New York Law Review

Tag: judicial conduct

  • In re LaBombard, 12 N.Y.3d 294 (2009): Judicial Misconduct and Appearance of Impropriety

    In re LaBombard, 12 N.Y.3d 294 (2009)

    A judge must avoid even the appearance of impropriety and should recuse themselves from cases where their impartiality might reasonably be questioned, especially when family members or close associates are involved.

    Summary

    Justice LaBombard was found to have engaged in serious judicial misconduct by presiding over cases involving his step-grandchildren, intervening in a case involving his step-grandson pending in another court, presiding over a case involving the son of a former coworker, and improperly invoking his judicial status after a minor traffic accident. The New York Court of Appeals agreed with the Commission on Judicial Conduct’s recommendation that he be removed from office, emphasizing the importance of maintaining public confidence in the impartiality of the judiciary and avoiding any appearance of favoritism or misuse of judicial office.

    Facts

    Justice LaBombard, a Town Justice since 1996, faced several charges of misconduct. These included presiding over a criminal trespass case involving his step-grandchildren, contacting another judge regarding a case involving his step-grandson, presiding over the arraignment of the son of a former coworker, and invoking his judicial status following a minor traffic accident. In the case involving his step-grandchildren, he adjourned the case without imposing a community service requirement initially offered by the prosecution. In the case of his step-grandson, he contacted the presiding judge and vouched for his character. Regarding the former coworker’s son, he released the defendant on his own recognizance after an ex parte communication with the defendant’s mother. After a minor car accident, he repeatedly identified himself as a judge to the other driver.

    Procedural History

    The Commission on Judicial Conduct filed a complaint against Justice LaBombard. After a hearing, the Referee sustained four charges of misconduct. The Commission recommended removal from office. Justice LaBombard sought review of the Commission’s determination by the New York Court of Appeals.

    Issue(s)

    1. Whether Justice LaBombard engaged in judicial misconduct by presiding over a case involving his step-grandchildren.
    2. Whether Justice LaBombard engaged in judicial misconduct by contacting another judge regarding a case involving his step-grandson.
    3. Whether Justice LaBombard engaged in judicial misconduct by presiding over the arraignment of the son of a former coworker and engaging in ex parte communications with the defendant’s mother.
    4. Whether Justice LaBombard engaged in judicial misconduct by invoking his judicial status following a minor traffic accident.
    5. Whether removal from office is the appropriate sanction for the sustained charges of judicial misconduct.

    Holding

    1. Yes, because handling a case involving family members creates an appearance of impropriety and undermines public confidence in the judiciary.
    2. Yes, because intervention by a judge in proceedings involving family members pending in another court, particularly through ex parte contact, is improper.
    3. Yes, because presiding over a case where the judge’s impartiality might reasonably be questioned, coupled with ex parte communications, creates an appearance of favoritism.
    4. Yes, because invoking judicial status to influence or intimidate others is an improper use of the prestige of judicial office.
    5. Yes, because given the seriousness of the transgressions, including intentional violations of recusal rules and misuse of judicial office, removal is the appropriate sanction.

    Court’s Reasoning

    The Court of Appeals emphasized that judges must conduct themselves in a manner that inspires public confidence in the judiciary’s integrity, fair-mindedness, and impartiality. The Court cited the Rules Governing Judicial Conduct, specifically sections 100.2(C), 100.3(B)(6), and 100.3(E)(1), which address lending the prestige of judicial office, ex parte communications, and disqualification based on potential impartiality. The Court found that Justice LaBombard’s actions in each instance violated these rules. “As a Judge, petitioner was under a duty to conduct himself in such a manner as to inspire public confidence in the integrity, fair-mindedness and impartiality of the judiciary” (Matter of Esworthy, 77 NY2d 280, 282 [1991]). Regarding the family matters, the court stated, “The handling by a judge of a case to which a family member is a party creates an appearance of impropriety as well as a very obvious potential for abuse, and threatens to undermine the public’s confidence in the impartiality of the judiciary” (Matter of Wait, 67 NY2d 15, 18 [1986]). Even without a specific request for favorable treatment, the intervention itself is misconduct. The ex parte communication and subsequent release of the former coworker’s son created an appearance of favoritism. Invoking his judicial status after the traffic accident was deemed an attempt to misuse his office for personal advantage. The Court concluded that removal was appropriate due to the seriousness of the misconduct and Justice LaBombard’s apparent failure to appreciate the impropriety of his actions, demonstrating “a willingness to misuse his judicial office for personal advantage—a quality that is antithetical to the judicial role.”

