Kuehnel, Matter of
| Citation | 413 N.Y.S.2d 809 |
| Parties | In the Matter of the Proceedings pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to: In the Matter of Norman E. KUEHNEL, Justice of the Town Court of Hamburg and the Village Court of Blasdell, County of Erie. In the Matter of Thomas H. ROSINSKI, Justice of the Town Court of Hamburg and the Village Court of Hamburg, County of Erie. In the Matter of the Proceedings pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to: In the Matter of Edward A. LAHEY, Justice of the Town Court of New Windsor, County of Orange. In the Matter of Harry J. MILLS, Justice of the Town Court of Montgomery, County of Orange. In the Matter of Joseph L. THOMSON, Justice of the Town Court of Cornwall, County of Orange. In the Matter of Isidore WITTENBERG, Justice of the Town Court of Crawford, County of Orange. In the Matter of the Proceedings pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to: In the Matter of Morgan E. BLOODGOOD, Justice of the Town Court of Malta, County of Saratoga. In the Matter of Harold LIPTON, Justice of the Town Court of Rochester, County of Ulster. In the Matter of Joseph POLONSKY, Justice of the Town Court of Wawarsing, County of Ulster. In the Matter of Edward J. LONGO, Justice of the Town Court of Rotterdam, County of Schenectady. |
| Decision Date | 08 November 1978 |
| Court | New York Court on the Judiciary |
Before BIRNS, Presiding Officer, and SOUZZI, COHALAN, SWEENEY and MAIN, JJ.
The following decision represents the judgment of each of the justices in those cases where he has been designated to sit as a member of a Court on the Judiciary, except that Justice Simons dissents in a separate opinion as to the sanctions to be imposed upon respondents Lahey and Thomson. We have utilized the procedure of one decision to cover all the above-captioned cases, inasmuch as each Court on the Judiciary has determined that the sanction of censure is appropriate in each instance.
Upon the pleadings submitted, it was found that there was no issue of fact to be decided by a hearing, and we therefore granted motions for accelerated judgment made by counsel for the court. Hence, after finding that the charges of misconduct were established, the sole remaining issue is the appropriate sanction to be imposed.
In determining sanctions, we have considered the nature of the charges sustained against each respondent, the presentations and oral argument of counsel to each of the Courts on the Judiciary on which we sit, and the presentations of respondents' counsel. In addition, we have read the briefs submitted together with the exhibits and letters attached thereto.
In essence, respondents are charged with having granted favored treatment to defendants in traffic cases pending in their courts, and requesting similar treatment on behalf of defendants in other judges' courts. This practice of favoritism has been found to be both widespread and of long duration. These acts, although common in the jurisdictions in which respondents hold office, are clearly improper and we have so held on motions to dismiss made by each respondent.
Essentially similar charges were brought against 13 other local justices by the State Commission on Judicial Conduct and that body determined that censure was an appropriate sanction in each of those cases (see Report of State Commission on Judicial Conduct dated March 31, 1978).
In comparing the charges against those respondents and the charges found to be sustained against the respondents now before us, we find that the major difference is in the number of charges leveled against the respective respondents.
In the proceedings before the State Commission on Judicial Conduct, the charges ranged up to 24 instances of misconduct against one respondent judge, which was clearly sufficient to establish a pattern of misconduct. In the cases before us, the total number of charges range from eight in the case of one respondent to 98 in the case of another.
Numbers alone should not determine the sanction to be imposed, I . e., a more severe sanction for a greater number and a less severe sanction for a lesser number. Substantially disparate sanctions would be warranted only where the number of instances of misconduct serves to distinguish such patterns of misconduct from others in which sanctions had been imposed by the State Commission on Judicial Conduct.
We are of the opinion that the ultimate sanction of removal in the cases before us should be imposed only where the conduct charged, viewed in its surrounding context, persuades us that the respondent does not possess the moral qualities required of a judicial officer.
We find that the intermediate sanction of suspension would have a disruptive effect in the local jurisdictions in which respondents hold office, and would have no greater prophylactic effect in preventing repetition of such misconduct than censure. In any event, we find such sanction unwarranted on the record. In our view, censure is the appropriate sanction based on the following considerations which in the main apply to each of the respondents before us.
(1) No judge has been charged with corruption or venality. In fact, no attempt was made by any respondent to conceal the requests and grants of favored treatment now under review. On the contrary, each of the respondents kept conspicuous records of the nature of the particular vehicle and traffic violation embraced in the charges before us, the request for favored treatment, the origin or source of the request and the ultimate disposition of the vehicle or traffic charge involved. Ironically, this record keeping facilitated the initial inquiry which resulted in these charges. In short, we are not dealing with instances of surreptitious ticket fixing where a "pay-off" is received as consideration for the removal or elimination of any record of the vehicle or traffic violation.
(2) Although we emphatically disagree with the claim of some of the respondents that the judicial actions now before us for review can be equated with plea bargaining, we are aware that in most vehicle and traffic cases, no representative of a county district attorney chose to appear or otherwise participate in the prosecution of vehicle and traffic cases. Hence, no legal representative of the village, town or state was available to counterbalance the Ex parte communications requesting favored treatment.
(3) There is some indication that most of the respondents were unaware of the serious nature of the acts charged, either as being Malum in se, or violative of the Canons of Judicial Ethics as contained in the Code of Judicial Conduct and the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference. It is undisputed that none of the training courses required of the respondents included courses in legal ethics and the Canons of Judicial Ethics. While it is elemental that ignorance of the law is no excuse for misconduct, and would not warrant dismissal of the charges, we believe that the absence of such training is a relevant consideration in determining the imposition of sanctions.
It is notable that many of these same factors were considered by the State Commission on Judicial Conduct in determining that censure was the appropriate sanction. Where offenses are similar, sanctions imposed should not be disparate.
Each respondent is censured.
All concur, except Justice RICHARD D. SIMONS who...
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