
    In the Matter of New York State Commission on Judicial Conduct, Appellant, v John Doe, Respondent.
    Argued November 22, 1983;
    decided January 17, 1984
    
      POINTS OF COUNSEL
    
      Gerald Stern and Stephen F. Downs for appellant.
    A commission subpoena seeking material related to a commission-authorized investigation is proper. (United States v Morton Salt Co., 338 US 632; Oklahoma Press Pub. Co. v Walling, 327 US 186; United States v Bisceglia, 420 US 141; United States v Powell, 379 US 48; Federal Trade Comm, v Texaco, Inc., 555 F2d 862; Adams v Federal Trade Comm., 296 F2d 861; Matter of Hynes v Moskowitz, 44 NY2d 383; Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408; Matter of Windsor Park Nursing Home v Hynes, 42 NY2d 243; Matter of La Belle Creole Int., S.A. v Attorney-General of State of N. Y., 10 NY2d 192.)
    
      William L. Allen, Jr., for respondent.
    The statute was amended to put some limitations on the commission’s probing into the conduct of Judges and to curb the commission’s repeated attempts, by subpoena and examinations, to expand a single complaint into an unfettered probe seeking out other instances of misconduct. (Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597; Matter of Darrigo v State Comm. on Judicial Conduct, 74 AD2d 801; Matter of Richter v State Comm. on Judicial Conduct, 106 Misc 2d 22; Matter of New York State Comm. on Judicial Conduct v Doe, 96 AD2d 638.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, New York State Commission on Judicial Conduct, commenced an investigation of respondent, a Family Court Judge, after receiving a complaint from Leon and Maude Mead that he had borrowed $32,000 at 10% interest from them and had failed to repay it in one year as promised. The complainants also alleged that respondent failed to honor his promise to give a mortgage on certain property to secure the loan and that respondent gave them a check for accrued interest which they were unable to cash.

On the basis of this letter and its own investigation, petitioner filed an administrator’s complaint against respondent, pursuant to subdivision 2 of section 44 of the Judiciary Law, alleging that during his tenure as a Judge respondent had formed and actively participated in Fort Ann Properties, a profit-making business; that he had borrowed $11,000 from Marjorie Baker which ultimately resulted in a judgment being entered against him for an unpaid balance of $1,643.07; and that he was named and acted as executor of the estate of Han Spiesen.

Pursuant to its decision to further investigate the Mead’s allegations and those contained in its own complaint, petitioner served respondent with a subpoena duces tecum. Respondent complied with the first two demands, but refused to comply with demands Nos. 3 through 7.* Petitioner then moved to compel respondent to comply with the subpoena duces tecum and respondent cross-moved to quash on the grounds that it was overbroad, indefinite and sought material which was beyond the scope of the investigation. Special Term granted petitioner’s motion to compel and denied respondent’s cross motion to quash. The Appellate Division modified, on the law, by granting respondent’s cross motion to quash demands Nos. 3 through 7 of the subpoena, stating, inter alia, that the scope of investigation must be based on the specific allegations of the complaint; that the information requested in the subpoena appears to be too broad and indefinite and is not limited to the production of information regarding matters specifically alleged in the complaint.

Our State Constitution specifically authorizes the Commission on Judicial Conduct 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”. (NY Const, art VI, § 22, subd a.) Recognizing the importance of maintaining the quality of our judiciary, the Legislature has provided the commission with broad investigatory and enforcement powers. (See Judiciary Law, §§ 41, 42, 44; Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597, 611.) Specifically, the commission is empowered to, inter alia, conduct hearings and investigations, examine witnesses under oath and “require the production of any books, records, documents or other evidence that it may deem relevant or material to an investigation”. (Judiciary Law, § 42, subd 1.)

The Legislature, in enacting these statutes, was also mindful of the principle that “no agency of government may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law being discovered, especially with respect to subpoenas duces tecum”. (Matter of A’Hearn v Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY2d 916, 918.) Hence, the materiality and relevancy requirements were included in section 42 of the Judiciary Law to prevent investigatory fishing expeditions. The Legislature further circumscribed the investigatory powers of the commission by requiring, as a prerequisite to initiating an investigation, that it either receive a complaint from a citizen (Judiciary Law, § 44, subd 1) or file a complaint on its own motion (Judiciary Law, § 44, subd 2). Thus, it is the receipt or filing of a complaint which triggers the commission’s authority to commence an investigation into the alleged improprieties.

