Schultz, Matter of

• Decision Date: 04 May 1978
• Citation: 420 N.Y.S.2d 54
• 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 Lawrence H. SCHULTZ, Jr., a Judge of the City Court, City of Batavia, County of Genesee, Fourth Judicial Department.
• Court: New York Court on the Judiciary

Page 54

420 N.Y.S.2d 54

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 Lawrence H. SCHULTZ, Jr., a Judge of the City

Court, City of Batavia, County of Genesee, Fourth Judicial Department.

Court on the Judiciary.

May 4, 1978.

Before BIRNS, P. J., and SUOZZI, COHALAN, MAIN and SWEENEY, 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, and for such other relief as may be appropriate.

We have examined each and every claim of respondent set forth in the affidavit subscribed by counsel for the respondent, and find each to be without merit.

There is no basis for respondent's claim that "procedural anomalies" bar the prosecution of the charges against respondent. The charges against respondent are not restricted to Charge XI, the allegations of which brought respondent's conduct to the attention of the State Commission on Judicial Conduct. The charges now before the Court on the Judiciary are the product of an investigation thereafter instituted by the Commission (Judiciary Law, § 43(2)). Moreover, the Court on the Judiciary is not required to limit the charges it prefers against respondent to charges transmitted by the State Commission or by the Chief Judge of the Court of Appeals. 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 117). Accordingly, the motion to dismiss on this ground is denied.

Respondent contends that his initial appearance before one member of the State Commission on Judicial Conduct was procedurally defective and thus bars the present proceeding before this Court. Respondent's appearance before only one Commission member was proper, as the matter was then still at the investigatory, as opposed to formal hearing, stage (see, Judiciary Law §§ 42(1), 43(3), 43(5)). Accordingly, we need not pass upon the issue of whether a procedural defect in proceedings before the State Commission might constitute cause for dismissal of charges pending before a Court on the Judiciary.

We find no basis for dismissing charges which are alleged to have occurred prior to the establishment of the State Commission (see, Matter of Vaccaro, 42 N.Y.2d (a), 409 N.Y.S.2d 1009; Matter of Richter, 42 N.Y.2d (aa), 409 N.Y.S.2d 1013 (Court on the Judiciary, 1977)).

Respondent's motion to dismiss Charges II, IV and V based on the effective date of the Code of Judicial Conduct rests upon the mistaken premise that the conduct of a judicial officer may not be measured by Canons which were not "effective" when the conduct took place. That is not so. The Canons, insofar as they proscribe conduct which is Malum in se, as opposed to Malum prohibitum,...