  • Matter of Hart, 7 N.Y.3d 1 (2006): Limits on a Judge’s Use of Summary Contempt Power

    Matter of Hart, 7 N.Y.3d 1 (2006)

    A judge’s use of summary contempt power is limited to situations where conduct disrupts proceedings or undermines the court’s dignity, and it cannot be used retributively when an attorney makes a record of events.

    Summary

    This case concerns a New York State Supreme Court Justice, Duane Hart, who was censured for wrongly holding a litigant in contempt. The litigant, Módica, approached Judge Hart in a parking lot to request an adjournment, leading the judge to consider holding him in contempt. The situation escalated when Módica’s attorney sought to make a record of the incident, prompting Judge Hart to summarily hold Módica in contempt. The New York Court of Appeals upheld the censure, finding that Judge Hart misused his summary contempt power and failed to adhere to proper judicial conduct. The court emphasized the narrow scope of summary contempt and the importance of judicial restraint.

    Facts

    Judge Hart was presiding over a case, Modica v. Modica. After a court session, litigant John Módica approached Judge Hart in the courthouse parking lot to request an adjournment. The judge had Módica escorted away by a court officer. The next day in court, after initially considering and rejecting holding Módica in contempt, Judge Hart held Módica in contempt when Módica’s attorney insisted on making a record of the parking lot encounter. Judge Hart sentenced Módica to 30 days, suspended pending the trial’s outcome. The judge vacated the contempt finding and dismissed the lawsuit at the end of that day’s proceedings.

    Procedural History

    The Commission on Judicial Conduct filed a formal written complaint. A Referee designated by the Commission held a hearing and concluded that the charge was sustained by a preponderance of the evidence. The Commission heard oral argument and determined that Judge Hart violated several sections of the Rules of Judicial Conduct and Judiciary Law. The Commission imposed a sanction of censure, overriding the Administrator’s recommendation of admonition. Judge Hart then brought this proceeding to review the Commission’s determination.

    Issue(s)

    Whether Judge Hart acted in excess of his authority by holding Módica in summary contempt for his attorney’s attempt to place the parking lot incident on the record.

    Holding

    Yes, because summary contempt is permissible only where conduct disrupts proceedings or undermines the court’s dignity, and it cannot be used retributively against a litigant when his attorney makes a record.

    Court’s Reasoning

    The Court of Appeals concurred with the Commission’s conclusion that Judge Hart acted in excess of his authority under Judiciary Law § 755, which governs summary contempt power. The court cited Matter of Katz v. Murtagh, explaining that the summary procedure is so expeditious that it precludes evidentiary hearings, counsel, and other procedural safeguards to maintain order. The court found Judge Hart’s actions were seriously flawed and constituted a misuse of judicial power. The court stated summary contempt should be employed where a court reasonably believes that prompt adjudication may aid in restoring order and decorum in the courtroom but may not be employed retributively against a litigant because his attorney makes a record. The court also emphasized that, per section 701.2(a) of the Rules of the Appellate Division, Second Department, the court’s summary power is limited to situations where conduct disrupts proceedings or undermines the dignity of the court. The court found that Módica’s actions had no effect on proceedings and did not undermine the dignity of the court to the extent that court business foundered. Furthermore, the court noted Judge Hart’s failure to recognize the inappropriateness of his actions as an aggravating factor, quoting Matter of Aldrich, “A judge’s ‘fail[ure] to recognize the inappropriateness of his actions or attitudes’ is a significant aggravating factor on the issue of sanctions.”

