ANNUAL REPORT

2001

NEW YORK STATE

COMMISSION ON JUDICIAL CONDUCT

NEW YORK

.hmCIAL

COMMISSION iVILvlBERS

W. SALISBURY. CHAIR

IIENHY T. BERGER.

ANN BROWN., C.A.sAC.

M.S.W.

F. LiICEANO

BON. FREDERICK M.

K.

.I. POPE.

JANE

BON. DANIEE W,

* * *

SAVANYIJ,

38-40 SIAII STRiEI

AUlANY. NIW YORK 12207

80 I SICONI) !\ VINlJl

NIWYOIU~"NlcW YORI, 10017(PRINCIPAL OITlel)

WUl SII E:

277 ALEXANDIR SI RLEI

NIW YORK 14607

COMMISSION STAFF

(;E!ULD STERN

AdministralOr und Counsel

ROBERT H. TEMBECK./IAN

Deputv Administrator Deputv Counsel

SENIOR ATTORNEVS

F. (Albany)J. Postel (Rochester)

STAFf ATTORNEYS

i\ Ii

(50%)Harnmond

Sampson

S. iller

CLERK

Maisonet

Alan WCathleen S.

BLDGET/FINANCE OFFICER

Shouchu (Suc)

AnMINISTIV\T1VE PERSONNEL

Diane 13. EckertLee j{. KiklierShelley (80%)Linda .I. Pascarella

Swinton-Gonzalez

Georgia DaminoLinda DumasLisa Gray SavariaEvaughn Wi

[-{Ok EUGENE W, SAUSeURY, CIlAIR

HENRYT BERGER

JEREMY ANN BROWN

STEPHEN R, COFFEY

LAWRENCE S (iOlDMAN

CHRISTiNA HERNANDEZ

HON. DANIEL F. LUCIANO

HON, FREDERICK 1\1, MARSHALL

ALAN .I. POPE

HON, KAREN K, PETERS

HON. TERRY JANE RUDERMANMEMHI-:i,\

JEAN M. SAVANYUCLERK

NEWVORKSTATE

COMMISSION ON JUDICIAL CONDUCT

801 SECOND A VENUE

NEW VORK, NEW VORK 10017

212~949-8860 212-949~8864

TELEPHONE FACSIMILE

March I, 2001

GERALV STERNAt)MIN1STRATOR & COVNSEL

ROll~:RT H. TEMBECKJIANDEPUTY ADM1NJSTRATOR&

D1WlrJ'Y COIJNSEL

To Governor of the State of New York,The ChiefJudge of the State of New York andThe Legislature of the State of New York:

Pursuant to Section 42, paragraph 4, of the Judiciary Lawof the State of New York, the New York State Commission onJudicial Conduct respectfully submits this Annual Report of itsactivities, covering the period from January I, 2000, throughDecember 31,2000.

Respectfully submitted,

Eugene W Salisbury, ChairOn Behalf of the Commission

TABLE OF CONTENTS

Introduction to the 200 I Annual Report

Bar Graph: Complaints, Inquiries & Investigations Since I991

I

1

Action Taken in 2000

Complaints Received

Pie Chart: Complaint Sources in 2000

Preliminary Inquiries and Investigations

Formal Written Complaints

Summary of All 2000 Dispositions

Table I:Table 2:Table 3:Table 4:Table 5:Table 6:Table 7:Table 8:Table 9:Table I():

Town & Village JusticesCity Court JudgesCounty Court JudgesFamily Court JudgesDistrict Court JudgesCourt of Claims JudgesSurrogatesSupreme Court JusticesCourt of Appeals Judges and Appellate Division JusticesNon-Judges

2

2

2

3

3

4

5566677788

Formal Proceedings

Overview of 2000 Determinations

Pie Chart: 2000 Detenninations

Pie Chart: 1987-2000 Determinations

Determinations of Removal

Matter ofRobert M. Corning, Sr.Matter ofThomas R. BuckleyMatter o.fRobert N. GoingMatter ofLaura D. Stiggins

Determinations of Censure

Matter ofKevin G. Young

- i -

9

9

9

10

10

1010IIII

12

12

Determinations of Admonition

Malter ofMonroe B. BishopMalter ofE. David DuncanMalter of Walter W. HafnerMalter ofJohn C. HowellMatter ofJohn N. MullinMatter ofRobert T Russell, Jr.Matter ofJoseph P. TorracaMatter ofPenny M Wolfgang

Dismissed or Closed Formal Written Complaints

Matters Closed Upon Resignation

Referrals To Other Agencies

Letters of Dismissal and Caution

Pie Chart: 2000 CautionsImproper Ex Parte CommunicationsPolitical ActivityConflicts ofInterestInappropriate DemeanorPoor Administration; Failure to Comply with LawLending the Prestige of Office to Advance Private PurposesPractice of Law by Part-Time JudgesAudit and ControlOther CautionsFollow Up on Caution Letters

Commission Determinations Reviewed by the Court of Appeals

Malter of1. Kevin Mulroy v. CommissionMatter ofRobert M Corning, Sr., v. Commission

Observations and Recommendations

Political Activity

Defining "Candidate"

Closing a Campaign and Disposing ofUnexpended Funds in a Timely Manner

-ii-

12

1212131313141414

15

15

15

16

1616161717171717181818

19

1920

21

21

21

22

The "Window Period" andPermissible Political Activity

Inappropriate Personal Use a/Campaign Funds

Misrepresentations and Improper Pledges ofFuture Conduct by Judicial Candidates

Attending a Political AtTair WithoutMaking Inquiry as to the Nature of the Event

Concerns Raised by the Increased Use ofComputer Technology in Judicial Campaigns

Favoritism and the Appearance ofFavoritism in Fiduciary Appointments

The Rules on Fiduciary Appointments

Appearing to Elude the Spirit a/the Rules

Secondary Appointments

Practice of Criminal Law by Part-time Judges

The Need for Statewide GuidelinesOn Eligibility for Assigned Counsel

The Commission's Budget

Chart: Comparing the New York and California Commissions

Responsible Budget Management

The Commission's Unique Role

Chart: Budget Figures, 1978 to Present

Conclusion

APPENDIX

Biographies of Commission Members and Attorneys

Referees Who Served in 2000

The Commission's Powers, Duties and History

- iii-

22

23

24

27

27

30

30

30

31

32

33

36

36

37

37

38

39

41

43

50

53

Rules Governing Judicial Conduct 67

Text of 2000 Determinations Rendered by the Commission 81

Matter ojMonroe B. Bishop 83Matter ofThomas R. Buckley 85Matter ofRobert M. Corning. Sr. 93Matter oj£. David Duncan 99Matter ojRobert N. Going 105Matter of Walter W. Hafner, Jr. 113Matter ofJohn C. Howell 115Matter ofJohn N. Mullin 117Matter l?fRobert T Russell, Jr. 121Matter ofLaura D. Stiggins 123Matter ojJoseph P. Torraca 125Matter ojPenny M. Wolfgang 127Matter ojKevin G. Young 129

Statistical Analysis of Complaints 133

Complaints Pending as of December 31, 1999 135New Complaints Considered by the Commission in 2000 136All Complaints Considered in 2000: 1288 New & 223 Pending from 1999 137All Complaints Considered Since the Commission's Inception in 1975 138

- Iv -

Record of Activities in 2000And Commentary on Special Topics

2001 Annual Report

New York StateCommission on Judicial Conduct

Llvcr-

the

CI()r additional

at P;jgc 35.

of' "",,,,,,1the CommiSSltH}over lhc

lasl ten

currentCommission's

ofthan double tbe 641while our budget hasour

to rt'·"

y

I i 11 iapproximately

('ommission'sstandards of

he to

Introduction to thc 2001 Allnllall~eport

provednexed to

Complaints, Inquiries & Investigations Since 1991

1600 14521490

14511457 1438 1424

1400

1200

1000

800

600

400

200

01991 1992 1993 1994 1995 1996 1997 1998 1999 2000

III New Complaints (Lef?,o Preliminary InQuiries Center)II Investigations {ight)

1

Action Taken in 2000

arc summaries of the CommISsion's actions in 2000, 'accounts of all public determinations. summaries

and numericaldispositions,

Complaints Received

A breakdown of sources 01' com-plai nts received the tn

2000 in the following chart.

misconduct ordiction. including complaimsjudges not within state um court'

such as federaln'alivc law judges andHousing Court un-derlying misconduct, such asstrated prejudice, conflict of interest orIlagrant disregard of Itmdamentalthe Commission notcomplaints concerning disputedrulings or decisions. The IS

not an appellate court and cannot reverseor remand trial court decisions,

1288 new

upon initialthe Commission

without merit. not

11lnnary mqUJr-111 1 of rc-

complaintsarc those

involved. anal)7ing court tilestTial In 215

matters. the Commission authorized full­Depending on

thc complaint, an investiga-subpoenaing to

documents. assem­various court, I1nan­

rnaking court orWrl to or tak­

the judge

Citizen (47)--,,"-,

Criminal Defendant(673)

Judge (6)

----Publie Officlal (38)

Civil Litigant (370)

IComplaint Sources in 2000I

2

in

com-f)uring 2000,meneed 2 I 5 ncwsccond largest numher inaddition. 1here were 183pending prevtousCommission disposcd thetotal of 398 investigations asrequIringmqulrIes.

of nc\V com~

Commission in deter­t'uU investigalionis \\,'(1r­

conducted 451

~ Preliminary Ingml'ies and Investigations

~1IV CommissioD's such as8 Procc- involved, analyzU1g court

,~ dures and Rules au- v,iewing tria I transcripts.~ t . I' .LI1()r1Ze ·'pre 1111mary

clarification" and "prelimi-

such

e complaints were dismisscd outright.

• complainrsrn issed with

judges wereof dismissal caution.

• 7 complaintsuponlhe

7 judges were el()8c,,1rcsignati()l1.

• 6 complaints involving 4 were closed upon va~

eaney office due 10 reasons other than resignation, suchas the s or hlilure to win re-clection.

• 2 complaints 2 judges were closed upon theremoval on other "h,m"·,

• 36 complaints involving 27 different judges mformal being

\vere as of ue:eem 31, 2000.

COn1­

involvingthe

authorized in 36 additional ~",H",·"

volvin u different'"bined total of 76 matters

thelowing dispositions:

40 matters,

Complaints were2000. Formal

3

@ ] 7 matters involving 13 diflerent judges resulted in I')[lna!discipline (admonition, censure or removal from office).

• (, matters involving 5 judges resulted in a letter dis-and caution alter formal

in a tinding ofmiseonduc1..

19 matterand caution

resuIted in a(,)nnal disciplinary \\/cre

* 1 matter involving 1 judge was closed upon thejudge's(i'om ofllee on other charges.

• 14 matters involving J0 judges were closed upon thes

!& 5 matters involving .3 judges were closed lJpOnto reasons other than resiguation, such as the

or failure to win

• No matters were dismissed outright.

4

matters involving 26 dillerentDecember 31, 2000.

were pending as

Summary of All 2000 Dispositions

hearings and dispositions in theof the state unined court as

follow len

rn~

TABLE I: TOWN 8: VILLAGE JUSTICES 2200," ALL PART-TiME

'lUI j( )[leU AIterF(}rJna! \Vriticn C'omplaints Authc\rizcd

(:autic)]1cd /\ftc1' Fc}rmaJ C:c)!11plnintPubl Ie Iy Disclpl incd

Formal Complaints Dismissed or Closc,d

Lafi'J'cr.\' Tolu!

I 14 'j") 346;.., ..~ "-

33 100 13J10 36 464 I I t5I 2 J0 .5 ')

I I I 12

*RefcTS 10 the number of such judges in the stale l.miflcd court system.!\IJnnlXlIllalCl\ 400 of this total arc

TABLE 2: CHY COlJRT 378, ALL

C~ompl;Jil1ts Received

J Cautioned AIter Investigationlonnal Wrltlen AuthorizedJ Cautioned Ailer Formal Complaint

Puhliciy DisciplinedFormal Complaims Dismissed or Closed

" Approxlmately 100 Ihls total serve part-time.

Par/-Time

37101IoIo

Full-Time

8615I2o2o

TO/iI!

123252j

o3o

5

T \ BEL J: COr"TY ('(WR r - 77 FULL-TIMI" ALL

CC1mplalnlS ReceivedC\lll1plainlS.I Cautioned "\lterj'"(mnai \Vrittcn ,\utllOrizedJ ('amloncd i\Hcr Fonnal Cornptaint

Publ inedF\mn;,d Dismissed or (:losed

17313

* lncludes 6 \vho S(T\'(' concurrcnt]y as C'ounty F'amily Court Judges.

TABLE 4: FAMILY ('OtIRT .HinGES 118, FULL-TIME, ALL

Rccei\/ed 1338Io()

I()

.I Cautioned A IterFormal Written Complain!s Autborized

(:autiol1cd i\ttef r:'ormal ComplaintPublicly Disciplined

Formal Complaints issed or Closed

TABLE 5: mSTRICT COlJRT .JlJJ)GES - 48, FlILL-TIME, ALL

!{cceived

('autioned/\Hcr InvestigationFormal Written Complain!s Authorized.I A iter Formal Complain!.I ined

Dismissed or

11(,

()

IIII

6

TABLE i,: COIIRT OF CLAIMS ,JUDGES - 51,

Cautinn(~d I\Hcr Investigationr:(Jrrnal \V'rinen Authorilcd

Cautioned ;,\tkr F'orl1lal Complaint

inedJlSIT1ISSl:(1 or ('Iosed

26oooooo

*Complaints Coun ofClairnsjudges who serve as Justices ofthc Supreme Court \,Vererecorded on 'rall\(' S if the, rnistonduct occurred i\"I Suprerne ('ourt.

TABLE 7: SURROGATES 74,

Cautioned /\flcr Investigationhml1al Written Complaints AmhorizedJ An"r Formal

DisciplinedFormal Complaints or Closed

ALL LAWYERS"

162Ioo()

o

""Includes 10 vvho serve conculTcntly as Surrogates and r'am!!)' Courtjudges, and 30 \\'ho serveconcurrently" as Family and County Court judges.

TABLE 8: SUPREME .mSTICES-341,

2532696o2

7

T 9: COURT OF APPEALS .moc!'s &APPELLATE DIVISION - 59 FULL-TIME, ALL

"""I.""" Rccci\i.:dCornplaims

Cautioned After InvestigationF'orn1Ltl \A/ritten C'omplainfs AuthorizedJ Cautioned Alier Formal C'ol11plaintJ Publicly incdFormal Complaints Dism or Closed

27

Ioooo

TABU, Hl: NON-.HJDGES*

Complaints Received 180

*'1'he ('of1unissinn docs not have over non-judges. judicial hearing oft1cers (Jf-J()'s), admlrJis-trativ(:; law judges. housing judges of the Nc\v York Cily Civil' Court or federal j Sucharc !1cJ\vever, 10 detennine whether should be retcHed to ot.her agl:ncies.

8

Formal Proceedings

IOI"~

case

or n>

publicthe

(Ire surnmarl('S those lTlLlT-

tel'S that vvcrelie during. 2000. rhe lextsminations are appended to

45) prohibitsCommission

sent a \vaivcrhas beenof admonition.

hasbas been

and

("On1n1lSsiona public

provision of the Judi­44 and

~ not

Overview of 2000 Determinlltions

c,oun

otheror not

Of course. no set of dispositions in awill mirror per-

110wever. from 1987 tonumber of public

bvhas roughly

makeup the judiciary as a(about 66%) involved town andlagc and 76involved judges of higher courts.

village serveor may not becourts must bethey serve [tIll-time.)

JUS­

highertown (If

13 f<mnalill 2000: four

one censure (md adrnoni-the 13 respondents

phnc(l were and eight\\'erc

c()uns,

9

cases ticket-nxing.which was a town and village j us-

court phenomenon (since traffic rnat­handled by administrative

), overalllown and village j dis-

sto the pe1'cent­

in the judi-as ;:1

Oeterminations or Removal

The Commission completed four disciplinaryproceedings in 2000 that resulted in determina­tions of removal, The cases arc summarized be­low.

Matter ofH.obert JI. Corning. Sr.

one of his andIra me ddltndant's driver'seause of his pigue al

Judge Corning is not a "..,H""!

requestedof Appeals. which :.1{'('!'lnt{'·(j

sion's determination and re"",HU

judge h'om office.

dcterm ined on !'ebm­10. 2000. that Robert M. Corning,

Justice of the Ovid TownCounty, should be re­

[(Jr inler "(IU defi-CIenCIes court accounts ()f ,,,,.,,.1,.

to remit court m amanner to Comptroller,

of judicial m ainvolving bills to

Malter or TfWl1lilS R. Budder

rime

"""",cc"", determined onthat Thomas R. Buckley,

Justicea part­Town

Court and Justice ,JInemora Village Court, Clintonshould he removed from

County,~ inter

10

sornethatcourt:

three onbecause the defendant notcomplete a term comnlu1Tiry' service:requiring dcli.:ndanlS to forassigned counsc[ by C(HTIrnu",

nity service: and sitting on cases mwhich he was the complaining un'T""

Judge Buckley is not a

judge did not request byCourt of Appeals.

tothem of the

themwhen he

threateningiail them

narncs: basic requircrnents01" jailing without I defendants

were statutorily entitled toindividuals on

when heor gui Itl' pleas,

Matter or Robert N. (Toing

abuse of his judicial and R ..irnlf1

'Vt"N'r and I~)r improperlyorder terminating the us!)erlsi()l1driver's license of a long-time friend ofhis. Judge Going is a

judge requestedAppeals, which susmmc!e,

oHlec, with pay, pending

on

fu ofremoved from

111 a courseconduct

reiationship with irisdetracted tht: dig-

of his offlec, disrupted then~.,,".";r.M of court aud constituted an

Matter orLaura D. Stiggins

judge did not request byof Appeals.

of a misdemeanor Cor AssaultThird Degree

Welfllre of an.Judge Stiggins is not a lawyer.

on Augusta part­Town

should be re­physically

incompetent patient in awhieh she was con-

Commission determinedthat Laura

of theSteuben

moved from

11

Beterminatiolls of Censure

Commission completed one disciplinaryin 2000 that resulted in a determina­

tions of censure. The case is summarized be­low.

fHatter or-Kevin G. Young

theCOn1n1l1nltal10ns a

hearing cxarniner who \vasIj'iend's case. Judge Young Is a I",.v\!f,r

judge did not request Fe".; •.' '''

Court of Appeals.ex part!)

onG. '{oung, a

City

hehalf

Determinatiolls of Admonition

cases are

disciplinaryThe COD1111 ission cornpletcdin 2000

Matter o{!l1onroe B. Bishop

criminal summons to securein court of a small claimsJudge Bishop is not a lawyer.

judge did not requestCourt of i\r'peaIS.

Commission on10. that Monroe Bishop, a part-time Justice of Hinsdale Town

Coumy. should befor presiding over a case

Involving his niece fix Issuing a

bias"

Court Albanyadmonished I'll'"unmistakable ImpresslOn

determined onthat David

Judge of the Albanya

12

t\\iO traClic lJ1 partthem \\'as issued a

sownscconcl defendant

\\ill' tel the lip;\.is a la\vver.

The judge did l10t requestelf Is,

Matter o{ 'Valter W. !lather. Jr.

In

or

state

orthe court.and (ii).

The judge did notCourt of Appeals.

a "slap' oneontravention of the Rulesjudicial candidate may notpledges or promises of conduct IJ1

other than the faithfulperJ'mmmce of the ornor "make statements thatappear to commit therespect to cases. eOll/r'llV;that arc likely to comeSeetielns 100.5(/\)(4)( d)(i)Judge Hafner is a lawyer.

determi lied onthat Waller

'. a full ..lime .Judge of theCountv. should

lJ1 linproperhis

<in ;~unsccm anelon his opponent

incumbent) chargesIn .fic cases \verc descrilxxl in

terms. and conveyed thewOlild treat defelldants

more harshly thall the ineurnhcnt becausebe \Vas of career cri!ninals

Matter o{John C Howell

-I'm I1k"i1 on April 6.a part .. time

Court,should be admon ..

of his ju-an intemperate to

to advance the

prosecutor's position in a criminal easepending bel,)re that otherHowell is not a

judge did not request byof Appeals.

Matter o{Jolm N. Mullin

dekrmined on2000, .John Mullin,

of the Court,should be admonished

fZ.)f engagIng inactivity in the eourseJudge of the District Court.conveyed the mistaken immf'"i"n

13

and a prohibited to apolitical party Mullin is a

\\'(lS an J 1\1::11 ('(Yurt

thatto commit him on abortion~

cotnc

Matter of Rober' 1: Russefl, Jr.

The judge did not request n ' ),'''')''

Conrt of Appeals.

three

Commission forSystem. Judge Russe H is a ",H""'"

The dctcnnincd on October31, r. .Jr., a

the Bulhllo (lty'oun, Exic County, shou ld be

hiiling over a c,',u·n~","'"

period to II Ie mandatory li nane ial'<'I'K'JrP statements in a tinlel)' numner.

in seven Notices to Cure and

Matter 0(.1031'1111 P. Torraca

to\V'].:';

.Judge

The judge did not requestCourt of Appeals.

organizedover cases

that one theP. Torraea. a

of Court.should be admonished I{lr

to participate in thebecorning a Cull­

to the Rule prohihit­judge from being a man- '

or partieipan1 any I1mll of

r

Matter o(PenlXl' M. Woffgang

judge did Jlot requestCOllrt Appeals,

from a husiness organized for profit,eontrary to an Advisory Opinion134) that specifically ali'ol11 aeting in a eommereial mOVle,Judge Wolfgang is a ,,,,,,wr

prohibiting a fuU~

determined on

10 the

the Supremeshould he admonished

1110tion pieture

activity or accepting ,""i""." employment

14

Dismissed or Closed Formal Written C~omplaillts

The Commission disposed 15 Formal Written Cmnplamls::'000 without I"endering public discipline. fen complaints wereclosed upon the resignation of the I"espondent-judge. eorn-plaints were closed upon the expiration the judge's term of

was upon the judge's onlVas closed upon the judge's death. One eOl11plamt waswas sent letter caution,

~ Mlilters Closed Upon ReSignation. ,

J ~ Seventeen Judges reSigned III ::'OOU. Seven themtil' while under investigation and ten resigned while under~.. by Commission, The matters to

were closed, the Commission may anfor a period of 120 t<l!1owing a judge's no sanction

than of/lee may be dc1ermined within ren·,lie,nt final of Appeals, the "removal" automaticallylhml office in the future, Thus. no may

decides l20-day period that removal is not

Referrals to Other Agencies

referto Judiciary Law Section 44( (0),

to other agencies, 2000. the Commission re-t,-P••',·" 29 rnatters the Offlee Court

relatively isolated instances of delay.issues. addition. three matters were toor

,df,<>"""',, disciplinary

15

aofficer in a

Imvnmer [',\: Parte ComowllicatiollS,I'our judges were cautionedlmauthori7ed ex pi/Fit!

on malleI'Ssuch as privatelyconsulting thetraffic case or attempting to Iw:rq"J(1c an-other that he did not haveto entertain """fmn

The Commissionamended itsing Procedures andRules in2000, to distinguishletters sent todisciplinary cau-tionary letters sent upon completionI'lnnal disciplinary!'lHncr arc still entitledrnissa1 and Caution." latter arc !lepv\called "Letter Caution."

Politkal ,-\ctivitv.cautioned Improper'The !{n!cs Judicialprohibit fromgatherings, endorsing other

participating in politicalcx,eel)t for a certain

dclined "window pefiocr';;Ire

judicial oflice. Judicial arcalso obliged to m a m;:lnncrthat reneets appropriately on

of judicial inter aliaplcdges or conduct if

and avoidinoc

of their or their opponent's qualifica­tions, Two judges were cautioned in

and Cuutiorl con­conli-

aU

Letters of Bismissal and Caution

12000 CautionsI

authorized7000.l(I)

determines t.hat adocs not \\arrant publicI issue a letter

call ing theto ethical violations that

m future. Sueh ahas va not onlv as an

I tool but a it is cs-method by which the

aClclr!?" a s con­maller public.

courts

o Higher Court Judge !!II Lower Court Judge

without

variouspIes belov,:

In 2000, the Commission issued 68 let­ters of dismissal cauti.on, 63 of

were upon conclusion of anof \\'crc

a Formal Writ­town or vi1­

v...'cre cautioned" includingm,""en judges of

\vere cau,:",letters addressed

of conduct as thc exam-

ten Complain!.

16

'l\vo other town were cautbecause. notwithstandin" theto conduct somewhat infi.ml1ill ,w",,· ','C

ings in srnall claims cases to~ 1804 of the Justice Court

f~liled to li)Uow cenal\]such (IS n()""

to the parties pro-ceedings. andsuant to ~214.1 O(i) of theRules (()r the Justice Couns.

Lending the Prestige of OflkcTo A.dvance PrI\/tHe Purposes.arc prohibited the

judieiala private Includingable as charitableIn 2000. three weresuch activity. such as promotin" a

interest in!atioJ] bd(Jr(; the local tOWJ]

from which the losin" could ap-peal.Another town an arrcs!

warrant vvithoutdocumentation. ()ne

1(llling to fileof a

"",mOll with theAdlll in-i st rati()n.

cvelllSothers

Fourteen

S1l1aU contributions to a

cam-

was misleading as toquali IJcatlous.

\VilS cautioned fiJf "ti"n""another in his ca.rnpaign.

\UI1>II:, were foror oD<':nsive de-

meanor whom theyusually

CITcunlsta.nces

are rc­to avoid eonnicts of

lJ1tcreSl to themselves orrecord circumstances in

Ity might reasonablyIn 2000. seven judgesfor Isolated

such as presidingover Ll bClsiness associ-

without disclos­work Cor a

is likely to appear

Practice of Law bv Part-Time ,Iudges.While who serve as

of to'vvn, and somecourts are permitted tothere arc limitations In Ru OJ]scope of praetlec. For apari-time judge may I]ot act as an attor­ney on any Inaner in or hcr oyvncourt. Nor may one part-timejudge practice law

"illl Law.""",,··,1 Illr Lril ing to meet

mandates of out \g-noranee or For

j lIstlccs were call­as liJiling to

adequate records cases on thecourt or toproper in preparing a record

17

Follow lip 011 Caution Letters.the conduct addressedmissal and caution continue or re-peateeL the Commissionan invest igation on a ne\\which may lead to a FormalComplaint and l1mher disciplinary

In eenain asaudit and control and recordsmatters. the Commission aIllilow-up review of theand to assure that re-medial action was indeed

In 1999. the Court ofinL'. the removal of iudQe

'-- "- '-

used the andto promote a particulardriver pro",ram. notcd that

In his conducta prior caution the

dcsist hom such conduct.Ass!n! v. ('omm!ss!oil Oil Judicialduct, NY2d 26 (1999),

m the samejudQC

a cliemto\vna

juJ",c

was can­m it charitable

wbiehAnother

Vias failing to file anmandatory Jlnaneial disclosure

in a timely manner.

Audit alld COlltrol. pan-timeto\\-'11 or \'1 justices were cautioned

prompt andrem Comptroller of

as trafricthe Comptrol

yvas n(1 indication of mis-funds. and the ali

took administrative steps toavoid in the tllture.

\\/as

18

Pursuant to statute, Commission determinations arcChief Judge oCthe Comt of Appeals, who then serves

The respondent-judge 30 to re-of the Commission's ination

of Appea or the detel111ination final. In 2000,Court decided the two matters summarized below,

Commission DeterminationsReviewed bv the Court of Appeals

Mauer ofJ. Kevin Mulroy v.'s'late Commission Oil Judicial Conduct

The Court held that theeially charged assessmentderl case not devaluedlife but also cast doubt on theand impartiality of theitsel L puts into questionness to hold judieialThe CounItalian language. "whetherin manilCsted anbias that publie eO]]1l1Clelleethe judieiary ," ld. at

The Court also upheldter testimony charge am]. as tocase. f()lIl1d that thejudge ibited "un­seemly eondueting jury delibera­tions" when "as aJudge I was duty­bound to nn'"",ve

deeorum of the courtroom" at

of Appeals unanimollsly ac-cepted s determination

offleedated April 2000, 94

652 (2000).

C determined on August] Mulroy, a full-Judge of County Court Onon-

. should be removed Ii-ominter to a 67-

African-American murder vie-in an attempt to persuade a prose-

cutor to a plea reductionbitch:" making

people ofpressmg a

;:1 caseand te5­witness,

19

1l1atter olRobert M. Coming, Sr., v.State Commissiof/ OIl Judicial COf/duct

moved Judg.e Corning. from onlee in nnopinion dated Deeember 14.NY2d (2000)

C'ourt sustainedall of the spceiliOllS eharg.edag.ainst Judg.c Corn­Illg found thathis "actions hoth on and offdemonstrate a pattern ofgard fllr the standards of judicial eon-duet Iwhichl tOlTlaintai ntoward who appears in a eourtand to encourage respect the OnN;j-lion the judicial process at all If'VPI'

of the .. ld. at 454,of Appeals aeeepted

determination and re-

20

Observations lind Recommendations

Commission traditional devotes a section

Rcport to a discussion of various topics of note or in­

terest that come to our attention in the course of variousinvestigations. We do this for puhlic education to

advise the judiciary so that potential miseondnet

avoided. and pursuant to our authority to make

and recommendations.

POLI'rICAL ACTIVITY

is 11iJt

of

1n the

authorizes sol ieitatlon orcontributions.

the rule. a,btc v\ hen he ornounCClncnt

a candidateg;.lthcrjngs orlitical events,

While thejudge to havc discussions

potential

s Annual lZeport featured aon political ac­

a of topics.obligations as closing a

committee within sixc!ccli(Hl,

and activitys ()\\'n campaign for

and avoidingor

In this we SUl!l!est]l!lJa"e as to two facets the

IS

n1lJq

set

as a· >'candi(hrtc~'

in politicalwindow a .idefinitlt)J1 of ;"candidate"

ITl Section 100.0(/\)

CCturse of t() nm. ;'l

judge is stiil precluded !i'mnpoliticallitical eventspolitical activit) until he or meetsthe detlnition "candidate" as setin the Rules.

