It seems like quite a few people were "asleep at the wheel" up in Tompkin's County, New York. And, as a result, an administrative judge, William F. Burin, got himself formally reprimanded -- or "censured" -- by the New York State Commission on Judicial Conduct for failing to ensure his staff's compliance with governing law.

Apparently, over the course of several years, filing fees and other charges paid to the Lansing Town Court weren't being deposited in a "timely" manner. (Let's be clear. No one absconded with the funds. They were simply being left in a "bank bag" in one of the court's offices, until someone finally got to processing the proceeds.)

According to state rules, funds received by a Justice Court must be deposited within 72 hours of receipt. Yet, from January 2004 to May 2005, $153,403.21 in court funds were processed up to five months after the fact.

Some $99,078.37 of those funds were also not reported or forwarded to the New York State Comptroller within ten days after collection, as further required by yet another state law.

It was not until the State Comptroller ordered that Burin's pay be stopped that the judge finally took action to ensure that the reports were timely submitted (and payments made) to the state.

Having failed to property supervise or train his staff, the New York State Commission on Judicial Conduct concluded that the judge violated a fundamental duty. Here's what the State Commission had to say about it:

A town or village justice is personally responsible for monies received by the court .... Such monies must be deposited within 72 hours of receipt and remitted to the State Comptroller by the tenth day of the month following collection .... Although these responsibilities may be delegated, a judge is required to exercise supervisory vigilance to ensure the proper performance of these important functions.

So, let me see if we've gotten this right. Here we had an administrative judge that shirked his duties and refused to comply with the law (until his salary was withheld), and all he gets is a slap on the wrist?

 

 

That strikes us as a gift.

(Does anyone know who's balancing the checkbook in the Burin household?)

For a copy of the Commission's decision, please use this link: In re William F. Burin

Posted by Lucas A. Ferrara, Esq. at 12:00 PM | Permalink | TrackBacks (0) | Comments (0)

Losing one's temper and composure can get a judge defrocked according to a recent decision by the New York State Commission on Judicial Conduct.

The rules governing judicial conduct require judges to be an "exemplar of dignity and decorum and to preside over disputes in a lawful, orderly manner." Those standards were not met by William A. Carter, a Judge of the Albany County City Court, who on several occasions reportedly "crossed the line" of acceptable behavioral norms.

In one instance, the Judge became so agitated with a criminal defendant that he "angrily left the bench, threw off his glasses and judicial robes, and proceeded rapidly towards the defendant." A witness reported that the Judge then asked the defendant, "You want a piece of me?" While officers removed the defendant from the courtroom, the Judge reportedly needed to be restrained or "blocked" from pursuing the defendant. This loss of self control was perceived by the Commission as "inimical to the role of a judge."

Several months later, another defendant made a crude gesture to a police officer and when the officer asked what the court what it intended to do about the behavior, the judge reportedly responded, "If you are so upset about it, why don't you just thump the shit out of him outside the courthouse, because I am not going to do anything about it."

The Commission viewed the judge's remark as "outrageous" since it advocated the "use of violence as an acceptable means of retaliating against unruly defendants." Although the Judge asserted that he was attempting to assuage the officer with "cop speak," it was the Commission's view that such a statement had "no place in a judicial forum where emotions should be tempered and issues resolved in a peaceful, orderly manner."

Since the Judge's lapses were "antithetical to a judge's obligation to be 'patient, dignified and courteous' to litigants and others and to observe and maintain appropriate standards of decorum," the Commission recommended that he be censured for his misconduct.

Interestingly, the Commission's decision reveals that the Judge narrowly escaped being removed from office. And, in addition, the Commission suggests that had it been empowered to suspend a judge without pay, it would have done so in this particular instance. Here's how the Commission's decision phrased it:

We have previously urged the legislature to consider a constitutional amendment providing suspension from office without pay as an alternative sanction available to the Commission ... We believe that such a sanction is appropriate for cases in which the judge's conduct is truly egregious but does not irretrievably damage the judge's effectiveness on the bench. Were suspension available to us, we would impose it in this case to reflect the severity with which we view respondent's conduct. Absent that alternative, we have concluded that a censure should be imposed.

This disposition should not be read as suggesting that conduct similar to respondent's could never rise to a level warranting removal. As the Court of Appeals recently stated, "Judicial conduct cases are, by their very nature, sui generis" ... Indeed, such decisions "are essentially institutional and collective judgment calls based on assessment of their individual facts" ... along with mitigating or aggravating factors.

This decision places respondent on notice that any future ethical lapses will be viewed with appropriate severity.

One can only hope Judge Carter will heed this warning and will keep his machismo in check.