  • People v. Garson, 6 N.Y.3d 604 (2006): Using Rules of Judicial Conduct to Establish Criminal Liability

    6 N.Y.3d 604 (2006)

    The Rules of Judicial Conduct can be used to prove the element of a judge’s “duty as a public servant” within the meaning of Penal Law § 200.25, when the judge accepts a benefit for violating an official duty.

    Summary

    The New York Court of Appeals addressed whether evidence presented to a grand jury, indicating a judge accepted a benefit for violating his duty as a public servant under the Rules of Judicial Conduct, was sufficient to support charges of receiving reward for official misconduct. The Court held that the People could rely on the Rules to establish a violation of official duties, as the Rules set forth a constitutionally mandated duty. The Court reinstated six counts of receiving reward for official misconduct, finding the evidence legally sufficient. A count charging defendant with official misconduct was properly dismissed.

    Facts

    Gerald Garson, a New York Supreme Court Justice, allegedly engaged in a course of conduct from October 2001 to March 2003 where he violated his duties as a public servant in exchange for cash and gratuities. Evidence showed a relationship with attorney Paul Siminovsky, who regularly appeared before Garson, where Siminovsky provided meals and gifts expecting and receiving preferential treatment. Garson allegedly conducted improper ex parte conversations with Siminovsky about the “Levi case,” receiving a box of cigars as a reward. Garson also allegedly accepted monies for referring clients to Siminovsky, with Siminovsky compensating Garson for these referrals.

    Procedural History

    The grand jury indicted Garson on multiple counts, including six counts of receiving reward for official misconduct. The Supreme Court dismissed these six counts, holding that the Rules of Judicial Conduct could not establish a violation of duty as a public servant. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether evidence presented to a grand jury that a judge accepted a benefit for violation of his duty as a public servant, as defined by the Rules of Judicial Conduct, is legally sufficient to support six counts of receiving reward for official misconduct in the second degree (Penal Law § 200.25).

    Holding

    Yes, because the Rules of Judicial Conduct set forth a constitutionally mandated duty upon the judiciary, and when combined with the additional factor of receiving a reward, a violation of that duty may serve as a basis for prosecution under Penal Law § 200.25.

    Court’s Reasoning

    The Court reasoned that Penal Law § 200.25, which addresses bribery involving public servants, is intended to be comprehensive to prevent abuses of power. The statute specifically defines “public servant” and “benefit” broadly. The legislature did not define “duty” to allow for factual resolution based on the misconduct alleged. The Court rejected the argument that judges should be immune from criminal prosecution when they receive a benefit after violating a judicial rule. The Court stated that to hold otherwise would lead to the incongruous result of insulating judges from criminal liability because they have a formal body of rules governing their conduct while subjecting other public servants to criminal liability for similar conduct. The Court distinguished People v. La Carrubba, noting that the Rules of Judicial Conduct, unlike the Code of Judicial Conduct in La Carrubba, are rooted in the State Constitution and are mandatory. A key distinction is that the criminal prosecution rests not on a violation of the Rules alone but on the acceptance of a benefit for violating an official duty defined by the Rules. As the Court stated, “The law binds all men equally, the Judges no less than the judged” (Matter of Stern v Morgenthau, 62 NY2d 331, 339 [1984]). Judge G.B. Smith dissented in part, arguing that the Rules of Judicial Conduct were not intended as criminal statutes and that there was no legislative intent to make criminal judicial conduct based upon the Rules.

  • In re Feinberg, 5 N.Y.3d 206 (2005): Judicial Removal for Failure to Follow Fee Documentation Rules

    5 N.Y.3d 206 (2005)

    A judge’s systematic failure to comply with statutory requirements, coupled with conduct creating an appearance of impropriety, warrants removal from office.