Somejudges the··pubJ ie announce-ment" rcqniremenr ofthe by issuing a

Others

A c'f.mdidolc is a person selectionfor or retention in office elec-tion. A person hecomes a candidate f()f

SOon as he or she makes apublic announcement of candidacy, or

21

on

au-

and

ii?!er

during tbe,,"",,11ee to

S (11'

100.5 ofthorizcs theperiod of aotherwise conduct C:lrnr"",'!1

behalf of the .judicial candidate.

ending, if the judge c)r non- ;1

ca,ndidate in the election !()!' 1:h,lt(,;fficc. ::.;ix rnonths afler the ekc­tion. or if he or she is not a candidate ~n

the general elccticHL six months after thedale of the primar) election. cOl1vcntiolL

caucus. orAdl11inistnHlon

rurther the

bv which a judi­publicly an-

!ll to thcStill others

and initiatewithout makin[!

rormal announcement candidacy.

n()unccd.

a rnore

Since a judicial candidate orcommittee may onlyactivity during the windowlied in the Rules. and thento his o[ her 0\\11 campaignjudicial office. it is inappropriate ajudge to n1<lintain a campaignmorc than six monthsNumerous Advisory ()pinions heldit inappropriate l'l! a to

campaign committee"window period,'· or to ".",,,,,"from one committee to another. even ifthe nc\\' cormnittec is usc smT1C

judge in connection with athe same or di[](.:renl

Rules Governing

Period" nne!

100.O(Q) of

two sections Rulesboth COI11-

on .Judicial the Com-held that the

Rules prohibit the use 111 subscquemfunds raised l'lr a prior

Closing a Campaign andDisposing of UnexpendedFUllds ill a Timdy MalineI'

.Jud

As Elr back as 1987. the Advisorymittec, in interpreting the applicablc

'1'he nlcre existence a C01Tl-

mittee more monthsjudge's election constitutesevidence of prohibited po!itic;t!by the judge. Maintainingfunds for an unreasonable period com­pounds the appearance of politicality.

Perfoi! denotes a l)criod hcgin-nine rnonths a primary dec-judici;;JJ convention,c,::mCllS or other l_xlrty meeting for

nom fiJr the elective ju­dicial office fe,H' \vhich a judge or non­

is <Hi announced candidate. or for\vhich a committee 'or other organizationhas solicited or supported the

01' permissible pohtical activitya candidate lix judicial ort1cc as 1,)1­

lows:

22

must remrn uncx,hmds on a pro rata

to donors surplus onoquipment or for coun.Advisory on Judicialhas unequivocally that a Jmay not usc campaign funds orher own Anot example, use surplus ,"'''''''''fund, !(l buy a computer use ateven if the were to be oncourt-related should ajudge spend excess funds oncharitable causes. worthy thcymay be, See Advisory Opinions')()-()6,91-1 92,68 92-94,

If Illr any reason atlenlty in properly unex·,pended Ihnds andcommittee within theor shou.!d the Admintrator of the Courts so thatmay taken to comply withMoreover. to helpjudges understand thc np",·"i

ing canlpalgn cornm In ~l

li.1shion and of excess l1i

/1n appropriaTe nl,lnnCL \VCthat the Chief Administrative

guidelines that cxplrecommend

Administrative

Inappropriote

tieularly during post-electionof the window period. andlincs covering expenditures thatinappropriarc. as discussed

88-59, 88-89, 89,92-68, 92,94,

opined that it is appropri­to return surplus cam-

rata to thethe surplus on

court asCourt Admini-

material the prop-A could

(}11

Opinions 8791-12. 91

and 15,

for 14

In a recent case, ,'vlaller .\.fullcn,I), the Commission publicly ad-

a Claims whohmds his unsue-

I()r Supremeattempts the]998 and 1999,

it is no excuse in the of soAdvisory Opinions to

claim 1ha1 the prohibition is not knownor understood, it would make sense till'

to explicitly state what therightly saYing

not only as to the manner inunexpended funds may

not be (e.g, a subsequent cam,as to rnanner in which they

returned pro raW to donors, orof court

andfunds in an appropriate

manner the six-month post,or nomination period.

even

not

and rules,

onequipment),

I(mds onc()n1.rihu!:cyrs. or

23

a

so

100 5( Al(4)( cl) of theJudicial Conduc!

In the last tbree thepublicly admonishedwhole or in part li)r violatingother campaign provisions.

In !Holier of Mullin this Annualport a Distriet Com1Supreme Court ,d"·"1i,,,,

impression that be was

$ mak stalerncnts thaT con1mit OJ" ap-pear to c('l]llmit the c~mdidatc \vith re-

W cases, ()r issuesthat arc likely to (OInt: bC!llrc the CCHH"t;

or

$ kno\vingly <my I~tlse statemcnlor misrepresenting the qualHl-cations. current or other fi::lctconcerning the candidmcor an

In ilf Hiltner in Annualport, a Sllecessful Countydate ran advertisements

careerSo am L

over, Jud2e Hafner eam-~.

paign literature that erili·eilCd therecord of his opponent and said, "Soft

make hard

1\ judge may respond toor attacks onlong as the not

and other relevant ,'"nn,,,i

related provisions.

.. rnaking or {}f conductin offlcc other than the t~tithfu~ and irn,·pardal pcrt{)nnance of the duties of the

office:

Sect ionGovernjudiciai

COrl-

rccurnngrc'clnnmemb

the uurnnbiguolls guidl'­( lpinions

as the Solmun case,year. lbe (·orn-

;1\\'are or situa-candidatesfllnlb I,)r such

,,-nn,," ;ts pae Ing bartickets to a bar assllCia­

" ftllJd-

VvC COJn­

problem ofwho misrepresentor improperly

and the relatedlei'll candidates who inap­

of future con­the prob-

and new cases havecome (0 the Commission's attention 1n

warranting our eommenl-on tbe aga1J1.

Misrepnlselltl\tions andl'll·cli!.es of Future

(·,mduct bv ,Indicia I Candidates

judieiare as to lheappropriate rn;jnflCr in \\'hlcl1 to

funds.

tions Il1

1995 AnnualCourt was

inter alio usinga re--

and car for personaiusc. In conjunction with the censure. the

over the equipment to (heCOlin ,\dministratiOtL

24

'fhey Idefendantsl knO\\ \iolarcd tileOrder of Protectl()J1. ['11 ask thern. "'lemknO\\ \\hat's to h;:lppen. clcm'tyou 'Y· And say.'. "'{CS. J I' rn

10 jail." And do,

You can"t elevale- (j( electsomebody' to a hig,h\Vlthout knowing \vhatbe like when they put the mbe on Yneed to 1-.:no\\ that. It's too aposition.

In \faffer of Siepilcli/\nnual Rcport 103, aran televised ,ldvcrtiscmcntspromised that he would jaildant who came befl)re him "'""'n,,,' wviolating an ofthan judge thecases, ads quotedas

i"ues Ihal comeas such \\ere un-

distributing that"John N, Mullin Supreme

""'''''''' committeeads \VtTC "[Jajdfor the

to John

on

Mullin's adshim as RipJ!t To I,ifc Ju-

proclaimed him tosupport ,The Verdict Ail Of

" Children" and stated that "JudgeAnd The Support

These state-ments Mullin

stated that he "convicted 88'X,with alcohol-related

and depieted of jaildows and bars; and impliedwould take harsh action against

fused to Ict the armed "{,hh",,s

tbe Berk murderer, theSummer Stalker out on

impltedpresided over cases

,Vulter 01 Samuel Haislin, An..nual Report 113, a interalio ran advertisements whichhim as biaseddants, implicd thal he

with rather thanthe ofrer,re,;ented the extentIn cases of local

2000a Court judge

public statementsatx)rtion in a 111an-

on imparti-such matters

1999 An­a Towncampatgn Ii temtme

misimpression that he wasthat he was associatedof a particular local

V Rov Caccia/ore, 1999Annual Report a VilJage senta to urging support for sev-

non-judicial otneeon various partisan

ncr as 1.0

ou the

c{)rnc

lunual Report

25

beatersand stated tbat

"called

to judicial oniee and ,h"YI'h

mg,

cials subject toand control. '1iom doint! ondate's beba If what the cand idate IShibited !i'om doing this

Section IOO,5iA)(4)ja) of re-quires thm a judicialmaintain the dignity tojcial of/Icc an act in a manner

tbe andthe judiciary." Section Itbe Rules requires a judiciai to"prohibit andserve at tbe caudidate's

A judicial candidatemakes improper statements canootresponsibility that ordelegated the fuuction to ,'",nn'n

cials, Che candidate is responsibleexplicitly or implicitlythe candidate wouldinappropriate attacks on

Judicial candidates ttrc notobliged to assure complianceRules by those in employ ortheir direction or control.required under Section 100,5(A)(5) ofthe Rules to designate "n>",,,m

Several malicrs arc nowthe ,ssionappropriate campaign statcrncnts (l

Chese include notin which the judicialhis or ()\vndenigrates an opponent's, but[ions in whieb r,"'w,"""'''''eial candidate make the orotherwise inappropriate comments,

has also cautioned nu-for claims or

conduct that were unrelated

and printwhich lacked the

to judicial madewhich appeared to commit

l sentences in ever>lawful disposi­'1<"'",,'l)n ad vcr-

Ir,crous

In

tisemcnt m . "Violentrn our streets:" and "'fhe menace

ournnl"rllw,rj a masked man

a \VOl1UHl outside car.that judgc was cndorsed

b\ local and concluded,5, pull the Illr Bill

1\)Jito, on ,:is ajail door was shut. /\

ad proclaimed, violentpredators have al­

our crin! inaI justiceBill will his [Ilot in the re-

door Bill Polito won'twith sentences or

send convicted child molesters home I(lr

thc belong in jaiLnot on street. judge also nm

bearing legend," and promising

that "no! experiment with 'al-

stalc-rnentshim tocase andfions,

26

event is a

It IS commou l()rto include elcctronic i inks to

lneraIser.

a web

In issuingsion has out that a musttnakc inquiries as topurposes of such events, andJake special precautions atpolitical functions when arc not can-didates. Tbe judge should asksponsors are, ask to sec the invitation.inquire as to whethet his or name IS

being. used as an or In s'onlc\vaV to aTtraCT

Crm('erns Raised thelncreas('d Use of ComputerTechnologv in ,Iudicial Campaigns

increasing nun1bcr ofdates and their ca,ml:1l

use of complllerconncction withkecping electronic data on contributorsto campaign web on

In so doing, they mustspecial care to adhere to the l{ ukscrning Judicial Conduct and to avoidcven the appearancc of impropriety thatmay result from an unintentionaltiou ofthe Rules.

vitat ion I'rom atend a dinner orout mak any further inquiry as tonature or purpose the

, theupon the event \\'aslitieally and he or as anon-candidate. should not be nn',,'n1

!~)r the candi­this section is to

conduct in10 place rcspon-

that !1ow from it.

AIIl'lHling a Political Affail'Withoul Making Inquiry as toTill' Political Nature of the Evenl

Rulcspro-hom politiGd

at a time hcI~)r Jll-

. a judge may notin a non-political event that is

a political organization.. 1Il Opinion 92-95, the Ad­

on Judicialcould not attend aa major local

evcnt was under ofCOl11-

88-32 and 88-136 pro­at a political

couns and system.Opinion prohibits a Ji'eJtn

m an essay contest spon-a political club. the

IS the Ad-overriding

non­and the

impropriety

past the Commis-has sevend judges

to have unwittingly attendedevents that they did not know were

untilclaims to

SOlIS to

27

didale iswhose web sites arclinked 10 or her own,

li would appear no aRules I,)r a judicial campaign 10

a political or anotherthe Internet iJS a morerneans. such as circulatinglitcrature put out theto thc judicial candidate,

Yet the pro-hibit a judicial candidate partieipal-

in pol other his orown it would violate the

I,)l' a judicial eandidalc's web silcto inc ie links to the

political or-g.an ly so Sll1ce

nolinkedcontrol o\-'cr

Ironic "'fV"',,S

The Commission also r,i,·tvm

the OffJCC of notethis concern regular educationtraining programs for judges.

Commissionto rem ind j ud ieia Iarc hound bv the Rules I',"';II'{I

medium. andsure their campaign m,m,!g<:rssentativcs know thc Rules and toabide them. even as to the content of

and delivery

toA recent mat-

m('<"'IW'(1 aiudicial whose

included a link 10 the statewideof political Activat-

link (with onc click of com-took the

thenadditional

then a secondsto a page fin thc party's

candidatc, Sueh a link may crc­ate the impression thaI the judicial can-

cmnplaint,ler

28

FAVORITISM AND TIlE ApPEARANCE OF

FAVORITlSM IN FmLCiARV ApPOINTMENTS

authority to appointcon~

to All wouldcrntivc fccs.

m

the

nu-

prois not\\hilc

Various conuncntators havethat thi, problem is not ICountv and in factthe state, Indeed, sincein'v'olving Kingsmcrous other articlessimilar instancesvoritism in other

{IUO

juui!es to appoint Democraticand to such highlymatters. aHcf!ations of LIV()ritisn1appearance or arc

guardia,ns

no,1','" is subject to par­the public and the

it is potentially sosuch ap-

servators

to the re-lOO,3(C)(3) the

a to thenow('r of appointment impartially and on

of merit land tol nepo-

1S ,mlO,.",

Commission tbis initiativeby the Chief Judge andcommittee 011 fiduciaries

priate,

swiftly toa special inspectoranu on this problem, a"blue rihbon" committee onappointments to proce-dures and make recommendationsimprovements, andtive judgcs tbroughont state to !"\,I("IV

and make recommendations onappointment m ar-

eas, violatiollsto tbe Commission to at-

discipJine

were novv,',senee of

menrolleuarc

uVv'ardJiuuciary ,mnl1,lnl

lOlllt'V associated in the pr;Jetieelocal leader.

then reta.in the ser­law-

\Vere aectbtomed toto

reponed lasttv/()

m've]'w o"',/cr \vayarc made tn

(Brooklyn), attorneyscomplained lin political reasons,

assignments they

to anor

29

professional aSS(lCTates of such relativesmay be appointed,

must bethe <l\\.ard,

(J\oel'

to the prcsent Inlnlcrcsr in this ropic,

to exarmnc cer-\\/('

lain

ous

<{ case,"

Appointrncnts may' not go to full-tllHCcourt employees,

Part 36 is also intended to limit man-ber of appointments of a cenainthat an:", one rna)" reC,Cl\'C l'n a12-month period. Specifically, no per·son or institution shall be el to re-

more than one appointmenta ]2-monthdate of appointmenL "cnm-pensation anticipated to be 10

the appointee the SUH)

$5,000'" , themake In

"unusual circumstances 01' M'''' I",

representation or illrniliarity

• appointee is required te; fik a notice(rr the appointrnent vvithir'r len \\'1111the ("hie-r Administrator uflhe ('ourts and

certi(v to the that the notice hasbeen filed. A lis! of "II suchrnents is publishccL

the Chieffiduciary and related ap­

including theguardians,

court evaluators andincapaeitated per-

of Role

be appointed \v110 fS a rcla­Clcgre'c, of relationship to

s spousc~ although the

No one shallti\'c 'v\ithin

the or

lists,

rhe ('hief /\dminisfrator of the Courts isrequired to provide 1(,'11" and maintain fistsof persons and institutions seeking such

and 10 make such listsavailahle to judges.

select'" appointees from the list. orindicate on the record their reasons f()f

'1Olneon(' wh() is not on the

son,s.arc' the

gO\'CfllS

Afipc'(Il'ing 10 Elude

As with 111<1I1V rules of eonduct reason­able built· in exeeptions ean be orresult in al least anpriery. The judge whopate" that a particularwould a fccmay end tip a\NardingpOlntments to tbe same Jidueiary a12-montb period, some or all of whiehmay ultimately result in

i Par1\6 docs E\lJ<;uch ;h:

p1JfSl.i;111f to Scctlc,n :~4"; oflileFUlrn""" ;\d litCHi r)ur:~;uanl Seetic;n 40:)-athe S Court Pn)cl"durcs /\C1 or theMCnT;ll relalivcs or thoc.;ewith (} intcrcs!ii1 CC'I"1';]jn individuals (such[h infant or a nonprolh

<"neill! servrccs:, a physi-cian wht'J'C: c;ner:'c!,clK) rncdical are re-""m',,;' it bank ('if 1Tllst C()lnpany (jS afOT:ill \.VitJlOut compensa-tion: and ;;1 person c)r inslllUtion whose mr)Oln1·

111('1.'lt is la\').

30

con-

Tbese other potentialwould be

and addressed h) thecommittee on lidue

the law linnfinancial distributions.

course both tbe communitypublic at migbtelude that the appointment wasin the lirst place

\evaspointee particularly if the\-'ias suhSlantial.

withinperiod.

III SOInc cases. much.000. In

heard fromat the ap­

judge \vas un;nvare andthat the fces would

or more. An methodintent of the rule is to

$5JJOO to thecases, therebv

thall.000

pointment.could not

TO

it

Judge Lippman's memorandumated debate. thetion of Justices of tbe of

In 1\lareh 2000.Judge Jonathan Lippman a memo-randum to all ofCounty and Surrogate'sing them that lbe notis empowered to make theseappointments. It is widely

secondary appointmentserative politicalleaders and other insidersgating control over ap-pointments to those appointed

thepearance the courts haveauthorizcd politieal appointments.

36 of the Rules alsoIS the must appointdesignated to perl(ml1CClvcr Uf)(ll1 evaluLnion

the qualilleat]onsar)pOlntmenr,

relative may notappointment. the relative's

usuallyawarded to the ap­

be shared by

A.s t()

aa fiduciarv•

or ''',''''',I"t"means that

requirement thata recognized

Administrator ofenough to on

notincvira:bly create ap­

undcnnineintcgrit:y and

r:or CX,lnl­

,mnoinlm,'nl ttl a judge' smanager, political leader or

contributor may raise ethical is­sues even where the appointee is qual i-

the jOb. Yet in the mostextrorne situation, establishing a ease ofl:.lVoritism is most ditTieult; particularly

is qualitied as wellIndeed. the

opined that aappointments to I,,,''''''''

""C,)<Wl"N so long asnoinl'm,'n", are based on merit. Opinion

31

Rules,kinds ortcndcd to be covered.

This is another area 111

J s on

appolntnwnts such asacc()untan1.s.

a judge towould

that It is Impracticaland

serVices the

oran issue (lS to-

ol' appolT1tmcmsIt was even intended to

plumhlng services and the Ior more loglca!l) was hmltcd to

jiduciorv appointments such

PRACTICE OF CRIMINAL 1,AW BY PAin-TIME ..IlJDGES

For example. it would not he unusuala part-linle todant in a criminal ease Intown eourt. fhis wouldand the local District

Ycl assistants to that samewould

prosecuting cri.nlinal cases in the· sO\\Tt court bcf{xc that

where both judge and prosecutoract responsihly and honorahly,be an appearance of . . I'rz)se-

and atrorneys

Such a circumstance could venchange the tenor and dym.rmieIcssional relationship h,'lu,'",'n

prosecutor. Would subtleon the prosecutor towith an who

deciding cases lnv()!ving S,ln1C

prosecutor in a nearbyjudge benal case the J8

or his or in anotherproceed Ing?

may not practice

conditions arc met. aIs not prohihited

any particular 01'

arc ,mnr, wi

2200 judges-- justices throughoutYork court

400 of whom arc Jaw­I 00.6(B) of the Rules sets

prohihltlons on part-also

vcrs,

he­Nor

and asso-or the partners and of

their to practice In their court.

casco ]0

or conf1 let may arisewhen a presidesover a case Involving a lawyer who is the

s adversary in another ease else"",th",-,· eounty.

32

various times in the past.been ru!cs prohibiting afrOln practicing criminal Ja\\ inown eountv. the Commission recom·mends thatstration thisamending the Rules in this !,('o;ml

the iud"c's\verc moti\;atcd

L,vor with theor

won(Icr

Ct}Url,

'rJu: NEEIJ FOR STATEWmE GlJlIWUNES

ON EUGUliLlTY FOR ASSIGNED COUNSEL

it

m..

County Ld\N f 70.1 (it

cOtnrncnrary W.v. Ross. 67 NY:'d 321 tl 1'.

i'm Flol'eKe. 467 NYS]ci ]98 (I\pp'l erm &1 Jud Dist. 1(:l8T); Davis 11, 399NYS2d 836 Ct Steuben Co [

I"~xccpt in inJI"action cases.York Stale lalldants. including those ,'n."n'<'11

laiious. advised of

reqUIres a judge 1101dcfeudant at tofree to

;'lake such a aSl:'; lllX'CS-

to effectuateassigned counseL"

{lS as arraignnlcnLunlikely that a defendant wouldsignificant time in jail withoutof counsel. In smallerho\vevc1', indig.entcareeraled il)rresentation andeluded from lega I """""·,,,,11of archaic firHHlcia! guidelines.

to re-court must assign COUl1-

In State'srepresentation ofusually available

IS IIl1;lnc-

the practice aseach Nt\\

A!though OflJeeAdministration has devoted in·

and l'cs()urces

judicial obligation toindigent. prob!cms

In 1989. I. 992 and 1995.the ( sAn·

en,w1c discussed in detailthroug.hout York

to counsel todefendants. In 1994. the

Association pub·Eli·

indigentYork

'CPt. §§17010. 180.10; I,aw1''''.>1)1<. F 15 Ny c'd 392 (1965); Scoltv. /II1.1101S.440 US 367 (I

33

meansare

Defendersnotes that manv counties nOl re-vised their income guidelinesAlthough eligibility is supposed tobased un liquid assets andsuch as a home or a caremploymcnt arc exemptcounty's ciigihil re-quests infimnation on home carownership. Numeroustheir eligibility decisions onassets of minor children. despite statu­torY and constitutional prohibitions tocontrary;,

In one situation hrought to thesion's attention last"on an interpretation ofI~rom the publicassigned c()unsc! to a mInorsolely theowned a home.sihle to include parental assets In atermination of eligibility,would have been required. to(i)r the n",""",

to support the child, orenough cquit); in the to susrarn aloan against i1. or whetherthe house was sufficient to cover

In other cases,income is below the arcdenied counsel. Some aredenied assigned c()unseJ arc,'n""!",,,'" or expect to employed soon

withont any emm .1 [0 as-whether the defendant can

to counsel,employment or prospective

to

confrontingarc the disparatefi'om county to

counsel m accor­plan. pro­

a dual responsibil­tilr the indigent.

effcetnatc the dden­must be: a c{)unt:.,

judge can act.

vcars, and as as thisCommission has become

,marc in which counscl hasnot either be-cause ,1r(' unavv'arc of theiI"tion to do so in certain types of cases,such as violations or other non­

punishable by incar­lC(:mlse of deficiencies in

plan.

has held that it pat­tern In­cluding the right to counsel. constitutes

and can result in re-moval of jndge 1[-0111 Hall!!!'

58 286 (1983): Mallerof 63 I (I (84). See

1996 Annualon

OJ' other as­admlnistratoJ' as to

the judgethat responsibil­

to make proper inquiries OJ'cffeetnatc the

to counsel.

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Vm)'ing practices stalerequire closermcnt of unifonntennining eligibility andright to counsel. 11to bc bcnefieial judgcs tuof specific standards

to certain tharcannot all(mj to rcrain are

provided with counsel. ItC'rHnmissi()n: s expcnence that S01ne

J inadequate tothc important right to counsel.Commission recommends thatof Adminisrrationready substantial trainingwork in this area takingsucb an educational

intinlidatc defendants. may contra,vent:the spirit and letter the

1.:1\\. It seems anonla]ous fell'cOLIn to declare that a defendant 15

and entitled toon Iv to order that same to pavfor suchtel' of Bllc'klcl'

arc

e] igibil ityapplicant

forduring

plan.

to

course

another countv.

son1C

Such which seem punitivesometimes so broadly open-ended as (0

town or vi justices. 1n10 be a typical result- the

eoun issues an order that theIS to reta in ,:lndfor puhlic defender servlccs.

directs toPublic Defender. rhe Pub­

advises is clientor she may

35

million sup·1S 164

stalT of

In fiscal yearmission's hwJgctported a fuJI-time21 lawyers 18

Currently. after more than a UC'cdlll

senous cutbacks. the ,budget of about million astaff of including onlyand full-time and onetigators. In contrast,Commission on Judicialalso has a of 27. it has 16and neady twice the

.7 million), even thoughsignilicantly fewer judgcsfewer complaints than

The Commission's Budget

nUl'HCrOUS re­

cent Annual Re­we have

called attentionin this space to

that the('onlmission has

persistentlyand acutely un-derfunded and

at Ll As achallenged inconstitutionalallegations of

and. appropn-disciplinary- aenon against

.J\.Kllcialate.

C"lilc)mia

New \'ork

1.950

NEW )lClRK & C\IIIORNII\

16

1300-!450

a funding s!1on­longer and are

nOI as should heonce were of budge! eut-

tune it to conclude acomplex case in which a full IS

held (i. e., from intake tolion) bas gone Il'lHn 20months. Themeets seven or aof 12 a year as it didwas adequate. numher of com·

l As result of negotiated cost-of:livlng allowances f;)f al! State 1'1l1nlnv,""s the Commissionreceived an additlolla,l $137,000 to cover such mandated costs.

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Inore

Clille

Commission hasfrom 641 in 1978 to

seven the"""')"',1 1400.

annual sInce

been less than one percentbudget which. whention. meant ain IjnanclaJ resources.

to

rnorc

The Commission's UniglH' Role

Timler the Yorkthe Commission is the onlYstate govcrnment with the

judges f(lfduct. Its disciplinaryCommissionYork well

More than 500 jpublicly disciplined I()!' judicialduel. more than 1000 havedentially and morehave rcsignc(! undercontrast. in theC'tnnmission \\:;:tswere disciplined. It is

that the judiciary hassensitive to itsthat public eonlldence inhas consequently improved.

Our record or fiscal prudence wasscored an audit in Ithe Comptroller, f<)undthe ('ornr11 ission' s \vcrc or·~

deL that our budget wereconsistent with state policiesand that no changes in ourtices were recommended.

I')fstatus quo Cinancing of

Other than contractu-mcreases. II

Notwithstandinga detailed memorandum

felt· at least threewe will appar­that will n('rm"

our currentwhich will not likelythe time it to eon-

immediate goal I(lrveal' was ror a modest in­

or S232JlOO, cnoughpositions (I()]"

pay (lrcover certain

expensescould not afford

in-stateWhile this would

half the number or invcs-two decades it

on an ()ver-in more prompt

statewide.

us

next

be no nC\\i

SUhl'nlSSIOn

erC'Liseto rCS'!{)fe

an

the One of the critical

rc

its financescare. In periods of

mission IS

pendenee. The 1Iarc appointed toterms hy

the

37

to live within reasonablemeans. however pkntitlil or scarce re­sources be lJ1 ;1

Clearly. thc Comm'stratcd its abil to doover course its eXIstence,'J\i e dt)l!C J110rC

It is time now to restore onr to aappropriate to our

and our record.

none whoma majority. fhe Commission.elects its own chairperson and.

rlt!nfll(,V as Adminis­law.

othcr andAll but two thc nine at-

becn withmore than J 5

continuity

Budget Figures, 1978 to !'reselll

ANi\.'I,:Al NI.IV INvls- lNVFST!(i,-\TOl<:S

L3l:j)(iLi 1'ICiATIC)NS 0"'1 ST/\!-'I

1978-79 $1,644,000 641 170 21 18 fit 63

z z z z z

1988-89 $2,224,000 1109 200 9 12 fit, 2 pit 41

1989-90 $2,211,500 1171 195 9 9 fit, 2 pit 41

1990-91 $2,261,700 1184 212 9 8 fit 371991-92 $1,827,100 1207 197 8 Hit 32

1992-93 $1,666,700 1452 180 8 6 fit, 1 pit 26

1993-94 $1,645,000 1457 182 8 4 fit, I pit 261994-95 $],778,400 1438 208 8 4 fit, 1 pit 26

1995-96 $1,584,100 1361 176 8 3 fit, 1 pit 21

1996-97 $1,696,000 1490 192 8 2 fit, 2 pit 20

1997-98 $1,736,500 1403 172 8 2 fit, 2 pit 201998-99 $1,875,900 1451 215 9 6 fit, 1 pit 27**

1999-2000 $1,947,500 1426 242 9 6 fit, 1 pit 27**

2000-01 $1,911,800t 1288 215 9 6 fit, 1 pit 27**

2001-02 $2,113,300 tt 9 6 fit, 1 pit 27**

Number includes ('Jerk of the C:ommission, \\/ho docs not Iitigate cases.Number include:'> t\VO part-time slaff

Voc.,-o:HI\ll1g;,]!owanccs mid-year for all State employees I'csulted in an additional $13 7J)OO to coversuch nl:Jnd8.kd cCHtS.

-;. CClmplaim figures al'e calendar year (,ian. I --" I)cc. 31,; arc fiscal year (Apr. J f\ilar. ,31).+-;. Proposed.

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Conclusion

Public in thc high standards, and ""'''lll_ of and an indepcndent disciplinary ,,";leITI

helps kcep judges accountable for thcir conducL is essential torule of The members ofthe New York State Commission on

Judicial Conduct are confident that the Commission's work contributes toto a heightened awareness of the appropriate standards of ethics'

and to ' and proper administration of just ice,

Respectfully submitted,

EUGENE W. SALISBURY, CHAIR

HENRY T. BERGER

JEREMY ANN BROWN

STEPHEN R COFFEY

LA WRENCE S. GOLBMAN

CHRISTINA IIERNANBEZ

DANIEL F. LUCIANO

FRIWERICK M. MARSHA,LL

KAREN K. PETERS

ALAN J. POPE

TERRY JANE rWDERMAN

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APPENDIX

Biographies of Commission Members and AttorneysRoster of Referees Who Served in 2000

The Commission's Powers, Duties & HistoryText of the Rules Governing .Judicial Conduct

Text of 2000 DeterminationsStatistical Analysis of Complaints

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2001 Annual Report

New York StateCommission on Judicial Conduct

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BIOGRAPHIES OF COMMISSION MEMBERS

There are II members of the Commission on Judicial Conduct. The Governorappoints four members, the Chief Judge of the Court of Appeals appoints threemembers, and each of the four leaders of the Legislature appoints one member.

