

(162.) See id. at 816 (citing FLA. STAT. [section] 775.01 (1985)). The British cases cited by the court drew a distinction between nonfeasance, which could be prosecuted regardless of the defendant's motive, and misfeasance, which required corrupt motive. This distinction was drawn as early as Crouther's Case, (1599) 78 Eng. Rep. 893 (Q.B.), which held that a constable could be indicted for failing to raise a hue and cry upon learning that a burglary had been committed at night. In contrast, "[t]he only punishment at common law for nonministerial, discretionary acts was impeachment, absent corrupt circumstances." Clayton, 489 So. 2d at 817 (citing 1 WILLIAM L. BURDICK, THE LAW OF CRIME [section] 272a (1946)).

(163.) See Clayton, 489 So. 2d at 817.

(164.) Id. at 818-19.

(165.) Id. at 819.

(166.) Indeed, when the matter came before a proper disciplinary forum, the only sanction levied upon Judge Clayton was a reprimand. See In re Clayton, 504 So. 2d 394 (Fla. 1987). He subsequently resigned from the bench.

(167.) See Clayton, 489 So. 2d at 819.

(168.) Id. at 818.

(169.) Id. at 819 (quoting In re Proposed Disciplinary Action, 103 So. 2d 632, 634 (Fla. 1958) (finding that the Florida Bar could not institute disciplinary proceedings against a judge for the sole purpose of removing him from office)).

(170.) Id. at 819-20 (quoting In re Proposed Disciplinary Action, 103 So. 2d at 634).

(171.) See id. at 817-18.

(172.) See Serstock II, 402 N.W.2d 514, 516-17, 520 (Minn. 1987).

(173.) See id. at 517 n.2.

(174.) Id.

(175.) See id.

(176.) See State v. Chvala, 678 N.W.2d 880, 892 (Wis. Ct. App. 2004), review granted, 684 N.W.2d 136 (Wis. 2004), aff'd, 693 N.W.2d 747 (Wis. 2005).

(177.) Id. at 892-93 (citing WIS. CONST. art. IV, [section] 16).

(178.) Id. at 893-94 (stating, inter alia, that "Chvala is not being prosecuted for his legislative acts or for personnel decisions integral to the execution of those acts").

(179.) See id. at 895 (citing State ex rel. Friedrich v. Circuit Court, 531 N.W.2d 32, 36 (Wis. 1995)).

(180.) See id. at 896.

(181.) See id.

(182.) 681 N.W.2d 230 (Wis. Ct. App. 2004), review granted, 684 N.W.2d 136 (Wis. 2004), aff'd, 694 N.W.2d 56 (Wis. 2005).

(183.) See id. at 243-45.

(184.) See Chvala, 678 N.W.2d at 895-96; Jensen, 681 N.W.2d at 244.

(185.) See, e.g., N.Y. COMP. CODES R. & REDS. tit. 22, [section] 100.3 (2005) (setting forth ethical obligations of New York judges with respect to courtroom conduct).

(186.) See supra notes 158-166 and accompanying text.

(187.) See, e.g., Aviva Abramovsky, Comment, Traitors in Our Midst: Attorneys Who Inform on Their Clients, 2 U. PA. J. CONST. L. 676, 688 (2000) (discussing prosecutors who view the criminal justice system as an impediment).

(188.) See Sanford H. Kadish, The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. & Soc. Sci. 157, 169 (1967).

(189.) Paul Rosenzweig, The Over-Criminalization of Social and Economic Conduct, CHAMPION, Aug. 2003, at 28, 29.

(190.) See id. at 29-30.

(191.) Id. at 29.

(192.) See id. at 30.

(193.) See id. at 30-31.

(194.) See id.

(195.) See supra notes 86-95 and accompanying text.

(196.) See, e.g., N.Y. COMP. CODES R. & REGS. tit. 22, [subsection] 100.2(A) (2005) (requiring judges to act in a manner that promotes public confidence in the judiciary), 100.3(B)(3) (2005) (requiring judges to be "patient, dignified and courteous" to litigants, counsel, witnesses and court personnel).