    Summary

    This case concerns the removal of Kings County Surrogate Michael H. Feinberg for misconduct. The New York Court of Appeals upheld the State Commission on Judicial Conduct’s determination that Feinberg be removed for systematically failing to comply with Surrogate’s Court Procedure Act (SCPA) § 1108(2)(c) regarding the documentation and justification of legal fees awarded to counsel for the Public Administrator. The court found Feinberg’s repeated failure to require affidavits of legal services, consider statutory factors when setting fees, and his appointment of a close friend as counsel without a proper search, created an appearance of impropriety warranting removal.

    Facts

    Michael Feinberg was elected Surrogate of Kings County in 1996. Upon taking office in 1997, he appointed Louis Rosenthal, a long-time friend and political supporter, as counsel to the Public Administrator, without conducting a search or interview process. From January 1997 to May 2002, Feinberg approved legal fees for Rosenthal based on a percentage (typically 8%) of the estate’s value, without requiring affidavits of legal services or considering the factors outlined in SCPA 1108(2)(c). Feinberg claimed ignorance of the statutory requirements. Between 1997 and 2002, Feinberg awarded Rosenthal over $8.6 million in legal fees.

    Procedural History

    The State Commission on Judicial Conduct filed a disciplinary complaint against Feinberg, alleging violations of the Rules of Judicial Conduct. A referee found Feinberg violated the rules by awarding fees without affidavits and failing to consider statutory factors. The Commission adopted the referee’s findings and added a violation for creating an appearance of impropriety, determining removal was appropriate. Feinberg appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Surrogate’s systematic failure to comply with SCPA 1108(2)(c) and his conduct created an appearance of impropriety, warranting removal from judicial office.

    Holding

    Yes, because Feinberg’s consistent disregard for fundamental statutory requirements, combined with the appearance of favoritism in awarding substantial fees to a close friend without proper documentation, constituted misconduct justifying removal.

    Court’s Reasoning

    The Court of Appeals emphasized that judges must maintain professional competence in the law, and Feinberg’s ignorance of SCPA 1108(2)(c) demonstrated a shocking disregard for the law governing his office. The court stated that the purpose of the affidavit and individualized consideration requirements is to ensure that estates are paying only for the actual cost of administration. Feinberg’s pro forma practice of awarding 8% of an estate’s value without attention to the work done violated the clear legal requirement and legislative intent. The court rejected Feinberg’s argument that “shall consider” did not mean “must consider,” holding that the statute directs a surrogate to review the statutory factors prior to compensating counsel. Further, the court found that Feinberg’s appointment of a close friend without a proper search, coupled with the unsubstantiated award of millions of dollars in fees, created a strong appearance of favoritism. The court concluded that these actions debased his office and eroded public confidence, justifying removal.

  • Matter of Friedman, 100 N.Y.2d 306 (2003): Judicial Candidate’s Campaign Promises & Impartiality

    Matter of Friedman, 100 N.Y.2d 306 (2003)

    A judicial candidate’s campaign statements violate the Rules Governing Judicial Conduct if they explicitly and repeatedly indicate an intention to “work with” and “assist” police and other law enforcement personnel if elected, as such statements compromise the faithful and impartial performance of judicial duties.

    Summary

    This case concerns a City Court Judge, Friedman, who made campaign statements indicating he would “work with” police if elected. The Commission on Judicial Conduct determined this violated rules against making pledges of conduct in office other than faithful and impartial performance, warranting removal. The New York Court of Appeals found the statements did violate the rules, as they compromised impartiality. However, considering Friedman’s remorse and lack of prior misconduct in office, the court modified the sanction from removal to censure, emphasizing the importance of judicial impartiality while acknowledging First Amendment rights.

    Facts

    Friedman, while running for Lockport City Court judge, made statements in letters, newspaper ads, and articles indicating he would “work with” police, assist law enforcement, and be tough on crime, especially drug offenses by out-of-towners. He cited rising arrest rates under incumbent judges, suggesting he would take different action to deter crime. He stated the city should establish a reputation for “zero tolerance” and deter criminals before they enter the city.