The Governor's four appointees must include a judge or justice of the unified courtsystem, an attorney, and two who are neither judges nor members of the bar. TheChief Judge's three appointees must all be judges; one must be a justice of theAppellate Division, one must be a town or village court justice, and one must be ajudge other than on the Court of Appeals or Appellate Division. The leaders of theLegislature may appoint attorneys or non-attorneys, but they may not appoint judges.

ApPOINTING AUTHORITY COMMISSION MEMBER EXPIRATION OF TERM

Governor Jeremy Ann Brown, CASAC March 31,2001

,

Governor Christina Hernandez, MSW March 31, 2002

GovernorHon. Daniel F. Luciano March 31, 2003

Appellate Division, Second Dept.

Governor Hon. Frederick M. Marshall March 3 I , 2004Retired Supreme Court Justice. ETic Co.

ChiefJudgeHon. Eugene W. Salishury March 31, 200]

Village Justice of Blasdcll, Erie Co.

ChiefJudge Hon. Karen K. Peters March 31, 2002Appellate Division, Third Dept.

ChiefJudge Hon. Terry Jane Ruderman March 31, 2004Court of Claims, Westchester Co.

Assembly Speaker Lawrence S. Goldman, Esq. March 31, 2002

Assembly Minority Leader Alan .1. Pope, Esq. March 31, 2001

Senate President Pro Tern Stephen R. Coffey, Esq. March 31, 2003

Senate Minority Leader Henry T. Berger, Esq. March 3 I, 2004

43

Honorable Eugene W. Salisbury, Chair of the Commission, is a graduate of theUniversity of Buffalo (cum laude) and the University of Buffalo Law School (cumlaude). He is Senior Partner in the law ilrm of Lipsitz, Green, Fahringer, Roll.Salisbury & Cambria of Buffalo and New York City. He has also been the VillageJustice of Blasdell since 1961. Since 1963, Judge Salisbury has served as a lecturer onNew York State Civil and Criminal Procedure, Evidence and Substantive CriminalLaw for the State Office of Comt Administration. He has served as President of theState Magistrates Association and in various other capacities with the Association, asVillage Attorney of Blasdell and as an Instructor in Law at SUNY Buffalo. JudgeSalisbury has authored published volumes on forms and procedures for various NewYork courts, and he is Program Director of the Buffalo Area Magistrates TrainingCourse. He serves or has served on various committees of the American BarAssociation, the New York State Bar Association and the Erie County BarAssociation, a~ well as the Erie County Trial Lawyers Association and the WorldAssociation of Judges. He is a member of the Upstate New York Labor AdvisoryCouncil. Judge Salisbury served as a U.S. Army Captain during the Korean Conflictand received numerous Army citations for distinguished and valorous service. JudgeSalisbury and his wife reside in Hamburg, New York.

Henry T. Berger, Esq., is a graduate ofLehigh University and New York UniversitySchool of Law. He is in private practice in New York City, concentrating in labor lawand election law. He is a member of the Association of the Bar of the City of NewYork and the New York State Bar Association. Mr. Berger served as a member of theNew York City Council in 1977. Mr. Berger chaired the Commission for ten years,1990-2000.

Jeremy Ann Brown, CASAC, is a graduate of Empire State College with a degree inCommunity and Human Services. She is a New York State Credentialed Alcohol andSubstance Abuse Counselor and was employed at the Rockland Council onAlcoholism and other Drug Dependence, Inc., in Nyack, New York. Ms. Brownpreviously served as primary counselor at the YWCA Awakenings Program in WhitePlains, S1. Christopher's Inn in Garrison, Phelps Hospital Outpatient Program inOssining and the Westchester County Medical Center's detoxiilcation and outpatientprograms in White Plains. Ms. Brown is a New York State Certiiled Rape CrisisCounselor and volunteers as such for the Rockland Family Shelter in New City. Shewas honored by CBS Television as Woman of the Year in 1995. Ms. Brown serves onthe Attorney General's Crime Victims Advisory Panel and has been a recipient of theGovernor George E. Pataki Distinguished Citizenship Award. She volunteers herservices as a crime victims' advocate. She has traveled to both Pennsylvania andWashington, DC, to endorse legislation for improved parole guidelines. She residesin South Nyack, New York, and has two children, Timothy and Samantha.

44

Stephen R. Coffey, Esq., is a graduate of Siena College and the Albany Law Schoolat Union University. He is a partner in the law firm of O'Connell and Aronowitz inAlbany. He was an Assistant District Attorney in Albany County from 1971-75,serving as Chief Felony Prosecutor in 1974-75. He has also been appointed as aSpecial Prosecutor in Fulton and Albany Counties. Mr. Coffey is a member of theNew York State Bar Association, where he serves on the Criminal Justice SectionExecutive Committee and lectures on Criminal and Civil Trial Practice, the AlbanyCounty Bar Association, the New York State Trial Lawyers Association, the NewYork State Defenders Association, and the Association of Trial Lawyers of America.

Lawrence S. Goldman, Esq. is a graduate of Brandeis University and Harvard LawSchool. He is in private practice in New York City, concentrating in white-collarcriminal defense. From 1966 through 1971, he served as an assistant district attorneyin New York County. He has also been a consultant to the Knapp Commission and theNew York City Mayor's Criminal Justice Coordinating Council. Mr. Goldman iscurrently First Vice President of the National Association of Criminal DefenseLawyers, and former chairperson of its ethics advisory and white-collar committees, amember of the executive committee of the criminal justice section of the New YorkState Bar Association and a member of the advisory committee on the CriminalProcedure Law. He is a past president of the New York State Association of CriminalDefense Lawyers, and a past president of the New York Criminal Bar Association.He has received the outstanding criminal law practitioner awards of the NationalAssociation of Criminal Defense Lawyers, the New York State Bar Association, theNew York State Association of Criminal Defense Lawyers and the New YorkCriminal Bar Association. He has lectured at numerous bar association and lawschool programs on various aspects of criminal law and procedure, trial tactics, andethics. He is an honorary trustee of Congregation Rodeph Sholom in New York City.He and his wife Kathi have two children and live in Manhattan.

Christina Hernandez, MSW, is a Board Member of the New York State CrimeVictims Board, appointed by Governor George E. Pataki in 1995 and again in 2001.She received a Bachelor of Arts from Buffalo State College, a Masters in Social WorkManagement from the School of Social Welfare, State University of New York atAlbany and a Certificate of Graduate Study in Women and Public Policy from theRockefeller College School of Public Affairs and Policy, State University of NewYork at Albany. At present she is in the doctoral program at the School of SocialWelfare, pursuing a PhD in Social Work. Ms. Hernandez is a former Fellow of theCenter for Women In Government. Her assignment as a Fellow was to serve as aLegislative Assistant at the New York State Department of EnvironmentalConservation and assist in the research and development of policy regardingenvironmental justice. Ms. Hernandez served as a Member of the New York State

45

Commission on Domestic Violence Fatalities and the New York State Police MinorityRecruitment Task Force. A native of New York City, she now resides in the CapitalRegion.

Honorable Daniel F. Luciano was educated in the public schools of the City of NewYork and attended Brooklyn College, from which he received a Bachelor of Artsdegree. He thereafter attended Brooklyn Law School, earning a Bachelor of Lawsdegree in 1954. After serving in the United States Army in Europe, he entered thepractice of law, specializing in tort litigation, real property tax assessment certiorariand general practice. He was engaged as trial counsel to various law firms in litigatedmatters. Additionally, he served as an Assistant Town Attorney for the Town ofIslip,representing the Assessor in real property tax assessment certiorari from 1970 to1982, and chaired the Suffolk County Board of Public Disclosure from 1980 to 1982.He was elected a Justice of the Supreme Court in 1982 and presided over a generalcivil caseload. In May 1991 he was appointed to preside over Conservatorship andIncompetency proceedings, later denominated Guardianship Proceedings in SuffolkCounty. He was appointed as an Associate Justice of the Appellate Term, Ninth andTenth Judicial Districts, in April of 1993. On May 30, 1996, he was appointed byGovernor George E. Pataki as an Associate Justice of the Appellate Division, SecondJudicial Department. Justice Luciano is one of the founders of the AlexanderHamilton Inn of Court and served as a Director of the Suffolk Academy of Law. Hewas the Presiding Member of the New York State Bar Association Judicial Section, asweB as a Delegate to the House of Delegates of the New York State Bar Association.Justice Luciano is Chair of the Executive Committee of the Association of Justices ofthe Supreme Court of the State of New York. Justice Luciano has held the positionsofDirector of the Suffolk County Women's Bar Association, and President, First VicePresident, Secretary and Treasurer of the Association of Justices of the Supreme Courtof the State of New York. Additionally, he is a member of the Advisory Council ofthe Touro College, Jacob D. Fuchsberg Law Center.

Honorable Frederick M. Marshall attended the University of Buffalo and is agraduate of its law school. He is admitted to practice in all courts of the State of NewYork as well as the Federal courts. He has served as Chief Trial Assistant in the ErieCounty District Attorney's office, Senior Erie County Court Judge, President of theNew York State County Judges Association, Supreme Court Justice of the State ofNew York, and President of the State Association of Supreme Court Justices. JusticeMarshall has served as Administrative Judge of the Eighth Judicial District andAdministrative Justice of the Narcotics Court in the Fourth Judicial Department. Inaddition to his 30 year tenure in the judiciary, Justice Marshall has been an instructorin constitutional law at the State College at Buffalo, Chairman of the AdvisoryCouncil of the Political Science Program at Erie Community College, Chairman of the

46

New York State Bar Association Judicial Section, and has been designatedOutstanding Citizen of the Year by the Buffalo News. In 1989 the Bar Association ofErie County presented Justice Marshall with the Outstanding Jurist Award. TheUniversity of Buffalo Alumni Association has conferred upon him its DistinguishcdAlumni Award. He served as a First Lieutenant in the Infantry in World War II.Justice Marshall and his wife have three sons and live in Orchard Park, New York,and Bradenton, Florida.

Honorable Karen K. Peters is a graduate of George Washington University andNew York University School of Law. She was appointed a Justice of the AppellateDivision, Third Department, in 1994. In 1992, she became the tirst woman elected tothe Supreme Court in the Third Department. Her judicial career began with herelection to the Ulster County Family Court in 1983. Prior to taking the bench, JusticePeters was in the private practice of law and served as an Assistant District Attorneyin Dutchess County. She was counsel to the State Division of Alcoholism andAlcohol Abuse from 1979 to 1983, when she became director of the State AssemblyGovernment Operations Committee in 1983. She also served as an assistant professorat the State University of New York at New Paltz.

Alan J. Pope, Esq. is a graduate of the Clarkson College of Technology (cum laude)and the Albany Law School. He is a member of the Broome County Bar Association,where he co-chairs the Environmental Law Committee; the New York State BarAssociation, where he serves on the Insurance, Negligence and Compensation LawSection, the Construction and Surety Division, and the Environmental Law Section;and the American Bar Association, where he serves on the Tort & Insurance PracticeSection and the Construction Industry Forum Committee. Mr. Pope is also anAssociate Member of the American Society of Civil Engineers, a member of the NewYork Chapter of the General Contractors Association of America, an AssociateMember of the Building Contractors of Triple Cities, and a member of the BroomeCounty Environmental Management Council.

Honorable Terry Jane Ruderman graduated cum laude from Pace UniversitySchool of Law, holds a Ph.D. in History from the Graduate Center of the CityUniversity of New York and Masters Degrees from City College and CornellUniversity. [n 1995, Judge Ruderman was appointed to the Court of Claims and isassigned to the White Plains district. At the time she was the Principal Law Clerk to aJustice of the Supreme Court. Previously, she served as an Assistant District Attorneyand Dcputy County Attorney in Westchester County, and later she was in the privatepractice of Jaw. Judge Ruderman is a member of the New York State Committee onWomen in the Courts and Chair of the Gender Fairness Committee for the NinthJudicial District, and she has served on the Ninth Judicial District Task Force on

47

Reducing Civil Litigation and Delay. She is also Vice President of the New YorkState Association of Women Judges, Treasurer of the White Plains Bar Association, aboard member and former Vice President of the Westchester Women's BarAssoCiation and a former State Director of the Women's Bar Association of the Stateof New York. Judge Ruderman also sits on the Alumni Board of Pace UniversitySchool of Law and the Cornell University President's Council of Cornell Women.

BIOGRAPHIES OF COMMISSION ATTORNEYS

Gerald Stern, Administrator and Counsel, is a graduate of Brooklyn College, theSyracuse University College of Law and the New York University School of Law, wherehe earned an LL.M. in Criminal Justice. Mr. Stern has been Administrator of theCommission since its inception. He previously served as Director of Administration ofthe Courts, First Judicial Department, Assistant Corporation Counsel for New York City,Staff Attorney on the President's Commission on Law Enforcement and theAdministration of Justice, Legal Director of a legal service unit in Syracuse, andAssistant District Attorney in New York County.

Robert H. Tembeckjian, Deputy Administrator and Deputy Counsel, is a graduate ofSyracuse University, the Fordham University School of Law and Harvard University'sKennedy School of Government, where he earned a Masters in Public Administration.He was a Fulbright Scholar to Armenia in 1994, teaching graduate courses and lecturingon constitutional law and ethics at the American University of Arnlenia and YerevanState University. He is a member of the Board of Trustees of the United NationsInternational School, and the Board of Directors of the Civic Education Project.

Stephen F. Downs, Chief Allorney (Albany), is a graduate of Amherst College andCornell Law School. He served in India as a member of the Peace Corps from 1964 to1966. He was in private practice in New York City from 1969 to 1975, and he joined theCommission's staff in 1975 as a staff attorney. He has been Chief Attorney in charge ofthe Commission's Albany office since 1978.

John J. Postel, ChiefAllorney (Rochester), is a graduate of the University of Albany andthe Albany Law School of Union University. He joined the Commission's staff in 1980as an assistant staff attorney in Albany. He has been Chief Attorney in charge of theCommission's Rochester office since 1984. Mr. Postel is a past president of theGoverning Council of St. Thomas More R.C. Parish. He is a former officer of thePittsford-Mendon Ponds Association and a former President of the StonybrookAssociation. He served as the advisor to the Sutherland High School Mock Trial Teamfor eight years. He is the Vice President and a past Treasurer of the Pittsford GoldenLions Football Club, Inc. He is an assistant director and coach for Pittsford CommunityLacrosse. He is an active member of the Pittsford Mustangs Soccer Club, Inc.

48

Alan W. Friedberg, Senior Attorney, is a graduate of Brooklyn College, the BrooklynLaw School and the New York University Law School, where he earned an LL.M. inCriminal Justice. He previously served as a staff attorney in the Law OHice of the NewYork City Board of Education, as an adjunct assistant professor of business law atBrooklyn College, and as a junior high school teacher in the New Yark City publicschoo1system.

Cathleen S. Cenci, Senior Attorney, graduated summa cum laude from Potsdam Collegein 1980. In 1979, she completed the course superior at the Institute of Touraine, Tours,France. Ms. Cenci received her JD from Albany Law School in 1984 and joined theCommission as an assistant staff attorney in 1985. Ms. Cenci is a judge of the AlbanyLaw School moot court competitions and a member of Albany County Big BrotherslBigSisters.

Seema Ali, StaffAttorney, is a graduate of Yark University in Toronto, Ontario, and theSyracuse University College of Law. She has been a law clerk with the New York StateAttorney General's Office and the law firm of OJ. & .LA. Cirando in Syracuse. Ms. Aliis a mentor/tutor with the Monroe County Bar Association's Lawyers for LearningProgram.

Vickie Ma, StaffAttorney, is a graduate of the University of Wisconsin at Madison andAlbany Law School, where she was Associate Editor of the Law Review. Prior to joiningthe Commission staff, she served as an Assistant District Attorney in Kings County.

Clerk of the Commission

Jean M. Savanyu, Clerk of the Commission, is a graduate of Smith College and theFordham University School of Law (cum laude). She joined the Commission's staff in1977 and served as Senior Attorney from 1987 to 2000, when she was appointed Clerk ofthe Commission. Prior to joining the Commission, she worked as an editor and writer.Ms. Savanyu teaches in the paralegal program at Maryroount Manhattan College and is amember of its advisory board.

49

Referee."---

REFEREES WHO SERVED IN 2000

City

Mark S. Arisohn, Esq.William L Aronwald, Esq.William C. Banks, Esq.Joseph A. Barrette, Esq.Patrick J. Berrigan, Esq.A. Vincent Blizard, Esq.Jay C. Carlisle, Esq.Bruno Colapietro, Esq.Joan L. Ellenbogen, Esq.Robert L. Ellis, Esq.Vincent D. Farrell, Esq.Paul A. Feigenbaum, Esq.Maryann Saccomando Freedman, Esq.Douglas S. Gates, Esq.Thomas F. Gleason, Esq.Hon. Bertram HarnettAnn Horowitz, Esq.Michael J. Hutter, Esq.Hon. Janet A. JohnsonH. Wayne Judge, Esq.Robert M. Kaufman, Esq.C. Bruce Lawrence, Esq.Stanford G. Lotwin, Esq.James C. Moore, Esq.John J. Poklemba, Esq.Peter Preiser, Esq.Roger W. Robinson, Esq.Laurie Shanks" Esq.Hon. Felice K. SheaMilton Sherman, Esq.Shirley A. Siegel, Esq.Hon. Richard D. SimonsRobert S, Smith, Esq.Joseph H, Spain, Esq.Edward S. Spector, Esq.Justin L. Vigdor, Esq.Nancy F. Wechsler, Esq.Michael Whiteman, Esq.

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New YorkWhite Plains

SyracuseSyracuse

Niagara FallsRochester

White PlainsBinghamtonNew YorkNew YorkMineolaAlbanyBuffalo

RochesterAlbany

New YorkAlbanyAlbany

White PlainsGlens FallsNew YorkRochesterNew YorkRochester

AlbanySchenectady

New YorkAlbany

New YorkNew YorkNew York

RomeNew YorkNew York

BuffaloRochesterNew York

Albany

New YorkWestchesterOnondagaOnondagaNiagaraMonroe

WestchesterBroome

New YorkNew York

NassauAlbany

ErieMonroeAlbany

New YorkAlbanyAlbany

WestchesterWarren

New YorkMonroe

New YorkMonroeAlbany

SchenectadyNew York

AlbanyNew YorkNew YorkNew York

OneidaNew YorkNew York

ErieMonroe

New YorkAlbany

The Commission's Powers,Duties & History

2001 Annual Report

New York StateCommission on Judicial Conduct

The Commission's Powers, Duties and History

Creation of the New York StateCommission on Judicial Conduct

For decades prior to the creation of the Commission onJudicial Conduct, judges in New York State were subject toprofessional discipline by a patchwork of courts andprocedures. The system, which relied on judges to disciplinefellow judges, was ineffective. In the 100 years prior to thecreation of the Commission, only 23 judges were disciplinedby the patchwork system of ad hoc judicial disciplinarybodies. For example, an ad hoc Court on the Judiciary wasconvened only six times prior to 1974. There was no staff or

even an office to receive and investigate complaints against judges.

Starting in 1974, the Legislature changed the judicial disciplinary system, creating atemporary commission with a full-time professional staffto investigate and prosecutecases of judieial misconduct. In 1976 and again in 1977, the electorateoverwhelmingly endorsed and strengthened the new commission, making itpermanent and expanding its powers by amending the State Constitution.

The Commission's Powers,Duties, Operations and History

The State Commission on Judicial Conduct is the disci­plinary agency constitutionally designated to reviewcomplaints of judicial misconduct in New York State. TheCommission's objective is to enforce the obligation ofjudgesto observe high standards ofconduct while safeguarding theirright to decide cases independently. The Commission doesnot act as an appellate court. It does not review judicialdecisions or alleged errors of law, nor does it issue advisoryopinions, give legal advice or represent litigants. Whenappropriate, it refers complaints to other agencies

By offering a forum for citizens with conduct-related complaints, and by discipliningthose judges who transgress ethical constraints, the Commission seeks to insure

53

compliance with established standards ofethical judicial behavior, thereby promotingpublic confidence in the integrity and honor of the judiciary.

All 50 states and the District of Columbia have adopted a commission system to meetthese goals.

In New York, a temporary commission created by the Legislature in 1974 beganoperations in January 1975. It was made pennanent in September 1976 by aconstitutional amendment A second constitutional amendment, effective on April I,1978, created the present Commission with expanded membership and jurisdiction.(For clarity, the Commission which operated from September 1976 through March1978 will be referred to as the "former" Commission.)

~" Membership and Staff

JV The Commission is composed of 11 members serving four-year(/ terms. Four members are appointed by the Governor, three by the

~CJ Chief Judge of the Court of Appeals, and one by each of the fourleaders of the Legislature. The Constitution requires that four members be judges, atleast one be an attorney, and at least two be lay persons. The Commission elects oneof its members to be chairperson and appoints an Administrator and a Clerk. TheAdministrator is responsible for hiring staff and supervising staff activities subject tothe Commission's direction and policies.

The following individuals have served on the Commission since its inception.Asterisks denote those members who chaired the Commission.

Hon. Fritz W. Alexander, II (1979-85)Hon. Myriam J. Altman (1988-93)

Helaine M. Barnett (1990-96)Herbert L. Bellamy, Sr. (1990-94)*Henry T. Berger (1988-present)

*John J. Bower (1982-90)Hon. Evelyn L. Braun (1994-95)

David Bromberg (1975-88)Jeremy Ann Brown (1997-2001)

Hon. Richard J. Cardamone (1978-81)Hon. Carmen Beauchamp Ciparick (1985-93)

E. Garrett Cleary (1981-96)Stephen R. Coffey (I 995-present)

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Howard Coughlin (1974-76)Mary Ann Crotty (1994-1998)Dolores DelBello (1976-94)

Han. Herbert B. Evans (1978-79)*William Fitzpatrick (1974-75)

Lawrence S. Goldman (1990-present)Han. Louis M. Greenblatt (1976-78)Christina Hernandez (1999-present)Han. James D. Hopkins (1974-76)Han. Daniel W. Joy (1998-2000)

Michael M. Kirsch (1974-82)*Victor A. Kovner (1975-90)

William B. Lawless (1974-75)Han. Daniel F. Luciano (1995-present)

William V. Maggipinto (1974-81)Han. Frederick M. Marshall (1996-present)

Han. Ann T. Mikoll (1974-78)Han. Juanita Bing Newton (1994-1999)Han. William J. Ostrowski (1982-89)Han. Karen K. Peters (2000-present)

Alan 1. Pope (1997-present)*Lillemor T. Robb (1974-88)Han. Isaac Rubin (1979-90)

Han. Terry Jane Ruderman (1999-present)*Hon. Eugene W. Salisbury (1989-2001)

Bany C. Sample (1994-97)Han. Felice K. Shea (1978-88)

John J. Sheehy (1983-95)Han. Morton B. Silbennan (1978)

Han. William C. Thompson (1990-1998)Carroll 1. Wainwright, Jr. (1974-83)

The Commission's principal office is in New York City. Offices are also maintainedin Albany and Rochester.

~'" The Commission's Authority

/'l~ The Commission has the authority to receive and review written/ complaints of misconduct against judges, initiate complaints on its

'f} own motion, conduct investigations, file Formal WrittenComplaints and conduct fonnal hearings thereon, subpoena witnesses and docu-

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ments, and make appropriate determinations as to dismissing complaints or disci­plining judges within the state unified court system. This authority is derived fromArticle 6, Section 22, of the Constitution of the State of New York, and Article 2-Aof the Judiciary Law of the State of New York.

By provision of the State Constitution (Article 6, Section 22), the Commission:

shall receive, initiate, investigate and hear complaints withrespect to the conduct, qualifications, fitness to perform Of

performance of official duties of any judge or justice of theunified court system...and may determine that a judge Of justicebe admonished, censured Of removed from office for cause, in­cluding, but not limited to, misconduct in ot1ice, persistentfailure to perform his duties, habitual intemperance, andconduct, O!l or offthe bench, prejudicial to the administration ofjustice, or that a judge or justice be retired for mental orphysical disability preventing the proper performance of hisjudicial duties.

The types of complaints that may be investigated by the Commission includeimproper demeanor, conflicts of interest, violations of defcndants' or litigants' rights,intoxication, bias, prejudice, favoritism, gross neglect, corruption, certain prohibitedpolitical activity and other misconduct on or off the bench.

Standards ofconduct are set forth primarily in the Rules Governing Judicial Conduct(originally promulgated by the Administrative Board of the Judicial Conference andsubsequently adopted by the Chief Administrator of the COUlis with the approval ofthe Court of Appeals) and the Code of Judicial Conduct (adopted by the New YorkState Bar Association).

If the Commission determines that disciplinary action is warranted, it may render adetermination to impose one of four sanctions, subject to review by the Court ofAppeals upon timely request by the respondent-judge. If review is not requestedwithin 30 days of service of the detennination upon the judge, the determinationbecomes final. The Commission may render determinations to:

• admonish a judge publicly;• censure a judge publicly;• remove a judge from ot1ice;• retire a judge for disability.

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In accordance with its rules, the Commission may also issue a confidential lettcr ofdismissal and caution to a judge, despite a dismissal of the complaint, when it isdetermined that the circumstances so warrant. In some cases the Commission hasissued such a letter after charges of misconduct have been sustained.

/;' Procedures'., .',

/~:!1 The Commission meets several times a year. At its meetings, the....~:.fI Commission reviews each new complaint of misconduct andof" makes an initial decision whether to investigate or dismiss the

complaint. It also reviews staff reports on ongoing matters, makes finaldeternlinations on completed proceedings, considers motions and entertains oralarguments peliaining to cases in which judges have been served with formal charges,and conducts other Commission business.

No investigation may be commenced by staff without authorization by theCommission. The filing of formal charges also must be authorized by theCommission.

After the Commission authorizes an investigation, the Administrator assigns thecomplaint to a staff attorney, who works with investigative staff. If appropriate,witnesses are interviewed and court records are examined. The judge may be askedto respond in writing to the allegations. In some instances, the Commission requiresthe appearance of the judge to testify during the course of the investigation. Thejudge's testimony is under oath, and a Commission member or referee designated bythe COlmnission must be present. Although such an "investigative appearance" is nota formal hearing, the judge is entitled to be represented by counsel. The judge mayalso submit evidentiary data and materials for the Commission's consideration.

If the Commission finds after an investigation that the circumstances so warrant, itwill direct its Administrator to serve upon the judge a Fonnal Written Complaintcontaining specific charges of misconduct. The Formal Written Complaint institutesthe formal disciplinary proceeding. After receiving the judge's answer, theCommission may, ifit determines there are no disputed issues of fact, grant a motionfor summary detennination. It may also accept an agreed statement of factssubmitted by the Administrator and the respondent-judge. Where there are factualdisputes that make summary determination inappropriate or that are not resolved byan agreed statement of facts, the COlmnission will appoint a referee to conduct afonnal hearing and report proposed findings offact and conclusions oflaw. Referees

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are designated by the Commission from a panel of attomeys and former judges.Following the Commission's receipt of the referee's report, on a motion to confirm ordisaffinn the report, both the administrator and the respondent may submit legalmemoranda and present oral argument on issues of misconduct and sanction. Therespondent-judge (in addition to his or her counsel) may appear and be heard at oralargument.

In deciding motions, considering proposed agreed statements of fact and makingdetenninations with respect to misconduct and sanction, and in considering othermatters pertaining to cases in which Fonnal Written Complaints have been served,the Commission deliberates in executive session, without the presence or assistanceof its Administrator or regular staff. The Clerk of the Commission assists theCommission in executive session, but does not participate in either an investigative oradversarial capacity in any cases pending before the Commission.

The Commission may dismiss a complaint at any stage during the investigation oradjudication.

When the Commission determines that a judge should be admonished, censured,removed or retired, its written determination is forwarded to the Chief Judge of theCourt ofAppeals, who in turn serves it upon the respondent-judge. Upon completionof service, the Commission's detennination and the record of its proceedings becomepublic. (Prior to this point, by operation of the strict provisions in Article 2-A of theJudiciary Law, all proceedings and records are confidential.) The respondent-judgehas 30 days to request full review of the Commission's determination by the Court ofAppeals. The Court may accept or reject the Commission's findings of fact orconclusions of law, make new or different findings of fact or conclusions of law,accept or reject the determined sanction, or make a different detennination as tosanction. Ifno request for review is made within 30 days, the sanction determined bythe Commission becomes effective.

L:/~ Temporary State Commission on Judicial Conduct/» The Temporary State Commission on Judicial Conduct was/ established in late 1974 and commenced operations in January

~CJ 1975. The temporary Commission had the authority to investigateallegations of misconduct against judges in the state unified court system, makeconfidential suggestions and recommendations in the nature ofadmonitions to judgeswhen appropriate and, in more serious cases, recommend that formal disciplinary

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proceedings be commenced in the appropriate court. All disciplinary proceedings inthe Court on the Judiciary and most in the Appellate Division were public.

The temporary Commission was composed of two judges, five lawyers and two laypersons. It functioned through August 31, 1976, when it was succeeded by apermanent commission created by amendment to the State Constitution.

The temporary Commission received 724 complaints, dismissed 441 upon initialreview and commenced 283 investigations during its tenure. It admonished 19judges and initiated formal disciplinary proceedings against eight judges, in either theAppellate Division or the Court on the Judiciary. One of these judges was removedfrom office and one was censured. The remaining six matters were pending when thetemporary Commission was superseded by its successor Commission.

Five judges resigned while under investigation.

<~;~. Former State Commission on Judicial Conduct

~.'//:J ::1 The temporary Commission was succeeded on September 1, 1976,(/ by the State Commission on Judicial Conduct, established by a

.~:. constitutional amendment overwhelmingly approved by the NewYork State electorate and supplemented by legislative enactment (Article 2-A of thejudiciary Law). The former Commission's tenure lasted through March 31, 1978,when it was replaced by thc present Commission.

The fonncr COimnission was empowered to investigate allegations of misconductagainst judges, impose certain disciplinary sanctions and, when appropriate, initiateformal disciplinary proceedings in the Court on the Judiciary, which, by the sameconstitutional amendment, had been given jurisdiction over all 3,500 judges in theunified court system. The sanctions that could be imposed by the formerCommission were private admonition, public censure, suspension without pay for upto six months, and retirement for physical or mental disability. Censure, suspensionand retirement actions could not be imposed until the judge had been afforded anopportunity for a full adversary hearing..These Commission sanctions were alsosUQject to a de novo hearing in the Court on the Judiciary at the request of the judge.

