Owen, Matter of

• Decision Date: 04 May 1978
• Citation: 413 N.Y.S.2d 815
• Parties: 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: New York Court on the Judiciary

Page 815

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.

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 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 375, 379, 384 N.Y.S.2d 211, 214, affd. 40 N.Y.2d 1089, 392 N.Y.S.2d 393, 360 N.E.2d 1076; Frank v. State of New York, 61 A.D.2d 466 (1978), affd. 44 N.Y.2d 687, 405 N.Y.S.2d 454, 376 N.E.2d 927). Respondent has failed to meet the burden required of him.

Respondent's motion to dismiss the charges based on his claim that the State Commission on Judicial Conduct granted him "transactional immunity" is denied. Respondent's exhibits in support of this proposition do not establish that the Commission granted, or even attempted to grant, immunity of any nature to respondent. In any event, the Commission's power to grant criminal immunity to a witness cannot confer immunity from facing charges in a disciplinary proceeding (Judiciary Law, § 42(2); Matter of Anonymous Attorneys, 41 N.Y.2d 506, 393 N.Y.S.2d 961, 362 N.E.2d 592).

Respondent's motion to dismiss charges not included in the Administrator's complaint, filed by the State Commission on Judicial Conduct pursuant to Judiciary Law, section 43, subdivision 2, is denied. That complaint serves merely as the basis for an investigation by the Commission. It does not, and cannot, limit the charges which may be brought against a judicial officer in this Court (see, Matter of Fuchsberg, --- N.Y. 2d ---, --- N.Y.S.2d ----, N.Y.L.J., March 17, 1978 (Court on the Judiciary)). Respondent's motion to dismiss those charges which were not forwarded by the State Commission to the Chief Judge of the Court of Appeals, or not forwarded by the Chief Judge to this Court, is denied. The order convening this Court, dated December 14, 1977, gives this Court broad authority to "hear and determine charges" against respondent. Respondent has received adequate notice of the charges (Matter of Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 20 L.Ed.2d...