    Procedural History

    The Commission on Judicial Conduct filed a complaint against Friedman. A Referee found misconduct. Friedman acknowledged the violations and apologized. The Commission sustained the charge and recommended removal. Friedman appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether Friedman’s campaign statements violated section 100.5(A)(4)(d)(i) of the Rules Governing Judicial Conduct by making pledges of conduct in office other than the faithful and impartial performance of duties.

    2. Whether, if the rules were violated, the pledges or promises prohibition impermissibly abridges Friedman’s First Amendment rights.

    3. Whether removal is the appropriate sanction.

    Holding

    1. Yes, because Friedman explicitly and repeatedly indicated that he intended to “work with” and “assist” police and other law enforcement personnel if elected to judicial office which indicated bias and amounted to a pledge to engage in conduct antithetical to the judicial role.

    2. No, because New York’s pledges or promises clause is sufficiently circumscribed to withstand exacting scrutiny under the First Amendment, essential to maintaining impartiality and the appearance of impartiality in the state judiciary.

    3. No, because Friedman expressed remorse and acknowledged poor judgment and the Commission made no claim of inappropriate behavior in the performance of Friedman’s judicial duties.

    Court’s Reasoning

    The Court found Friedman’s statements violated the rule against pledges compromising impartial judicial duties. The statements expressed bias favoring police and pledged conduct inconsistent with the judicial role of impartial application of law. The court distinguished this case from Matter of Shanley, where the phrase “law and order candidate” was deemed too generic to compromise impartiality.

    Regarding the First Amendment challenge, the Court distinguished Republican Party of Minn. v. White, noting that New York’s rule doesn’t prohibit articulating views on legal issues, but only pledges compromising impartiality. The Court applied strict scrutiny (assuming it was appropriate) and found the rule narrowly tailored to serve the compelling state interest of judicial impartiality. “The ability to be impartial is an indispensable requirement for a judicial officer” (Matter of Sardino v State Commn. on Jud. Conduct, 58 NY2d 286, 290 [1983]). The Court emphasized that the rule only precludes statements singling out parties for special treatment or conveying behavior inconsistent with impartial judicial duties.

    On the sanction, the Court acknowledged the purpose of judicial discipline is to safeguard the bench, not punish. Considering Friedman’s remorse, inexperience, and lack of prior misconduct, the Court deemed removal too harsh. Censure was imposed as the appropriate sanction.

  • In re Spargo, 6 N.Y.3d 308 (2006): Upholding Restrictions on Judicial Candidates’ Political Activities

    In re Spargo, 6 N.Y.3d 308 (2006)

    Restrictions on judicial candidates’ political activities, particularly those distinguishing between conduct integral to a candidate’s own campaign and activities supporting other candidates or parties, are constitutional because they are narrowly tailored to serve compelling state interests such as preserving judicial impartiality and maintaining public confidence in the court system.

    Summary

    A Supreme Court Justice, facing censure for engaging in improper political activities, challenged the constitutionality of rules restricting judges’ political conduct. The Court of Appeals upheld the censure, finding the rules, which distinguish between activities supporting a candidate’s own campaign and those supporting other candidates or parties, narrowly tailored to serve compelling state interests. These interests include maintaining judicial impartiality and public confidence in the judiciary. The court emphasized that while judicial candidates have free speech rights, the state’s interest in preventing political bias or corruption justifies these limitations.

    Facts

    While a practicing attorney seeking a judicial nomination, Spargo made a $10,000 payment to the Nassau County Democratic Committee without receiving an itemized bill. Later, as a District Court Judge, he participated in a phone bank for a legislative candidate and attended a Working Families Party meeting, questioning candidates about their willingness to publicize the party’s endorsement. As a Supreme Court Justice, Spargo made an intimidating remark to an attorney after a court order he signed was vacated. Spargo stipulated to these facts before the Commission on Judicial Conduct but challenged the constitutionality of the rules underlying the political activity charges.

