Steinberg v. State Commission on Judicial Conduct
| Citation | 409 N.E.2d 1378,51 N.Y.2d 74,431 N.Y.S.2d 704 |
| Parties | , 409 N.E.2d 1378 In the Matter of Jerome L. STEINBERG, a Judge of the Civil Court of the City of New York, County of Kings, Petitioner, v. STATE COMMISSION ON JUDICIAL CONDUCT, Respondent. |
| Decision Date | 01 July 1980 |
| Court | New York Court of Appeals |
In this proceeding to review a determination of the State Commission on Judicial Conduct, we are called upon to consider whether the conduct of petitioner, a Judge of the New York City Civil Court, constituted a serious breach of judicial ethics warranting the imposition of the extreme sanction of removal from office. After having reviewed all of the evidence before the commission, we conclude that removal is appropriate.
The essential facts are not disputed. Petitioner took office in January of 1970. Within six months, he was approached by two friends, Jerome Silverman and Toshi Miyazaki, and asked if he would assist in arranging a substantial loan for Miyazaki's travel business. Petitioner assented and promptly contacted a prospective lender named Ditkowich, who had previously loaned money to Miyazaki at petitioner's request. Upon petitioner's urging, Ditkowich agreed to lend Miyazaki $90,000 at a total annual interest rate of 24%, which rate included a 3% fee to compensate petitioner for his efforts in "servicing" the loan on an ongoing basis. 1
Pursuant to the understanding of the parties, petitioner personally collected the loan payments each month from Miyazaki and, after subtracting his share of the interest, forwarded the remainder to Ditkowich. Although petitioner ordinarily picked up the money from Miyazaki at the latter's place of business, there were occasions when the payments were either picked up by Vincent Pizzuto, petitioner's law assistant, or delivered by Mrs. Miyazaki to petitioner's chambers.
A similar arrangement was made in 1971, when Miyazaki approached petitioner with the plaint that he needed more money for his cash-hungry business. This time, petitioner arranged a $5,000 loan in which his dentist, Dr. Bukantz, acted as lender. The interest rate on this loan was also 27%, with 18% going to the lender and 9% going to petitioner for his ongoing role in collecting the payments.
Between 1970 and 1973, petitioner participated in a number of other transactions similar to the Miyazaki loans. The most significant of these was a loan of $10,000 made by one David Gilman to a Mr. Stein, the president of Merrick Harbor Drug Co., at an interest rate of 24% per year, of which petitioner was to receive half. As was his practice with respect to the other loans, petitioner would routinely collect the loan payments from the borrower at the borrower's place of business. In making the collections on the Gilman-Merrick Harbor Drug loan, however, petitioner consistently identified himself to the borrower as "Vincent Pizzuto", using that name when he signed the receipts for the cash payments. Although petitioner testified before the commission that he concealed his true identity from Stein, the borrower, because he was "ashamed" to let Stein know that a Judge was acting as "a sort of messenger boy" who was "running back and forth handling this type of thing", he offered no explanation as to why he continued to sign the receipts with his law assistant's name after his identity had accidentally been made known to Stein.
In addition to the evidence concerning petitioner's activities as a loan broker, the commission also considered petitioner's dealings with the Internal Revenue Service during his early years on the Bench. It was conceded before the commission that petitioner failed to report a total of $3,203 of the income from his loan business on his Federal tax returns for 1971, 1972 and 1973. A $5,545 "forwarding fee" which was "earned" by petitioner while he was still a practicing attorney, also was omitted from his 1971 return. Finally, on his returns for 1971 and 1972, petitioner took "medical and dental expense" deductions for payments he made by check to Dr. Bukantz, although these payments actually represented transfers of funds paid to petitioner by Miyazaki toward the latter's loan obligations.
On the basis of the foregoing facts, the Commission on Judicial Conduct determined that petitioner had engaged in a continuing course of conduct which cast his fitness to serve as a Judge in serious doubt and that, accordingly, he should be removed from the Bench. We agree.
The ethical mandates governing the conduct of Judges on and off the Bench have long cautioned against personal business practices which would create an appearance of impropriety and impugn the integrity of the judicial office . Specifically, Canon 25 of the Canons of Judicial Ethics, which constituted the governing ethical code at the time petitioner took office, provided: .
While there may have been some uncertainty concerning the outer limits of this prohibition, 2 petitioner cannot take refuge in any such uncertainty, since his private business activities fell squarely within the type of conduct that Canon 25 clearly and unambiguously proscribes. Whether or not petitioner deliberately and overtly used the prestige and authority of his office to persuade the lenders and borrowers in this case to enter into the transactions from which he personally profited, it cannot be doubted that his conduct created the appearance that such was indeed the case. Contrary to petitioner's assertions, a Judge cannot simply cordon off his public role from his private life and assume safely that the former will have no impact upon the latter (see Matter of Kuehnel v. State Comm. on Judicial Conduct, 49 N.Y.2d 465, 469, 426 N.Y.S.2d 461, 403 N.E.2d 167). Wherever he travels, a Judge carries the mantle of his esteemed office with him, and, consequently, he must always be sensitive to the fact that members of the public, including some of his friends, will regard his words and actions with heightened deference simply because he is a Judge. It takes little imagination to visualize the persuasive and perhaps even subtly coercive effect that occurs when a Judge solicits an unsecured loan for a friend and backs up his request with his personal guarantee. Similarly, can there be any serious doubt that a borrower would be hesitant to protest a seemingly high and perhaps even illegal interest rate when the person collecting the loan payments is a Judge with all of the power and prestige that that title implies?
We stress that in this case, the inevitable danger of subtle persuasion which might naturally arise from petitioner's title was aggravated by petitioner's occasional use of his chambers to conduct his loan business and by his utilization of a judicial employee in several instances to collect the loan payments. Far from indicating that petitioner took scrupulous care to separate his personal business from his public duties, these incidents are illustrative of an unacceptably careless attitude toward the obligations and privileges of his judicial office and a lack of sensitivity to the dangers inherent in their abuse.
Lest it be said that we are approving the imposition of the ultimate sanction of removal for what might be characterized as extremely poor judgment, we hasten to note that this is not just a case of simple careless inattention to the applicable ethical standards. The commission specifically found that petitioner intentionally misrepresented his income and allowable deductions on his Federal income tax returns. Although petitioner now contends that these errors on his tax returns were inadvertent, his protests lack the ring of truth. Having examined all of the relevant testimony on this point (see Matter of Spector v. State Comm. on Judicial Conduct, 47 N.Y.2d 462, 465-466, 418 N.Y.S.2d 565, 392 N.E.2d 552, supra ), we conclude that the commission's finding of deliberate falsification was correct. 3 Moreover, we cannot overlook the fact that petitioner attempted to conceal his true identity from the borrower in the Gilman-Merrick Harbor transaction. While he asserts that he did so only out of an acute sense of "embarrassment", his continued and unexplained use of a pseudonym for purposes of signing receipts long after his identity was disclosed suggests an ongoing, albeit somewhat clumsy, effort to conceal his business activities from official scrutiny. 4
In summary, we find that petitioner's conduct of the described financial affairs in utter...
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