The ends do not justify the misconduct

Reviewing a determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for threatening at various times to hold the chief court clerk, case manager, police officers, mayor, village attorney, his co-judge, and others in contempt or have them arrested; being rude and discourteous to court employees and village officials and employees; and permitting a candidate for county executive to quote him in a campaign press release.  In the Matter of Simon (New York Court of Appeals October 20, 2016).  Click here for the Commission’s findings.

On review, the judge conceded his misconduct, but challenged the Commission’s removal determination, arguing that he should be censured but restored to his judicial office.  The Court disagreed, concluding that the misconduct behind his “concession” was “‘truly egregious.’”  The Court noted the judge’s claim that the Commission ignored his theory of the case — that “his motives were to protect the independence and integrity of the court from the undue influence of a corrupt mayor and improve its efficiency.”  However, the Court emphasized, “Even assuming the truth of that representation, the ‘means’ by which petitioner attempted to effectuate those ‘ends’ are unacceptable.”  Those means included repeatedly using “his office and standing as a platform from which to bully and to intimidate” and engaging “in ethnic smearing and name-calling and repeatedly display[ing] poor temperament — perhaps most significantly, by engaging in a physical altercation with a student worker.”  The Court also noted that the judge had, from “a grossly misguided attempt to motivate — repeatedly threatened to hold various officials and employees of the Village of Spring Valley in contempt without cause or process.”

The Court concluded:

All of the foregoing actions reflect a pattern of calculated misconduct that militates against petitioner’s assertion that the misbehavior complained of will not be repeated if he is allowed to remain on the bench.  Petitioner’s misconduct apparently was tempered only by the intervention of the Commission, and at the hearing held with respect to this matter he appeared unrepentant and evasive, testifying falsely on at least two occasions in an attempt to minimize his misconduct — all of which renders suspect his guarantees of better behavior.

In another recent New York case, accepting an agreed statement of facts and joint recommendation, the New York Commission admonished a judge for yelling and acting discourteously toward the assistant district attorney and threatening to hold the assistant district attorney in contempt, to declare a mistrial with prejudice and to impose sanctions on the district attorney’s office if a defendant was arrested for threatening a witness before the trial concluded.  In the Matter of Gary, Determination (New York State Commission on Judicial Conduct October 3, 2016).  During the Commission investigation, the judge had testified that his threats had been motivated by his concerns to conclude the case, avoid a mistrial, and spare the young victim from having to testify again at a retrial.  The Commission concluded, however, that the judge’s concern to avoid a mistrial did not justify baseless threats of contempt and sanctions against an attorney and that the fact that he did not act on his threats did not excuse the misconduct.  The Commission emphasized, “regardless of whether he intended to follow through on the threats he made, the threats were inappropriate since he had no lawful basis to act on them.  Such statements to a prosecutor — especially by a judge who ‘yelled’ and spoke in ‘a raised voice’ — are highly intimidating and could only be perceived as a serious warning of very significant consequences, including a mistrial with prejudice in a case involving a serious crime.”

 

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