    Procedural History

    The Commission on Judicial Conduct sustained four charges of misconduct against Spargo and determined he should be censured. Spargo sought review of the Commission’s determination, arguing that the political activity restrictions violated the First Amendment.

    Issue(s)

    Whether New York’s rules restricting political activity by judges and judicial candidates, specifically sections 100.5(A)(1) and related subsections of the Rules Governing Judicial Conduct, violate the First Amendment of the United States Constitution.

    Holding

    No, because the rules are narrowly tailored to serve compelling state interests, including preserving the impartiality and independence of the judiciary and maintaining public confidence in the court system.

    Court’s Reasoning

    The court distinguished Republican Party of Minn. v. White, noting that case addressed a different type of restriction (an “announce clause”) and did not invalidate all restrictions on judicial candidates’ speech. The court applied strict scrutiny, assuming its applicability without definitively deciding so. It then reasoned that the rules serve compelling state interests by ensuring a fair and impartial judiciary, free from political bias or corruption. “Charged with administering the law, Judges may not actually or appear to make the dispensation of justice turn on political concerns.” The rules distinguish between permissible campaign activities and prohibited ancillary political activities. The contribution limitations ensure that judgeships are not, and do not appear to be, for sale. The court noted the provisions allowing judicial candidates to engage in political activity in support of their own campaigns provide a realistic opportunity to fulfill their assigned role in the electoral process. The rules are designed to alleviate concerns about judges being beholden to particular political leaders or parties. The Court concluded that the impermissible political activity, coupled with the inappropriate remark to an attorney, warranted censure, accepting the Commission’s determined sanction.

  • In re Fitzgerald, 1 N.Y.3d 53 (2003): Continued Legal Qualification for Judges

    In re Fitzgerald, 1 N.Y.3d 53 (2003)

    A judge must maintain their qualification as a lawyer throughout their term in office, as continued qualification is an implicit requirement of the New York State Constitution.

    Summary

    This case addresses whether a judge who is disbarred during their term in office can continue to serve as a judge. The New York Court of Appeals held that a judge must remain qualified as a lawyer throughout their term, not just at the time of assuming office. The court reasoned that the constitutional requirement that a judge be a lawyer to assume office implies a continuing requirement to maintain that qualification to protect the integrity of the judicial office. Edmund G. Fitzgerald, Jr., a City Court Judge, was removed from his position after being disbarred for misconduct related to his attorney escrow account management.

    Facts

    Edmund G. Fitzgerald, Jr., was a Judge of the City Court of Yonkers. The State Commission on Judicial Conduct sustained a charge of misconduct against him. Fitzgerald was disbarred based on “serious professional misconduct” related to the management of his attorney escrow account. The Commission concluded that Fitzgerald violated the Rules Governing Judicial Conduct and lacked the qualifications to perform his judicial duties.

    Procedural History

    The Administrator of the Commission moved for summary determination, which the Commission granted, sustaining the factual allegations of misconduct. After briefing and oral argument, the Commission concluded that Fitzgerald violated sections 100.1, 100.2(A), and 100.3(B)(1) of the Rules Governing Judicial Conduct and lacked the qualifications to perform his judicial duties. The Court of Appeals reviewed the Commission’s determination.

    Issue(s)

    Whether a judge who is disbarred during their term in office continues to meet the constitutional requirements for holding judicial office under Article VI, Section 20(a) of the New York State Constitution.

    Holding

    No, because the constitutional requirement that a judge be admitted to practice law in the state to assume office implies a continuing requirement that the judge remain qualified as a lawyer throughout their term.

