Spector v. State Commission on Judicial Conduct

• Decision Date: 05 June 1979
• Citation: 47 N.Y.2d 462,418 N.Y.S.2d 565,392 N.E.2d 552
• Parties: , 392 N.E.2d 552 In the Matter of Morris E. SPECTOR, a Justice of the Supreme Court of the State of New York, Petitioner, v. STATE COMMISSION ON JUDICIAL CONDUCT, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 565

418 N.Y.S.2d 565

47 N.Y.2d 462, 392 N.E.2d 552

In the Matter of Morris E. SPECTOR, a Justice of the Supreme Court of the State of New York, Petitioner, v. STATE COMMISSION ON JUDICIAL CONDUCT, Respondent.

Court of Appeals of New York.

June 5, 1979.

Irving Anolik, New York City, for petitioner.

Gerald Stern, New York City, for respondent.

OPINION OF THE COURT

PER CURIAM.

It is appropriate in the circumstances disclosed in this record that petitioner be admonished for the appearances of impropriety stemming from appointments made by him of the sons of two other Judges during periods when such other Judges were making appointments of his son.

In June, 1978 a formal complaint was served on petitioner by the Commission on Judicial Conduct alleging four charges of misconduct arising out of petitioner's appointment of attorneys as guardians ad litem, receivers, referees and in one instance the committee of an incompetent in judicial proceedings pending before him. After hearings, the Referee appointed to hear and report to the commission found that two of the four charges had not been sustained. As to the other two charges, the Referee concluded that, while there was no basis for other criticism of petitioner's conduct, two of the appointments of Burton Fine, the son of Mr. Justice Sidney Fine, and four of the appointments of Sanford Postel, the son of Mr. Justice George Postel, were not "free from the appearance of impropriety". The Referee did not, however, find any Actual impropriety.

The commission found that in the period from March, 1968 to November, 1974 petitioner appointed the son of Justice Fine on 2 occasions while Justice Fine appointed petitioner's son on 8 occasions and appointed the son of Justice Postel on 10 occasions while Justice Postel appointed petitioner's son on 5 occasions. The commission further found that at the time petitioner was making these appointments he was aware of the appointments of his son being made by the other Judges and concluded that, although there was no "quid pro quo" understanding, the cross appointments gave the "appearance of impropriety" in violation of Canon 4 of the Canons of Judicial Ethics and the applicable portion of section 33 of the Rules Governing Judicial Conduct. A majority of the members of the commission determined that the appropriate sanction was that petitioner be admonished. Three members of the commission, however, while adopting all the factual findings made by the Referee, concluded that such findings did not warrant the imposition of discipline under subdivision 7 of section 44 of the Judiciary Law.

Preliminarily, we note that, undoubtedly because we are the only court vested with power to review the commission's determination, the scope of our review is unusually broad, encompassing as it does authority not only to "review the commission's findings of fact and conclusions of law", but also to "impose a less or more severe sanction * * * than the one determined by the commission, or (to) impose no sanction". (N.Y. Const., art. VI, § 22, subds. a, d; Judiciary Law, § 44, subd. 9.) ¹ Thus, the issues before us include the correctness of the commission's findings of fact and conclusions of law, as well as the appropriateness of the commission's determination that petitioner be admonished, the lowest in the scale of sanctions prescribed for judicial misconduct. As a result of our review we accept the determination made by the commission.

It serves first to identify and to consider the nature of the judicial conduct which is the subject of this disciplinary proceeding. Our analysis recognizes two levels of consideration. The progression may be simply stated. First, nepotism is to be condemned, and disguised nepotism imports an additional component of evil because, implicitly conceding that evident nepotism would be unacceptable, the actor seeks to conceal what he is really accomplishing. Second, and this is peculiar to the judiciary, even if it cannot be said that there is proof of the fact of disguised nepotism, an appearance of such impropriety is no less to be condemned than is the impropriety itself.