The former Commission, like the temporary Commission, was composed of twojudges, five lawyers and two lay persons, and its jurisdiction extended to judges

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within the state unified court system. The former Commission was authorized tocontinue all matters left pending by the temporary Commission.

The fonner Commission considered 1,418 complaints, dismissed 629 upon initialreview, authorized 789 investigations and continued 162 investigations left pendingby the temporary Commission.

During its tenure, the fonner Commission took action that resulted in the following:

• 15 judges were publicly censured;• 40 judges were privately admonished;• 17 judges were issued confidential letters

of suggestion and recommendation.

The former Commission also initiated formal disciplinary proceedings in the Courton the Judiciary against 45 judges and continued six proceedings left pending by thetemporary Commission. Those proceedings resulted in the following:

• 1 removal;• 2 suspensions;• 3 censures;• 10 cases closed upon resignation of the judge;• 2 cases closed upon expiration of the judge's term;• 1 proceeding closed without discipline and with instruction by the

Court on the Judiciary that the matter be deemed confidential.

The remaining 32 proceedings were pending when the former Commission expired.They were continued by the present Commission.

In addition to the ten judges who resigned after proceedings had been commenced inthe Court on the Judiciary, 28 other judges resigned while under investigation by theformer Commission.

Continuation from 1978 to 1980 of Formal ProceedingsCommenced by the Temporary and Former Commissions

Thirty-two fonnal disciplinary proceedings which had beeninitiated in the Court on the Judiciary by either the temporary or

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former Commission were pending when the fonner Commission was superseded onApril I, 1978, and were continued without interruption by the present Commission.

The last five of these 32 proceedings were concluded in 1980, with the followingresults, reported in greater detail in the Commission's previous annual reports:

.. 4 judges were removed from office;

.. 1 judge was suspended without pay for six months;

.. 2 judges were suspended without pay for four months;

.. 21 judges were censured;

.. 1judge was directed to reform his conduct consistent with theCourt's opinion;

" I judge was barred from holding future judicial office after heresigned; and

.. 2 judges died before the matters were concluded.

/;:" The 1978 Constitutional Amendment

..

/;;~;;;.. The present Commission was created by amendment to the State(/ Constitution, effective April 1, 1978. The amendment created an

~.. II-member Commission (superseding the nine-member formerCommission), broadened the scope of the Commission's authority and streamlinedthe procedure for disciplining judges within the state unified court system. The Courton the Judiciary was abolished, pending completion of those cases that had alreadybeen commenced before it. All formal disciplinary hearings under the newamendment are conducted by the Commission.

Subsequently, the State Legislature amended Article 2-A of the Judiciary Law, theCommission's governing statute, to implement the new provisions of theconstitutional amendment.

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Summary of Complaints ConsideredSince the Commission's Inception

Since January 1975, when the temporary Commissioncommenced operations, 27,006 complaints of judicialmisconduct have been considered by the temporary, fonnerand present Commissions. Of these, 21,556 (80%) weredismissed upon initial review or after a preliminary reviewand inquiry, and 5450 investigations were authorized. Of the5450 investigations authorized, the following dispositionshave been made through December 31,2000:

• 2603 were dismissed without action afterinvestigation;

• 1117 were dismissed with letters of caution orsuggestions and recommendations to the judge;the actual number of such letters totals 1035,58ofwhich were issued after fonnal charges hadbeen sustained and detenninations made that thejudge had engaged in misconduct;

• 442 were closed upon resignation ofthe judgeduring investigation or in the course ofdisciplinary proceedings; the actual number ofsuch resignations was 316;

• 373 were closed upon vacancy of office by thejudge other than by resignation;

• 738 resulted in disciplinary action; and

• 177 are pending.

Of the 738 disciplinary matters noted above, the following actions have beenrecorded since 1975 in matters initiated by the temporary, fonner or presentCommission. (It should be noted that several complaints against a single judge maybe disposed of in a single action. This accounts for the apparent discrepancy betweenthe number of complaints and the number ofjudges acted upon.)

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• 135 judges were removed from office;

• 3 judges were suspended without pay for sixmonths (under previous law);

• 2 judges were suspended without pay for fourmonths (under previouslaw);

• 221 judges were censured publicly;

• 168 judges were admonished publicly; and

• 59 judges were admonished confidentially bythe temporary or former Commission.

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Text of the RulesGoverning Judicial Conduct

2001 Annual Report

New York StateCommission on Judicial Conduct

PART 100 OF THE RULES OF THE

CHIEF ADMINISTRATOR OF THE COURTS

GOVERNING JUDICIAL CONDUCT

PREAMBLE

The rules governing judicial conduct are rules of reason. They should be applied consis­tently with constitutional requirements, statutes, other court rules and decisional law and in thecontext of all relevant circumstances. The rules are to be construed so as not to impinge on theessential independence ofjudges in making judicial decisions.

The rules are designed to provide guidance to judges and candidates for elective judicialoffice and to provide a structure for regulating conduct through disciplinary agencies. They arenot designed or intended as a basis for civil liability or criminal prosecution.

The text of the rules is intended to govern conduct ofjudges and candidates for electivejudicial office and to be binding upon them. It is not intended, however, that every transgressionwill result in disciplinary action. Whether disciplinary action is appropriate, and the degree ofdiscipline to be imposed, should be determined through a reasonable and reasoned application ofthe text and should depend on such factors as the seriousness of the transgression, whether thereis a pattern of improper activity and the effect of the improper activity on others or on the judicialsystem.

The rules are not intended as an exhaustive guide for conduct. Judges and judicial candi­dates also should be governed in their judicial and personal conduct by general ethical standards.The rules are intended, however, to state basic standards which should govern their conduct andto provide guidance to assist them in establishing and maintaining high standards ofjudicial andpersonal conduct.

§lOO.O Terminology. The following terms used in this Part are defined as follows:

(A) A "candidate" is a person seeking selection for or retention in public office by elec­tion. A person becomes a candidate for public office as soon as he or she makes a public an­nouncement of candidacy, or authorizes solicitation or acceptance of contributions.

(B) "Court personnel" does not include the lawyers in a proceeding before a judge.

(C) The "degree of relationship" is calculated according to the civil law system. That is,where the judge and the party are in the same line of descent, degree is ascertained by ascendingor descending from the judge to the party, counting a degree for each person, including the partybut excluding the judge. Where the judge and the party are in different lines of descent, degree isascertained by ascending from the judge to the common ancestor, and descending to the party,counting a degree for each person in both lines, including the common ancestor and the party butexcluding the judge. The following pcrsons are relatives within the fourth degree of relationship:great-grandparent, grandparent, parent, uncle, aunt, brother, sister, first cousin, child, grandchild,

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great-grandchild, nephew or niece. The sixth degree of relationship includes second cousins.

(D) "Economic interest" denotes ownership ofa legal or equitable interest, howeversmall, or a relationship as officer, director, advisor or other active participant in the affairs of aparty, except that

(I) ownership of an interest in a mutual or common investment fund that holdssecurities is not an economic interest in such securities unless the judgc participates in the man­agement of the fund or a proceeding pending or impending before the judge could substantiallyaffect the value of the interest;

(2) service by a judge as an officer, director, advisor or other active participant inan educational, religious, charitable, cultural, fraternal or civic organization, or service by ajudge's spouse or child as an officer, director, advisor or other active participant in any organiza­tion does not create an economic interest in securities held by that organization;

(3) a deposit in a financial institution, the proprietary interest of a policy holder ina mutual insurance company, of a depositor in a mutual savings association or of a member in acredit union, or a similar proprietary interest, is not an economic interest in the organization, un­less a proceeding pending or impending before the judge could substantially affect the value ofthe interest;

(4) ownership of government securities is not an economic interest in the issuerunless a proceeding pending or impending before the judge could substantially affect the value ofthe securities.

(E) "Fiduciary" includes such relationships as executor, administrator, trustee, and guard-mn.

(F) "Knowingly", "knowledge", "known" or "knows" denotes actual knowledge of thefact in question. A person's knowledge may be inferred from circumstances.

(G) "Law" denotes court rules as well as statutes, constitutional provisions and deci­sionallaw.

(H) "Member of the candidate's family" denotes a spouse, child, grandchild, parent,grandparent or other relative or person with whom the candidate maintains a close familial rela­tionship.

(I) "Member of the judge's family" denotes a spouse, child, grandchild, parent, grandpar­ent or other rclative or person with whom the judge maintains a close familial relationship.

(l) "Member of the judge's family residing in the judge's household" denotes any rela­tive ofajudge by blood or marriage, or a person treated by ajudge as a member of the judge'sfamily, who resides in the judge's household.

(K) "Non-public information" denotes information that, by law, is not available to thepublic. Non-pUblic information may include but is not limited to: information that is sealed bystatute or court order, impounded or communicated in camera; and information offered in grandjury proceedings, presentencing reports, dependency cases or psychiatric reports.

(L) A "part-time judge", including an acting part-time judge, is a judge who serves re­peatedly on a part-time basis by election or under a continuing appointment.

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(M) "Political organization" denotes a political party, political club or other group, theprincipal purpose of which is to further the election or appointment of candidates to political of~

fice.

(N) "Public election" includes primary and general elections; it includes partisan elec­tions, non-partisan elections and retention elections.

(0) "Require". The rules prescribing that ajudge "require" certain conduct of others,like all of the rules in this Part, are rules of reason. The use of the term "require" in that contcxtmeans a judge is to exercise reasonable direction and control over the conduct of those personssubject to the judge's direction and control.

(P) "Rules"; citation. Unless otherwisc made clear by the citation in the text, referencesto individual components of the rules are cited as follows:

"Part" - refers to Part 100

"section" - refers to a provision consisting of 100 followed hy a decimal (100.1)

"subdivision" - refers to a provision designated by a capital letter (A).

"paragraph" - refers to a provision designated by an Arabic numeral (I).

"subparagraph" - refers to a provision designated by a lower-case letter (a).

(Q) "Window Period" denotes a period beginning nine months belore a primary election,judicial nominating convention, party caucus or other party meeting for nominating candidatesfor the elective judicial office for which a judge or non-judge is an announced candidate, or forwhich a committee or other organization has publicly solicitcd or supported the judge's or non­judge's candidacy, and ending, if the judge or non-judge is a candidate in the general elcction forthat office, six months after the general election, or if he or she is not a candidate in the generalelection, six months after the date of the primary election, convention, caucus or meeting.

§100.1 A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THEJUDICIARY. An independent and honorable judiciary is indispensable to justice in our society.A judge should participate in establishing, maintaining and enforcing high standards of conduct,and shall personally observe those standards so that the integrity and independence of the judici­ary will be preserved. The provisions ofthis Part 100 are to be construed and applied to furthcrthat objective.

§100,2 A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OFIMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES. (A) A judge shall respect and com­ply with the law and shall act at all times in a manner that promotes public confidence in the in­tegrity and impartiality of the judiciary.

(8) A judge shall not allow family, social, political or other relationships to influence thejudge's judicial conduct or judgment.

(C) A judge shall not lend the prestige ofjudicial office to advance the private interestsof the judge or others; nor shall a judge conveyor permit others to convey the impression thatthey are in a special position to influence the judge. A judge shall not testify voluntarily as a

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character witness.(D) Ajudge shall not hold membership in any organization that practices invidious dis­

crimination on the basis of age, race, creed. color, sex, sexual orientation, religion. national ori­gin. disability or marital status. This provision does not prohibit ajudge from holding member­ship in an organization that is dedicated to the preservation of religious, ethnic. cultural or othervalues of legitimate common interest to its members.

§lOO.3 A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLYAND DILIGENTLY. (A) Judicial duties in general. The judicial duties of a judge take prece­dence over all the judge's other activities. The judge's judicial duties include all the duties of thejudge's office prescribed by law. In the performance of these duties. the following standards ap­ply.

(B) Adjudicative responsibilities. (I) A judge shall be faithful to the law and maintainprofessional competence in it. Ajudge shall not be swayed by partisan interests, public clamoror fear of criticism.

(2) A judge shall require order and decorum in proceedings before the judge.

(3) A judge shall be patient. dignified and courteous to litigants, jurors, witnesses.lawyers and others with whom the judge deals in an official capacity. and shall require similarconduct oflawyers, and of staff, court officials and others subject to the judge's direction andcontrol.

(4) A judge shall perform judicial duties without bias or prejudice against or infavor of any person. A judge in the performance ofjudicial duties shall not, by words or conduct.manifest bias or prejudice, including but not limited to bias or prejudice based upon age, race.creed, color, sex, sexual orientation. religion, national origin, disability, marital status or socio­economic status, and shall require staff; court officials and others subject to the judge's directionand control to refrain from such words or conduct.

(5) A judge shall require lawyers in proceedings before the judge to refrain frommanifesting, by words or conduct, bias or prejudice based upon age, race, creed, color. sex, sex­ual orientation, religion, national origin, disability, marital status or socioeconomic status. againstparties witnesses, counselor others. This paragraph does not preclude legitimate advocacy whenage. race. creed, color, sex. sexual orientation or socioeconomic status. or other similar factorsare issues in the proceeding.

(6) ajudge shall accord to every person who has a legal interest in a proceeding,or that person's lawyer, the right to be heard according to law. Ajudge shall not initiate, permit.or consider ex parte communications, or consider other communications made to the judge out­side the presence of the parties or their lawyers concerning a pending or impending proceeding,except:

(a) Ex parte communications that are made for scheduling or administrative pur­poses and that do not affect a substantial right of any party are authorized, provided the judgereasonably believes that no party will gain a procedural or tactical advantage as a result of the exparte communication, and the judge, insofar as practical and appropriate, makes provision for

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prompt notification of other parties or their lawyers ofthe substance of the ex parte communica­tion and allows an opportunity to respond.

(b) A judge may obtain the advice of a disinterested expert on the law applicableto a proceeding before the judge if the judge gives notice to the parties of the person consultedand a copy of such advice if the advice is given in writing and the substance of the advice if it isgiven orally, and aft(lfds the parties reasonable opportunity to respond.

(c) Ajudge may consult with eourt personnel whose function is to aid the judgein carrying out the judge's adjudicative responsibilities or with other judges.

(d) Ajudge, with the consent ofthe parties, may confer separately with the partiesand their lawyers on agreed- upon matters.

(e) A judge may initiate or consider any ex parte communications when author­ized by law to do so.

(7) A judge shall dispose of all judicial matters promptly, efficiently and fairly.

(8) A judge shall not make any public comment about a pending or impendingproceeding in any court within the United States or its territories. The judge shall require similarabstention on the part of court personnel subject to the judge's direction and control. This para­graph does not prohibit judges from making public statements in the course of their official du­ties or from explaining for public information the procedures of the court. This paragraph doesnot apply to proceedings in which the judge is a litigant in a personal capacity.

(9) A judge shall not commend or criticize jurors for their verdict other than in acourt order or opinion in a proceeding, but may express appreciation to jurors for their service tothe judicial system and the community.

(10) A judge shall not disclose or use, for any purpose unrelated to judicial duties,non-public information acquired in a judicial capacity.

(C) Administrative responsibilities. (1) A judge shall diligently discharge the judge'sadministmtive responsibilities without bias or prejudice and maintain professional competence injudicial administration, and should cooperate with other judges and court officials in the admini­stration of court business.

(2) A judge shall require staff, court officials and others subject to the judge'sdirection and control to observe the standards of fidelity and diligence that apply to the judge andto refrain from manifesting bias or prejudice in the performance of their official duties.

(3) A judge shall not make unnecessary appointments. A judge shall exercise thepower of appointment impartially and on the basis of merit. A judge shall avoid nepotism andfavoritism. A judge shall not approve compensation of appointees beyond the fair value of ser­vices rendered. A judge shall not appoint or vote for the appointment of any person as a memberofthe judge's staff or that of the court of which the judge is a member, or as an appointee in ajudicial proceeding. who is a relative within the sixth degree of relationship of either the judge orthe judge's spouse or the spouse of such a person. A judge shall refrain from recommending arelative within the sixth degree of relationship of either the judge or the judge's spouse or thespouse of such person for appointment or employment to another judge serving in the samecourt. A judge also shall comply with the requirements of Part 8 of the Rules of the Chief Judge

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(22 NYCRR Part 8) relating to the appointment of relatives of judges.] Nothing in this paragraphshall prohibit appointment ofthe spouse of the town or village justice, or other member of suchjustice's household, as clerk ofthe town or village court in which such justice sits, provided thatthe justice obtains the prior approval of the Chief Administrator ofthe Courts, which may begiven upon a showing of good cause.

(D) Disciplinan' responsibilities. (I) A judge who receives information indicating asubstantial likelihood that another judge has committed a substantial violation of this Part shalltake appropriate action.

(2) A judge who receives information indicating a substantial likelihood that alawyer has committed a substantial violation ofthe Code of Professional Responsibility shalltake appropriate action.

(3) Acts of a judge in the discharge of disciplinary responsibilities are part of ajudge's judicial duties.

(E) Disqualification. (I) A judge shall disqualify himself or herself in a proceeding inwhich the judge's impartiality might reasonably be questioned, including but not limited to in­stances where:

(a) (i) the judge has a personal bias or prejudice concerning a party or (ii) thejudge has personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) the judge knows that (I) the judge served as a lawyer in the matter in contro­versy, or (ii) a lawyer with whom the judge previously practiced law served during such associa­tion as a lawyer concerning the matter, or (iii) the judge has been a material witness concerningit;

(c) the judge knows that he or she, individually or as a fiduciary, or the judge'sspouse or minor child residing in the judge's household has an economic interest in the subjectmatter in controversy or in a party to the proceeding or has any other interest that could be sub­stantially affected by the proceeding;

(d) the judge knows that the judge or the judge's spouse, or a person known bythe judge to be within the sixth degree of relationship to either of them, or the spouse of such aperson:

(i) is a party to the proceeding;

(ii) is an officer, director or trustee of a party;

(iii) has an interest that could be substantially affected by the proceeding;

(iv) is likely to be a material witness in the proceeding;

(e) the judge knows thatthe judge orthe judge's spouse, or a person known bythe judge to be within the fourth degree of relationship to either of them, or the spouse of such a

] Part 8 of the Chief Judge's Rules inter alia prohibits the appointment ofcourt employees who arerelatives (within six degrees ofconsanguinity or affinity) of any judge ofthe same court within thecounty in which the appointment is to be made.

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person, is acting as a lawyer in the proceeding.

(f) Notwithstanding the provisions of subparagraphs (c) and (d) above, if a judgewould be disqualified because oftbe appearance or discovery, after the matter was assigned tothe judge, that the judge individually or as a fiduciary, the judge's spouse, or a minor child resid­ing in his or her household has an economic interest in a party to the proceeding, disqualificationis not required ifthe judge, spouse or minor child, as the case may be, divests himself or herselfof the interest that provides the grounds for the disqualification.

(2) A judge shall keep informed about the judge's personal and fiduciary economic inter­ests, and made a reasonable effort to keep informed about the personal economic interests of thejudge's spouse and minor children residing in the judge's household.

(F) Remittal of disqualification. A judge disqualified by the terms of subdivision (E),except subparagraph (I )(a)(i), subparagraph (I )(b)(i) or (iii) or subparagraph (l)(d)(i) of this sec­tion, may disclose on the record the basis of the judge's disqualification. If, following such dis­closure of any basis for disqualification, the parties who have appeared and not defaulted andtheir lawyers, without participation by the judge, all agree that the judge should not be disquali­fied, and the judge believes that he or she will be impartial and is willing to participate, the judgemay participate in the proceeding. The agreement shall be incorporated in the record of the pro­ceeding.

§lOO.4. A JUDGE SHALL SO CONDUCT THE JUDGE'S EXTRA-JUDICIAL ACTIVITIESAS TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL OBLIGATIONS. (A) Extra­judicial activities in general. A judge shall conduct all of the judgc's extra-judicial activities sothat they do not:

(I) cast reasonable doubt on the judge's capacity to act impartially as ajudge;

(2) detract from the dignity ofjudicial office; or

(3) interfere with the proper performance ofjudicial duties and are not incom­patible with judicial office.

(B) Avocational activities. A judge may speak, write, lecture, teach and participate inextra-judicial activities subject to the requirements of this Part.

(C) Governmental, civic. or charitable activities. (1) A full-time judge shall not appearat a public hearing before an executive or legislative body or official except on matters concern­ing the law, the legal system or the administration ofjustice or except when acting Q!Q se in amatter involving the judge or the judge's interests.

(2) (a) A full-time judge shall not accept appointment to a governmental committee orcommission or other governmental position that is concerned with issues of fact or policy in mat­ters other than the improvement of the law, the legal system or the administration ofjustice. Ajudge may, however, represent a country, state or locality on ceremonial occasions or in connec­tion with historical, educational or cultural activities.

(b) A judge shall not accept appointment or employment as a peace officer or po­lice officer as those terms are defined in section 1.20 of the Criminal Procedure Law.

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(3) Ajudge may be a member or serve as an officer, director, trustee or non-legal advisorof an organization or governmental agency devoted to the improvement ofthe law, the legal sys­tem or the administration ofjustice or of an educational, religious, charitable, cultural, fraternalor civic organization not conducted for profit, subject to the following limitations and the otherrequirements of this Part.

(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if itis likely that the organization

(i) will be engaged in proceedings that ordinarily would come beforethe judge, or

(ii) if the judge is a full-time judge, will be engaged regularly in ad-versary proceedings in any court.

(b) A judge as an officer, director, trustee or non-legal advisor, or a member orotherwise:

(i) may assist such an organization in planning fund-raising and mayparticipate iIi the management and investment of the organization's funds, but shall not person­ally participate in the solicitation offunds or other fund-raising activities;

(ii) may not be a speaker or the guest of honor at an organization'sfund-raising events, but the judge may attend such events. Nothing in this subparagraph shallprohibit a judge from being a speaker or guest of honor at a bar association or law school func­tion or from accepting at another organization's fund-raising event an unadvertised award ancil­lary to such event;

(iii) may make recommendations to public and private fund-granting or­ganizations on projects and programs concerning the law, the legal system or the administrationofjustice; and

(iv) shall not use or permit the use of the prestige ofjudicial office forfund-raising or membership solicitation, but may be listed as an officer, director or trustee ofsuch an organization. Use of an organization's regular letterhead for fund-raising or membershipsolicitation does not violate this provision, provided the letterhead lists only the judge's nameand office or other position in the organization, and, if comparable designations are listed forother persons, the judge's judicial designation.

(D) Financial activities. (1) A judge shall not engage in financial and business dealingsthat:

(a) may reasonahly be perceived to exploit the judge's judicial position,

(b) involve the judge with any business, organization or activity that ordinarilywill come before the judge, or

(c) involve the judge in frequent transactions or continuing business relationshipswith those lawyers or other persons likely to come before the court on which the judge serves.

(2) A judge, subject to the requirements of this Part, may hold and manage investmentsof the judge and members ofthe judge's family, including real estate.

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(3) A full-time judge shall not serve as an officer, director, manager, general partner, ad­visor, employee or other active participant of any business entity, except that:

(a) the foregoing restriction shall not be applicable to ajudge who assumed judi­cial office prior to July I, 1965, and maintained such position or activity continuously since thatdate: and

(b) a judge, subject to the requirements of this Part, may manage and participatein a business entity engaged solely in investment of the financial resources of the judge or mcm­bers of the judge's family; and

(c) any person who may be appointed to fill a full-time judicial vacancy on aninterim or temporary basis pending an election to till such vacancy may apply to the Chief Ad­ministrator of the Courts for exemption from this paragraph during the period of such interim ortemporary appointment

(4) A judge shall manage the judge's investments and other financial interests to mini­mize the number of cases in which the judge is disqualified, As soon as the judge can do sowithout serious financial detriment, the judge shall divest himself or herself of investments andother financial interests that might require frequent disqualification.

(5) A judge shall not accept, and shall urge members of the judge's family residing in thejudge's household not to accept, a gift, bequest, favor or loan from anyone except:

(a) a gift incident to a public testimonial, books, tapes and other resource materi­als supplied by publishers on a complimentary basis for official use, or an invitation to the judgeand the judge's spouse or guest to attend a bar-related function or an activity devoted to the im­provement of the law, the legal system or the administration ofjustice;

(b) a gift, award or benefit incident to the business, profession or other separateactivity of a spouse or other tamily member ofajudge residing in the judge's household, includ­ing gifts, awards and benefits for the use of both the spouse or other family member and thejudge (as spouse or family member), provided the gift, award or benefit could not reasonably beperceived as intended to influence the judge in the performance ofjudicial duties;

(c) ordinary social hospitality;

(d) a gift from a relative or friend, for a special occasion such as a wedding, anni­versary or birthday, ifthe gift is fairly commensurate with the occasion and the relationship;

(e) a gift, bequest, favor or loan from a relative or close personal friend whoseappearance or interest in a case would in any event require disqualification under section lOO.3(E);

(1) a loan from a lending institution in its regular course of business on the sameterms generally available to persons who are not judges;

(g) a scholarship or fellowship awarded on the same terms and based on the samecriteria applied to other applicants; or

(h) any other gift, bequest, favor or loan, only if: the donor is not a party or otherperson who has come or is likely to come or whose interests have come or are likely to come be­fore the judge; and if its value exceeds $150.00, the judge reports it in the same manner as thejudge reports compensation in section 100.4(H).

75

(E) Fiduciary activities. (1) A lull-time judge shall not serve as executor. administratoror other personal representative, trustee, guardian, attorney in fact or other fiduciary, designatedby an instrument executed after January I, 1974, except for the estate, trust or person of a mem­ber of the judge's family, or, with the approval ofthe Chief Administrator of the Courts, a personnot a member of the judge's family with whom the judge has maintained a longstanding personalrelationship oftrust and confidence, and then only if such services will not interfere with theproper performance ofjudicial duties.

(2) The same restrictions on financial activities that apply to ajudge personallyalso apply to the judge while acting in a fiduciary capacity.

(3) Any person who may be appointed to fill a full-time judicial vacancy on aninterim or temporary basis pending an election to fill such vacancy may apply to the Chief Ad­ministrator of the Courts for exemption from paragraphs (I) and (2) during the period of suchinterim or temporary appointment.

(F) Service as arbitrator or mediator. A full-time judge shall not act as an arbitrator ormediator or otherwise perfonn judicial functions in a private capacity unless expressly authorizedby law.

(G) Practice oflaw. A full-time judge shall not practice law. Notwithstanding this pro­hibition, a judge may act Q[Q se and may, without compensation, give legal advice to a memberof the judge's family.

(H) Compensation. reimbursement and reporting. (l) Compensation and reimburse­ment. A full-time judge may receive compensation and reimbursement of expenses for the extra­judicial activities permitted by this Part, if the source of such payments does not give the appear­ance of influencing the judge's performance ofjudicial duties or otherwise give the appearanceof impropriety, subject to the following restrictions:

(a) Compensation shall not exceed a reasonable amount nor shall it exceed what aperson who is not a judge would receive for the same activity.

(b) Expense reimbursement shall be limited to the actual cost of travel, food andlodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge'sspouse or guest. Any payment in excess of such an amount is compensation.

(c) No full-time judge shall solicit or receive compensation for extra-judicial ac­tivities performed for or on behalf of: (1) New York State, its political subdivisions or any officeor agency thereof; (2) a school, college or university that is financially supported primarily byNew York State or any of its political subdivisions, or any officially recognized body of studentsthereof, except that a judge may receive the ordinary compensation for a lecture or for teaching aregular course of study at any college or university if the teaching does not conflict with theproper performance ofjudicial duties; or (3) any private legal aid bureau or society designed torepresent indigents in accordance with Article 18-B of the County Law.

(2) Public reports. A full-time judge shall report tbe date, place and nature of any activ­ity for which the judge received compensation, and the name ofthe payor and the amount ofcompensation so received. Compensation or income of a spouse attributed to the judge by opera­tion of a community property law is not extra-judicial compensation to the judge. The judge's

76.

report shall be made at least annually and shall be filed as a public document in the office of theclerk of the court on which the judge serves or other office designated by law.

(I) Financial disclosure. Disclosure of a judge's income, debts, investments or other as­sets is required only to the extent provided in this section and in section I00.3(F), or as requiredby Part 40 of the Rules of the Chief Judge (22 NYCRR Part 40), or as otherwise required by law.

§IOO.5 A JUDGE OR CANDIDATE FOR ELECTIVE JUDICIAL OFFICE SHALL REFRAINFROM INAPPROPRIATE POLITICAL ACTIVITY.

(A) Incumbent judges and others running for public election to judicial office. (I) Nei­ther a sitting judge nor a candidate for public election to judicial office shall directly or indirectlyengage in any political activity except (i) as otherwise authorized by this section or by law, (Ii) tovote and to identify himself or herself as a member of a political party, and (iii) on behalf ofmeasures to improve the law, the legal system or the administration ofjustice. Prohibited politi­cal activity shall include:

(a) acting as a leader or holding an office in a political organization;

(b) except as provided in section 100.5(A)(3), being a member of a political or­ganization other than enrollment and membership in a political party;

(c) engaging in any partisan political activity, provided that nothing in this sectionshall prohibit a judge or candidate from participating in his or her own campaign for elective ju­dicial office or shall restrict a non-judge holder of public office in the exercise of the functions ofthat office;

(d) participating in any political campaign for any office or permitting his or hername to be used in connection with any activity of a political organization;

(e) publicly endorsing or publicly opposing (other than by running against) an-other candidate for public office;

(f) making speeches on behalf of a political organization or another candidate;

(g) attending political gatherings;

(h) soliciting funds for, paying an assessment to, or making a contribution to apolitical organization or candidate; or

(I) purchasing tickets for politically sponsored dinners or other functions, includ­ing any such function for a non-political purpose.