    Court’s Reasoning

    The Court of Appeals relied on its prior decision in Ginsberg v. Purcell, 51 N.Y.2d 272 (1980), which interpreted the same constitutional subdivision. In Ginsberg, the Court held that the requirement that a judge be a lawyer to assume office implies a continuing requirement to maintain that qualification, not only intellectually but also in character and fitness, to protect the integrity of the judicial office. The Court stated, “[t]he constitutional requirement that to assume office a Judge must be a lawyer can * * * be viewed as impliedly requiring, in order to protect the integrity of the Judge’s office, that he not only be a lawyer when he assumes office but that he continue to be qualified as a lawyer, not only intellectually but also in character and fitness.”
    The Court reasoned that allowing a disbarred individual to continue serving as a judge would be an “anomalous result” that would “reflect poorly on the judiciary” and “invite scorn and disrespect for our rule of law,”(quoting Matter of Mitchell, 40 N.Y.2d 153, 156 (1976)). The court explicitly rejected Fitzgerald’s argument that meeting the qualification at the time of assuming the bench was sufficient, regardless of subsequent disbarment. The Court concluded that Fitzgerald’s disbarment rendered him unable to meet the continuing constitutional prerequisite to holding judicial office.

  • In re Tamsen, 99 N.Y.2d 20 (2002): Judicial Removal for Misconduct Unrelated to Judicial Duties

    In re Tamsen, 99 N.Y.2d 20 (2002)

    A judge may be removed from office for misconduct, even if that misconduct is unrelated to the judge’s official duties and occurred before the judge assumed office, if the misconduct demonstrates a lack of integrity that undermines public confidence in the judiciary.

    Summary

    The New York Court of Appeals upheld the removal of a Town Court Justice, Tamsen, from his judicial office due to misconduct that occurred prior to his judgeship. Tamsen had misappropriated funds from his law firm, leading to his disbarment. The Court found that this conduct, although unrelated to his judicial duties, demonstrated a lack of integrity rendering him unfit for judicial office. The court emphasized that judges must be held to a higher standard of conduct to maintain public confidence in the judiciary, and Tamsen’s actions warranted removal regardless of when they occurred or whether they directly impacted his judicial performance. The Court granted the motion for summary determination because there was no issue of fact to be raised.

    Facts

    Timothy Tamsen, while working as an attorney, misappropriated $2,500 in legal fees from his law firm employer on six occasions in 1995 and 1996.
    Tamsen altered a receipt book in an attempt to conceal one instance of theft.
    As a result of these actions, Tamsen was disbarred from practicing law by the Appellate Division, Second Department.

    Procedural History

    The State Commission on Judicial Conduct initiated a proceeding against Tamsen, who was then a Town Court Justice, based on the misappropriation and disbarment.
    The Administrator of the Commission moved for summary determination, which was granted by the Commission despite Tamsen’s opposition.
    The Commission sustained one charge of misconduct and determined that Tamsen should be removed from office.
    Tamsen sought review of the Commission’s determination by the New York Court of Appeals.

    Issue(s)

    Whether the State Commission on Judicial Conduct erred in granting summary determination and precluding consideration of Tamsen’s fitness to perform his judicial duties.
    Whether Tamsen’s misconduct, which occurred prior to his judicial service and was unrelated to his judicial duties, warrants his removal from judicial office.

    Holding

    1. No, because the statutory requirement authorizing the Commission to make a determination after a hearing does not require a formal hearing where no issue of fact is raised.
    2. Yes, because Tamsen’s misappropriation of funds and related subterfuge resulting in his disbarment as an attorney while sitting as Judge warrants removal under the applicable standards even though the wrongdoings related to conduct outside his judicial office.

    Court’s Reasoning

    The Court of Appeals held that summary determination was appropriate because Tamsen was given ample opportunity to be heard on issues of law, namely, whether his conduct violated the Rules Governing Judicial Conduct and what the appropriate sanction should be. He was not entitled to relitigate the underlying facts of his disbarment.
    Regarding the sanction, the Court emphasized that judges must be held to a higher standard of conduct than the general public to maintain public confidence in the judiciary. Even relatively minor improprieties can subject the judiciary to public criticism. The Court quoted Matter of Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279, 283 (1983): “relatively slight improprieties subject the judiciary as a whole to public criticism and rebuke”.
    The Court found that Tamsen’s misappropriation of funds and subsequent disbarment, even though predating his judicial service, demonstrated a lack of integrity that undermined public confidence. The Court explicitly stated, “notwithstanding that all of the wrongdoings related to conduct outside his judicial office” such actions still warrant removal. Citing Matter of Boulanger, 61 NY2d 89, 92 (1984). The Court stated that the expiration of Tamsen’s term of judicial office did not moot the proceeding.