For a copy of the New York State Commission on Judicial Conduct's decision in the Matter of Carter, please click on the following link:
http://www.scjc.state.ny.us/Determinations/C/carter.htm

For a copy of the Judicial Commission's press release (dated October 2, 2006), please click on the following link:
http://www.scjc.state.ny.us/Press%20Releases/oct__to_dec__2006.htm

Posted by Jonathan H. Newman, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

With retirement only two years away, the Honorable Laura Blackburne was recently "defrocked" by the New York State Court of Appeals and removed from the bench as a Justice of the Supreme Court for a widely reported mishap that occurred in her courtroom on the morning of June 10, 2004.

On that date, Detective Leonard Devlin reported to Justice Blackburne's courtroom to arrest Derek Sterling, who was accused of having committed a serious robbery and assault. While the court was in session, Detective Devlin approached Sergeant Richard Peterson, a court officer, and advised Peterson that he wished to question Derek Sterling in connection with a robbery. As the Detective waited in the hallway (to avoid disrupting the ongoing proceedings), the Sergeant informed the Judge of the exchange.

When she was later informed that Sterling was to be arrested, Justice Blackburne instructed the Sergeant to escort Sterling out the back entrance (by way of a "secured hallway used by judges, jurors and court staff"). The Sergeant, after being advised by an Assistant District Attorney that compliance with the Judge's request "might constitute an obstruction of justice," expressed his "discomfort" and asked the Judge to speak to the prosecutor.

Notwithstanding recommendations to allow the arrest, Judge Blackburne--"piqued" by what she perceived as a misrepresentation made by the Detective--insisted that her court officer escort Sterling out of the courthouse using a side entrance. Although Sterling escaped apprehension, he was arrested the following day at another location. And, ironically, the charges against him were eventually dismissed.

Justice Blackburne was not as fortunate. Responding to complaints (including one filed by the Patrolmen's Benevolent Association), the Commission on Judicial Conduct investigated the incident and found the court guilty of "judicial misconduct." Eight members voted for "removal," and two for "censure." On appeal, the New York State Court of Appeals looked unfavorably upon the Judge's actions and refused to excuse the jurist's conceded "error in judgment."

Citing no other reported instance of a judge facilitating "the escape of an accused violent felon," the Court of Appeals chastised Judge Blackburne for "impeding the legitimate operation of law enforcement." As the court noted in its decision:

[B]y helping a wanted robbery suspect to avoid arrest, [Justice Blackburne] placed herself above the law she was sworn to administer, thereby bringing the judiciary into disrepute and undermining public confidence in the integrity and impartiality of her court. Although "removal is not normally to be imposed for poor judgment, even extremely poor judgment"...[Justice Blackburne's] dangerous actions exceeded all measure of acceptable judicial conduct. By interposing herself between the defendant and the detective, petitioner abandoned her role as neutral arbiter, and instead became an adversary of the police. This is completely incompatible with the proper role of an impartial judge.

A lone dissenter, the Honorable George Bundy Smith, disagreed with his colleagues and asserted that a "censure" would have been appropriate under the circumstances. He noted, "While it is true that judges should set high standards, it is also true that judges are human and may err. An error in judgment by this judge, approximately two years from retirement, should not lead to removal."

While we certainly question the Judge's "impulsiveness" and the inappropriate exercise of her discretion, we are not convinced that this isolated instance warranted the severe sanction of "removal" from office. As far as we can tell, no criminal charges were brought against the Justice, nor was she arrested or indicted for her "indiscretion." Since she was apparently not prosecuted criminally for her acts nor found "guilty" of any criminal wrongdoing, we agree with the dissent that Justice Blackburne deserved a "second chance."

For a copy of the Court of Appeals's decision in Matter of Blackburne, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_04748.htm

For a copy of the underlying decision issued by the New York State Commission on Judicial Conduct, please click on the following link:
http://www.scjc.state.ny.us/Determinations/B/blackburne.htm

For a copy of the Commission's press release (dated November 22, 2005), please click on the following link:
http://www.scjc.state.ny.us/Press%20Releases/nov__dec__2005.htm

-----------------
Note: On August 3, 2006, Blackburne's daugher, the Honorable Anna Blackburne-Rigsby was appointed an associate judge of the District of Columbia Court of Appeals. (Blackburne-Rigsby previously served as an associate judge to the Superior Court of the District of Columbia.) Prior to her mother's removal from the bench, the two women were reportedly the only mother and daughter judges on U.S. courts of general jurisdiction.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (2)

Justice Duane A. Hart of the Queens County Supreme Court should have sensed he was heading for a train wreck after the third mistrial of a contentious "unjust enrichment" and "constructive trust" dispute involving a father and son. On April 21, 2003, while the matter was on its fourth go-around, Judge Hart recessed at 1:00 P.M., and directed the parties to return the following day. An application made by one of the litigants, John Modica, to adjourn the matter an additional day (so that he could attend his son's championship soccer game) was denied.