Nepotism ² in the judiciary was outrightly condemned when the first Canons of Judicial Ethics were adopted by the American Bar Association in 1924. ³ Canon 12 as then adopted provided in pertinent part:

"Appointees of the Judiciary and Their Compensation.

"Trustees, receivers, masters, referees, guardians and other persons appointed by a judge to aid in the administration of justice should have the strictest probity and impartiality and should be selected with a view solely to their character and fitness. The power of making such appointments should not be exercised by him for personal or partisan advantage. He should not permit his appointments to be controlled by others than himself. He should also avoid nepotism and undue favoritism in his appointments." This unequivocal disapproval has been carried forward, undiminished, into the present Code of Judicial Conduct. Canon 3 (subd. B, par. (4)) now provides: "A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered."

A similar and more explicit injunction is now to be found in section 33.3 (subd. (b), par. (4)) of the Rules Governing Judicial Conduct (22 NYCRR 33.3 (b) (4), filed Jan. 21, 1974, effective Jan. 1, 1974): "A judge shall not make unnecessary appointments. He shall exercise his power of appointment only on the basis of merit, avoiding favoritism. A judge shall not appoint or vote for the appointment of any person as a member of his staff or that of the court of which he is a member, or as an appointee in a judicial proceeding, who is a relative within the sixth degree of relationship of either the judge or the judge's spouse. A judge shall also refrain from recommending a relative for appointment or employment to another judge serving in the same court. He shall not approve compensation of appointees beyond the fair value of services rendered."

Concededly this case does not present an instance of open nepotism. The appointment of his son by any Judge would be both unthinkable and intolerable whatever might be the son's character and fitness or his father's peculiar qualification in the circumstances to assess such character and fitness. The enlarged evil in this instance is that an arrangement for cross appointments would not only offend the antinepotism principle; it would go a step further, seeking to accomplish the objectives of nepotism while obscuring the fact thereof.

We address then the circumstance that both the Referee and the commission have concluded that in this instance there was in fact no Quid pro quo impropriety in the appointments made by petitioner. Both have also determined, however and this, of course, is the predicate for the disciplinary action taken that petitioner's participation in the pattern of cross appointments gave an appearance of impropriety, in effect permitting the inference that each of the Judges involved was by this means securing appointments for his own son. Additionally, the commission observed that petitioner might be perceived as having resorted to this device to avoid a charge of nepotism. Here, too, the articulation of the canons has been clear and undeviating. When first adopted in 1924 the Canons of Judicial Ethics likewise proscribed the appearance of impropriety. Canon 4 provided: "A judge's official conduct should be free from impropriety and the appearance of impropriety he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life should be beyond reproach." Canon 2 of the present Code of Judicial Conduct states the continuing principle succinctly: "A judge should avoid impropriety and the appearance of impropriety in all his activities." Similarly, section 33.2 of the Rules Governing Judicial Conduct must be read to condemn the appearance as well as the fact of impropriety (22 NYCRR 33.2).

Reluctance to impose a sanction in this case would be taken as reflecting an attitude of tolerance of judicial misconduct which is all too often popularly attributed to the judiciary. To characterize the canonical injunction against the appearance of impropriety as involving a concern with what could be a very subjective and often faulty public perception would be to fail to comprehend the principle. The community, and surely the Judges themselves, are entitled to insist on a more demanding standard. As Chief Judge Cardozo wrote in Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546: "A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior". And there is no higher order of fiduciary responsibility than that assumed by a Judge. It would ill befit the courts and the members of the judiciary to suggest that Judges are to be measured against no higher norm of conduct than may at times and in some places unhappily have been perceived as reflecting the mores of a judicial marketplace. Petitioner in this case makes no plea to be measured by any such coarse or mean yardstick. To suggest, as does the dissenter, that there has been a Modus operandi which has condoned the making of appointments subject to the personal preferences of the appointing Judge (p. 569) affords no proper ground on which to excuse the present conduct. To the extent that such a practice may have existed in certain areas, it has been aberrant; certainly it has had the support and approval only of its practitioners.

In the present case the fact that cross appointments were knowingly made by petitioner during the period in question is not disputed....