In re която, 86 N.Y.2d 750 (1995)

A judge’s harassing conduct toward an attorney and lack of candor during a judicial conduct investigation constitute judicial misconduct warranting removal from office.

Summary

A County Court Judge, petitioner, sought review of a determination by the State Commission on Judicial Conduct recommending his removal. The Commission found he engaged in misconduct by harassing an attorney and displaying a lack of candor during the investigation. The harassment stemmed from a feud with an attorney, including anonymous communications and a disparaging statement distributed at a bar event. The Court of Appeals held that the Commission’s determination was supported by a preponderance of the evidence, and removal was the appropriate sanction, emphasizing the judge’s offensive conduct and dishonesty.

Facts

The judge was involved in a feud with a member of the criminal defense bar of Nassau County. The feud escalated when the attorney became president of the Criminal Courts Bar Association in 1993. The attorney sent letters to the judge’s court administrators complaining of the judge’s conduct and competence. The judge responded by sending eight anonymous communications to the attorney, which were harassing, threatening, and offensive. At a Bar Association event, the judge distributed a statement containing disparaging comments about criminal defense lawyers, referencing the attorney. He sent more anonymous communications after the event.

Procedural History

The Commission investigated these allegations. The judge testified before the Commission. A formal written complaint containing eight charges of misconduct was served on the judge. A Referee found that six charges were supported by a preponderance of the evidence. The Commission confirmed the Referee’s report and determined that the judge should be removed. The judge sought review of both the sufficiency of the evidence and the sanction of removal.

Issue(s)

1. Whether the Commission sustained its burden of proving judicial misconduct by a preponderance of the evidence.
2. Whether the sanction of removal was appropriate given the judge’s misconduct.

Holding

1. Yes, because the Commission’s findings were supported by a preponderance of the evidence, including circumstantial evidence and credibility determinations.
2. Yes, because the offensive, harassing, and vindictive nature of the judge’s conduct, and his repeated dishonesty before the Commission, warranted the sanction of removal.

Court’s Reasoning

The Court of Appeals held that misconduct need only be established by a preponderance of the evidence. The Court found direct evidence of misconduct in the statement the judge distributed at the Bar Association event, which was “unambiguously threatening and intimidating regarding attorney complaints against Judges.” The court noted the document promised that retaliation would follow unless