(2) A judge or non-judge who is a candidate for public election to judicial oftice mayparticipate in his or her own campaign for judicial office as provided in this section and may con­tribute to his or her own campaign as permitted under the Election Law. During the Window Pe­riod as defined in subdivision (Q) of section 100.0 of this Part, ajudge or non-judge who is acandidate for public election to judicial office, except as prohibited by law, may:

(i) attend and speak to gatherings on his or her own behalf; provided that thecandidate does not personally solicit contributions;

77

(ii) appear in newspaper, television and other media advertisements support-ing his or her candidacy, and distribute pamphlets and other promotional campaign literaturesupporting his or her candidacy;

(iii) appear at gatherings, and in newspaper, television and other media advertise­ments with the candidates who make up the slate of which the judge or candidate is a part;

(iv) permit the candidate's name to be listed on election materials along withthe names of other candidates for elective public office;

(v) purchase two tickets to, and attend, politically sponsored dinners andother functions even where the cost of the ticket to such dinner or other function exceeds the pro­portionate cost of the dinner or function.

(3) A non-judge who is a candidate for public election to judicial office may also be amember of a political organization and continue to pay ordinary assessments and ordinary contri­butions to such organization.

(4) A judge or a non-judge who is a candidate for public election to judicial office:

(a) shall maintain the dignity appropriate to judicial office and act in a mannerconsistent with the integrity and independence of the judiciary, and shall encourage members ofthe candidate's family to adhere to the same standards ofpolitical conduct in support ofthe can­didate as apply to the candidate;

(b) shall prohibit employees and officials who serve at the pleasure ofthe candi­date, and shall discourage other employees and officials subject to the candidate's direction andcontrol, from doing on the candidate's behalf what the candidate is prohibited from doing underthis Part;

(c) except to the extent permitted by section IOO.5(A)(5), shall not authorize orknowingly permit any person to do for the candidate what the candidate is prohibited from doingunder this Part;

(d) shall not:

(i) make pledges or promises of conduct in office other than the faithfuland impartial performance of the duties ofthe office;

(ii) make statements that commit or appear to commit the candidate withrespect to cases, controversies or issues that are likely to come before the court; or

(iii) knowingly make any false statement or misrepresent the identity,qualifications, current position Of other fact concerning the candidate or an opponent; but

(e) may respond to personal attacks or attacks on the candidate's record as long asthe response does not violate subparagraphs 100.5(A)(4)(a) and (d).

(5) A judge or candidate for public election to judicial office shall not personally solicitOf accept campaign contributions, but may establish committees of responsible persons to con­duct campaigns for the candidate through media advertisements, brochures, mailings, candidateforums and other means not prohibited by law. Such committees may solicit and accept rea­sonable campaign contributions and support from the public, including lawyers, manage the ex-

78

penditure of funds for the candidate's campaign and obtain public statements of support for hisor her candidacy. Such committees may solicit and accept such contributions and support onlyduring the Window Period. A candidate shall not use or permit the use of campaign contribu­tions for the private benefit of the candidate or others.

(8) Judge as candidate for nonjudicial office. A judge shall resign from judicial officeupon becoming a candidate for elective nonjudicial office either in a primary or in a general elec­tion, exeept that the judge may continue to hold judicial office while being a candidate for elec­tion to or serving as a delegate in a state constitutional convention if the judge is otherwise per­mitted by law to do so.

(C) Judge's staff. Ajudge shall prohibit members ofthe judge's staff who are thejudge's personal appointees from engaging in the following political acti~ity:

(1) holding an elective office in a political organization, except as a delegate to ajudieial nominating convention or a member of a county committee other than the executivecommittee of a county committee;

(2) contributing, directly or indirectly, money or other valuable consideration inamounts exceeding $500 in the aggregate during any calendar year to all political campaigns forpolitical office, and other partisan political activity including, but not limited to, the purchasingof tickets to political functions, except that this $500 limitation shall not apply to an appointee'scontributions to his or her own campaign. Where an appointee is a candidate for judicial office,reference also shall be made to appropriate sections ofthe Eleetion Law;

(3) personally soliciting funds in connection with a partisan political purpose, orpersonally selling tickets to or promoting a fund-raising activity of a politieal candidate, politicalparty, or partisan political e1ub; or

(4) political conduct prohibited by section 25.39 of the Rules of the ChiefJudge(22 NYCRR 25.39).

§lOO.6 APPLICAnON OF THE RULES OF JUDiC1AL CONDUCT. (A) General application.All judges in the unified court system and all other persons to whom by their terms these rulesapply, £"g", candidates for elective judicial office, shall comply with these rules ofjudicial con­duct, except as provided below. All other persons, including judicial hearing officers, who per­form judicial functions within the judicial system shall comply with such rules in the perform­ance of their judicial functions and otherwise shall so far as practical and appropriate use suchrules as guides to their conduct.

(8) Part-time judge. A part-time judge:

(1) is not required to comply with sections I00.4(C)(1), 100.4(C)(2)(a),100.4(C)(3)(a)(ii), 100.4(E)(I), 100.4(F), 100.4(G), and 100.4(H);

(2) shall not praetice law in the court on which the judge serves, or in any othercourt in the county in which his or her court is located, before a judge who is permitted to prac­tice law, and shall not act as a lawyer in a proceeding in which the judge has served as a judge orin any other proceeding related thereto;

79

(3) shall not permit his or her partners or associates to practice law in the court inwhich he or she is a judge, and shall not permit the practice of law in his or her court hy the lawpartners or associates of another judge of the same court who is permitted to practice law, butmay permit the practice of law in his or her court by the partners or associates of a judge of acourt in another town, village or city who is permitted to practice law;

(4) may accept private employment or public employment in a federal, state ormunicipal department or agency, provided that such employment is not incompatible with judi­cial office and does not conflict or interfere with the proper performance of the judge's duties,

(C) Administrative law judges. The provisions of this Part are not applicable to adminis­trative law judges unless adopted by the rules of the employing agency.

(D) Time for compliance. A person to whom these rules become applicable shall complyimmediately with all provisions of this Part, except that, with respect to section I00.4(D)(3) andIOO.4(E), such person may make application to the Chief Administrator for additional time tocomply, in no event to exceed one year, which the Chief Administrator may grant for good causeshown.

(E) Relationship to Code of Judicial Conduct. To the extent that any provision of theCode of Judicial Conduct as adopted by the New York State Bar Association is inconsistent withany of these rules, these rules shall prevail, except that these rules shall apply to a non-judge can­didate for elective judicial office only to the extent that they are adopted by the New York StateBar Association in the Code of Judicial Conduct.

80

Text of the Commission's2000 Determinations

2001 Annual Report

New York StateCommission on Judicial Conduct

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDllCT

IN THE MATTER OF THE PROCEEDING PURSUANT TO

SECTION 44, SUBDIVISION 4, OE THE JUDICIARY LAW, IN

RELATION TO MONROE B. BISHOP, A

JUSTICE OF THE HINSDALE TOWN COURL CATTARAUGUS COUNTY,

ApPEARANCES:

Gerald Stern (John J, Postel, OfCounsel) for the CommissionWilliams & Associates (By Mark S. Williams) for Respondent

The respondent, Monroe B. Bishop, a justiceof the Hinsdale Town Court, CattaraugusCounty, was served with a Formal WrittenComplaint dated September 29, 1999,alleging two charges of misconduct.Respondent filed an answer dated October22, 1999.

On November 29, 1999, the administrator ofthe Commission, respondent andrespondent's counsel entered into an AgreedStatement of Facts pursuant to JudiciaryLaw § 44(5), stipulating that theCommission make its determination basedon the agreed upon facts, jointlyrecommending that respondent beadmonished and waiving furthersubmissions and oral argument.

On December 16, 1999, the Commissionapproved the agreed statement and made thefollowing determination.

As to Charge I of the Formal WrittenComplaint:

I. Respondent has been a justice of theHinsdale Town Court since 1995.

2. In September 1997, respondent presidedover People v Diana E. Dutton, in which thedefendant was charged with Speeding. Thedefendant is respondent's niece.

3. Ms. Dutton pleaded guilty to a reducedcharge on September 17, 1997. With theconsent of the prosecution, respondentimposed a $35 line and a $15 surcharge.

As to Charge lJ of the Formal WrittenComplaint:

4. On October 19, 1995, respondent issuedan information subpoena requiring DouglasFinnerty, a judgment debtor, to respond towritten questions in connection with a smallclaims default judgment granted to MarkWelles on February 17, 1995.

5. On February 1, 1996, respondent issued acriminal summons, ordering Mr. Finnerty toappear in court on a charge of "FalseSwearing On Information Subpoena," eventhough no such charge exists and noaccusatory instrument had been filed in thecourt. Respondent made up the charge inorder to get Mr. Finnerty into court for

83

having tailed to make payments on the smallclaims judgment.

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated the RulesGoverning Judicial Conduct 22 NYCRR100.1, ]00.2(A), ]00.3(B)(1) andI00.3(E)(1)(d)(i). Charges I and II of theFormal Written Complaint are sustained,and respondent's misconduct is established.

A judge's disqualification is mandatorywhen a party is within the sixth degree ofrelationship to the judge or the judge'sspouse. (Rules Governing Judicial Conduct,22 NYCRR 100.3[E][1][d][i]). Thus,respondent should not have presided overand disposed of a case in which his niecewas the defendant. "The handling by ajudge of a case to which a family member isa party creates an appearance of improprietyas we]] as a very obvious potentia] for abuse,and threatens to undermine the public'sconfidence In the impartiality of the

84

judiciary." (Matter of Wait. 67 NY2d IS, at18).

It was also improper for respondent to use acriminal summons to secure the presence incourt of a defendant in a small claims case.Respondent's tabrication of a charge uponwhich to base the criminal summons wasegregious. (See, Matter of Hamel, 88NY2d 317. 3]8-19).

]n mitigation, we note that respondent hasbeen cooperative in this proceeding and hasconceded that his conduct was improper.(See, Matter of Cunningham, ]995 AnnReport of NY Commn on Jud Conduct. at]09,1]0).

By reason of the foregoing. the Commissiondetermines that the appropriate sanction isadmonition.

All concur.

Dated: January 10, 2000

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDUCT

IN THE MAlTER OE THE PROCEEDING PURSUANT TO

SECTION 44, SUBDIVISION 4, OE THE JUDICIARY LAW, IN

RELATION TO THOMAS R. BIICKLEY, A

JUSTICE OF TilE DANNEMORA TOWN COURT AND

ACTING JUSTICE OF THE DANNEMORA VILLAGE COURT, CUNTON COUNTY.

ApPEARANCES:

Gerald Stern (Cathleen S. Cenci, OfCounsel) for the CommissionHonorable Thomas R. Buckley, NQ se

The respondent, Thomas R. Buckley, ajustice of the Dannemora Town Court andthe Dannemora Village Court, ClintonCounty, was served with a Formal WrittenComplaint dated March 25, 1999, allegingnine charges of misconduct. Respondentanswered by letter dated March 30, 1999.

By Order dated April 26, 1999, theCommission designated Travis H.D. Lewin,Esq., as referee to hear and report proposedfindings of fact and conclusions of law. Ahearing was held on July 20, 21 and 22 andAugust 2, 1999, and the referee filed hisreport with the Commission on November16,1999.

Each party submitted papers with respect tothc referee's report. Oral argument waswaived.

On February 4, 2000, the Commissionconsidered the record of the proceeding andmade the following findings of fact.

As to Charge I of the Formal WrittenComplaint:

I. Respondent has been a justice of theDannemora Town Court since 1987 andacting justice of the Dannemora VillageCourt since 1989. He has successfullycompleted all training sessions required bythe Office of Court Administration.

2. On August 13, 1996, Craig L. Bowmanwas charged with Harassment, SecondDegree, on the complaint of his wife. Hewas arraigned before respondent, who issuedan Order of Protection and released him onhis own recognizance. Respondent assignedan attorney to represent Mr. Bowman andtold him that he would have to performcommunity service for 50 hours to "pay" forthe attorney's services.

3. On September 12, 1996, Mr. Bowmanwas charged with Criminal COl1tempt,Second Degree, for violating the Order ofProtection. He was arraigned by respondent,who again released him in his own custody.

4. On October 19, 1996, Mr. Bowman'swife again alleged that he had violated theOrder of Protection, and Mr. Bowman was

85

again charged with Criminal Contempt,Second Degree, a misdemeanor.

5. On October 20, 1996, he was arraignedbefore respondent. At the arraignment,respondent angrily threatened to put Mr.Bowman "so far back" in jail that no onewould find him. Respondent used the word"Iilck" and told Mr. Bowman to stop"screwing around." Although respondenthad known Mr. Bowman as a local residentfor many years and had no reason to believethat hc would not reappear in court, heordered him committed to jail without bail.CPL 530.20(1) requires that bail be set on amisdemeanor. Mr. Bowman's assignedcounsel, Frank Zappala, was not present.Respondent knew that he was required to setbai I or order the re lease of defendantscharged with misdemeanors.

6. On January 16, 1997, in satisfaction ofthe Criminal Contempt charges, respondentgave Mr. Bowman a conditional dischargeand ordered him to serve 150 hours ofcommunity service.

7. On January 19, 1997, the probationdepartment complained to respondent thatMr. Bowman had not reported forcommunity service. On February 27, 1997,Mr. Bowman pleadcd guilty to CriminalContempt, Second Degree, and respondentsentenced him to four weekends in jail.Before being admitted to jail, Mr. Bowmanwas required to have a test for tuberculosis.Respondent gave him a paper whicherroneously stated that the tests were givenon Tuesdays, when, in fact, they were givenon Mondays. When Mr. Bowman inquiredabout taking the test on Tuesday, March 4,1997, he was told that he had missed it.Thus, he could not begin his jail sentence asscheduled on Friday, March 7, 1997.

86

8. Mr. Zappala called respondent to explainthat Mr. Bowman could not report to the jail.Respondent issued a bench warrant for hisarrest and recorded in his docket that Mr.Bowman was charged with CriminalContempt, Second Degree.

9. On March 10, 1997, Mr. Bowmanappeared before respondent without counscl.The defendant explained why he had notreported for the TB test, but respondentangrily said that he was not taking "thefucking blame" and committed him to jail inlieu of bail.

10. Respondent then asked another attorney,Stephen A. Johnston, to represent Mr.Bowman.

II. On March 13, 1997, Mr. Bowman andMr. Johnston appeared in court. Mr.Johnston objected to respondent arraigningMr. Bowman inasmuch as respondent wasthe complaining witness on the CriminalContempt charge. Respondent refused torecuse hilnself and said that he felt that Mr.Bowman should do additional jail time.However, he granted an adjournment so thatMr. Johnston could make an application tocounty court. Respondent released Mr.Bowman the following morning.

12. On October 22, 1997, respondentdismissed the charge with the consent of theDistrict Attorney's Office.

As to Charge II of the Formal WrittenComplaint:

13. On June 9, 1996, Eric S. Hulkow, whowas then 18 years old, was charged withDriving While Intoxicated and Failure toKeep Right. He appeared before respondent.Without provocation, respondent called hima "con man" and a "finagler." Respondent

and Mr. Hulkow did not know one anotherbefore his court appearance.

14. Mr. Hulkow pleaded guilty to DrivingWhile Ability Impaired. On July 20, 1996,re'Spondent gave him a ConditionalDischarge, requiring 100 hours ofcommunity service.

15. In October 1996, Mr. Hulkow pleadedguilty in the Town of Ellenburg to a chargealleging that he possessed a can of beer atthe community-service work site, a StatePolice barracks.

16. On October 8, 1996, respondentrecorded in his docket that Mr. Hulkow wascharged with Criminal Contempt based on aviolation of his Conditional Discharge, eventhough no such charge had been lodged inhis court. Mr. Hulkow was given no writtennotice of such a charge.

17. On October 15, 1996, respondentrecorded in his docket that he called Mr.Hulkow by telephone and "gave defendantanother chance."

18. On October] 6, 1996, respondent calledattorney Oliver Bickel and asked him torepresent Mr. Hulkow on a charge that hehad violated a Conditional Discharge.

19. On October 24, 1996, respondentcompleted a second Conditional Discharge,requiring an additional 25 hours ofcommunity service and a drug and alcoholevaluation. Mr. Hulkow was not given theseconditions in writing and did not sign theConditional Discharge.

20. On December] 8, 1996, respondent wasadvised that Mr. Hulkow had not kept anappointment for the evaluation, and, onDecember 30, 1996, the probation

department reported that the defendant hadnot arranged to complete his communityservice.

21. Even though he had assigned anattorney to represent him, respondent calledMr. Hulkow by telephone on January 2,1997, and told him to report the followingday to the probation department and St.Joseph's Clinic in Malone.

22. On January 4 and 9, 1997, respondentprepared and signed informations,supporting depositions and bench warr3l1tsfor Mr. Hulkow's arrest, alleging CriminalContempt, Second Degree, for failing tofulfill the terms of his ConditionalDischarge.

23. On January 13, 1997, respondentarraigned Mr. Hulkow on a charge ofCriminal Contempt, Second Degree, andcommitted him to jail in lieu of bail, eventhough respondent was the complainingwitness. Mr. Bickel was not present. Thedefendant was released on bail on January15,1997.

24. On January 16,1997, Mr. Hulkow againappeared before respondent without counsel.Mr. Hulkow did not plead guilty, and notrial was held. However, respondent entereda conviction to a charge of CriminalContempt, Second Degree, and a sentence totime served.

25. Mr. Bickel never saw any paperwork inconnection with the case, and neither theattorney nor Mr. Hulkow were aware thatthe defendant had been convicted ofCriminal Contempt.

As to Charge III of the Formal WrittenComplaint:

87

26. On May 21, 1997, David Velie, whowas then 19 years old and had a history ofpsychiatric problems, was arraigned beforerespondent on a charge of Endangering theWelfare of a Child, a misdemeanor.Respondent remanded him to jail withoutbail, even though CPL 530.20(1) requiresthat bail be set on a misdemeanor.Respondent assigned attorney John Carter torepresent him. The following day,respondent called the jail and ordered Mr.Velie released.

27. On May 24, 1997, after speaking withMr. Velie and his father by telephone,respondent prepared and signed a supportingdeposition and a bench warrant for Mr.Velie's arrest on the grounds that he had lefthis home for purposes other thanemployment, contrary to what respondentsaid were his directions. He did not notifyMr. Carter.

28. Mr. Velie was arrested and broughtbefore respondent. When he refused to sitdown and attempted to leave, he wasarrested for Resisting Arrest, amisdemeanor. Respondent was a witness tothe incident and filed his own supportingdeposition regarding the charge.

29. Respondent again committed Mr. Velieto jail without bail, contrary to law.

30. Respondent continued to preside anddisposed of the charges on September 4,1997. The Resisting Arrest charge wasdismissed; Mr. Velic pleaded guilty toEndangering the Welfare of a Child and wassentenced to 30 days in jail.

As to Charge IV of the Formal WrittenComplaint:

88

31. On July 30, 1997, respondent foundDeborah E. Bordeau, who was a neighbor ofrespondent, guilty of Harboring a DangerousDog, ordered her to keep it confined andthreatened to have it destroyed if she did not.

32. After Ms. Bordeau returned home, herhusband, Mark, went to court andquestioned respondent about the case.Respondent angrily told him, "1 don't knowany stupid ass that would go to jail over adog," and used the work "fuck,"

33. Respondent saw the Bordeaus' dogrunning loose on August 25 and 26, 1997,and summarily issued an order to have itseized and destroyed.

34. However, respondent then consulted anattorney for the State Department ofAgriculture and Markets who suggested thathe hold a hearing before having the dogdestroyed.

35. He held a hearing on Septemher 4,1997, even though no new charge had beenfiled and even though hc was a witness tothe events. Respondent refused Ms.Bordeau's request for an adjournment toobtain an attorney and ordered her tosurrender the dog to be destroyed.

36. On October 2, 1997, respondent calledMs. Bordeau on two occasions andthreatened to have her incarcerated if she didnot surrender the dog.

37. Ms. Bordeau then retained an attorney,Darrell L. Bowen. On October 16, 1997,Mr. Bowen asked respondent to recusehimself inasmuch as he had personalknowledge of facts underlying the case.Respondent refused.

38. However, respondent agreed to give Ms.Bordeau another hearing on October 23,1997. After the re-hearing, respondent againordered the dog destroyed.

As to Charge V of the Formal WrittenComplaint:

39. On June 15,1995, respondent sentencedJason Waldron to three years probation on acharge of Criminal Mischief, Fourth Degree.Mr. Waldron was represented in thatproceeding by attorney John Carter.

40. On September 8, 1997, Mr. Waldron'sprobation officer advised respondent that thedefendant had violated the terms of hisprobation.

41. Ort September 8, 1997, respondentissued a warrant for Mr. Waldron's arrest.Respondent did not advise Mr. Carter ofthisaction.

42. Mr. Waldron appearea 111 court onOctober 4, 1997. Respondent remanded himto jail without bail until October 9, 1997, ona charge of Criminal Contempt, SecondDegree, a misdemeanor, even though noaccusatory instrument charging him withsuch an offense had been filed and eventhough CPL 530.20( I) requires that bail beset on a misdemeanor.

43. Mr. Waldron reappeared on October 9,1997. When he admitted to violating theterms of his probation, respondent assumedthat he had pleaded guilty to CriminalContempt, although he is not sure that heever advised Mr. Waldron that he was beingcharged with Criminal Contempt.

44. Another attorney representing Mr.Waldron, Michael Phillips, ultimatelypersuaded respondent that the defendant

could not be charged with CriminalContempt.

As to Charge VI of the Formal WrittenComplaint:

45. On November 2, 1997, Carson F.Arnold, Sr., was charged with AggravatedHarassment. Second Degree, amisdemeanor, on the complaint of Mary A.Yanulavich, stemming from a dispute oversome construction work that he had done onher home.

46. Respondent had known Ms. Yanulavichfor many years and considered her "morethan a casual acquaintance but not a closefriend," and he knew that she was dying ofcancer. Ms. Yanulavich called respondentbefore Mr. Arnold's arraignment and toldhim that she had been threatened by Mr.Arnold.

47. On November 2, 1997, respondentarraigned Mr. Arnold. He read the charge tothe defendant but did not advise him of hisrights concerning counsel, as required byCPL 170.1 O(4)(a).

48. Without provocation, respondent toldMr. Arnold to shut up and not to say anotherword until he was done.

49. Respondent committed Mr. Arnold tojail without bail, even though CPL 530.20(1)requires that bail be set on a misdemeanor.

50. Respondent acknowledges that therewas "something about Mr. Arnold" thatmade him think of "these gypsy contractors"and that he gave Ms. Yanu lavich extracredibility in the case.

51. The case was dismissed after Ms.Yanulavich died.

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As to Charge VII of the Formal WrittenComplaint:

52. On November 20, 1997, Sean C. Freypleaded guilty to Harassment, SecondDegree, and was sentenced by respondent toa Conditional Discharge, requiring 40 hoursof community service.

53. On January 28, 1998, the probationdepartment advised respondent that Mr. Freyhad not completed the community service.On January 30, 1998, respondent issued awarrant for Mr. Frey's arrest, stating as thecharge Criminal Contempt, Second Degree.

54. Mr. Frey was arrested the same day andbrought bet(Jre respondent. Mr. Freyrequested assigned counsel, and he had beenrepresented by assigned counsel on theoriginal charge. However, respondent didnot assign counsel to represent him.Respondent remanded him to jail in lieu ofbai1. Mr. Frey was released a day later.

55. On February 5, 1998, Mr. Freyreappeared before respondent. Thedetendant did not know that he was chargedwith Criminal Contempt and did not pleadgu iIty to that charge. Respondent recordedin his docket and repOlied to the Departmentof Criminal Justice Services that Mr. Freyhad been convicted of Criminal Contemptand sentenced to time served.

56. On March 31, 1998, the probationdepartment again advised respondent thatMr. Frey had not completed the communityservice. Respondent issued bench warrantson April 1, 2 and 6, 1998, ordering Mr.Frey's arrest on a charge of Harassment,Second Degree.

57. Mr. Frey was arrested on April 10,1998, and was brought before respondent.

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Mr. Frey again asked tor assigned counsel,but respondent did not designate one. Thedefendant was remanded to jail in lieu ofbail.

58. On April 16, 1998, Mr. Frey returned tocourt. Respondentrecorded in his docket that Mr. Frey hadbeen found guilty by the court ofHarassment, Second Degree, and sentencedto time served and an additional 40 hours ofcommunity service.

59. On May 4, 1998, the probationdepartment again reported that Mr. Frey hadnot completed the community service. OnMay 9, 1998, respondent again issued abench warrant on a charge of Harassment,Second Degree.

60. On May 19, 1998, Mr. Frey appearedbefore respondent. He was committed to jailin lieu of bai I.

61. On May 21, 1998, Mr. Frey returned tocourt. He did not plead guilty to any chargeand was not given notice of any additionalcharge. Respondent recorded in his docketthat the defendant pleaded guilty toHarassment, Second Degree, and hesentenced him to 15 days in jail andincreased the community service to 120hours, to be completed within three weeks.

62. No attorney was ever assigned byrespondent to represent Mr. Frey at his courtappearances after the initial conviction.

As to Charge Vl1l of the Formal WrittenComplaint:

63. On June 28, 1998, Timothy R. Bakerwas charged with Harassment, SecondDegree, and Disorderly Conduct. Mr. Baker

was on probation at the time. Respondentordered him committed to jail in lieu of bail.

64. On July 2, 1998, respondent held a bailhearing. The probation department urgedthat bail be revoked, and it asked thatrespondent declare Mr. Baker delinquent asto his probation and schedule a hearing.Respondent revoked Mr. Baker's bail andsigned a Declaration of Delinquency.

65. However, respondent did not scheduleanother court appearance until September24, 1998, even though Mr. Baker's attorneyrequested on two occasions that he do sosince her cl ient was incarcerated and eventhough CPL 410.70(1) requires a prompthearing on a probation violation. BySeptember 24, 1998, Mr. Baker had servedthe entire sentence; he pleadcd guilty, wassentenced to time served and was released.

66. Respondent acknowledged that hewanted to keep Mr. Baker in jail for his ownbenefit.

As to Charge IX of the Formal WrittenComplaint:

67. Since 1990, respondent has requireddefendants who receive assigned counsel to"work it off" by performing communityservice. Respondent asks attorneys that heappoints to estimate their legal fees, thencalculates the hours of community service atthe rate of $5 per ho~r.

68. Respondent continued this practice,even after three defense attorneys and theDistrict Attorney had advised him that it wasimproper.

69. At the hearing, respondent testified thathe wanted to be shown "in black and whitewhere the Constitution says, exactly, it's

illegal to make a person work off theirassigned counsel fees ..." and asserted thathe would not accept "some liberal attorney'sinterpretation ...."

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated the RulesGoverning Judicial Conduct, 22 NYCRR100.1, 100.2(A). 100.3(B)( I). 100.3(B)(3).100.3(B)(6), 100.3(B)(7). IOO.3(E)( I)(a) and100.3(E)(I)(d)(iv). Charges I, 11, Ill, IV, V.VI. VIl, Vlll and IX, as amended at thehearing. are sustained insofar as they areconsistent with the findings herein. andrespondent's misconduct is established.

This record portrays a biased judge whoroutinely denies defendants theirfundamental rights and ignores propercriminal procedure, as wcll as ethicalconstraints on his conduct.

Respondent denied defendants their right tocounsel by failing to advise them of the rightand by taking action against them withoutnotiee to their lawyers when he knew thatthey were represented. (See. CPL170.10[4][a]; Matter of Wood, 1991 AnnReport of NY Commn on Jud Conduet, at82). He exhi.bited bias before conviction bythreatening defendants with jail and bycalling them names. (See, Matter ofEsworthy, 77 NY2d 280; Matter ofHannigan, 1998 Ann Report of NY Commnon Jud Conduct, at 13\). He repeatedly usedintemperate language. (See, Matter ofAssini, 94 NY2d 26, 29; Matter ofMcKevitt, 1997 Ann Report of NY Commnon Jud Conduct, at 106, \ 07).

Respondent has disregarded basicrequirements of law by jailing without baildefendants who were statutorily entitled tobail (see, CPL 530.20[1]; Matter of LaBelle,

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79 NY2d 350) and by summarily convictingon Criminal Contempt charges individualswhom he concluded, without trial or guiltypleas, had violated some order of the court(see, Matter of Hamel, 88 NY2d 317; Matterof Meacham, 1994 Ann Report of NYCommn on .Iud Conduct, at 87, 90). Onedefendant was convicted three times on thesame charge - without knowing it, sincerespondent gave him no notice. Respondentsimply ordered the defendant's arrest andconviction on the original charge each timehe received word that he had not completedcommunity service.

Respondent sat on cases in which he was thecomplaining witness (see, Rules GoverningJudicial Conduct, 22 NYCRR100.3[E][I][d][iv]; Matter of Ross, 1990Ann Report of NY Commn on .Iud Conduct,at 153, 155) and in which he had knowledgeof disputed evidentiary facts (see, RulesGoverning Judicial Conduct, 22 NYCRR100.3[E][1][a][ii]; Matter of Yonder Heide,72 NY2d 658, 659). He frequently engagedin ex parte communications. (See, 22NYCRR 100.3[B][6]).

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By requlflng indigent defendants to "pay"for their assigned counsel by performingcommunity service, respondent ignored afundamental constitutional precept and thewarnings of both prosecuting and defenseattorneys that the procedure was improper.

A judge who shows a shocking disregard fordue process of law, grossly abuses judicialpower and process, denies defendants theirrights, ignores the mandates of law anddemeans defendants has distorted the properrole of a judge and is unfit to remain inoffice. (Matter of Sardino, 58 NY2d 286,291-92).

By reason of the foregoing, the Commissiondeterm ines that the appropriate sanction isremoval.

Mr. Berger, Ms. Brown, Mr. Goldman, Ms.Hernandez, Judge Joy, Judge Luciano, JudgeMarshall, Mr. Pope, Judge Ruderman andJudge Salisbury concur.

Mr. Coffey was not present.

Dated: April 6, 2000

STAm OF NEW YORK

COMMISSION ON JUDICIAL CONDIICT

IN THE MATI'ER OF THE PROCEEDING PURSUANT TO

SECTION 44, SUBDIVISION 4, OF TilE JUDICIARY LAW, IN

RELATION TO ROBERT M. CORNING, SR., A

JUSTICE OF TIlE OVID TOWN COURT. SENECA COUNTY.

ApPEARANCES:

Gerald Stern (John J. Postel and Seema Ali, Of Counsel) for the CommissionMarris & Bartholomae (By William R. Bartholomae) for Respondent

The respondent, Robert M. Corning, Sr., ajustice of thc Ovid Town Court, SenecaCounty, was served with a Formal WrittenComplaint dated March 10, 1998, allegingfinancial improprieties and improperdemeanor. Respondent fi led an answerdated April 8, 1998.

