Censure
“[T]he purpose of judicial disciplinary proceedings is not punishment but the imposition of sanctions where necessary to safeguard the Bench from unfit incumbents.” Matter of Esworthy, 77 NY2d at 283, 291 (1991). The Court of Appeals made clear that “[r]emoval is excessive where the misconduct amounts solely to poor judgment, even extremely poor judgment.” Matter of Skinner, 91 NY2d 142, 144 (1997). In such cases, the lesser penalty censure, rather than removal from office, is an appropriate sanction.
In Skinner, disciplinary charges against petitioner, for nearly 40 years a Justice of the Columbia Town Court, arose out of his handling of two criminal matters. “The first involved a social acquaintance who had been accused of sexual abuse for reaching into the car window of his newspaper delivery person and touching her breast."
"Departing from his customary procedure, petitioner set an arraignment date without informing the Herkimer County District Attorney. At a hearing, without the prosecutor or complainant present, petitioner heard testimony from the accused and his wife and then summarily dismissed the case.”
“The second matter involved an 18-year-old who had allegedly passed a bad check. When defendant appeared before him, petitioner asked if he intended to ‘make good’ on the check and defendant answered in the affirmative. Without apprising him of the right to assigned counsel, petitioner told him that he would have two weeks to pay the debt and resulting fines, totaling $335."
"When defendant returned with all but $50 of the judgment, petitioner responded that he would not accept installment payments and sentenced him to 30 days in jail. Defendant's mother later paid the remaining $50 and he was released.” (143).
“The Commission on Judicial Conduct found that petitioner had granted special consideration in the first matter and had disregarded his obligation to inform defendant of his right to assigned counsel in the second."
"In addition, the Commission also noted that petitioner had made ‘disingenuous and evasive’ statements regarding both matters. Based on its findings, the Commission sustained the two charges against petitioner and determined he should be removed from office.” (143-44).
The Court of Appeals reviewed the Commission’s determination and agreed that “petitioner's behavior in both instances constituted serious misconduct deserving sanction: he improperly displayed favoritism and he ignored his duty to advise defendant of the right to assigned counsel.”
But it determined that “the sanction of removal was unduly severe.” Petitioner “was for nearly four decades the Town Justice, with no evidence of any prior complaints regarding his judicial service” and “there was no indication petitioner was motivated by personal profit, vindictiveness or ill will.” (144).
The Court of Appeals concluded that “the discrepancies in petitioner's testimony before the Commission did not necessarily reflect dishonesty or evasiveness” and that “the two isolated incidents should result in censure rather than removal from office.” (144).
In Matter of Cunningham, 57 NY2d 270 (1982), petitioner, an Onondaga County Court Judge, was charged with misconduct arising out of two letters he sent to Judge J. Richard Sardino of the Syracuse City Court concerning appeals to County Court from Judge Sardino’s decision.
The first letter concerned three cases in Sardino's court: Judge Cunningham read a newspaper article “in which he was quoted as making statements critical of Sardino's handling of these cases; and later that day, he learned that Sardino was angry at him for signing orders to show cause in these cases.” (273). “Each of the appeals involved claims that the sentences were excessive."
To calm Sardino and to avoid criticism from him, he wrote a letter to Sardino in which he stated “[t]here is no way I would ever change a sentence that you had imposed. You can do whatever you want to whenever you want to & I'll agree with you * * * I take the position that you know the case and as sentencing judge you can do whatever you damn well please.” Ultimately, Judge Cunningham heard the appeals in two of the cases and affirmed both. The appeal in the third case was never perfected. (273)
The second letter concerned an appeal from Sardino's court. Sardino was upset that Judge Cunningham had signed an order to show cause in that case. Accordingly, in order to calm Sardino, Cunningham wrote a second letter, in which he stated that “[i]f I catch the appeal, I will affirm, as always, on a judge's discretion.” Later, Cunningham heard the appeal and reversed the determination of Sardino in an opinion which was critical of Judge Sardino's sentencing determination. (274).
“Judge Cunningham conceded that his conduct constituted a violation of the Rules Governing Judicial Conduct and the Code of Judicial Conduct, insofar as the letters he had sent created the impression that he had prejudged the cases and also created the impression that he had allowed himself to be improperly influenced by Sardino. Based on these stipulated facts, the Commission determined, by a vote of 7 to 4, that petitioner should be removed from the Bench.” (274)
The Court of Appeals found Judge Cunningham had acted improperly in sending the two letters to Sardino, but did “not believe that the record supports the conclusion that Judge Cunningham actually abrogated his appellate duty to review matters before him on the basis of their merits alone.”
His reversal of Sardino's decision in one of the cases indicated that “he continued to review cases dispassionately, and that his misconduct was rooted not in the actual prejudgment of cases but in the creation of the appearance that he might be prejudging certain matters.” (275). Under the circumstances of the case, the sanction of censure, not removal, was held to be the appropriate sanction to be imposed.