(197.) The concept of putting a fence around the law originates with rabbinic rulings that imposed rules and restrictions greater than what the law required, in order to prevent people from straying into gray areas where they might inadvertently break the law. See MosEs MAIMONIDES, MISHNEH TORAH, Sanhedrin 24:4, at 73 (outlining the concept of placing a fence around the law by means of extralegal sanctions).

(198.) See, e.g., N.Y. COMP. CODES R. & REGS. tit. 22, [section] 100.3(B)(6) (prohibiting improper ex parte conversations).

(199.) See supra notes 86-95 and accompanying text.

(200.) See generally Sara Sun Beale, The Many Faces of Overcriminalization: From Morals and Mattress Tags to Overfederalization, 54 AM. U. L. REV. 747 (2005).

(201.) Id. at 749.

(202.) Id. at 758 (quoting Furman v. Georgia, 408 U.S. 238, 309-10 (1972) (Stewart, J., concurring)).

(203.) See John Hasnas, Ethics and the Problem of White-Collar Crime, 54 AM. U. L. REV. 579, 589-90 (2005).

(204.) See Stephen F. Smith, Proportionality and Federalization, 91 VA. L. REV. 879, 885 (2004).

(205.) See Hasnas, supra note 203, at 589.

(206.) See supra notes 34-39 and accompanying text.

(207.) See Hasnas, supra note 203, at 589-90. Professor Hasnas identifies four corollaries to the principle of nullum crimen sine lege:

(1) a ban on retroactive criminal lawmaking; (2) a ban on the judicial creation of new common law crimes; (3) a requirement that a criminal offense is clearly enough defined to give citizens adequate notice of what conduct is prohibited and to establish clear guidelines governing law enforcement; and (4) a requirement that the language of a criminal offense be strictly construed in favor of the defendant (the rule of lenity).

Id. He contends that the combination of these rules prevents ex post facto punishment and is "reflective of the central values of liberal societies." Id. at 590 (quoting JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 39 (3d ed. 2001)). Another commentator has similarly argued that the doctrine of nullum crimen, nulla poena sine lege consists of "1) making statutory law the exclusive source of criminalization; 2) prohibition of criminalization by analogy; 3) prohibition of ex post facto laws; and 4) a requirement of definiteness of criminal statutes." Stanislaw Pomorski, Reflections on the First Criminal Code of Post-Communist Russia, 46 AM. J. COMP. L. 375, 384 (1998).

(208.) See Bruno Simma & Andreas L. Paulus, Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Postivist View, 93 AM. J. INT'L L. 302, 303 (1999).

(209.) Id.

(210.) See supra notes 79-81 and accompanying text.

(211.) See supra note 80 and accompanying text.

(212.) See supra notes 77-78 and accompanying text.

(213.) See People v. Garson, 775 N.Y.S.2d 827, 839 (Sup. Ct. 2004), afff'd, 793 N.Y.S.2d 539 (App. Div. 2005), leave to appeal granted, 834 N.E.2d 1266 (N.Y. 2005).

(214.) See Stuart P. Green, Uncovering the Cover-Up Crimes, 42 AM. CRIM. L. REV. 9, 13 (2005).

(215.) See id.

(216.) Id.

(217.) See N.Y. COMP. CODES R. & REGS. tit. 22, [section] 100.3(B)(1) (2005).

(218.) See R. Lawrence Dessem, The Civil Justice Reform Act: The Role of the Federal Magistrate Judge in Civil Justice Reform, 67 ST. JOHN'S L. REV. 799, 800 (1993).

(219.) Donald L. Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 DUKE L.J. 1265, 1271.

(220.) See Steven Flanders, Commentary, Blind Umpires--A Response to Professor Resnik, 35 HASTINGS L.J. 505, 511-14 (1984) (describing the debate within the judicial profession about how aggressively a judge is entitled to facilitate settlements).

(221.) See, e.g., Judith Resnik, Managerial Judges, 96 HARVARD L. REV. 376, 413 (1982).