By Order dated May I, 1998, theCommission designated Bruno Colapietro,Esg., as referee to hear and report proposedfindings of fact and conclusions of law. Ahearing was held on August 19, 1998, andthe referee filed his report with theCommission on December 9, 1998.

Both parties submitted papers with respectto the referee's report and the issue ofmisconduct. Oral argument was waived.

On February 25, 1999, the Commissionconsidered the record of the proceeding andmade findings of fact I through 21 below.Consideration of sanction was deferred.

On February 26, 1999, respondent wasserved with a second Formal WrittenComplaint, alleging that he improperlyordered the suspension of a defendant's

driver's license. Respondent answcred thiscomplaint by letter dated April 23, 1999.

By Order dated April 28, 1999, theCommission designated Michael J. Hutter,Esq., as referee to hear this matter. Ahearing was held on June 18, 1999, and thereferee filed his report with the Commissionon October 20. 1999.

The parties then submitted memoranda withrespect to misconduct on the second matterand appropriate sanction with respect to bothmatters. Oral argument was waived.

On December 16, 1999, the Commissionmade findings of fact 22 through 31 belowand made the following determination.

As to Charge I of the Formal WrittenComplaint dated March 10, 1998:

I. Respondent has been a justice of theOvid Town Court since January 1988.

2. Between August 1996 and December1996, as set forth in the appended Schedule£l, respondent failed to dcposit court fundsin his official account within 72 hours of

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receipt, as required by tbe Uniform CivilRules for the Justiee Courts, 22 NYCRR2] 4.9(a). By the end of the period,respondent's aecount was deficient in theamount of $2,886.64.

3. On January 21, 1997, Commission staffadvised respondent that it was investigatingfinancial irregularities in his court.

4. Between February 1997 and May 1997,as denominated in the attached Schedule !.!.,respondent again failed to deposit courtfunds as required by law. By the end of thisperiod, his account was deficient by$2,842.80.

5. During these periods, respondent wasaware that he was required to deposit courtfunds within 72 hours of receipt.

6. Respondent testified that he kept themoney in a briefcase at his home.

As to Charge n of the Formal WrittenComplaint dated March 10, 1998:

7. Between August 199.6 and November1996, respondent failed to remit court fundsto the state comptroller by the tenth day ofthe month following collection, as requiredby UJCA 2021(l), Town Law §27(l) andVehicle and Traffic Law §1803(8).

8. On January 15, 1997, the statecomptroller ordered respondent's salarysuspended because of his failure to remitmonies, and, on January 20, 1997,respondent wrote the comptroller that he had""no reason or alibi" and "no excuse" forfailing to remit the funds. On January 21,1997, Commission staff advised respondentthat it was investigating the matter; again,respondent replied, "I have no reason or alibifor being tardy." Respondent filed .his

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reports with the state comptroller about twoweeks later.

9. Respondent was aware that he wasrequired to remit funds to the comptroller bythe tenth day of the month followingcollection.

10. Respondent was being treated tordepression during 1996 and 1997.

As to Charge 111 of the Formal WrittenComplaint dated March 10, 1998:

11. On February 15, 1997, the WagnerFuneral Home sued respondent for burialexpenses tor his aunt, Mary Corning Rose.Attorney John A. Ward represented thefuneral home.

12. On April 14, 1997, respondent calledMr. Ward by telephone to discuss the claim,Respondent told Mr. Ward that he had beena town justice for ten years. Respondentaccused Mr. Ward of being dishonest andsaid that he would discredit the attorney'sreputation.

13. On May 13, 1997, Mr. Ward calledrespondent and asked him not to contact Mr.Ward's client in the lawsuit, MarshallDowning, the owner of the funeral home.Respondent said that he would take Mr.Ward to county court or to a county judgeand that he would not cease calling Mr.Downing unless an Order of Protection wasissued.

14. Respondent also said that Mr. Downinghad "no balls."

IS. The same day, Mr. Ward tiled acomplaint with the Commission concerninghis conversations with respondent.

16. On September 29, 1997, respondentappeared at an investigative appearance forthe purpose of giving testimony about Mr.Ward's complaint. as well as other matters.

17. 'On October 3 I, 1997. respondent wentto Mr. Ward's office and spoke with aparalegal. Waiving a legal-size envelope infront of her. respondent angrily told theparalegal that he was going to sue Mr. Wardfor slander. The envelope contained a copyof the complaint that Mr. Ward had filedwith the Commission against respondent.

18. Later that day. respondent called theparalegal by telephone and apologized.

As to Charge IV of the Formal WrittenComplaint dated March 10, 1998:

19. On July 10. 1996, People v RichardWoodard came belore respondent. Thedefendant was represented by attorney JohnM. Sipos. Mr. Sipos had previously filed acomplaint with the Commission thatrespondent had improperly requested him topay $50 in order to secure a jury trial inanother criminal case.

20. Mr. Sipos requested that respondentdisqualify himself from the Woodard casebecause of the complaint to theCommission.

21. Respondent became angry, denied therequest and stated, "You should have paidme the $50. You would have had me by theballs."

As to Charge I of the Formal WrittenComplaint dated February 26, 1999:

22. On September 18, 1997, Sara L. Huntwas charged with Leaving the Scene of AnAccident in the Town of Ovid. The matter

was returnable before respondent on October2, 1997. Ms. Hunt appeared as scheduled onOctober 2 and 9 and November 6. 1997.

23. In November 1997. Ms. Hunt retainedDavid Lee Foster to represent her. OnDecember I. 1997, Mr. Foster's paralegal,Stephanie Andrews, spoke with respondcntby telephone. Respondent told her that hewould recuse himself from the case.Because of past dealings with respondent.Mr. Foster would not have agreed torepresent Ms. llunt if respondent were topreside.

24. On December 4, 1997. Ms. Hunt; hermother, Linda L. Brown, and Mr. Fosterappeared before respondent on the scheduledadjourned date. Respondent indicated thathe had changed his mind and intended tocontinue presiding over the case.

25. Mr. Foster objected. He directed Ms.Hunt to leave the courtroom.

26. On December 22, 1997, respondentwrote to Mr. Foster, reiterating that he didnot intend to recuse himself.

27. On January 24, 1998, respondentnotified the Commissioner of MotorVehicles that Ms. Hunt had failed to appearbefore him within 60 days of a scheduledcourt appearance, even though she hadappeared for every scheduled court date.

28. On January 29, 1998, pursuant torespondent's notification. the Commissionerof Motor Vehicles ordered Ms. Hunt'slicense suspended, to be effective March 6,1998.

29. Respondent knew that Ms. Hunt'slicense would be suspended in accordancewith his notification. He made the

95

notification out of personal pique with Mr.Foster, whom respondent felt had displayeda "bad attitude," had taken no steps todispose of Hunt, had left the court "in ahuff" and had not called the court toapologize.

30. On March 5. 1998, respondent recusedhimselftrom the case.

31. On March 5, 1998, Ms. Hunt appearedbefore Justice Wayne D. Ewing. JudgeEwing certified that she had appeared, andthe suspension order was lifted before it wasto take etfect. Judge Ewing adjourned thecase in contemplation of dismissal.

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated the RulesGoverning Judicial Conduct, 22 NYCRR100.1. 100.2(A), 100.3(A), IOO.3(B)(I),100.3(B)(3) and 100.3(C)(1). Charges I, II,m and IV of the Formal Written Complaintdated March 10, 1998, as amended at thehearing on August 19, 1998, and Charge 1ofthe Formal Written Complaint datedFehruary 26, 1999, are sustained, andrespondent's misconduct is established.

Respondent has abused the power of hisoffice, exhibited a lack of judicialtemperament and mishandled public funds.Such a record of misconduct, both on andoff thc bench, indicates that he is not tit tobe a judge.

Respondent used the prestige of judicialoffice in connection with a private disputeinvolving funeral bills for his aunt. Hementioned that he is a judge and threatenedthe attorney for the funeral home and, on alater date, threatened the lawyer's paralegal.

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Respondent also abused his judicialauthority when he ordered Ms. Hunt'slicense suspended out of personal pique withher lawyer, falsely certifying that she had notappeared in court. Regardless of hisperception of Mr. Foster's behavior.respondent should not have attempted toretaliate by punishing Ms. Hunt. (Seesimilarly, Matter of Slavin, 1990 AnnReport of NY Commn on Jud Conduct, at158; Matter of Sharpe, 1984 Ann Report ofNY Commn on Jud Conduct, at 134).Judicial actions should not be based on thejudge's irritation with those involved.(Matter of Lindell - Cloud, 1996 Ann Reportof NY Commn on Jud Conduct, at 91;Matter of Miller, 1981 Ann Report of NYCommn on Jud Conduct, at 121).

Respondent displayed improper demeanor inconnection with the funeral dispute and, incourt, in the Woodard case. On or off thebench, a judge is expected to show properjudicial demeanor. (Matter of Kuehnel, 49NY2d 465, 469). Angry and profanelanguage in connection with judicial dutiesis especially serious. (Matter of Mahon,1997 Ann Report of NY Commn on JudConduct, at 104, 105).

Furthermore, respondent's inattention to thefinancial responsibilities of his courtconstitutes serious misconduct. (See,Bartlett v Flynn, 50 AD2d 401, 404 [4th

Dept]). In particular, his failure to promptlydeposit court funds raises questions abouttheir interim use; we have only respondent'sword that thousands of dollars in publicmonies were kept in his briefcase. (See,Matter of More, 1990 Ann Report of NYCommn on Jud Conduct, at 140, 141). Thisconduct continued, even after respondentknew that the Commission was investigatinga complaint about his financial practices.(See, Matter of Sims, 61 NY2d 349, 357).

Irrespective of the high regard in which he isheld by some members of the legalcommunity (see, Matter of Gelfand, 70NY2d 211), we conclude that respondent'sretention on the bench is inconsistent withthe proper administration of justice (see,Matter of Reeves, 63 NY2d 105, 110-11),

By reason of the foregoing, the Commissiondetermines that the appropriate sanction isremoval,

Mr, Berger, Ms. Brown, Ms. Hernandez,Judge Joy, Judge Luciano, Judge Marsball,Mr, Pope, Judge Ruderman and JudgeSalisbury concur.

Mr. Coffey and Mr. Goldman dissent as tosanction only and votc that respondent becensured.

Dated: February 10,2000

Schedule A

Date Amount Received Amount Deposited Cumulative Deficiency!

. --8/96 $3,292 $1,384.84 -$1,907.169/96 625 0 - 2,532.1610/96 333 0 -2,865.1611/96 15 0 - 2,880.16]2/96 635 628.52 - 2,886.64

Schedule B

Date Amount Received Amount Deoosited Cumulative DeficiencyI

2/97 $2,887 0 -$2,8873/97 990 0 - 3,8774/97 1,555 $2,459.20 - 2,972.805/97 960 1,090 - 2,842.80

97

98

STATE OF NEW YORK

COMMISSION ON JIJDICIAL CONDUCT

IN THE MAlTER OF THE PROCEEDING PURSUANT TO

SECTION 44, SUBDIVISION 4, OF THE JUDICIARY LAW, IN

RELATION TO E, DAVID DUNCAN, A

JUDGE OF TIlE ALBANY CiTY COURT, ALBANY COUNTY.

ApPEARANCES:

Gerald Stern (Cathleen S. Cenci, Of Counsel) for the CommissionWilliam J. Gray for Respondent

The respondent, E. David Duncan, a judgeof the Albany City Court, Albany County,was served with a Formal WrittenComplaint dated July 2, 1999, alleging thatrespondent conveyed the appearance of biasin two vehicle and traffic cases and failed todecide motions in the matters in a timelymanner. Respondent filed an answer datedNovember 18, 1999.

By order dated September 21, 1999, theCommission designated MaryannSaccomando Freedman, Esq., as referee tohear and report proposed findings of fact andconclusions of law. A hearing was held inAlbany, New York on January 18 and 19and March I, 2000, and the referee filed herreport with the Commission on August 18,2000.

The parties filed briefs and replies withrespect to the referee's report. On October23, 2000, the Commission heard oralargument, at which respondent and hiscounsel appeared, and thereafter consideredthe record of the proceeding and made thefollowing findings oft'act.

I. Respondent has been a part-timejudge of the Albany City Court since 1983.

2. At the time of these events,respondent was assigned to Albany TrafficCourt, where he sat in alternate four-weekperiods. In the weeks he was assigned toTraffic Court, respondent sat one morningeach week for arraignments and oneafternoon each week for trials.

3. On September 8, 1995, JoAnnPitman, a cab driver, received a Speedingticket in the City of Albany, returnable in theAlbany City Court on September 19, 1995.On September I I, 1995, she pleaded notguilty by mail and checked the boxrequesting a supporting deposition.

4. On October 4, 1995, RobertLibertucci, a cab driver and Ms. Pitman'sfiance, received two tickets in the City ofAlbany, one for Speeding and one for a redlight violation, returnable in the Albany CityCourt on October 24, 1995. Mr. Libertuccipleaded not guilty by mail and requested asupporting deposition.

5. The Speeding violation with whichMr. Libertucci was charged allegedlyoccurred on New Scotland Avenue atHarding Street. Respondent resides onHarding Street.

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6. Mr. Libertucci called the TrafficCourt Clerk's office and asked to appear onthe same day as Ms. Pitman. The Clerkapproved this request, and both matters werecalendared for November 21, 1995.

7. November 21, 1995, was a scheduledarraignment day for respondent; November22, 1995, was a scheduled trial day.

8. On November 21, 1995. Mr.Libertucci and Ms. Pitman appeared in theAlbany City Court; neither appeared witheounsel, and neither had reeeived thesupporting deposition that had beenrequested.

9. When Mr. Libertucei's case wascalled, he moved for dismissal of theOctober 4 tickets for lack of a supportingdeposition. After reviewing the papersbefore him, respondent granted the motionand dismissed the tiekets in accordance withCriminal Procedure Law 100.40(2), whichprovides that charges are facially insufficientif the arresting officer has failed to provide asupporting deposition within 30 days. Mr.Libertucei then went to the baek of thecOUltroom to wait for Ms. Pitman's case tobe heard.

10. Immediately following Mr.Libertucci's case, Ms. Pitman's case wascalled. Ms. Pitman movcd for dismissal ofthe September 8 ticket for failure of thearresting officer to supply a supportingdeposition. Respondent reviewed thepapers, then asked Ms. Pitman to wait whilehe checked something. After conferringwith the court clerk and the AssistantCorporation Counsel, respondent instructedMs. Pitman to return the next day and alsodirected her to tell Mr. Libertucci to returnthe next day. Respondent did not rule onMs. Pitman's motion to dismiss.

100

11. After Ms. Pitman had relatedrespondent's message to Mr. Libertucci, Mr.Libertucci approached the bench and askedrespondent why he had to return to courtsince his tickets had been dismissed.Respondent replied that he had a questionabout when the time to provide a supportingdeposition begins to run. When Mr.Libertucci asked whether he should returnwith a lawyer, respondent replied that itwould be a good idea to have a lawyer.Respondent directed Mr. Libertucci and Ms.Pitman to return the following day.

12. Prior to Mr. Libertucci's appearancethe next day, respondent researched Mr.Libertucci's prior record in the AlbanyCourt. Me Libertucei had received multipleSpeeding tickets within a few years.

13. On November 22, 1995, Mr.Libertucci and Ms. Pitman appeared in CityCourt with their attorney, John T. Biscone.

14. Mr. Biscone and AssistantCorporation Counsel William S. Goldsteinmet in chambers with respondent. AIsopresent was Officer Whitney, who hadissued the Pitman ticket. During thisconference, respondent said that he wouldaccept a three-point Speeding charge insatisfaction of the charges against thedefendants. Respondent commented that theLibertucci speeding violation had occurredin respondent's neighborhood. Respondentalso referred to Mr. Libertucci's extensiveprior record in the court.

15. After relating the plea offer to thedefendants, Mr. Biscone returned andadvised respondent that his clients refusedthe offer since Jhey would suffer a loss orsuspension of their licenses with anyresolution short of dismissal. Respondentthen stated that he would direct that the

tickets be reissued. When Mr. Bisconeobjected- that respondent did not have theauthority to do so, respondent agreed andsaid that he would not and could not do that.

16. When the matter resumed in opencourt, Mr. Biscone moved to dismiss theLibertucci and Pitman tickets. Respondentagain commented on Mr. Libertucci'sextensive driving record and the fact that hehad previously had traffic charges dismissedfor lack of a supporting deposition.Respondent stated that although he had triedto do so, he could not direct reissuance ofthe tickets and it was up to the policewhether or not to reissue them. Respondentdismissed the Pitman ticket. The ticketsagainst Libertucci remained dismissed.

17. Mr. Biscone told respondent that ifthe tickets came back, he would ask thatrespondent recuse himself. Respondentreplied that if the tickets came back, hewould take a disqualification request underadvisement at the appropriate time.

18. Officer Whitney, who was present incourt, reissued the Pitman ticket onNovember 22, 1995, before Ms. Pitman leftthe courthouse. The Libertucci tickets werereissued in February 1996.

19. On November 28, 1995, Mr. Bisconefiled a motion to dismiss the reissuedSpeeding charge against Ms. Pitman. OnDecember 15, 1995, the AssistantCorporation COUl1Se! asked for an extensionof time to respond to the motion until "afterthe new year," but he never filed anyresponse to the motion. Mr. Biscone wrote aletter to respondent in July 1997, inquiringabout the status of the motion and notingthat no opposition had been filed.

20. Although respondent had the Pitmanmotion to dismiss under advisement at least

by the spring of 1996, he did not decide ituntil October 1997. when he denied themotion.

21. On February 15, 1996, Mr. Bisconcfiled a motion to dismiss the reissuedLibertucci tickets. No opposition wasinterposed until June 3, 1996. Althoughrespondent had this motion underadvisement by the spring of 1996.respondent did not decide it until July 2,1997. when he denied the motion.

22. There is no reasonable explanation inthe record to excuse respondent's delay indisposing of the motions to dismiss thereissued Pitman and Libertucci tickets.

23. Respondent's delay in deciding thePitman and Libertucci motions was inviolation of the 60-day disposition rule ofCPLR 2219(a). In March 1997, respondentreported the pending Libertucci motion todismiss to his Administrative Judge asundecided for more than 60 days. This wasthe only occasion respondent had everreported a case as undecided for more than60 days.

24. Mr. Biscone appealed the Pitman andLibertucci orders denying the motions todismiss. After an appellate court remandedthe matters for special circumstanceshearings, respondent held a specialcircumstances hearing in the Pitman matteron January 26, 1999. On May 19, 1999,respondent issued a decision dismissing thereissued Pitman ticket.

25. In anticipation of a specialcircumstances hearing in the Lihcrtuccimatter, plea negotiations were held as to thereissued Libertucci tickets as well asadditional tickets Mr. Libertucci hadrcceived during the pendency of these

101

matters. [n August [998 Mr. Libertucciagreed to plead guilty to the October 4, 1995Speeding charge, a plea which allowed himto retain his license.

26. During the pendency of thesematters, respondent was on notice that hisrecusal was being sought. By letter torespondent dated July 17, 1997, Mr. Bisconeasked l()f respondent's recusal in theLibertucci matter. By letter to respondentdated September 28, 1998, Mr. Bisconeasked lor respondent's recusal in the Pitmanmatter, a request which respondent deniedOn October 6, 1998. Respondent's failure toconfront the recusal issue during thependency of these matters exacerbates theimpression of bias conveyed by his actions.

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated Sections [00.1,100.2(A), 1OO.3(B)(4), 100.3(B)(7) andI00.3(E)( I) of the Rules Governing JudicialConduct. Charge I of the Formal WrittenComplaint is sustained insofar as it isconsistent with the above findings of fact.Paragraphs 4(e) and 4(f) of Charge I aredismissed.

Respondent's handling of the Libertucci andPitman matters conveyed the unmistakableimpression of bias.

By law, both defendants were entitled todismissal of the charges against them due tothe failure of the arresting officers to furnishthe requested supporting depositions (CPL§100.40[2]). As a judge since 1983,respondent had handled many such cases inwhich he routinely granted motions todismiss on that basis. Yet, after dismissingthe charges against Mr. Libertucci,respondent took a series of extraordinarysteps which not only effectively insured that

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the two cases would not end with a prompt,statutorily required dismissal, but conveyedthe clear impression that respondent favoreda different result. By directing Mr.Libertucci to return to court the next dayalong with Ms. Pitman notwithstanding thathis case had been dismissed, by researchingMr. Libertucci's driving record although itwas irrelevant to the motion to dismissunder Section 100.40(2), and by stating inthe presence of the arresting officer inPitman that he wanted the charges in bothca~es reissued, respondent acted in a mannerwhich created an appearance of bias. Thatappearance was compounded byrespondent's disapproving remarks aboutMr. Libertucci's driving record and by hisinappropriate comment that Mr. Libertucci' salleged Speeding violation had occurred inrespondent's neighborhood. Unfortunatelyfor Ms. Pitman, who was Mr. Libertucci'sfiancee, her case was apparently [inked inrespondent's view with Mr. Libertucci's(they appeared together, made the samemotions and had the same attorney). As thereferee concluded, the totality ofrespondent's behavior as to both matters"conveyed the impression that he wasbiased, had a personal interest in theoutcome of the cases and could not renderan impartial decision."

Despite such behavior, respondent continuedto sit on the cases after the charges werereissued. His conduct violated SectionI00.3(E)(1) of the Rules Governing JudicialConduct, which requires that a judge "shalldisqualify himself or herself in a proceedingin which the judge'S impartiality mightreasonably be questioned ...." Rcspondent'songoing failure to confront the recusa[ issueexacerbated the impression of bias, as didhis failure to decide motions to dismiss thereissued charges within 60 days, as requiredby CPLR 2219(a). In Libertucci, respondent

took over a year to decide the motion; inPitman, the delay was even longer, Whilesuch dclay, standing alone, would notconstitute misconduct (see Matter ofGreenfield, 76 NY2d 293), here the delaycannot be separated from the impression ofbias permeating respondent's handling ofthese cases. Moreover, by not reporting thepending Libertucci motion to hisadministrative judge until March 1997 (wellpast the 60-day reporting period), and byapparently never rcporting the Pitmanmotion, respondent effectively removed hisconduct from administrative scrutiny.

In its totality, respondent's conduct violatedthe requirement that every judge must notonly be impartial, but act "in such a way thatthe public can perceive and continue to relyupon the impartiality of those who havebeen chosen to pass judgment on legalmatters involving their lives, liberty and

property." Matter of Sardino, 58 NY2d 286,290-91 (1983).

By reason of the foregoing, the Commissiondetennines that the appropriate disposition isadmonition.

Mr. Berger, Mr, Goldman, Ms. Hernandez,Judge Marshall, Judge Peters, Mr. Pope andJudge Ruderman concur.

Judge Salisbury and Judge Luciano disscntas to paragraph 4(b) and vote to dismiss theallegation concerning respondent's commentthat the Speeding charge against Mr.Libertucci occurred on respondent's street.

Ms. Brown and Mr. Coffey were not present.

Dated: December 29, 2000

103

104

II

I

IIIII

I

I

IIIII

I

I

IIIII

I

I

IIIII

I

I

II

STATE OFNEW YORK

COMMISSION ON .JlJDlCIAL CONDUCT

IN THE MATTER OF TilE PROCEEDING PURSUANTrOSECTION 44, SUBDIVISION 4, OF THE JUDICIARY LAW, IN

RELATION TO ROBERT N. GOING, AJUDGE OF rIlE FAMILY COURT, MONTGOMERY COUNTY.

ApPEARANCES:

Gerald Stern (Cathleen S. Cenci, Of Counsel) for the CommissionE. Stewart Jones, PLLC (By Peter J. Moschetti, Jr.) for Respondent

The respondent, Robert N. Going, ajudge ofthe Family Court, Montgomery County, wasserved with a Formal Written Complaintdated June 10, 1999,containing two charges. Respondent filed ananswer dated July 9, 1999.

By order dated September 16, 1999, theCommission designated Milton Sherman,Esq., as referee to hear and report proposedfindings of fact and conclusions of law. Ahearing was held on October 20, 21 and 22,]999, in Albany, New York, and December2 and 3, 1999, in New York City. Thereferee filed his report with the Commissionon September 7, 2000.

The parties filed briefs and replies withrespect to the referee's report. On October23, 2000, the Commission heard oralargument, at which respondent and hiscounsel appeared, and thereafter consideredthe record of the proceeding and made thefollowing findings offact.

As to Charge 1 of the Formal WrittenComplaint:

] . Respondent has been a judge of theMontgomery County Family Court since

1995, and is the only Family Court judge inthe county. Prior to that. he served as ajudge of the Amsterdam City Court.

2. Between 1996, when she wasadmitted to practice law, and early 1998.Karen Judd appeared before respondent asan assigned law guardian and, occasionally,as retained counsel. She and respondentdeveloped a friendship during that period.

3. On February 13, 1998, respondentoffered Ms. Judd a position as his law clerk,which she accepted. Ms. Judd began workas respondent's law clerk on March 16,1998.

4. Shortly after Ms. Judd beganworking at the court, respondent and Ms.Judd began a consensual, romanticrelationship. Respondent and Ms. Juddopenly displayed their affection for eachother in view of the court staft; andrespondent discussed his affection for Ms.Judd with members of the court staff,making them uncomfortable. Respondentalso discussed his affection for Ms. Juddwith lawyers who appeared before him inthe Family Court.

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5. Between April 8 and May 19, 1998,respondent wrote letters, notes and poetryexpressing his affection for Ms. Judd, whichhe left for her at her desk. Some of thesewere written on respondent's jud icialstationery. During this period, Ms. Judd didnot regard respondent's poetry and messagesas unwanted or unwelcome.

6. Chief Clerk Donna Caravellaconcluded that the interaction betweenrespondent and Ms. Judd was disruptive tothe staff. In April 1998, Ms. Caravellainformed Ron Stout, executive assistant tothe Fourth Judicial District AdministrativeJudge, of the relationship betweenrespondent and Ms. Judd.

7. On May 20, 1998, after respondent'ssecretary informed him that Ms. Judd hadbeen seen at a restaurant with another man,respondent left a note on Ms. Judd's deskintimating that their relationship was ended.

8. On or about May 22, 1998,respondent called Ms. Judd into his officeand told her that she had "publiclyhum iliated" him by dating another man andbeing seen with the man at a restaurantowned by friends of respondent inrespondent's hometown.

9. The romantic relationship betweenrespondent and Ms. Judd ended on or aboutMay 22, 1998. After that date, respondentcontinued to leave notes and poetry for Ms.Judd at her desk, expressing his feelings forher.

10. After their romantic relationship hadended, the interaction between respondentand Ms. Judd at the court becameincreasingly hostile. Respondent and Ms.Judd argued frequently about work-relatedmatters, and they had private discussions

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with members of the court staff in whichthey derogated each other.

11. As a result of the hostility betweenrespondent and Ms. Judd and theirconversations with court staff membersconcerning these matters, the atmosphere inthe court offices became polarized. Thetermination of the relationship, andrespondent's and Ms. Judd's discussionsrelating to it with members of the staff:detrimentally affected the operation of thecourt.

12. After the termination of theirrelationship, respondent told other membersofthe court staff that he wished he could fireMs. Judd or that she would leave, statementswhich were likely to be related to Ms. Judd.

13. Respondent told Ms. Judd that she"served at [his] pleasure" as his law clerk.This statement was incorrect.

14. The termination of the relationshipadversely affected respondent's ability tocarry out his judicial duties. Respondentexperienced symptoms of anxiety anddepression and exhibited mood swings. Onseveral occasions in or about June 1998,respondent slept during the work day on acot in the basement of the court building, inhis office and on the bench, although notwhile court was in session. At times, staffmembers had to awaken respondent toconduct court business.

15. Respondent occasionally playedmusic in his chambers at a loud volumewhich was disruptive to staff; at such times,staff would ask respondent to lower tovolume, close his door or lower the volumethemselves.

16. In June 1998, Ms. Judd informedrespondent that she was dating Geoffrey

Major, an attorney who had appeared inFamily Court as a law guardian. On June22, 1998, respondent direeted Ms. Caravellanot to assign any new eases to Mr. Major aslaw guardian. Respondent also prepared andsigned a letter disqualifying himself for"personal reasons" trom the four pendingeases to which Mr. Major was assigned.Respondent told Ms. Caravella, "the less Isee of [Mr. Major], the better."Respondent's actions directed to Mr. Majorwere intended as retaliation against Ms.Judd.

17. By directing the Chief Clerk not tomake new law guardianship assignments toMr. Major, respondent ignored the rulesestablished by the Appellate Division for theremoval of a law guardian.

18. On Friday, June 19. 1998, atlunchtime, respondent began to experienceanxiety symptoms and left the courthouse.He returned a short time later and, withoutspeaking to anyone, went into the basementof the court building. A few minutes laterhe emerged from the basement, went into hisoffice, and then, in view of members of theeourt staff, returned to the basement carryinghis Swiss Army knife. After Ms. Caravellaasked respondent's secretary to check onhim, the secretary found respondent sittingon a chair in the basement drinking a beer.After leaving the basement, respondentsubstantively disposed of a case that hadbeen scheduled, completed some paperworkand left the court. In the parking lot, hebegan to experience anxiety symptoms andreturned to his office. Respondent thendecided that he needed time away from thetensions created by working with Ms. Judd.He told his secretary that he needed sometime off and went home.19. At approximately 4:45 P.M. that day,respondent called from home to direct thatthe following week's court proceedings be

cancelled.. The tlm1l1g of respondent'sdecision forced the court statl to hurriedlytake action to notify the parties scheduled toappear on June 22, 1998, that the courtwould be adjourned.

20. On Monday, June 22. 1998,respondent arrived unexpectedly at the courtbuilding, When Ms. Caravella askedrespondent why he had come to work afterhaving said he was taking the week oft;respondent said he would have to take things"day by day." Ms. Caravella suggested torespondent that he take some time off andsaid that she would arrange to have judicialhearing officers provide coverage for the restof the week. Respondent agreed.

