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In re Application of Walker

Supreme Court, New York County

December 18, 2013

In the Matter of the Application of Carlton Walker, Petitioner,
v.
New York State Commission on Judicial Conduct; Hon. Thomas A. Klonick, Chair; Hon. Terry Jane Ruderman, Vice Chair; Hon. Rolando T. Acosta, Member; Hon. David A. Weinstein, Member; Joseph W. Belluck, Member; Joel Cohen, Member; Jodie Corngold, Member; Richard D. Emery, Member; Paul B. Harding, Member; and Richard A. Stoloff, Member, Respondents.

Unpublished Opinion

ALEXANDER W. HUNTER JR., J.

The application of pro se petitioner for an order pursuant to C.P.L.R. Article 78, vacating the July 1, 2013 final determination of respondents New York State Commission on Judicial Conduct (the "Commission"), et al. dismissing the complaint of petitioner and compelling respondents to reconsider the complaint of petitioner and further investigate his allegations, is denied and the proceeding is dismissed without costs and disbursements to either party. The cross motion by respondents to dismiss the proceeding is granted.

Pro se petitioner Carlton Walker is an inmate presently incarcerated at Otisville Correctional Facility in Otisville, New York. Petitioner was convicted in Supreme Court, Queens County of felony murder, robbery in the first degree, and criminal possession of a weapon in the second degree under indictment no. 423/84.

Petitioner unsuccessfully appealed his conviction to the Appellate Division, Second Department, wherein his conviction was affirmed. See People v. Walker, 143 A.D.2d 784 (2nd Dept. 1988). Petitioner moved for an order, in the Supreme Court, Queens County, granting post-conviction relief. By decision and order dated April 30, 2012, the Supreme Court denied the motion seeking post-conviction relief. By decision and order dated September 14, 2012, a panel of four justices from the Second Department denied the motion of petitioner for reconsideration and reargument. Petitioner filed an application to the Second Department for a certificate granting leave to appeal the order of the Supreme Court, Queens County. In a decision and order dated February 7, 2013, Justice Robert J. Miller of the Second Department denied the motion. In two separate decisions and orders dated May 28, 2013, Justice Miller: (1) recalled and vacated the February 7, 2013 decision and order and substituted an amended decision and order reflecting that opposition papers had not been filed in the motion for a certificate granting leave and (2) denied the motion for a certificate granting leave to appeal.

Petitioner moved to recuse the panel of four Justices, who determined his prior motion for leave to reargue the appeal, from determining a pending motion for leave to reargue. By decision and order dated June 19, 2013, the motion for recusal was denied. The panel of four Justices vacated and recalled an earlier decision and substituted an amended decision and order reflecting that opposition papers had not been filed in the motion for reconsideration and reargument.

Petitioner filed a complaint with the Commission against the five Justices of the Second Department who denied his motions, alleging judicial misconduct. In subsequent correspondence, petitioner averred that the five Justices had a conflict of interest in reaching a particular conclusion in his motions and that the five Justices demonstrated bias, partiality, and favoritism.

By letter dated July 1, 2013, the Commission notified petitioner that there was insufficient indication of judicial misconduct to justify judicial discipline (the "July 1, 2013 final determination").

Petitioner requested that the Commission reconsider his request. Petitioner also submitted a Freedom of Information Law ("FOIL") request for responsive records pertaining to: (1) any written decision by the Commission regarding his letter request; (2) the names of the panel members present that constituted a quorum, names of members that abstained from voting or abstained from the decisional process, and dissenting members; and (3) the existing procedure for review or appeal of a determination of the Commission.

The Commission denied the request for reconsideration and FOIL request for responsive records. The Commission notified petitioner that his correspondence did not include any information that would affect its decision dismissing his complaint.

Petitioner avers that: (1) the July 1, 2013 final determination violates the New York State Constitution and Judiciary Law; (2) the Commission failed to perform its mandated duties; and (3) the July 1, 2013 final determination is arbitrary and capricious.

After commencing the instant action, petitioner submitted to the Commission an appeal from the July 1, 2013 final determination and the decision of the Commission denying his subsequent requests. The Commission notified petitioner that the New York State Constitution and Judiciary Law § 40 et seq., do not provide for an appeal of a decision by the Commission dismissing a complaint. Moreover, petitioner was notified that his letters contained no additional information that would provide a basis for reconsideration.

Respondents cross-move to dismiss the proceeding on the grounds that petitioner failed to meet the standards for a writ of mandamus and that petitioner failed to state a claim upon which relief can be granted.

Petitioner opposes the cross motion to dismiss the proceeding averring that: (1) the Commission improperly dismissed his complaint in violation of Judiciary Law § 44(1); (2) the Commission abused its discretion and exceeded its authority when it required his complaint to contain "sufficient indication of judicial misconduct to justify judicial discipline"; (3) the Commission did not have any discretion to dismiss his complaint and subsequent correspondence without an investigation; (4) the Commission is mandated by the New York State Constitution to investigate his complaint; and (5) the four Justices sitting as members of the Commission were required to take appropriate action against the five Justices of the Second Department that previously denied his motions for reconsideration and reargument.

Sur-reply papers submitted by petitioner dated October 3, 2013 were not considered by this court in rendering the instant decision. See C.P.L.R. 2214.

A writ of mandamus is only issued where there is a clear legal right to the relief sought because of its extraordinary nature. See Matter of Crain Communications, Inc. v. Hughes, 74 N.Y.2d 626, 628 (1989); Matter of Kevilly v. Honorof, 287 A.D.2d 504, 505 (2nd Dept. 2001). It is well settled that mandamus will lie only to compel the performance of a ministerial rather than a discretionary act. See Matter of Brusco v. Braun, 84 N.Y.2d 674, 679 (1994).

The New York State Constitution authorizes the Commission to "receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system." See NY Const, art VI, § 22, subd a. The Commission has broad investigatory and enforcement powers. See Judiciary Law §§ 41, 42, 44. Judiciary Law § 44(1) provides "[u]pon receipt of a complaint (a) the commission shall conduct an investigation of the complaint; or (b) the commission may dismiss the complaint if it determines that the complaint on its face lacks merit." The failure of the Commission to investigate a compliant is not subject to judicial review because its function is, in many respects, similar to that of a public prosecutor who is required to exercise independent judgment. Matter of Mantell v. New York State Comm. on Judicial Conduct, 181 Misc.2d 1027, 1029 (Sup Ct, New York County 1999).

Based on the express wording of subsection (b) of Judiciary Law § 44(1), the July 1, 2013 final determination dismissing the complaint of petitioner was within the authority of the Commission. The determination not to investigate the complaint involved an exercise of discretion and accordingly is not amenable to mandamus. See Matter of Sassower v. Comm. on Judicial Conduct, 289 A.D.2d 119 (1st Dept. 2001); Matter of Mantell v. New York State Comm. on Jud. Conduct, 277 A.D.2d 96 (1st Dept. 2000). Moreover, petitioner lacks standing to assert that, under Judiciary Law § 44, respondent is required to investigate all facially meritorious complaints of judicial misconduct.

The remaining arguments of petitioner are without merit.

Accordingly, it is hereby,

ADJUDGED, that the application of pro se petitioner for an order pursuant to C.P.L.R. Article 78, vacating the July 1, 2013 final determination of respondents New York State Commission on Judicial Conduct, et al. dismissing the complaint of petitioner and compelling respondents to reconsider the complaint of petitioner and further investigate his allegations, is denied and the proceeding is dismissed without costs and disbursements to either party. The cross motion by respondents to dismiss the proceeding is granted.


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