Owen, Matter of

CourtNew York Court on the Judiciary
Citation413 N.Y.S.2d 815
Decision Date04 May 1978
PartiesIn the Matter of the Proceedings pursuant to Section 22 of Article 6 of the Constitution of the State of New York in Relation to Joseph G. OWEN, a Judge of the Town Court, Town of Wallkill, County of Orange, Second Judicial Department.

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413 N.Y.S.2d 815
In the Matter of the Proceedings pursuant to Section 22 of
Article 6 of the Constitution of the State of New York in
Relation to Joseph G. OWEN, a Judge of the Town Court, Town
of Wallkill, County of Orange, Second Judicial Department.
Court on the Judiciary.
May 4, 1978.

Page 816

Before BIRNS, Presiding Officer, and MAIN, SWEENEY, MOULE and CARDAMONE, JJ.

Respondent, pursuant to Section 580.5 of the Rules of Procedure of the Court on the Judiciary, moves for an order dismissing the charges against him, or, in the alternative, for an order granting discovery, a change of venue and a direction that judicial subpoenas be issued and served on respondent's prospective witnesses.

Respondent is charged with seeking special consideration on behalf of defendants in other courts, and with being influenced by requests for special consideration on behalf of defendants in his court, i. e., of special treatment and favoritism in the disposition of cases.

In Matter of Bolte, 97 App.Div. 551, 574, 90 N.Y.S. 499, 501 (1st Dept., 1904), the Court stated: "Favoritism in the performance of judicial duties constitutes corruption as disastrous in its consequence as if the judicial officer received and was moved by a bribe". This statement, issued approximately 18 years before the original Canons of Judicial Ethics were adopted by the American Bar Association, clearly demonstrates that the type of conduct alleged against respondent constitutes "cause" for discipline because it is wrong, and always has been wrong.

We note that cause for judicial discipline is to be found not only in the guidelines contained in the Canons of Judicial Ethics and the Rules Governing Judicial Conduct of the Administrative Board of the Judicial Conference, but also "in the general

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moral and ethical standards expected of judicial officers by the community". (Friedman v. State of New York, 24 N.Y.2d 528, 539-40, 301 N.Y.S.2d 484, 494, 249 N.E.2d 369, 377.) The Canons and Rules, insofar as they proscribe conduct which is Malum in se, as opposed to Malum prohibitum, operate to restate those general ethical principles which have always governed judicial conduct.

Accordingly, a judicial officer who accords or requests special treatment or favoritism to a defendant in his court or another judge's court, is guilty of Malum in se misconduct constituting cause for discipline, and this would be so even if the Canons and Rules which might apply to such misconduct had never been promulgated. These principles govern our disposition of respondent's motion as set forth below.

Respondent's motion to dismiss the charges on the ground that they do not constitute actionable misconduct, but merely a proper exercise of discretion, is denied for the reasons stated above.

Respondent's motion to dismiss the charges based on his unsupported allegation that "constitutional amendments empowering the creation of the Court have been illegally adopted and are invalid" is denied. Legislation is protected by a strong presumption of constitutionality requiring that respondent show its invalidity "beyond a reasonable doubt" (Nik-O-Lok Co. v. Carey, 52 A.D.2d...

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2 practice notes
  • Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598
    • United States
    • Nevada Supreme Court of Nevada
    • February 24, 1995
    ...dissenting justice. The third and final case cited by the dissenting justice in support of her unwarranted premise is Matter of Owen, 413 N.Y.S.2d 815 (Ct. on the Judiciary 1978). In the first place, this case was decided by the court on the judiciary. It has no precedential value when cons......
  • Steinberg v. State Commission on Judicial Conduct
    • United States
    • New York Court of Appeals
    • July 1, 1980
    ...(D.C.N.Y.); see, also, People v. La Carrubba, 46 N.Y.2d 658, 663-664, 416 N.Y.S.2d 203, 389 N.E.2d 799; Matter of Owen, 47 N.Y.2d (q), 413 N.Y.S.2d 815). We agree in principle with petitioner's contention that the extreme sanction of removal should not be imposed absent truly egregious circ......
2 cases
  • Whitehead v. Nevada Com'n on Judicial Discipline, No. 24598
    • United States
    • Nevada Supreme Court of Nevada
    • February 24, 1995
    ...dissenting justice. The third and final case cited by the dissenting justice in support of her unwarranted premise is Matter of Owen, 413 N.Y.S.2d 815 (Ct. on the Judiciary 1978). In the first place, this case was decided by the court on the judiciary. It has no precedential value when cons......
  • Steinberg v. State Commission on Judicial Conduct
    • United States
    • New York Court of Appeals
    • July 1, 1980
    ...(D.C.N.Y.); see, also, People v. La Carrubba, 46 N.Y.2d 658, 663-664, 416 N.Y.S.2d 203, 389 N.E.2d 799; Matter of Owen, 47 N.Y.2d (q), 413 N.Y.S.2d 815). We agree in principle with petitioner's contention that the extreme sanction of removal should not be imposed absent truly egregious circ......

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