2L After Ms. Caravella lett a message atthe district administrative offices thatjudicial hearing officers were neededbecause respondent was having personalproblems, Fourth Judicial DistrictAdministrative Judge Jan Plumadore calledMs. Caravella and pressed her for details asto the reasons for respondent'sunavailability. Ms. Caravella related toJudge Plumadore the events of the previousFriday, June 22, 1998,

22. Respondent did not preside in courtduring the rest of that week. Judicialhearing officers provided coverage for thecourt.

23, On June 22, 1998, respondent wrotea letter of recommendation for Ms, Judd,which he left on his desk in a place where heexpected she would find it. Ms, Judd sawthe letter and made a copy of it. Ms, Juddhad not requested a letter ofrecommendation and had not expressed anyintention to seek other employment.

24. On June 25, 1998, respondentreceived a telephone call at his home from

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Judge Plumadore, who directed respondentnot to return to the court until after meetingwith Judge Plumadore and Deputy ChiefAdministrative Judge Joseph Trafieanti onJune 30, 1998, Respondent disregardedJudge Plumadore's directive and went to thecourt, where he questioned members of thestaff about their conversations with JudgePlumadore. While at the court, respondentreceived a phone call from JudgePlumadore, who told respondent to leave thecourt and not speak to any of the court staffuntil after the meeting scheduled for June30, 1998. Mr. Stout directed a deputysheriff to take whatever measures werenecessary to keep respondent out of thecourt.

25. Ms. Judd was transferred to anequivalent position in the Saratoga CountyFamily Court. On July 9, 1998, the daybefore her last day in Montgomery CountyFamily Court, respondent called Ms. Juddinto his office and confronted her regardingstatements he believed she had been makingabout him to members of the court staff.Respondent then angrily told Ms. Judd to"Get the fuck out of my office."

26. On August 4, 1998, after Ms. Juddhad been transferred to the Saratoga CountyFamily Court, respondent wrote a letter toJudge Plumadore asserting that Ms. Judd"continues to serve at my discretion" andintimating that he would terminate her ifrequested by Judge Plumadore or theSaratoga County Family Court judges.Res'pondent sent copies of the letter toseveral individuals, including Ms. Judd. Inresponse, Judge Plumadore sent a letter torespondent stating that he (respondent) didnot have the authority to terminate Ms. Judd.

27. After respondent became aware thatMs. Caravella had reported his eonduct to

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the administrative office, their previousgood working relationship became strained.On August 27, 1998, respondent told Ms.Caravella that three of the court staff werethreatening to leave because of her and thatit was easier to replace one employee thanthree. On August 31, 1998, respondentwrote a letter to Judge Plumadore, with acopy to Ms. Caravella, recommending thatMs. Caravella be demoted.

28. One member of the stafT: DonnaSoper, was transferred out of the office, andanother staff member requested a transter.On October 16, 1998, respondent called Ms.Caravella into his office and angrily accusedher of lying to him about her asserted non­involvement in Ms. Soper's transfer. WhenMs. Caravella returned to her otTice,respondent followed her, shouting that hewas not through with her yet. Respondentshook the doorknob and pounded on thedoor, which Ms. Caravella had locked,shouting that Ms. Caravella did not belongin her office and that she should sit at thedesk of one of the staff members who hadleft. Respondent shouted to his secretary tohave someone remove Ms. Caravella'sthings trom her office. Standing at thewindow of Ms. Caravella's office,respondent pressed his face against the glass,then took a seat nearby, staring at herthrough the window. Ms. Caravellaremained locked in her office for severalhours, unable to work.

29. When respondent received atelephone call concerning this incident fromJudge Trafieanti, respondent angrilydefended his actions and threatened to "go tothe press" before hanging up the phone.Respondent then went back to Ms.Caravella's office and accused her of"ruining lives," by which he meant his lifeand Ms. Soper's life.

30. Respondent and Ms Judd's formerfiance, an attorney and a hearing officer forthe Family Court exchanged e-mailmessages for a few months beginning in lateJune 1998. In one message, following theannouncement of Ms. Judd's transfer to theSaratoga County Family Court, respondentwrote, "One down, two to go," referring tohis desire that Ms. Judd and two othermembers of the court staff leave the court.In several messages, respondent stated thatMs. Judd had psychological problems andmade other disparaging statements abouther. Respondent also made disparagingcomments about Ms. Judd to an attorneywho appears in thc court.

31. In August 1997, when a member ofthe court staff told respondent that she wasexpecting a child, respondent replied that hewas "shocked" that she "would have a childoutside the matrix of holy matrimony." Thestaff member was upset and hurt byrespondent's comment. Respondent'scomment was insensitive and improper.

. As to Charge II of the Formal WrittenComplaint:

32. Respondent and John Bintz are"friendly acquaintances" who have knowneach otber since childhood. Whenrespondent ran for Family Court in 1994,Mr. and Mrs. Bintz displayed his campaignsign on their lawn. Beginning in February1999, respondent and Mr. Bintz participatedin weekly rehearsals for a local theaterproduction.

33. In February 1999, Mr. Bintz receivednotice from the Department of MotorVehicles that his driver's license would besuspended because he was in arrears in childsupport payments. After trying

unsuccessfully to reach his attorney, duringwhich time the license suspension becameeffective, Mr. Bintz went to the MontgomeryCounty Family Court on March 8, 1999, andasked to see respondent. Respondent'ssecretary told respondent that Mr. Bintzwanted to see him and respondent told her togive him an appointment for the next day.

34. Respondent was aware that Mr. andMrs. Bintz had separated and that they wereparties to support cases in the Court.

35. It is the practice of the Court thatlitigants are not permitted to meet with thejudge ex parte.

36. On March 9, 1999, respondent metpersonally with Mr. Bintz in his chambers.Mr. Bintz explained that his driver's licensehad been suspended for failure to pay childsupport, that he had been unable to contacthis attorney, and that he needed his licensereinstated in order to drive to work.

37. Respondent consulted Mr. Bintz'sFamily Court file, which showed that as ofJanuary 6, J999, Mr. Bintz was $4,888.58 inarrears in child support payments.Respondent saw the Decision and Order of ahearing examiner, who in February 1999 haddenied Mr. Bintz's request for a reduction insupport payments, holding that he had notmade a meaningful attempt to findappropriate employment. Mr. Bintz statedthat he intended to file an Objection to thehearing examiner's decision.

38. Respondent called Ms. Caravellainto his office and dictated to her a petitionand an Order to Show Cause directing Mrs.Bintz to show cause why an order should notbe entered terminating the suspension of Mr.Bintz's license. After respondent reviewedthe documents, Mr. Bintz signed the petition

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and respondent signed the Order to ShowCause, returnable before himself on April12.1999.

39. Pursuant to respondent'sinstructions. Ms. Caravella found an orderterminating the license suspension in a formbook and gave it to respondent, bringing tohis attention the paragraph stating that thesupport obligation had been satisfied.Respondent crossed out that paragraph andgave the form to Ms. Caravella to be typed.Without giving notice to Mrs. Bintz or herattorney, respondent signed and entered theorder terminating the suspension of Mr.Bintz's license.

40. [n issuing the order terminating thelicense suspension, respondent failed tofollow the law, which provided that suchaction could be taken only upon full orpartial payment of the arrears (see FamilyCourt Act §458-a). Mr. Bintz did notprovide respondent with proof of suchpayment, and respondent did not requestproof of such payment.

41. Before he issued the ex parte order,respondent did not attempt to determinewhether he had statutory authority to rescindthe suspension of Mr. Bintz's drivingprivileges.

42. On Mareh 15, 1999, Mr. Bintz'sattorney tiled an Objection to the hearingexaminer's February 1999 Decision andOrder. The Objection was scheduled to beheard by respondent in April 1999. Whenthe matter came before him, respondentrecused himself from hearing both theObjection and the Order to Show Cause, inpart because of his soeial relationship withMr. and Mrs. Bintz.

43. Both proceedings were transferred tothe Fulton County Family COUl1, where a

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hearing officer denied the Objection to thehearing examiner's Decision and Order.The hearing officer did not issue an orderreinstating the suspension of Mr. Bintz'slicense, and as of December 1999, Mr. Bintzhad not been notified that any further actionhad been taken to reinstate the suspension ofhis license.

44. Respondent's involvement in theBintz case went well beyond the assistancethe Court typically provides to pro selitigants.

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated Sections 100.1,100.2(A), 100.2(B), 100.3(B)(3),100.3(B)(6), 100.3(C)(l) and 100.4(A)(2) ofthe Rules Governing Judicial Conduct.Charge I is sustained insofar as it isconsistent with the above findings of fact.Paragraph 4(m) of Charge [ is not sustainedand is dismissed. Charge 11 is sustained.

Respondent engaged in a course of conduct,arising out of a personal relationship withhis law clerk, which detracted from thedignity of his office, seriously disrupted theoperations of the court and constituted anabuse of his judicial and administrativepower.

During the two-month relationship,respondent's conduct. particularly hisphysical display of affection for the lawclerk in view of court staff and hisdiscussions of the relationship withmembers of the court staff and withattorneys who appeared before him, was sodisruptive that the chief clerk felt compelledto report his actions to court administrators.After the relationship ended, respondent'shostile, retaliatory behavior toward the lawclerk created an atmosphere of polarization

and mistrust among court staff, furtherdisrupting the operation of the court, andconstituted a flagrant abuse of his judicialposition. Respondent implicitly threatenedthe law clerk's continued employment bystating that she served at his pleasure; hewrote an unsolicited letter ofrecommendation for her. which heintentionally left in a place where hcexpected she would find it; he derogated herin conversations with court staff and toldsome that he wished she would leave or thathe could fire her. Even after the law clerkwas transferred to another court, respondentsent a letter to the administrative judgeasserting that she still served at hisdiscretion and intimating that he wouldterminate her if asked. Respondent'sdisparaging statements about the law clerkto her former fiance, a Family Court hearingexaminer, and to another attorney furtherdemonstrated the continuing animusmotivating respondent's acts. Respondent'sactions were clearly intended to damage thelaw clerk personally and professionally andwere threatening, intimidating andretaliatory.

Also retaliatory were respondent's efforts toundcrmine the authority of the chief clerk,whom he apparently regarded as the lawclerk's principal ally and who had reportedhis actions to administrative authorities, andto bar an attorney from appearing as a lawguardian in the court solely because theattorney was dating the law clerk. SeeMatter of Hanofee, 1990 Ann Rep of NYCommn on Jud Conduct 109. Respondent'sdirection to his staff not to assign any newcases to the attorney, which effectivelyremoved him as a law guardian withoutfollowing the rules and procedures of theAppellate Division, was particularlyegregious. Respondent's explanation that hedid so in order to avoid an appearance ofimpropriety is unacceptable since other, non-

pumllve options were available, includingdisqualifying the law clerk trom those cases.

Respondent's bizarre and erratic behavior inthe weeks that followed the end of hisrelationship with the law clerk furtherdisrupted the operations of the court anderoded the dignity of his judicial position.Respondent's decision at 4:45 P.M. on aFriday to cancel all court proceedings for thefollowing week because he was unable tocope with the tension between him and thelaw clerk, his sleeping during the work day,his drinking beer in the court basement priorto a court proceeding, his display of a knifeunder circumstances that alarmed his staff,and his explosive display of rage toward thechief clerk exacerbated the turmoil createdby his conduct with respect to the law clerk.

With respect to Charge II, respondentengaged in favoritism by issuing an ex parteorder terminating the suspension of thedriver's license of a long-time acquaintance.Although respondent knew of the Bintzes'ongoing support proceedings in FamilyCourt, respondent met privately in chamberswith Mr. Bintz, whose license had beensuspended because he owed nearly $5,000 inchild support payments. After checking thecase file, respondent dictated a petition andan Order to Show Cause, returnable beforehimself more than a month later.Respondent then directed his chief clerk totype an order terminating the licensesuspension, crossed out the paragraphstating that the support obligation had beensatisfied and signed the order, withoutgiving Mrs. Bintz or her attorney anyopportunity to be heard. Such conduct wascontrary to Family Court Act §458-a, whichprovides that such action can be taken onlyupon full or partial payment of the arrears.Respondent's actions created an appearanceof impropriety, conveying the unmistakable

111

impression that respondent had gone toextraordinary lengths to benefit his long­time acquaintance.

With respect to the issue of sanctions. we aremindful that the extreme sanction ofremoval "is not normally to be imposed forpoor judgment, even extremely poorjudgment" Matter of Sims, 61 NY2d 349,356 (1984). In this case. however,respondent's misconduct "transcends poorjudgment," and it is compounded by hispersistent, astonishing failure to recognizethe impropriety of his admitted acts withrespect to both charges. Matter of Sims,supra; Matter of Shilling. 51 NY2d 397(1980). Also permeating this record isevidence of respondent's arrogant insistencethat others were responsible for the turmoilin the court and his unwillingness to acceptdirection from his administrative judges,who were called upon to deal with theconsequences of his inappropriate behavior.Such conduct demonstrates a total lack ofrecognition of the ongoing, serious problemscreated by his willful, aberrant acts.

We also note that in July 1997, a monthbefore he made an insensitive remark to amember of his staff who was expecting a

112

child, respondent was disciplined for havingmade an inappropriate, discourteouscomment to a litigant. Matter of Going.1998 Ann Rep of NY Commn on Jud.Conduct 129.

Respondent's conduct "demonstrates ablatant lack not only of judgment but also ofjudicial temperament, and completedisregard of the appearances of improprietyinherent in his conduct." Matter of Shilling,supra, 51 NY2d at 399. Respondent's"complete insensitivity to the special ethicalobligations of judges" renders him unfit forjudicial office (Matter of Shilling. supra, 51NY2d at 404).

By reason of the foregoing, the Commissiondetermines that the appropriate disposition isremoval from office.

Judge Salisbury, Mr. Berger, Mr. Goldman,Ms. Hernandez, Judge Luciano, JudgeMarshall, Judge Peters, Mr. Pope and JudgeRuderman concur.

Ms. Brown and Mr. Coffey were not present.

Dated: December 29, 2000

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDUCT

IN THE MAlTER OF THE PROCEEDING PURSUANT TOSECTION 44, SUBDIVISION 4, OF THE JUDICIARY LAW, IN

RELATION TO WALTER W. HAFNER, JR., AJUDGE OF THE COUNTY COURT, OSWEGO COUNTY.

ApPEARANCES:

Gerald Stern (John J. Postel, Of Counsel) for the CommissionEmil M. Rossi for Respondent

The respondent, Walter W. Hafner, Jr., ajudge of the County COUli, Oswego County,was served with a Formal WrittenComplaint dated May 12, 2000, alleging thatrespondent engaged in improper politicalactivity during his campaign for election as aCounty Court judgc in 1998. Respondcntfiled an answer dated May 30, 2000.

On October 7, 2000, the Administrator ofthe Commission. respondent andrespondent's counsel entered into an AgreedStatement of Facts pursuant to JudiciaryLaw §44(5), stipulating that the Commissionmake its determination based upon theagreed facts, jointly recommending thatrespondent be admonisbed and waivingfurther submissions and oral argument.

On October 23, 2000, the Commissionapproved the agreed statement and made thetollowing determination.

I. Respondent has been a judge of theCounty Court since January 1, 1999. In1998, Respondent was a candidate forelection to County Court.

2. During his 1998 campaign forCounty COUli, respondent ran a print

advertisement that stated: "Are you tired ofseeing career criminals get a 'slap' on thewrist? So am 1.. .."

3. In 1998, during his campaign lorCounty Court, respondent rev iewed andapproved tor distribution campaign literatureissued by Conservative Party ChairmanStephen Miller that attacked respondent'sopponent's record in dismissing cases andstated: "Soft judges make hard criminals!"

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated Sections 100.1,100.2(A), 100.5(A)(4)(d)(i) and100.5(A)(4)(d)(ii) of the Rules GoverningJudicial Conduet. Charge 1 of the FormalWritten Complaint is sustained, andrespondent's misconduct is established.

The campaign activities of judicialcandidates are signiticantly circumscribed.(See Matter of Decker, 1995 Ann Report ofNY Commn on Jud Conduct, at 111. 112.)A judicial candidate may not "make pledgesor promises of conduct in office other thanthe faithful and impartial performance of theduties of the office"; nor maya candidate

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"make statements that commit or appear tocommit the candidate with respect to cases,controversies or issues that are likely tocome before the court" (Sections100.5[A][4][d][i] and [ii] of the RulesGoverning Judicial Conduct). To do socompromises the judge's impartiality. (SeeMatter of Birnbaum, 1998 Ann Report ofNY Commn on Jud Conduct, at 73, 74.)

Respondent's 1998 campaign advertisementand the Conservative Party literature, whichrespondent had approved, conveyed the clearmessage that, if elected, respondent wouldtreat criminal detendants more harshly thanhis opponent, the incumbent County Courtjudge, had done. By stating that he was"tired of seeing career crim inals get a 'slap'on the wrist," respondent implied that hewould deal harshly with all such defendants,rather than judge the merits of individualcases. (See Matter of Maislin, 1999 AnnReport of NY Commn on Jud Conduct, at113,114.)

Moreover, the mean-spirited attack on hisopponent for decisions to dismiss charges inspecific cases (the facts of which weredescribed in sensational terms) wasunseemly and highly inappropriate. Suchattacks may pander to popular sentiment thatall defendants charged with heinous crimesshould be convicted and that judges who

114

dismiss such charges are "soft,'· but they doa disservice to the judiciary and to thepublic.

While it cannot be determined whether thesestatements played a significant role inrespondent's successful campaign, a judge'selection is tarnished when the judge'scampaign activity violates the ethical rules.Every judicial candidate should be mindfulof the importance of adhering to the ethicalstandards so that public confidence in theintegrity and impartiality of the judiciarymay be preserved.

By reason of the foregoing, tbe Commissiondetermines that the appropriate sanction isadmonition.

Judge Salisbury, Mr. Berger, Ms.Hernandez, Judge Luciano, Judge Marshall,Judge Peters, Mr. Pope and Judge Rudermanconcur.

Mr. Goldman votes to reject the agreedstatement of facts on the basis that theproposed sanction is too lenient.

Ms. Brown and Mr. Coffey and were notpresent.

Dated: December 29,2000

STATE OF NEW YORK

COMMISSION ON .IIJDICIAL CONDUCT

IN TIlE MATTER OF TilE PROCEEDING PURSUANT TO

SECTION 44, SUBDIVISION 4, OF THE JUDICIARY LAW, IN

RELATION TO .I0HN C. HOWELL, A

JUSTICE OF THE LANSING TOWN COURT. TOMPKINS COUNTY.

ApPEARANCES:

Gerald Stern (John J. Postel, Of Counsel) for the CommissionWilliamson, Clune & Stevens (By Robert J. Clune) for Respondent

The respondent, John C. Howell, a justice ofthe Lansing Town Court, Tompkins County,was served with a Formal WrittenComplaint dated September 29, 1999,alleging that he wrote to another judge inconnection with a pending criminal case.Respondent t1Ied an undated answer.

On December 16, 1999, the administrator ofthe Commission, respondent andrespondent's counsel entered into an AgreedStatement of Facts pursuant to JudiciaryLaw § 44(5), stipulating that theCommission make its determination basedon the agreed upon facts, jointlyrecommending that respondent beadmonished and waiving furthersubmissions and oral argument.

On February 4, 2000, the Commissionapproved the agreed statement and made thefollowing detcrmination.

1. Respondent has been a justice of theLansing Town Court since 1991.

2. On November 3, 1997, based on arequest from an assistant district attorney,

respondent wrote a letter on court stationeryto the judge who was presiding over Peoplev Carmen DeChellis, which was thenpending in the Tompkins County Court.Respondent stated that:

a) the defendant had appeared beforerespondent "almost continuously sinceJanuary 1993";

b) respondent had "heard this line of'B.S.' before";

c) the defendant "is a menace to ourcommunity"; and,

d) there was no doubt in respondent'smind that the defendant "needs to do realtime in State Prison."

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated the RulesGoverning Judicial Conduct, 22 NYCRR100.1, 100.2(A), 100.2(C), 100.3(B)(3) and100.3(B)(8). Charge I of the Formal WrittenComplaint is sustained, and respondent'smisconduct is established.

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In an intemperate letter, respondent used theprestige of his judicial office to advance theprosecutor's position in a criminal casepending before another judge. As the Courtof Appeals stated in Matter of Lonschein (50NY2d 569, at 571-72):

[N]o judge should ever allow personalrelationships to color his conduct or lendthe prestige of his office to advance theprivate interests of others [citationomitted]. Members of the judiciaryshould be acutely aware that any actionthey take, whether on or off the bench,must be measured against exactingstandards of scrutiny to the end thatpublic perception of the integrity of thejudiciary will be preserved [citationomitted]. There must also be arecognition that any actions undertaken inthe public sphere reflect, whetherdesignedly or not, upon the prestige ofthe judiciary. Tbus, any communication

from a Judge to an outside agency onbehalf of another, may be perceived asone backed by the power and prestige ofjud icial office.

In the past, such conduct has occasionedeither admonition or censure, depending onthe circumstances. (See, Matter of Putnam,1999 Ann Report of NY Commn on JudConduct, at 131 [judge admonished afterwriting to another judge on the merits of apending custody case]; Matter of Engle,1998 Ann Report of NY Commn on JudConduct, at 125 [judge censured afterwriting to another judge and pleading for alenient sentence for a defendant in a pendingcase and after circulating, signing anddelivering a petition to the prosecutor onbehalf of the same defendant]; Matter ofFreeman, 1992 Ann Report of NY Cornmnon Jud Conduct, at 44 [judge admonishedafter writing to another judge on behalf of an

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individual who was seeking to have hispistol permit reinstated]).

In the instant case, we are persuaded thatadmonition is appropriate. Although it doesnot excuse his wrongdoing, respondent'smisconduct is mitigated by the fact that hewrote the letter at the urging of theprosecutor. (See, Matter of Abbott, 1990Ann Report of NY Commn on Jud Conduct,at 69, 72; Matter of Reyome, 1988 AnnReport of NY Commn on Jud Conduct, at207,209).

By reason of the foregoing, the Commissiondetermines that the appropriate sanction isadmonition.

Mr. Berger, Ms. Hernandez, Judge Joy,Judge Luciano, Mr. Pope, Judge Rudermanand Judge Salisbury concur.

Ms. Brown, Mr. Goldman and JudgeMarshall dissent and vote to reject theAgreed Statement of Facts.

Mr. Coffey was not present.

Dated: April 6, 2000

DISSENTING OPINION BY MR. GOLDMAN

Although I ordinarily accept a factual and/orsanction stipulation agreed upon by theparties, I vote to reject the Agreed Statementof Facts. In determining sanction, I believeit important to know whether respondentsent the letter ex parte to the county judgeand whether defense counsel was madeaware of the letter. The determination ofthese facts, either in a hearing or by arevised stipulated statement, may be crucialto my decision as to the appropriate sanctionin this matter.

Dated: April 6, 2000

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDUCT

IN THE MATTER OF THE PROCEEDING PURSUANT TO

SECTION 44, SUBDIVISION 4, OF THE JUDICIARY LAW, IN

RLLATION TO JOHN N. MULLIN, A

JUDGE OF THE DISTRICT COURT. SUFFOLK COUNTY.

ApPEARANCES:

Gerald Stern (Alan W. Friedberg. Of Counsel) for the CommissionDavid W. Clayton for Respondent

The respondent, John N. Mullin, a judge ofthe District COUlt and an acting judge of theCounty Court, Suffolk County, was servedwith a Formal Written Complaint dated May15, 2000. alleging that respondent engagedin improper political activity during hiscampaign for election as a Supreme Courtjustice in 1998.

On July 13. 2000, the Administrator of theCommission, respondent and respondent'scounsel entered into an Agreed Statement ofFacts pursuant to Judiciary Law §44(5),

stipulating that the Commission make itsdeterm ination based upon the agreed facts,jointly recommending that respondent beadmonished and waiving furthersubmissions and oral argument.

On August 10, 2000, the Commissionapproved the agreed statement and made thefollowing determination.

As to Charges I and II of the Formal WrittenComplaint:

I . Respondent has been a judge of theDistrict Court since 1984. In 1998,

respondent was a candidate for election toSupreme Court.

2. During his 1998 campaign,respondent approved and failed to preventwidespread distribution of a piece ofcampaign literature and advertisements thatimplied that respondent was an incumbentSupreme Court justice by containing thestatement "John N. Mullin Supreme CourtJustice," together with a photograph ofrespondent in judicial robes.

3. In October 1998, during hiscampaign for Supreme Court, respondentfailed to prevent widespread distribution ofan advertisement, placed in the Long IslandCatholic newspaper by respondent'scampaign, that implied that respondent wasan incumbent Supreme Court justice bycontaining the statements "John N. MullinSupreme Court Justice - Rows B & F" and"Paid for by the Committee to Re-ElectJudge John Mullin." Respondent'scampaign committee was named "TheCommittee to Elect John N. Mullin to theSupreme Court."

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4. The October 1998 advertisement inthe Long Island Catholic also contained thestatements "John N. Mullin Supreme CourtJustice - Rows B & F The Authentic RightTo Life Judicial Candidate." "Life ...TheVerdict For All Of God's Children" and"Judge Mullin Needs And Deserves TheSupport Of All Who Cherish Life." Thesestatements appeared to commit rcspondenton abortion-related issues that come beforethe Court.

5. Respondent tacitly approved thelanguage contained in the Long IslandCatholic advertisement by giving hiscampaign manager, Jerry Garguilo, Esq.,authority to compose the text of theadvertisement and by having a generaldiscussion with Mr. Garguilo concerning thecontents of the advertisement.

As to Charges III and IV of the FormalWritten Complaint:

6. On August 18, 1998, at respondent'sdirection, respondent's campaign forSupreme Court justice made a payment of$1,750.00 to the Smithtown RepublicanVictory Fund to purchase tcn tickets to theAnnual Smithtown Republican CocktailReception and Buffet, which constituted animproper political contribution.

7. At thc time of the purchase of the tentickets, respondent knew or should haveknown that Section 100.5(A)(2)(v) of theRules Governing Judicial Conduct permits ajudicial candidate to purchase only twotickets to politically sponsored dinners andother functions.

8. On August 26, 1998, at respondent'sdirection, respondent's campaign forSupreme Court justice made a payment of$1,000.00 to the Suffolk County Right ToLife Party, which constituted an improper

118

campaign contribution. At the time of thepayment, respondent had not yet beendesignated as the candidate of the Right ToLife Party, although respondent had been theParty's candidate in three previous judicialelections.

9. In the spring of 2000, during theCommission's investigation of this matter,respondcnt obtained from the SmithtownRepublican Victory Fund and the SuffolkCounty Right To Life Party the return of thefunds improperly paid to those groups byrespondent's campaign committee andarranged to return the funds pro rata to thecampaign's contributors.

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated Sections 100.1,100.2, 100.5(A), 100.5(A)(2)(v),100.5(A)(4)(a), 100.5(A)(4)(d)(i),100.5(A)(4)(d)(ii) and 100.5(A)(4)(d)(iii) ofthe Rules Governing Judicial Conduct.Charges I, n, III and IV of the FormalWritten Complaint are sustained, andrespondent's misconduct is established.

Respondent's conduct during his 1998campaign for Supreme Court justice revealsa lack of sensitivity to the ethical standardsgoverning judges. As a judge since 1984,respondent should have been awarc of therestrictions on political activity for judicialcandidates.

By containing the statement "John N. MullinSupreme COUlt Justice," together with aphotograph of respondent in judicial robes,respondent's campaign literature andadvertisements, which respondent hadapproved, conveyed the false impression thatrespondent was an incumbent SupremeCourt justice. This impression wasunderscored by a reference, in oneadvertisement, to "The Committee to Re-

Elect Judge John Mullin"; in fact,respondent's campaign committee wasnamed "The Committee to Elect John N.Mullin to the Supreme Court." Byappearing to portray him as an incumbentSupreme Court justice, respondent'smisleading campaign material would belikely to give him an unfair advantage in hiscampaign for that office and violatedSection 1OOA(d)(iii) of the Rules GoverningJudicial Conduct.

When seeking election for a higher judicialoffice, a judge may use the term "judge" or"justice" in campaign literature, but in doingso the judge must make clear that he or sheis not the incumbent of the office sought(NYSBA Op 612, 28-89, Sept. 7,1990; OpnAdvisory Comm on Jud Ethics 94-50). Ajudge's campaign material mustscrupulously avoid any ambiguity in thatregard in order to avoid the potential fordeception. Respondent's campaign materialfell short of the ethical standards.

Further, by describing respondent as "TheAuthentic Right To Life Judicial Candidate"and contain ing the statements "Life ...TheVerdict For All Of God's Children" and"Judge Mullin Needs And Deserves TheSupport Of All Who Cherish Life,"respondent's campaign advertisement in theLong Island Catholic appeared to commitrespondent on abortion-related issues thatcome before the Court. Although a judicialcandidate may accept endorsement trom theRight To Life Party, a candidate may. notpledge support to a party platform orposition or make statements that may reflecton his or her impartiality (Sections1OOA[d][i] and 1OOA[d][ii] of the RulesGoverning Judicial Conduct).

Respondent's conduct in authorizing hiscampaign committee to purchase ten ticketsto a political dinner was improper since a

judicial candidate may buy only two suchtickets (Section 100.5[A][2][v] of the RulesGoverning Judicial Conduct: Matter ofSalman, 1995 Ann Rep of NY Commn onJud Conduct, at 134 [Jan. 26, 1994]). Thisconstituted an improper politicalcontribution and violated the ethical rules.

Respondent also permitted his campaigncommittee to give $1,000 to the SuffolkCounty Right To Lite Party. While ajudge's committee may reimburse politicalorganizations for the proportionate share ofthe cost of the judge's election campaign,the judge should obtain documentation of.actual costs before the political organizationis reimbursed (Opns Advisory Comm on JudEthics; Matter of Salman, supra). Althoughrespondent had been the candidate of theRight To Life Party in previous elections, hehad not yet been designated as the Party'scandidate at the time of the payment, andthus his committee's payment clearlyconstituted an improper politicalcontribution.

By reason of the foregoing, the Commissiondetermines that the appropriate sanction isadmonition.

Judge Salisbury, Mr. Berger, Mr. Goldman,Ms. Hernandez, Judge Marshall, JudgePeters, Mr. Pope and Judge Rudermanconcur.