While the commission’s power to subpoena documents is not absolute, this court has held that it possesses broad power in this respect. “Quite simply, so long as the commission, in good faith, is investigating the conduct of a Judge, the commission is acting within the scope of its authority and a subpoena issued pursuant thereto is not subject to challenge.” “To sustain the subpoenas, the commission need only make a preliminary showing that the information sought is reasonably related to a proper subject of inquiry”. (Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597, 611,. supra, citing Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, 231; Matter of La Belle Creole Int., S.A. v Attorney-General of State of N. Y., 10 NY2d 192.) The commission need only exercise its subpoena power “within bounds circumscribed by a reasonable relation to the subject-matter under investigation”. (Carlisle v Bennett, 268 NY 212, 217 [emphasis supplied]; see, also, Myerson v Lentini Bros. Moving & Stor. Co., 33 NY2d 250, 256-258; Matter of La Belle Creole Int., S.A. v Attorney-General of State of N. Y., 10 NY2d 192, 196, supra.)

Respondent’s sole contention on this appeal is that the subpoena duces tecum seeks information which is not directly related to the specific allegations contained in the complaints, to wit: the indebtedness or payments to the Meads or to the estate of Maijorie Baker or the business activities in conjunction with Fort Ann Properties. He claims that the commission is not empowered to issue a subpoena that seeks documents of transactions not specifically identified in the complaints and that his cross motion to quash was properly granted. For reasons that follow, and to the extent indicated, we modify the demands of the subpoena duces tecum.

We note at the outset that both the Meads’ letter complaint and the administrator’s complaint represent only the initiation of an investigation of judicial impropriety and not the institution of formal proceedings. (See Judiciary Law, § 44, subds 1,2.) Thus, the commission need not proffer facts in its complaint which would support formal charges. (Matter of Nicholson v State Comm. on Judicial Conduct, 50 NY2d 597, 612, supra.) Nor must it tailor its request for information to relate precisely to specific allegations contained in the complaints. All that need be shown is that the information sought is reasonably related to the subject matter under investigation. (Matter of Nicholson v State Comm. on Judicial Conduct, supra; Myerson v Lentini Bros. Moving & Stor. Co., supra; Carlisle v Bennett, supra.) To hold otherwise would sharply curtail the commission’s investigatory capabilities and render it ineffective as the instrument through which the State seeks to insure the integrity of its judiciary.

One of the matters under investigation by the commission is respondent’s improper participation in personal loans. Thus, demand No. 4 requiring production of various documents relating to loans received by respondent during his tenure as a Judge must be sustained as it directly relates to a specific subject matter of investigation. Similarly, demands Nos. 6 and 7 must be complied with because they relate to another matter currently under investigation — respondent’s business-for-profit activities. Additionally, there is, and can be no serious dispute that respondent’s records relating to any business-for-profit activities (demand No. 5), financial statements submitted by Fort Ann Properties for the purpose of obtaining bank loans (demand No. 6) and other records relating to loan accounts of Fort Ann Properties (demand No. 7) bear a reasonable relationship to the subject matters under investigation.

However, the same cannot be said as to part of demands Nos. 3 and 5. By seeking, in demand No. 3, all writings relating to respondent’s past and present indebtedness, the subpoena duces tecum goes beyond the scope of the commission’s investigation. Indeed, to compel compliance with this demand would require respondent to produce virtually all of his financial records since 1974, including those relating to transactions having no relation to the matters presently under investigation. Similarly, that part of demand No. 5 which requires production of canceled checks, stub books, bank statements and deposit slips for all checking accounts reflecting any and all respondent’s indebtedness is impermissibly overbroad.

We do not, however, agree with respondent that the subpoena must be quashed. Instead, we believe the more appropriate action to take under the particular circumstances of this case is to modify the subpoena to eliminate those portions which request information unrelated to the subject matters under investigation. Therefore, we hold that demand No. 3 can be sustained only insofar as it requires production of materials relating to loans and other debts from clients, litigants and attorneys since January 1,1974 and respondent’s business-for-profit activities during said period. Demand No. 5 is sustained insofar as the documents requested relate to respondent’s loans or their repayment, business-for-profit activities and such other debts as bear a reasonable relation to his loan and business activities.

Accordingly, the order of the Appellate Division should be modified and the respondent directed to comply with the requirements of the subpoena duces tecum as modified in accordance with this opinion, and, except as modified, affirmed.

