N.Y. State Comm'n On Judicial Conduct v. Rubenstein, 99

Decision Date10 June 2014
Docket NumberNo. 99,99
Citation992 N.Y.S.2d 678,16 N.E.3d 1156,23 N.Y.3d 570,2014 N.Y. Slip Op. 04118
PartiesIn the Matter of NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT, Respondent, v. Seth RUBENSTEIN, Appellant. (And Another Action.).
CourtNew York Court of Appeals Court of Appeals

Greenfield Stein & Senior, LLP, New York City (Gary B. Freidman and Jeffery H. Sheetz of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York City (Won S. Shin, Barbara D. Underwood and Steven C. Wu of counsel), for respondent.

OPINION OF THE COURT

RIVERA, J.

In this appeal, we conclude that the New York State Commission on Judicial Conduct is authorized, pursuant to the Judiciary Law and its constitutional mandate to investigate judicial

misconduct, to request and receive records sealed under Criminal Procedure Law § 160.50 for use in its investigations. We further hold that the Appellate Division erred by dismissing as moot appellant's challenge to the Commission's authority. We therefore reverse the Appellate Division order dismissing the appeal as moot, and deny appellant's application to vacate the ex parte order releasing his sealed records.

I

Appellant Seth Rubenstein appeals from an order of the Appellate Division, dismissing as moot his challenge to the release of sealed criminal records to respondent New York State Commission on Judicial Conduct (Commission). Supreme Court had granted the Commission access to records of a criminal proceeding terminated in favor of appellant for use in the Commission's investigation into possible judicial misconduct by Judge Doe, not a party here, and appellant's codefendant in the underlying criminal proceeding. The investigation led to the Commission's July 2011 formal written complaint against Judge Doe charging misconduct arising from her judicial election campaign, and her censure in 2012.

Appellant is a lawyer who was criminally prosecuted along with Judge Doe on charges of violations of the Campaign Finance Law in relation to contributions he made to the Judge's campaign, and advice he allegedly provided regarding those contributions. Eight of the 10 criminal charges brought against Judge Doe and appellant were dismissed on jurisdictional grounds, and a jury acquitted them of the remaining charges. In accordance with CPL 160.50, the records of the criminal proceeding were sealed following termination of the proceedings in favor of the defendants.

Approximately one month after the acquittal, the Commission initiated an investigation into Judge Doe for possible misconduct related to her campaign. In furtherance of its investigation, the Commission moved ex parte in Supreme Court for an order releasing for its review the sealed records from the underlying criminal proceeding, “for use in proceedings conducted pursuant to Article 6, Section 22, of the Constitution, and Article 2–A of the Judiciary Law.”1 In his supporting affirmation,

the Commission Administrator asserted that “New York courts have regularly ordered that sealed materials in criminal cases be provided to the Commission,” and cited a number of examples of lower court cases. In May 2010, Supreme Court granted the motion and ordered release of the records pursuant to Judiciary Law § 42(3) and CPL 160.50, and further granted the Commission's request to seal the order and all supporting papers.

Thereafter, in January 2011, the Commission deposed the appellant in connection with its investigation of Judge Doe. At the deposition, appellant's counsel inquired whether any questions to be asked of his client directly, or regarding any documents, originated from information contained in the sealed criminal records. Counsel for the Commission responded that the Commission had received materials through an appropriate court order, and that his questions were “in part possibly” derived from those court records. Appellant's counsel then objected to the release of the records from the underlying criminal proceeding on the ground that it violated CPL 160.50. Nevertheless, he instructed appellant to answer the Commission's questions rather than be held in contempt. According to appellant, the Commission refused requests to provide him with a copy of the court's ex parte release order.

II

In March 2012, the Commission issued a subpoena for a second deposition of appellant.2 In response, appellant filed an order to show cause to vacate the ex parte May 2010 order releasing the sealed records to the Commission, prohibit the Commission's use of any documents or information obtained pursuant to that release order, and order the Commission to return all documents and copies “to the files from which they were obtained.” Appellant argued that CPL 160.50 prohibited the Commission's access to the sealed records because the Commission did not fall within one of the six statutory exceptions to the sealing provision, specifically the “law enforcement agency” exception under CPL 160.50(1)(d)(ii). The Commission opposed the motion, arguing it had inherent constitutional responsibility to oversee the discipline of judges and authority under Judiciary Law § 42(3) to access the sealed documents.