(222.) See N.Y. COMP. CODES R. & REGS. tit. 22, [section] 100.3(B)(6).

(223.) See id. [section] 100.3(B)(6)(e) (2005).

(224.) See supra notes 158-166 and accompanying text.

(225.) See U.S. CONST. art. III, [section] 1 (stating that judges shall hold office "during good [b]ehavior"); art. II, [section] 4 (specifying impeachment as the procedure for removing all "civil [o]fficers of the United States").

(226.) See generally Steven W. Gold, Note, Temporary Criminal Immunity for Federal Judges: A Constitutional Requirement, 53 BROOK. L. REV. 699 (1987).

(227.) See supra notes 158-187 and accompanying text.

(228.) See Reid H. Weingarten, Judicial Misconduct: A View From the Department of Justice, 76 Kv. L.J. 799, 804-05 (1988).

(229.) See N.Y. CONST. art. XIII, [section] 13(a)-(c). Although the New York State Attorney General may also conduct prosecutions under certain circumstances, his power is limited by Section 63 of the New York Executive Law, and the primary prosecuting authorities are the county district attorneys.

(230.) See In re Duckman, 699 N.E.2d 872 (N.Y. 1998).

(231.) See id. at 882 (Titone, J., dissenting).

(232.) See id. at 881.

(233.) See id.

(234.) See id.

(235.) Id. at 881-82 (citations omitted).

(236.) See id. at 882.

(237.) See id.

(238.) See id.

(239.) See id. at 888.

(240.) Id. at 882-83 (Titone, J., dissenting).

(241.) See id. at 883.

(242.) Id.

(243.) See Stuart S. Nagel, Policy Evaluation and Criminal Justice, 50 BROOK. L. REV. 53, 61 n.16 (1983).

(244.) See Tom Goldstein, New York City Bar Association to Probe Reassignment of Criminal Court Judge, N.Y. TIMES, Dec. 21, 1974, at 34; see also Judith Cummings, NYC Police Commissioner Robert McGuire Denounces Judge Bruce Wright for Attacking Police Department, N.Y. TIMES, Apr. 14, 1979, at 1.

(245.) See Scott Shifrel et al., Judge Taken Down a Notch, DAILY NEWS (N.Y.), June 15, 2004, at 5.

(246.) See id.

(247.) See United States v. Bayless, 913 F. Supp. 232, 243 (S.D.N.Y. 1996).

(248.) See id. at 241-42 (noting, inter alia, that residents of the neighborhood where the alleged offense occurred "tended to regard police officers as corrupt, abusive and violent").

(249.) See United States v. Bayless, 921 F. Supp. 211, 217 (S.D.N.Y. 1996). For details of the political fallout from Judge Baer's original ruling, see United States v. Bayless, 201 F.3d 116, 122-23 (2d Cir. 2000) ("[T]he language in the opinion, referring as it did to widespread police corruption, was perceived by many as an affront to the police and to victims of drug-related crime."). The Second Circuit noted that the ruling became "a flashpoint for the 1996 Presidential campaign" prompting threats of impeachment and calls for Judge Baer's resignation, and that President Clinton "defer[red] deciding whether to call for Judge Baer's resignation until the Judge ruled on the government's motion for reconsideration." See id. at 123. President Clinton's statement was interpreted by much of the media and the judiciary as "a veiled warning" that "'if [the judge] did not reverse a widely criticized decision throwing out drug evidence, the President might ask for his resignation.'" Id. (quoting Alison Mitchell, Clinton Pushing Judge to Relent, N.Y. TIMES, Mar. 22, 1996, at A1),

(250.) See In re Duckman, 699 N.E.2d 872, 874 (N.Y. 1998); see also supra notes 34-39 and accompanying text.

(251.) See supra notes 158-166 and accompanying text.

(252.) Needless to say, judges who are discourteous to criminal defense attorneys would not run a similar risk, as defense counsel would not have the power to file criminal charges on their own initiative. Prosecutors, and prosecutors alone, would effectively become the arbiters of judicial decorum in the courtroom.