  • Matter of La Pietra, 89 N.Y.2d 311 (1996): Judicial Candidate’s Use of “Law and Order” Not Necessarily Misconduct

    Matter of La Pietra, 89 N.Y.2d 311 (1996)

    A judicial candidate’s use of the phrase “law and order” in campaign literature, without more, does not automatically constitute judicial misconduct warranting disciplinary action.

    Summary

    A Justice of the Esopus Town Court, sought review of a determination by the State Commission on Judicial Conduct, which sustained a charge of misconduct against her and imposed a sanction of admonition. The charge stemmed from the Justice’s campaign literature, where she identified herself as a “Law and order Candidate.” The Commission believed this phrase committed her to a pro-prosecution bias. The Court of Appeals reversed the Commission’s finding on the “law and order” charge, holding that the use of the phrase in judicial campaign literature, without more, does not amount to misconduct. The Court upheld the admonition based on a separate charge related to misrepresenting her educational background.

    Facts

    The petitioner, a Justice of the Esopus Town Court, was subject to a charge by the State Commission on Judicial Conduct based on her campaign activities. The first allegation was that she misrepresented her academic credentials in campaign literature, stating she was a “graduate” of “Judicial Law Course[s]” at various institutions, when in reality, she only had a high school diploma and had taken continuing education courses for court clerks. The second allegation was that she identified herself as a “Law and order Candidate” in her campaign literature.

    Procedural History

    The Referee who initially heard the complaint determined that the petitioner misled voters regarding her academic credentials, but found that the “law and order” allegation did not warrant disciplinary action. The Commission affirmed the Referee’s finding on the misrepresentation charge but rejected the Referee’s finding on the “law and order” charge, concluding that the phrase created the appearance that the petitioner would favor the prosecution. The Court of Appeals granted review.

    Issue(s)

    Whether a judicial candidate’s use of the phrase “law and order” in campaign literature constitutes an impermissible pledge or promise of conduct in office or a statement that commits or appears to commit the candidate with respect to cases likely to come before the court, in violation of the Rules Governing Judicial Conduct (22 NYCRR 100.5 [A] [4] [d] [i], [ii]).

    Holding

    No, because the phrase “law and order” is widely and indiscriminately used in everyday parlance and election campaigns and does not, by itself, represent a commitment or pledge of conduct in office that compromises judicial impartiality.

    Court’s Reasoning

    The Court of Appeals disagreed with the Commission’s determination that the phrase “law and order” in judicial campaign literature amounted to misconduct. The court reasoned that the phrase is widely used and understood and should not automatically be treated as a commitment or pledge of conduct in office. The court acknowledged the Commission’s argument that the phrase, in light of its historical and political context, might convey the image of a criminal law conservative. However, the Court stated that even if this interpretation were accurate, the Commission had not sufficiently shown that the phrase inherently compromises judicial impartiality.

    The Court distinguished between a general statement of being a “law and order” candidate and making specific pledges or promises about how one would rule in particular cases. The Court emphasized that the Rules Governing Judicial Conduct aim to prevent candidates from pre-committing themselves on issues likely to come before the court or from making promises that undermine the faithful and impartial performance of their duties. The Court found that the petitioner’s use of the phrase “law and order” did not rise to this level of prohibited conduct.

    The Court did, however, uphold the admonition based on the unchallenged finding that the petitioner misrepresented her educational background, stating, “Reasonable voters viewing petitioner’s advertisements would be led to believe that the courses trained enrollees in judging, and voters would not have suspected that the last formal educational institution to have graduated petitioner was her high school.”