Intending to reiterate his adjournment request, Modica later approached the Judge in a courthouse parking lot, but that effort was quickly rebuffed and security personnel were called to escort Mr. Modica away. An incident report prepared by the officer on duty noted that Modica was reprimanded and advised "not to approach any judge at any time," and further noted that Judge Hart had requested that no further action be taken against Modica.

The following morning, when the parties returned to the courtroom, Justice Hart appeared "angry and upset" and indicated to those present that he had been "accosted" the day prior and was considering finding Modica in contempt of court and having him imprisoned for 30 days or more. Although the Judge initially recanted the threat, when Modica's counsel requested that a formal record of the exchange be made, the Court responded as follows:

I find your client in contempt. He tried to intimidate the Court. I sentenced him to 30 days. I will suspend sentence pending the outcome of this trial. If I hear so much as a muttering from him, if I think that he's making a face at me, if I think he's doing anything, he shall be remanded by Officer Battle forthwith, and he shall spend every bit of 30 days as a guest of the City of New York. I find that his act in accosting me in the parking lot was contumacious conduct, if there ever was contumacious conduct. He was not supposed to do it. Let the record show I tried to let it go with a warning, but you and your associate decided to put it on the record, and I told you if you wanted to keep the matter going, fine. I will hold him in contempt and therefore I did.

At day's end, the lawsuit was dismissed and the contempt finding vacated.

In response to a complaint later filed with the New York State Commission on Judicial Conduct, the Commission censured Judge Hart for his failure to exercise appropriate restraint and the inappropriate use of the Court's contempt powers. In its decision the Commission noted as follows:

We find respondent's misconduct particularly troubling notwithstanding that later that same day, at the conclusion of the trial, he corrected his injudicious decision by vacating the contempt finding. Several factors have persuaded us that a severe sanction is appropriate in this case.

First, respondent continues to insist that his actions were appropriate and, indeed, asserts that in similar circumstances he would do the same thing again. Such intransigence suggests that respondent still fails to recognize that the awesome contempt power should be exercised only with appropriate restraint and within the carefully mandated safeguards. A judge's fail[ure] to recognize the inappropriateness of his actions or attitudes is a significant aggravating factor on the issue of sanctions.

Second, we note with concern respondent's conflicting testimony as to certain matters...as well as his tendency to accuse others of misdeeds in order to justify his own misbehavior. Respondent's claim that he tried to prevent the attorney from making a record because he knew the attorney wanted to make a "phony" record is entirely unsupported.

In sum, we find that respondent's conduct constitutes a significant departure from the role of a judge, who is required to be the exemplar of dignity and impartiality and to exercise the considerable powers of judicial office within the bounds of the law. We trust that respondent will learn from this episode and that, in light of this decision, he will modify his behavior appropriately....

On appeal, the Court of Appeals of the State of New York affirmed the Commission's findings and sanction. It would appear that the Court's affirmance was predicated, in large part, upon Judge Hart's refusal to acknowledge his error or to express remorse for his conduct. In a telling coda to its decision, the majority noted, in pertinent part, as follows:

A judge need not adopt a posture of obeisance before the Commission or this Court. A judge must, however, recognize wrongdoing in order to forestall the inevitable, unfortunate conclusion that, absent a harsher sanction, more of the same will ensue.

In a dissent, the Honorable George Bundy Smith asserted that the formal rebuke which Judge Hart received (and the Court's affirmance of that sanction) was "uneven" and "at odds" with prior cases which involved judicial misconduct considerably more egregious. Judge Smith believed that Judge Hart's conduct did not rise to the level of prior reported cases of judicially directed detention, imprisonment, and other abuses of power which triggered the same penalty. We agree.

While Judge Hart may have acted impulsively, we believe the Court of Appeals may also have acted somewhat precipitously. Since Modica was never incarcerated, it's unclear how he was harmed, particularly since it was Modica that initiated the one-sided (ex parte) communication with the Judge (outside the presence of all counsel).

To some degree, once must respect Judge Hart's belief that his actions were justified and appropriate under the circumstances. Should he have been penalized for his refusal to acknowledge what others perceived as error? We think not. We believe that the Judge's behavior should have been assessed independently of any requirement that an apology or other expression of remorse be proffered. And, since this appears to have been an isolated incident or occurrence, we don't understand why Judge Hart was not given the benefit of the doubt.

After all, being a judge is often a matter of heart, isn't it?

For a copy of the Court of Appeals's decision in Matter of Hart, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_03471.htm

For a copy of the underlying decision issued by the New York State Commission on Judicial Conduct, please click on the following link:
http://www.scjc.state.ny.us/Determinations/H/hart.htm

For a copy of the Commission's press release (dated November 15, 2005), please click on the following link:
http://www.scjc.state.ny.us/Press%20Releases/nov__dec__2005.htm

-----------------
Note: After a formal hearing, the Commission is empowered to dismiss the complaint, privately caution the judge about the matter, publicly admonish, censure, or remove the individual from office.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)