(253.) See Weingarten, supra note 228, at 799-806.

(254.) See id. at 802.

(255.) See People v. La Carrubba, 389 N.E.2d 799, 801-02 (N.Y. 1979).

(256.) See, e.g., People v. Blanchard, 42 N.E.2d 7 (N.Y. 1942) (upholding penal statute that criminalized violations of the New York City Sanitary Code).

(257.) See supra notes 35-39 and accompanying text.

(258.) See supra notes 50-52 and accompanying text.

(259.) See supra note 34 and accompanying text.

(260.) See Nelson, supra note 87, at 34-35.

(261.) See Abraham Abramovsky, Official Misconduct, N.Y.L.J., Dec. 22, 1999, at 3.

(262.) See N.Y. CONST. art. VI, [section] 20(b)(4).

(263.) See, e.g., N.Y. COMP. CODES R. & REGS. tit. 22, [subsection] 200 (providing rules for uniform operation of trial courts in criminal cases), 202 (setting forth rules for Supreme Court civil operations), 208 (detailing rules of the New York City Civil Court).

(264.) The term "conduct," broadly interpreted, could be construed to include all these activities.

(265.) No doubt, if the suggestion were made during the litigation of the Garson appeal, the District Attorney's office would respond that the crimes of official misconduct and receiving reward for official misconduct require proof of a "benefit" as well as a violation of a public servant's duty. See Memorandum of Law in Opposition to Petition for Writ of Prohibition, supra note 35 (arguing that the benefit element provides a sufficient restraint on prosecutorial discretion). As pointed out by Judge Garson's defense team, however, the term "benefit" is broadly defined in the law to include "any gain or advantage to the beneficiary and.., any gain or advantage to a third person pursuant to the desire or consent of the beneficiary." See N.Y. PENAL LAW [section] 10.00(17) (McKinney 2005) (emphasis added). As the La Carrubba court noted, nearly any improper conduct could be placed in the latter category. See People v. La Carrubba, 389 N.E.2d 799, 803 (N.Y. 1979). More specifically, if a judge is prosecuted for violating the rules of the Chief Administrator of the Courts by granting post-note-of-issue discovery without sufficient cause, the "benefit" element would be satisfied because the party obtaining the discovery would receive a "gain or advantage" with the judge's desire and consent.

(266.) See New York State Unified Court System, Office of Court Administration, History of the New York State Court System, (last visited Mar. 8, 2006).

(267.) See id.

(268.) See id.

(269.) See id.

(270.) See id.

(271.) For instance, the primary subject of the Senate debate was a concomitant proposal to abolish elections to the Court of Appeals and replace them with a merit appointment system. See N.Y. STATE SENATE DEBATE, Bill No. 5860, at 5528-76 (1977). To the extent that the other aspects of the amendment were discussed at all, they were portrayed as an "interlinked court reform package," in reference to administrative streamlining rather than discipline. See N.Y. STATE SENATE DEBATE, Bill No. 5860, at 5563 (1977) (statement of Sen. Manfred Ohrenstein). The debate in the Assembly similarly centered on merit appointment of Court of Appeals judges. See N.Y. STATE ASSEMBLY DEBATE, Bill No. 8124, at 8941-58 (1977).

(272.) See supra note 119 and accompanying text.

(273.) See N.Y. COMP. CODES R. & REGS. tit. 22, [section] 100 (2005).

(274.) See People v. Garson, 775 N.Y.S.2d 827, 833-35 (Sup. Ct. 2004).

(275.) See supra notes 184-186 and accompanying text.

Abraham Abramovsky *

Jonathan I. Edelstein **

* Professor of Law, Fordham University School of Law. J.S.D., Columbia University, 1976; LL.M., Columbia University, 1972; J.D., Buffalo Law School, 1971. The author participated in the defense of People v. Gerald Garson in the Kings County Supreme Court.

** Attorney in private practice. J.D., Fordham University School of Law, 1997. The author participated in the defense of People v. Gerald Garson in the Kings County Supreme Court.

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