In Matter of Watson, 100 NY2d 290, 297 (2003), petitioner, a judge of the Lockport City Court, was found by the Commission on Judicial Conduct to have violated the Rules Governing Judicial Conduct (22 NYCRR 100.5[A][4][d][i], et al.) by a series of campaign statements he made during his successful campaign for the judgeship that “created the appearance that he would not be impartial as a judge, would not judge cases on an individual basis or upon the merits, and would be biased against criminal defendants.”
Although petitioner wrote to the Commission and apologized for his violations of the Rules through his campaign advertisements and related statements, the Commission concluded he should be removed from office. Two members dissented on the issue of sanction only and recommended censure.
Petitioner appealed to the Court of Appeals which found he had violated the pledges or promises prohibition in section 100.5(A)(4)(d)(i). “Petitioner explicitly and repeatedly indicated that he intended to ‘work with’ and ‘assist’ police and other law enforcement personnel if elected to judicial office."
"These statements were not related to administrative concerns, such as holding court in the evening or on weekends, but were directly associated with helping the police carry out their law enforcement functions. Petitioner buttressed his statements with arrest statistics, indicating that if elected he would take action the incumbents had failed to take to deter crime” (299).
Petitioner's statements “expressed a bias in favor of the police and against those accused of crimes” and were repeated throughout his campaign, effectively promising that “if elected, he would aid law enforcement rather than apply the law neutrally and impartially in criminal cases” (299).
The Court of Appeals found petitioner “expressed remorse and acknowledged before the Commission that he exercised extremely poor judgment in the conduct of his campaign. He attributed his misconduct in part to his inexperience as a candidate, and his failure to enlist aid from people knowledgeable in the conduct of judicial campaigns."
"While this is no excuse, we find it relevant in weighing the appropriate sanction. We also note that the Commission makes no claim of inappropriate behavior in the performance of petitioner's judicial duties” during more than two years on the bench. (304 fn.3).
Although recognizing that “petitioner's transgressions are serious,” the Court of Appeals was unpersuaded that if he remained in office it would threaten “the proper administration of justice or that he has irredeemably damaged public confidence in his own impartiality or that of the state judiciary as a whole.” (304). The Commission’s determined sanction of removal from office was rejected and the sanction of censure was imposed. (304).
In Matter of Hart, 7 NY3d 1, 3 (2006), the Court of Appeals accepted the Commission’s determination that petitioner, a Justice of the Supreme Court, Queens County, should be censured for acting in excess of his authority in holding a litigant in summary contempt after the litigant’s attorney made a record of an out-of-court encounter between the Judge and the litigant. Two judges dissented and voted for admonition instead of censure.
Admonition
Admonition is another and less severe penalty for a judge’s misconduct. Matter of Astacio, 32 NY3d 131 (2018). In Matter of Gilpatric, 13 NY3d 586, 587 (2009), “[o]n summary determination, the State Commission on Judicial Conduct sustained one charge of misconduct against petitioner, a City Court Judge, for his failure to render timely decisions in 47 cases over a period of 3 1/2 years and concluded that his conduct constituted a pattern of “persistent or deliberate neglect of his judicial duties.”
The Court of Appeals held that “lengthy, inexcusable delays may … be the subject of disciplinary action.” 13 NY3d at 590. “Because not every case involving caseload delays will rise to the level of misconduct, it is imperative that the context in which the delays occurred be fully explored … Statistics alone are insufficient to support a finding of misconduct; disciplinary action must be based on a record demonstrating a judge's persistent lack of action in response to administrative recommendations or warnings.”
The Court of Appeals remitted the matter to the Commission for a hearing on the charge contained in the formal written complaint.
Two examples of where the sanction of admonition was imposed were set forth in the dissenting opinion in Matter of Hart, supra, 7 NY3d at 9-10. In Matter of Sharpe, “a judge held a veteran prosecutor in summary contempt and placed him in a detention area for prisoners because his witness was late to court, but quickly vacated the contempt order after the witness arrived.”
“By the judge's own later admission to the Commission, however, the prosecutor ‘had engaged in no improper, discourteous or contumacious conduct”’ (1984 Annual Report of N.Y. Commn. on Jud. Conduct 134, 139). The Commission determined that the judge had engaged in a “gross abuse of power” and imposed a sanction of admonition.
In Matter of Feinman (2000 Annual Report of N.Y. Comm. on Judicial Conduct 105), a judge “detained a litigant for one hour and 40 minutes in handcuffs, in his courtroom, without explaining the reason either to the detainee or to his attorneys."
"The detention occurred because the litigant's beeper sounded in court and because of comments that he allegedly made to a court officer. The detainee was not given any notice that his actions would result in detention, and was deprived of his liberty without any sound legal reason." (dissent in 7 NY3d at 11-12).
“The judge released the detainee after lunch and did not hold him in summary contempt of court. The Commission found the judge to be ‘cooperative and contrite’ when confronted with his misuse of judicial power. The sanction in Feinman was admonition.”
Thomas R. Newman is a member at Duane Morris.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.