Judge Luciano did not participate.

Ms. Brown and Mr. Coffey and were notpresent.

Dated: Septemher 25,2000

119

120

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDUCT

IN THE MAlTER OE THE PROCEEDING PURSUANT TOSECTION 44, SUBDIVISION 4, OF THE JUDICIARY LAW, IN

RELATION TO ROBERT T. RUSSELL, JR•• AJUDGE OF nlE BUFFALO CITY COURT. ERIE COUN1Y.

ApPEARANCES:

Gerald Stern (John J. Postel, Of Counsel) for the CommissionTerrence M, Connors for Respondent

The respondent, Robert T. Russell, Jr" ajudge of the Buffalo City Court, ErieCounty, was served with a Formal WrittenComplaint dated March 15, 2000, allegingthat over a seven-year period respondentfailed to file his financial disclosurestatements with the Ethics Commission forthe Unified Court System within the timerequired by the Rules of the Chief Judge,

On September 14, 2000, the Administratorof the Commission, respondent andrespondent's counsel entered into an AgreedStatement of Facts pursuant to JudiciaryLaw §44(5), stipulating that the Commissionmake its determination based upon theagreed tacts, jointly recommending thatrespondent be admonished and waivingfurther submissions and oral argument,

On September 14, 2000, the Commissionapproved the agreed statement and made thefollowing determination,

As to Charge I of the Formal WrittenComplaint:

1, Respondent has been a judge of theBuffalo City Court since 1992,

2, Respondent failed to file hisfinancial disclosure statements for the years1992 through 1998 with the EthicsCommission for the Unified Court System("Ethics Commission") within the timerequired by Section 40.2 of the Rules of theChief Judge (22 NYCRR 40.2), In each ofthose years, the Ethics Commission sentrespondent a Notice To Cure, and in three ofthose years, the Ethics Commission sentrespondent a Notice of Delinquency, as setforth on the annexed Schedule A,

3, Respondent's delayed tilings withthe Ethics Commission of his 1996, 1997and 1998 financial disclosure statementsoccurred after the Commission had sentrespondent a Letter of Dismissal andCaution dated February 7, 1997, pertainingto his failure to file his 1995 financialdisclosure statement in a timely manner andcautioning him to file his financialdisclosure statements as required by Section40.2 and Judiciary Law Section 211(4),

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated Section 100.3(C)( I)

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of the Rules Governing Judicial Conduct.Charge I is sustained, and respondent'smisconduct is established.

As rcflected in Judiciary Law Scction 211(4)and Rules of the Chief Judge Section 40.2,the Legislature and the Chief Judge havedetermined that financial disclosurc byjudges serves an important public function,and it is the duty of every judge to file therequired reports promptly. Since becominga judge in 1992, respondent repeatedlyviolated the requirement that his financialdisclosure statements be filed each year byMay 15'"; his first report, due on May IS,1993, was filed 150 days late, and over aseven-year period his reports were late by anaverage of 85 days. Each year, a month afterthe May 15'h due date. the EthicsCommission sent respondent a Notice ToCure reminding him of his obligation, and inthree of those years, when .he did not filewithin 30 days of the Notice To Cure,respondent was sent a Notice OfDelinquency.

Respondent's negligence in this regard isexacerbated by the fact that his pattern oflate filing continued even after he received aLetter of Dismissal and Caution from theCommission concerning his failure to file

his 1995 financial disclosure statement in atimely manner. Notwithstanding thiswarning, respondent continued to ignore therelevant ethical rules. and for each of thenext three years, he continued to file hisreports well past the due date and only afterreceiving a Notice To Cure.

Respondent's conduct violated ScctionIOO.3(C)(l) of the Rules Governing JudicialConduct, which requires a judge todiligently discharge his or her administrativeresponsibilities, maintain professionalcompetence in judicial administration andcooperate with court officials in theadministration of court business. Althoughthis behavior docs not reflect onrespondent's performance on the bench, it ismisconduct that warrants public discipline.

By reason of the foregoing, the Commissiondetermines that the appropriate sanction isadmonition.

Judge Salisbury, Mr. Berger, Ms. Brown,Mr. Coffey, Mr. Goldman, Ms. Hernandez,Judge Luciano, Judge Peters and Mr. Popeconcur. Judge Marshall and JudgeRuderman were not present.

Dated: October 3 I, 2000

122

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDtJCT

IN THE MATTER OF THE PROCEEDING PURSUANT TO

SECTlON 44. SUBDIVISION 4. OF TIlE JUDICIARV LAW. IN

RELATION TO LAURA D. STIGGINS, A

JUSTICE OF TIlE DANSVILLE TOWN COURT. STEUBEN COUNTV.

ApPEARANCES:

Gerald Stern (John J. Postel. Of Counsel) for the CommissionUrbanski & Flynn (By Kevin P. Flynn) for Respondent

The respondent. Laura D. Stiggins. a justiceof the Dansville Town Court, SteubenCounty, was served with a Formal WrittenComplaint dated February II, 2000, allegingthat respondent physically abused a mentallyincompetent patient in a nursing home and,as a result of her actions, was convicted oftwo misdemeanors.

By motion dated April 12, 2000, theadministrator of the Commission moved forsummary determination, pursuant to Section7000.6(c) of the Commission's operatingprocedures and rules (22 NYCRR7000.6[c]). Respondent opposed the motionin papers dated April 27, 2000. By Decisionand Order dated May 19, 2000, theCommission granted the administrator'smotion.

The administrator filed a memorandum as tosanctions. Respondent did not file anypapers and did not request oral.argument.

On June 22, 2000, the Commissionconsidered the record of the proceeding andmade the following findings of fact.

I. Respondent has been a justice of theDansville Town Court since 1986.

2. In 1998, respondent was employed asa licensed practical nurse at the LivingstonCounty Campus Skilled Nursing Facility, aresidential health care facility located inMount Morris.

3. On or about January 25, 1998,respondent physically abused RosellaCarpenter, a patient of the facility who wasunable to care for herself due to dementia,by throwing Ms. Carpenter onto the arm of aGeri-Chair, thereby causing a fractured rib.

4. On March 31, 1999, respondent wasconvicted after a jury trial in the MountMorris Town Court of Assault, ThirdDegree, a violation of Section 120.00 of thePenal Law, and Endangering The WelfareOf An Incompetent Person, a violation ofSection 260.25 of the Penal Law, inconnection with her conduct toward Ms.Carpenter on or about January 25, 1998.Respondent received a sentence of threeyears probation and 200 hours of communityservice.

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated Sections 100.1 and

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IOO.2(A) of the Rules Governing JudicialConduct. The charge in the Formal WrittenComplaint is sustained, and respondent'smisconduct is established.

Respondent's conduct, as established in thecriminal matter which resulted in herconviction of Assault, Third Degree andEndangering The Welfare Of AnIncompetent Person, clearly violated thehigh standards of conduct required of everyjudge and demonstrates her lack of fitnessfor judicial office.

On or off the bench, a judge remains"clothed figuratively with his black robe ofoffice devolving upon him standards ofconduct more stringent than those acceptablefor others." Matter of Kuehnel v. StateComm. on Judicial Conduct, 49 NY2d 465,469 (1980). Every judge is required toobserve high standards of conduct and toconduct himself or herself in a manner thatpromotes public confidence in the integrityof the judiciary (Sections 100.1 and100.2[A] of the Rules Governing JudicialConduct). Any conduct, on or offthe bench,"inconsistent with proper judicial demeanorsubjects the judiciary as a whole todisrespect and impairs the usefulness of theindividual judge to carry out his or herconstitutionally mandated funetion." Matterof Kuehnel, supra.

124

By physieally abusing a mentallyincompetent patient in a nursing home,respondent engaged in conduct that isunaeeeptable by any standard. Suchbehavior, reprehensible when committed byany individual, is intolerable in one whoholds a position of public trust. Matter ofBenjamin v. State Comm. on JudicialConduct, 77 NY2d 296 (1991).

While respondent has been punished for herconduct by the court of law in which shewas convicted, it is also imperative for theCommission to act. As a judge, respondenthas jurisdiction over the misdemeanorcharges of which she was convicted.Respondent's conduct and her subsequentconviction seriously undermine her ability toadminister the law effectively andimpartially. By her actions, respondent hasdemonstrated that she is unfit for judicialoffice.

By reason of the foregoing, the Commissiondetermines that the appropriate sanction isremoval from office.

Judge Salisbury, Mr. Berger, Ms. Brown,Mr. Coffey, Mr. Goldman, Ms. Hernandez,Judge Joy, Judge Luciano, Judge Marshalland Judge Ruderman concur.

Mr. Pope was not present.

Dated: August 18, 2000

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDUCT

IN THE MAHER OF TilE PROCEEDING PURSUANT TO

SECTION 44, SUBDIVISION 4, OF THE JUDICIARY LAW, IN

RELATION TO JOSEPH P, TORRACA, A

JUSTICE OF TilE SUPREME COURL ULSTER COUNTY.

ApPEARANCES:

Gerald Stern (Cathleen S. Cenci, Of Counsel) for the CommissionH. Clark Bell for Respondent

The respondent, Joseph P. Torraca, a justiceof the Supreme Court. Third JudicialDistrict, Ulster County, was served with aFormal Written Complaint dated July I I,2000, alleging that respondent engaged inimproper business activity and presided overcases in which the attorney for one of theparties was making lease payments ormortgage payments to respondent.

On September 14, 2000, the Administratorof the Commission, respondent andrespondent's counsel entered into an AgreedStatement of Facts pursuant to JudiciaryLaw §44(5), stipulating that the Commissionmake its determination based upon theagreed facts, jointly recommending thatrespondent be admonished and waivingfurther submissions and oral argument.

On September 14, 2000, the Commissionapproved the agreed statement and made thefollowing determination,

As to Charge I of the Formal WrittenComplaint:

1. Respondent has been a justice of theSupreme Court, Third Judicial District since1982.

2, In 1970, respondent and his lawpartner Phil Schunk formed a corporation,Schunk and Torraca, P.c., which had as itsmain asset the building containing thecorporation's law office at 40 Main Street,New Paltz, New York. Respondent and Mr.Schunk dissolved their law practice in 1980.

3. From January 1982, whenrespondent assumed the Supreme Courtbench, until October 1999, respondentcontinued to serve as secretary/treasurer anddirector of Schunk and Torraca, P.C.During that period, the mailing address ofthe corporation was respondent's chambers.

As to Charge II of the Formal WrittenComplaint:

4. From January 1982 to September1994, Schunk and Torraca, P.c. leased theoffice building at 40 Main Street in NewPaltz to various tenants, including the UlsterCounty Department of Mental Health. FromSeptember ]994 until September 1997,Schunk and Torraca, P.C. leased thebuilding to the law firm of Andrew andVictoria Kossover.

5. In September 1997, Schunk andTorraca, P.C. sold the office building to

125

Andrew and Victoria Kossover. Schunk andTorraca held a mortgage on the propertyfrom September 1997 to July 1999.

6. Between 1994 and 1999. AndrewKossover represented numerous clients inSupreme Court, Ulster County. Respondentpresided to disposition over three of Mr.Kossover's cases without disclosing to Mr.Kossover's adversaries the ongoing financialtransactions with Mr. Kossover.

Upon the foregoing findings of fact. theCommission concludes as a matter of lawthat respondent violated Sections 100.1,100.2(A), 100.3(E)(I), 100.4(A)(I),100.4(D)(I)(c) and 100.4(0)(3) and formerSections 100.3(c)(1), 100.5(c)(I) and100.5(c)(2) of the Rules Governing JudicialConduct. Charges I and II of the FormalWritten Complaint are sustained, andrespondent's misconduct is established.

Afier ascending the bench in 1982,respondent continued to serve for nearly twodecades as director and secretary/treasurer ofSchunk and Torraca, P.c. During thisperiod, the mailing address of Schunk andTorraca, P.C. was respondent's chambers,and respondent, as a principal of thecorporation, collected rents from varioustenants who leased the building owned bythe corporation. Such conduct is clearlyprohibited by Section! 00.4(0)(3) of theRules Governing Judicial Conduct (formerlySection I00.5[c][2]), which provides: "Nofull-time judge shall be a managing or activeparticipant in any form of businessenterprise organized for profit, nor shall heor she serve as an officer, director, trustee,partner, advisory board member or employeeof any corporation, partnership or otherassociation organized for profit.. .. "

The prohibitions against business activity byjudges are "straightforward and

126

unequivocal. ..... (Matter of Bavger, 1984Ann Report of NY Commn on Jud Conductat 62, 66; sec also Matter of Bell, 1996 AnnReport of NY Commn on Jud Conduct at61). Respondent's ongoing business activityclearly violated the ethical standards.

That respondent's business dealingsinvolved an attorney who appeared inrespondent's court compounds hismisconduct. During a time when attorneyAndrew Kossover was making payments torespondent for the lease of the buildingowned by Schunk and Torraca, and later forthe purchase of the building. respondentpresided over Mr. Kossover's cases and didnot make disclosure to any of the opposingparties. Such conduct is contrary to theethical rules which prohibit a judge fromengaging in business dealings that castreasonable doubt on the judge's capacity toact impartially and that involve the judge infrequent transactions or continuous businessrelatiOliships with lawyers or others likely tocome before the judge's court (Sections100.4[A][!] and 100.4[D][1][c] of theRules, formcrly Section 100.5[c][!]).

Respondent's conduct revcals a lack ofsensitivity to the ethical standards for judgesand warrants public discipline.

By reason of the foregoing, the Commissiondetermines that the appropriate sanction isadmonition.

Judge Salisbury, Mr. Berger, Ms. Brown,Mr. Coffey, Mr. Goldman, Ms. Hernandez,Judge Luciano, Judge Marshall and Mr.Pope concur.

Judge Peters did not participate.

Judge Ruderman was not present.

Dated: November 7, 2000

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDUCT

IN THE MAnER OF 1'1 IE PROCEEDING PURSUANT TO

SECTION 44. SUBDIVISION 4. OF THE JUDICIARY LAW. IN

RELATION TO PENNY M. WOLFGANG. A

JUSTICE OF SUPREME COURT, ERIE COUNTY.

ApPEARANCES:

Gerald Stern (John J. Postel, Of Counsel) for the CommissionConnors & Vilardo (By Terrencc M. Connors) for Respondent

The respondent, Penny M. Wolfgang, ajustice of the Supreme Court, EighthJudicial District, Erie County, was servedwith a Formal Written Complaint datedJanuary 19, 2000, alleging that respondentengaged in improper business activity andlent the prestige ofjudicial office to advanceprivate interests by playing the role of ajudge in a commercial motion picture.

On May 10, 2000, the Administrator of theCommission, rcspondent and respondent'scounsel entered into an Agreed Statement ofFacts pursuant to Judiciary Law §44(5),stipulating that the Commission make itsdetermination based upon the agreed facts,jointly recommending that a sanction nomore severe than admonition be determined,and waiving further submissions and oralargument.

On May I I, 2000, the Commissionapproved the agreed statement and made thefollowing determination.

I. Respondent has been a justice of theSupreme Court, Eighth Judicial Districtsince 1986.

2. In or about April 1998, respondentplayed the role of a judge in the commercialmotion picture "Buffalo 66". Respondentappeared in the movie in one brief scene.wearing her judicial robe and presiding incourt over a sentencing proceeding. Hernameplate, visible in the scene, identifiedher by name. The scene was filmed on aSaturday.

3. For her appearance in the movie,respondent received compensation of$466.00. Respondent subsequently donatedthe remuneration to charity.

4. Prior to her appearance in the movie,respondent did not request an opinion fromthe Advisory Committee on Judicial Ethicsand was not aware of Advisory Opinion 96­134 (1996), which states that a full-timejudge should not be an actor in a commercialmotion picture.

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated Sections 100.2(C)and 100.4(0)(3) of the Rules GoverningJudicial Conduct. The charge in the FormalWritten Complaint is sustained, and

127

respondent's misconduct is established.

By her appearance in a commercial movie,in which she played the role of a judge, woreher judicial robe and was identified by name,respondent lent the prestige of judicial officeto advance private interests. Such conduct isprohibited by Section 100.2(C) of the RulesGoverning Judicial Conduct and detractshom the dignity ofjudicial office.

Respondent, who was compensated for herappearance in the movie, also violated theethical standards which prohibit a full-timejudge from engaging in business activity oraccepting private employment from anyentity organized for profit. The movie was acommercial enterprise, and by participatingin the movie, respondent contributed to thatenterprise, in violation of Section100.4(0)(3) of the Rules Governing JudicialConduct.

While this misconduct, standing alone,might otherwise warrant a confidentialdisposition, we note that respondent haspreviously been disciplined for engaging inimproper extra-judicial activities. In 1987,respondent was admonished for lending theprestige of her judicial office to advancecertain business interests and charitableactivities. (See Matter of Wolfgang, 1988Ann Report of NY Commn on Jud Conduct,at 245.) In that matter, two of the threeinstances of misconduct occurred afterrespondent had received a Lctter of

128

Dismissal and Caution, explicitly advisingher not to use her judicial position topromote private business interests. Thus.respondent should have been especiallysensitive to the ethical restrictionsconcerning extra-judicial activities.

We also note that, notwithstanding theseconcerns, respondent did not seek advicefrom the Advisory Committee on JudicialEthics prior to her appearance in the movie.Had respondent done so, she would havebeen aware of Advisory Opinion 96-134(1996), which specifically states that a full­time judge should not be an actor in acommercial motion picture.

In view of the numerous warningsrespondent has received concerning herimproper extra-judicial activities, any ftitureconduct which violates the ethical rulesconcerning such conduct may well be metwith a more severe sanction.

By reason of the foregoing, the Commissiondetermines that the appropriate sanction isadmonition.

Judge Salisbury, Mr. Berger, Mr. Coffey,Mr. Goldman, Judge Joy, Judge Marshall,Mr. Pope and Judge Ruderman concur.

Ms. Brown, Ms. Hernandez and JudgeLuciano were not present.

Dated: July 5, 2000

STATE OF NEW YORK

COMMISSION ON JUDICIAL CONDIICT

IN TilE MAHER OF THE PROCEEDING PURSUANT TO

SECTION 44, SUBDIVISION 4, OF TIlE JUDICIARY LAW, IN

RELATION TO KEVIN G. YOUNG. A

JUDGE OF THE SYRACUSE CITY COURT. ONONDAGA COUNTY.

ApPEARANCES:

Gerald Stern (John J. Postel, Of Counsel) for the CommissionEmil M. Rossi for Respondent

The respondent, Kevin G. Young, a judge ofthe Syracuse City Court, Onondaga County.was served with a Formal WrittenComplaint dated May 12, 2000, alleging thatrespondent, at the request of a friend whowas the petitioner in a pending Family Courtmatter, initiated an improper ex partecommunication with the Family Courthearing examiner assigned to the matter.Respondent filed an answer dated June 12.2000.

On October 19, 2000. the Administrator ofthe Commission, respondent andrespondent's counsel ehtered into an AgreedStatement of Facts pursuant to JudiciaryLaw §44(5), stipulating that the Commissionmake its determination based upon theagreed facts, jointly recommending thatrespondent be censured and waiving furthersubmissions and oral argument.

On October 23, 2000, the Commissionapproved the agreed statement and made thefollowing determination.

I. Respondent has been a judge of theSyracuse City Court since January I, 1996.

2. Respondent has known KathleenO'Hara for many years. Ms. O'Hara is apersonal Iriend of respondent's and had beenhis client when he was in private practiceprior to January I, 1996.

3. In or about July 1998. Ms. O'Haraadvised respondent that she had a matterpending in Family Court involving Patsy J.Campolieta, her ex-husband. Ms. O'Haraadvised respondent that the matter wasbefore Onondaga County Family CourtHearing Examiner Robert Jenkins and askedrespondent if he would "make a call" toHearing Examiner Jenkins concerning theissue of education-related expensesinvolving one of Ms. O'Hara's childrenfrom her prior marriage to Mr. Campolieta.

4. Respondent initially rejected Ms.O'Hara's request but subsequently contactedHearing Examiner Jenkins, who waspresiding over Kathleen O'Hara v. Patsy .I.Campolieta, and left a message that theHearing Examiner contact "Judge Young."

5. Respondent initially advised Ms.O'Hara that he would not contact HearingExaminer Jenkins because he recognized

129

that a judge should not contact anotherjudicial officer concerning a pending matterat the request of a personal friend.

6. When Hearing Examiner Jenkinsreturned respondent's call, respondentadvised him that Mr. Campolieta was a"hard ass" and was being "unreasonable" bynot contributing to the college expenses ofone of the children of the parties. HearingExaminer Jenkins was aware that respondentwas a Syracuse City Court judge, and herecused himself from the matter as aconsequence of respondent's ex partecommunication.

Upon the foregoing findings of fact, theCommission concludes as a matter of lawthat respondent violated Sections 100.1,100.2(A), 100.2(C) and 100.3(B)(6) of theRules Governing Judicial Conduct. Charge Iof the Formal Written Complaint issustained, and respondent's miseonduct isestablished.

By contacting a Family Court HearingExaminer on behalf of a friend whose casewas pending before the Hearing Examiner,respondent intervened on behalf of anotherin a pending proceeding and used theprestige of judicial office in an attempt toadvance his friend's private interests. Suchassertion of influence is clearly prohibitedby the ethical standards (Section 100.2[C] ofthe Rules Governing Judicial Conduct). Asthe Court of Appeals stated in Matter ofLonschein (50 NY2d 569,571-72):

No judge should ever allow personalrelationships to color his conduct or lend theprestige of his office to advance the privateinterests of others. Members of the judiciaryshould be acutely aware that any action theytake, whether on or off the bench, must bemeasured against exacting standards of

130

scrutiny to the end that public perception ofthe integrity of the judiciary will bepreserved.

Difficult as it may be to refuse the request ofa close friend or relative to "make a call" onhis or her behalf. every judge must bemindful of the importance of adhering to theethical standards so that public confidence inthe integrity and impartiality of the judiciarymay be preserved. Respondent had ampleopportunity to reflect upon the improprietyof the call he was requested to make.Indeed. when his friend asked that he "makea call" on her behalf, he initially declined todo so because he recognized the improprietyof such conduet. Then, when he made thecall to the Hearing Examiner, he left wordthat "Judge Young" had called. Not untilthe Hearing Examiner returned the call didrespondent deliver an emphatic message onbehalf of his friend.

Having identified himself as a judge,respondent, who had been his friend'sattorney before becoming a judge, acted asher advocate. He described his friend'sformer husband in derogatory language andadvised the Hearing Examiner that theformer husband was being "unreasonable:'Clearly, the purpose of such ex parleadvocacy was to influence the HearingExaminer on his friend's behalf. Indeed, theHearing Examiner felt constrained to recusehimself from the matter as a consequence ofrespondent's improper intervention. Such asolicitation of special consideration "iswrong, and always has been wrong," andundermines the administration of justice.Matter of Byrne, 420 NYS2d 70, 71 (Ct onthe Jud 1979); see also Matter of McGee,1985 Ann Report of NY Comm on JudConduct, at 176; Matter of DeLuca, 1985Ann Report of NY Comm on Jud Conduct,at 119.

By reason of the foregoing, the Commissiondetermines that the appropriate sanction iscensure.

Judge Salisbury, Mr. Berger, Mr. Goldman,Ms. Hernandez, Judge Luciano, Judge

Marshall, Judge Peters, Mr. Pope and JudgeRuderman concur.

Ms. Brown and Mr. Coffey and were notpresent.

Dated: December 29, 2000

131

Statistical Analysis of Complaints

2001 Annual Report

New York StateCommission on Judicial Conduct

....VolUl

COMPLAINTS PENDING AS OF DECEMBER 31, 1999

SUB.JECT DISMISSED STAH:S OF INYESTIGATED COMPLAINTSOF ON FIRST

COMPLAINT REYIEW TOTALS

PENDING DISMISSED DISMISSAL RESIGNED CLOSED * ACTION*

& CWTION

INCORRECT RULING

NON-JUDGES

DEMEANOR 9 24 14 3 3 6 59

DELAYS 1 3 3 1 0 0 8

CONFLICT OF INTEREST 2 7 2 0 1 2 14

BIAS 0 1 1 0 0 1 3

CORRUPTION 6 2 2 2 1 0 13

INTOXICATION 0 1 0 1 0 0 2

DISABILITYIQUALIFICA TlONS 0 1 0 0 0 0 1

POLITICAL ACTIVITY 4 36 8 1 0 2 23

l'INANCESIRECORDsITRAINING 2 5 8 5 1 2 23

TICKET-FIXING 0 0 0 0 0 0 0

ASSERTION OF INFLUENCE 3 3 4 0 0 2 12

VWLATlON OF RIGHTS 8 15 9 0 1 1 34

MISCELLANEOllS 0 2 1 0 0 0 3

TOTALS 35 100 52 13 7 16 223

*Matters are "closed" upon vacancy of office for reasons other than resignation. '"Action" includes determinations of admonition. censure andremoval from office by Ihe Commission since its inception in 1978. as well as suspensions and disciplinary proceedings commenced in the courtsby the temporary and fanner commissions on judicial conduct operating from 1975 to 1978.

....v.>0\

NEW COMPLAINTS CONSIDERED BY THE COMMISSION IN 2000

SUB.JECT DISMISSED STATUS OF INVESTIGATED COMI'LAIl'\T'SOF ON FIRST

COMPLAINT !h:VIEW TOTALS

PENDING DISMISSED DISMISSAL RESIGNED CLOSED * ACTION*

& CAUTION

INCORRECT RULING 448 448

NON-JUDGES 179 179

DEAfEANOR 143 34 1 8 0 0 0 186

DELAYS 37 2 1 0 0 0 0 40

CONFLICT OF INTEREST 22 10 2 1 0 0 0 35

BIAS 86 61 7 4 2 0 0 74

CORRUPTION 13 7 1 0 I 0 0 22

INTOXlCA nON 0 I I 0 0 0 0 2

DISABILITY/QVALH1CATlONS 0 0 0 0 0 0 0 0

POLITICAL ACTIVIT}' 8 18 3 0 0 0 I 30

FINANCESIRECORDs/}RAINING 4 20 22 6 0 0 0 52

TIcKET-FIXING 0 I 0 0 0 0 0 I

ASSERTION OF INFLUENCE 5 3 I 0 0 0 0 9

VIOLA TlON OF RIGHTS 143 37 14 ., 0 0 0 197

lUISCELLANEOlfS 10 2 I 0 0 0 0 13

TOTALS 1073 142 51 20 I 0 I 1288

*:Matters are "closed" upon vacancy of office for reasons other than resignation. "'Action" includes determinations of admonition, censure andremoval from office by the Commission since its inception in 1978, as well as suspensions and disciplinary proceedings commenced in the courtsby the temporary and fonner commissions on judicial condnct operating from 1975 to 1978.

-'"-l

ALL COMPLAINTS CONSIDERED IN 2000: 1288 NEW & 223 PENDING FROM 1999

SUBJECT DISMISSED STAHiS OF INVESTIGATED COMPLAINTS

OF ON FIRST

COMPLAINT REYIEW TOTALS

PENDING DISMISSED DISMISSAL RESIGNED CLOSED* AClION*

& CAUTION

INCORRECT RULING 448 448

NON-JIJDGES 179 179

DEMEANOR 143 43 19 22 6 6 6 245

DELAYS 37 3 4 3 1 0 0 48

CONFLICT OF INTEREST 22 12 9 3 0 I 2 49

BIAS 61 7 5 3 0 0 1 77

CORRUPTION 13 13 3 2 3 1 0 .15

INTOXlCATJON 0 I , 0 1 0 0 4•DISABILITy/QUALIFICATIONS 0 0 1 0 0 0 0 I

POLITICAl. ACTlHTY 8 22 39 8 1 0 3 81

FINANCEsiRECORDslTRAINING 4 22 25 16 5 1 2 75

TICKET-FIXING 0 1 0 0 0 0 0 1

ASSER110N OF INFLUKNCE 5 6 4 4 0 0 2 21

VIOI.A TlON OF RIGHTS 143 45 21 12 4 5 I 231

MISCELLANEOUS 10 2 ,I 0 0 0 16-,

TOTALS 1073 177 135 74 21 14 17 1511

*Matters are "closed" upon vacancy of office for reasons other than resignation. '''Action'' includes determinations of admonition, censure andremoval from office by Ihe COImnission since ils inception in 1978, as well as suspensions and disciplinary proceedings commenced in the courtsby Ihe temporary and former commissions on judicial conduct operating from 1975 to 1978.

,...WQO

ALL COMPLAINTS CONSIDERED SINCE THE COMMISSION'S INCEPTION IN 1975

SUBJECT DISMISSED STATUS OF INVESTIGATED COMPLAINTS

OF ON FIRSTCOMPLAINT REVIEW TOTALS

PENDING DISMISSED DISMISSAL RESIGNED CLOSED* ACTION*

& CAUTION

INCORRECT RULING 10,076 10.f176

NON-JUDGES 2969 2969

DEMEANOR 2168 43 794 228 79 78 171 3561

DELAYS 962 3 92 46' 15 12 16 1146

CONFLICT OF INTEREST 456 12 341 120 43 19 97 1088

BIAS 1368 7 193 40 l' 14 21 1666_J

CORRUPTION 317 13 80 8 29 12 20 479

INTOXICATION 40 I 32 7 7 3 19 109

DISABILITy/QUALIFICATIONS 43 0 28 2 16 10 6 105

POLITICAL ACTlVIIT 203 22 185 126 10 15 23 584

FINANCES/RECORDSITRAINJ]\,G 192 22 206 130 98 77 85 810

TICKET-FIXING 22 I 71 155 38 61 159 507

ASSERTION OF INFLUENCE 129 6 103 53 9 7 36 343

VIOLATION OF RIGHTS 1946 45 253 124 50 27 29 2474

MISCELLANEOUS 665 2 225 78 25 38 56 1089

TOTALS 21,556 177 2603 1117 442 373 738 27.006

'Matters are "closed" upon vacancy of office for reasons other than resignation. "Action" includes determinations of admonition. censure andremoval from office by the Commission since its inception in 1978, as well as suspensions and disciplinary proceedings commenced in the courtsby the temporary and fanner commissions on judicial conduct operating Irom 1975 to 1978.