Jones, J.

(dissenting). In my view the scope of investigation (and thus the permissible reach of subpoenas issued by the administrator in aid thereof) should be determined by reference to the allegations of the complaint issued by the commission. Measured by that standard, the subpoena in this case should be quashed (except as to items 1 and 2) — without prejudice, of course, to the issuance of a new subpoena either limited to the complaint which was issued in this case on July 1,1982, or appropriate to the scope of a new complaint should the commission determine to issue one.

The complaint against appellant, the issuance of which was authorized by the commission at the meeting of June 28-29, 1982 to provide “a basis to commence an investigation”, was specifically focused on three described transactions in which it was alleged that appellant had participated:

“1. It is alleged that on July 28,1977, [John Doe] formed a corporation, Fort Ann Properties, which leased land to the R. Jennings Manufacturing Company, Inc. at a monthly rental which by September 1980 equaled $800. In addition, [John Doe], as President of the corporation, secured a $75,000 loan from the Glens Falls National Bank using the property and the lease with the R. Jennings Manufacturing Co., Inc. as security.

“2. It is further alleged that [John Doe] borrowed $11,000 from Marjorie Baker on December 15, 1967, and that in 1976 the estate of Ms. Baker brought suit to recover the unpaid balance. On November 14, 1978, a judgment was. entered against [John Doe] for the remaining unpaid balance, $1,643.07.

“3. It is further alleged that on April 11, 1979, [John Doe] was named as the executor of the will of Han Spiesen. After Mr. Spiesen died on July 6, 1979, [John Doe] acting as executor of the estate, sold certain property on behalf of the estate on August 11, 1981.”

It is expressly provided in the statute authorizing investigation of the conduct of a Judge by the commission that the “complaint shall serve as the basis for such investigation” (Judiciary Law, § 44, subd 2). Linked to that prescription is the authorization for the issuance of subpoenas deemed “relevant or material to an investigation” (Judiciary Law, § 42, subd 1). Accordingly, the permissible scope of a subpoena must be determined by reference to the subject matter of the complaint issued by the commission — here three specific transactions.

The complaint in this instance being so limited, the permissible scope of the subpoena was restricted to evidence relevant or material to one or more of those three transactions. The subpoena now under review called for documents and records far beyond the sphere of any of those transactions. For this reason I would affirm the order of the Appellate Division which quashed the subpoena except as to those items which related to the transactions identified in the complaint.

It is suggested that to limit the reach of the subpoena authority to the allegations of the complaint would seriously frustrate the investigative activities of the commission staff. To the extent that such a rule would call for a closer and more direct participation on the part of the commission itself, it would be sound and healthy; to the extent that there are fears that it would inhibit the activities of the commission, such fears are ephemeral.

If in the course of investigation of a particular identified transaction (which may have served to trigger the inquiry) reasonable suspicion is aroused as to possible judicial misconduct on other occasions or with reference to other matters (as was the case in this instance), a new or revised complaint could readily be issued, drawn to reflect the area of the Judge’s activities that the commission then determines should be investigated. It would not then, or indeed at any time, be necessary to limit the complaint to specific transactions or episodes (with the consequent restriction on the scope of subpoena authority); it would suffice to describe the area of suspected misconduct or the category of activities to be investigated, of which an identified transaction was illustrative, as for instance, “loans made to the judge by his clients, by litigants in his court, or by attorneys appearing before him, including [particular identified transaction or transactions]”, or “business enterprises organized for profit in which the judge was an active participant, including [again, specified instances]”. It would then be the commission and not the administrator that would determine whether the investigation was to be of specified transactions only or of categories of conduct as well.

If it be asserted that recognition of such a requirement would be to exalt form over substance (on the ground that the administrator and the staff are always subject to the continuing supervision and control of the commission), the assertion misapprehends the respective roles of the commission and the administrator. Its acceptance would permit the scope of investigation to be determined by the administrator, subject only to monitoring by the commission — a situation conceptually and practically quite different from requiring commission authorization to conduct the investigation. Initial authorization of an investigation of judicial conduct, as well as the disposition of formal charges of misconduct, is the sole responsibility of the commission. I perceive no sound reason why in every case the scope of the investigation should not be determined by the commission itself in the exercise of its collegial judgment when it authorizes issuance of the enabling complaint. Whether and to what extent an investigation is to be conducted, with resort to compulsory process, is a matter of enormous portent for the individual who is to be the target of the investigation, and the propriety of undertaking the investigation has far-reaching implications for the public as well as for the judiciary. I am not persuaded, by what I would characterize as arguments of practical expediency, to the view that, once a complaint — any complaint — has been issued by the commission, the staff may then investigate all areas of the Judge’s conduct which fall within the broad category of misconduct of which the identified transaction is illustrative. A broad categorial investigation might well be appropriate, but that determination should be made by the commission. The predicate and warrant for launching an investigation of a course of conduct extending over several years of judicial service is of a different order than that which would justify inquiry as to a specific transaction with respect to which the commission has received a complaint. Determination of the scope of investigation is too important to be fobbed off with appeals to efficiency or expediency. Such determination is fundamental, a responsibility to be assumed and discharged by the commission itself.