Supreme Court ostensibly denied appellant's application to vacate the release order as procedurally defective.3 However, the court also rejected the claim that it was without authority to disclose to the Commission its own records and papers, and cited to our decision in Matter of Dondi, 63 N.Y.2d 331, 482 N.Y.S.2d 431, 472 N.E.2d 281 (1984), which recognized the Appellate Division's “inherent powers” to obtain sealed records of criminal proceedings in furtherance of its attorney discipline function. Finding that the public interest in the integrity of the judiciary was as compelling as the interest involved in Matter of Dondi, the court stated that [t]he Commission's authority and the preservation of the integrity of the state's judiciary may not be stymied by the statutory constraints of CPL 160.50 ; to conclude otherwise would dangerously undermine the ability of the Commission to meet its constitutional mandate.” Appellant appealed.4

During the pendency of the appeal Judge Doe agreed to a censure. In accordance with Judiciary Law § 44(5),5 she entered an agreed statement of facts, stipulating that the Commission make its determination based upon the facts contained therein, recommending she be censured, and waiving further submissions or oral argument. The Commission drafted the agreed statement of facts with input from Judge Doe, who provided a detailed overview of the circumstances giving rise to the underlying criminal proceeding. The agreed statement of facts identified appellant by name and discussed Judge Doe's apparent reliance on his advice and financial payments during her election campaign. In October 2012, the Commission issued its written determination recommending a censure and posted that determination, the agreed statement of facts, the pleadings, and three related letters on its public government website.

Thereafter, the Commission moved before the Appellate Division to dismiss appellant's application to vacate the ex parte release order. The Commission argued that further proceedings would be purely academic because it no longer needed the records given Judge Doe's consent to the censure. Appellant opposed the motion on the grounds that the issue was not moot, and, even if it were, that the matter fell within the exception to the mootness doctrine.

The Appellate Division dismissed the appeal as moot, but directed the Commission to return to the originating court all of the previously sealed documents and ordered that the records be resealed for all purposes (see 103 A.D.3d 409, 958 N.Y.S.2d 901 [1st Dept.2013] ). The Commission has apparently complied with the Appellate Division order to return the records. We granted appellant leave to appeal (21 N.Y.3d 855, 2013 WL 1876519 [2013] ).6

III

An appeal is moot “unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). Where the case presents a live controversy and enduring consequences potentially flow from the order appealed from, the appeal is not moot (see Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 810, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003] [“The jurisdiction of this Court extends only to live controversies”]; Matter of Bickwid v. Deutsch, 87 N.Y.2d 862, 863, 638 N.Y.S.2d 932, 662 N.E.2d 250 [1995] [holding an appeal from a civil contempt order for which the appellant had already served his sentence was not moot, (i)nasmuch as enduring consequences potentially flow(ed) from the order]; Matter of Williams v. Cornelius, 76 N.Y.2d 542, 546, 561 N.Y.S.2d 701, 563 N.E.2d 15 [1990] [concluding that, “as lasting consequences potentially flow(ed) from the appellant's criminal contempt adjudication, “the proceeding remain(ed) ripe for judicial review” regardless of the appellant's having already served his sentence] ).

The Commission argues the appeal is moot because appellant will not be affected by resolution of the issue presented in this litigation. Given that its investigation is complete, it has no further use for the sealed records, and it has returned the documents

to the originating court, the Commission claims there is no live controversy left to resolve and, thus, any decision on the merits would be purely academic.

Appellant counters that this matter is not moot because the continued posting of the Commission's determination on its website, with its references to him and his alleged conduct, has “enduring consequences” for his credibility and reputation as a practicing lawyer. In particular, he notes that the Commission's determination revealed his indictment and “is replete with comments critical of [his] conduct.” He argues that it is the lasting effects of the...

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