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer and Simons concur in Per Curiam opinion; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Kaye concurs.

Order modified, with costs to petitioner, and respondent directed to comply with the subpoena duces tecum in accordance with the opinion herein and, as so modified, order affirmed. 
      
      . The administrator’s complaint, in pertinent part, alleges the following:
      “1. It is alleged that on July 28, Í977, [John Doe] formed a corporation, Fort Ann Properties, which leased land to the R. Jennings Manufacturing Company, Inc. at a monthly rental which by September 1980 equaled $800. In addition, [John Doe], as President of the corporation, secured a $75,000 loan from the Glens Falls National Bank using the property and the lease with R. Jennings Manufacturing Co., Inc. as security.
      “2. It is further alleged that [John Doe] borrowed $11,000 from Marjorie Baker on December 15,1967, and that in 1976 the estate of Ms. Baker brought suit to recover the unpaid balance. On November 14,1978, a judgment was entered against [John Doe] for the remaining unpaid balance, $1,643.07.”
     
      
      . The subpoena demanded production of the following documents:
      “1. The wills executed by Leon and Maude Mead in 1978.
      “2. The minute book for Fort Ann Properties, Inc.
      “3. All notations from your diary books, calendars, and other writings from 1974 to the present, reflecting present and past indebtedness or loans.
      “4. All promissory notes, memoranda, correspondence, financial statements, receipts, canceled checks, bank statements or writings of any kind relating to loans received by you from any person, corporation or organization since January 1, 1974.
      “5. All canceled checks, stub books, bank statements and deposit slips for all your checking accounts since January 1,1974, reflecting loans or their repayment, business-for-profit activity, indebtedness, and checks returned for insufficient funds.
      “6. Applications and financial statements submitted by you or Fort Ann Properties, Inc. for the purpose of obtaining bank loans from 1974 to the present.
      “7. Bank records, files, correspondence, bank statements and writing of any kind relating to loan accounts in your name or Fort Ann Properties, Inc. from 1974 to the present.”
     
      
      . Although not alleged or argued by respondent, the dissent implies that the administrator unilaterally determined the scope of the subject investigation. However, there is nothing in the record before us to indicate that the members of the commission did not fully participate in that determination. Nor is there any indication that the full commission did not approve the issuance of the challenged subpoena duces tecum and seek compliance therewith. Indeed, in an affidavit submitted by Stephen F. Downs, chief attorney for the Albany office of the commission, it is specifically stated that the subpoena was “issued by the Commission” in the course of its investigation. Furthermore, it is alleged in the same affidavit that “the Commission commenced a proceeding to enforce its subpoena.” The statement in the dissent that the record “contains no evidence that the members of the commission were aware of the issuance of the subpoena or its scope prior to or at the time of its issuance” is, therefore, incorrect.
     
      
      . The inference is available from the record in this case that the issuance of the sweeping subpoena dated October 22,1982 was prompted by the suspiciously noninformative and even possibly evasive answers given by appellant when he was examined by the commission staff.
     
      
      . To require the scope of the investigation to be set out in the complaint would serve the salutary purpose, too, of affording the Judge under investigation notice, at the time of service of the complaint (Judiciary Law, § 44, subd 3; 22 NYCRR 7000.3 [e]), of the nature and extent of the investigation being conducted.
     
      
      . The record before us contains no evidence that the members of the commission were aware of the issuance of the subpoena or of its scope prior to or at the time of its issuance in the name of the commission by the administrator on October 22,1982, nor does the commission now advance any such contention in support of its position. By some contrast, the complaint bears the explicit indorsement that it was “[a]uthorized at the meeting of June 28, 29, 1982.”
     