1 1 1 1 1 1 1 1 1 1 1 1 1 'l\ 1 . 1 1 1 1 1 1 1 1 1 1 1 1 1 1988 ANNUAL REPORT OF THE NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT COMMISSION MEMBERS MRS. GENE ROBB, Chairwoman JOHN J. BOWER, ESQ. DAVID BROMBERG, ESQ. HONORABLE CARMEN BEAUCHAMP CIPARICK E. GARRETT CLEARY, ESQ. DOLORES DEL BELLO VICTOR A. KOVNER, ESQ. HONORABLE WILLIAM J. OSTROWSKI HONORABLE ISAAC RUBIN HONORABLE FELICE K. SHEA JOHN J. SHEEHY, ESQ. ADMINISTRATOR GERALD STERN, ESQ. DEPUTY ADMINISTRATOR CLERK OF THE COMMISSION ROBERT H. TEMBECKJIAN, ESQ. ALBERT B. LAWRENCE, ESQ. 801 Second Avenue New York, New York 10017 Agency Building #1 Empire State Plaza 109 South Union Street Albany, New York 12223 Rochester, New York 14607 STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT 801 SECOND AVENUE NEW YORK. NY 10017 (2121849·8860 GERALD STERN MEMBERS ADMINISTRATOR MRS. GENE ROBB. CHAIRWOMAN R08ERT H. TEMSECKJIAN JOHN J. BOWER DAVID BROMBERG DEPUTY ADMINISTRATOR HON. CARMEN BEAUCHAMP CIPARICK E. GARRETT CLEARY DOLORES DELBELLO VICTOR A. KOVNER HON. WILLIAM J. OSTROWSKI HON. ISAAC RUBIN HON. FELICE K. SHEA JOHN J. SHEEHY CLERK ALBERT B. LAWRENCE To the Governor, the Chief Judge of the Court of Appeals and the Legislature of the State of New York: Pursuant to Section 42, paragraph 4, of the Judiciary Law of the State of New York, the New York State Commission on Judicial Conduct respectfully submits this annual report of its activities. The report covers the period from January 1, 1987, through December 31, 1987. Respectfully submitted, Lillemor T. Robb, Chairwoman, On Behalf of the Commission March 1, 1988 New York, New York IN MEMORY OF DAVID BROMBERG The members of the New York State Commission on Judicial Conduct mourn the passing of their devoted colleague and friend, David Bromberg, whose passionate commitment to individual rights and justice guided us during his 12 years as a Commission member. We will miss his spirited leadership and we will treasure our wonderful memory of him. This report reflects his dedication to judicial discipline and to the work of the Commission. With respect and affection, we dedicate this report to him. TABLE OF CONTENTS INTRODUCTION ••••••••••••.••••••••••• 1 COMPLAINTS AND INVESTIGATIONS IN 1987. ••••••••••• 3 ACTION TAKEN IN 1987 ••• 4 Formal Proceedings. ••• •• •• • •••• 10 Determinations of Removal • •• •••• 10 Matter of Bertram R. Gelfand •• ••••••• 10 Matter of Ernest J. Conti.. •••••• • 12 Matter of James R. Straite •. .•••• • 13 Matter of James R. Lenney. ••••••• •• • 14 Matter of Michael J. Greenfeld •••••••••• 15 Matter of Roy E. Smith •••••••••••••• 16 Matter of Gerard Decke1man .•• •• • •••• 17 Determinations of Censure ••••• •• •• •• 18 Matter of Joseph Goldstein • •• • •••••• 18 Ma tter of Elaine M. Rider. •• •• • 19 Matter of John C. Orloff • •••••• •••• 20 Matter of Anthony P. LoRusso. • ••••••• 21 Matter of J. David Little••••••••••••• 22 Matter of J. Michael Bruhn •••••••••• 23 Matter of Edward T. Feeney •• •• •••• 24 Matter of Clair A. Reyome.. •• • •• 25 Determinations of Admonition. •• ••••••• 26 Matter of Allan L. Winick. •••••••••••• 26 Matter of John G. Turner ••• •• •••• 27 Matter of Frank J. Blangiardo. •••••••••• 28 Matter of Merrill R. Zapf, Sr••••••••••• 29 Matter of Benno G. Spiehs••••••••.•••• 29 Matter of Charles R. Cooksey •• ••••• 30 Matter of Penny M. Wolfgang. •• ••••••• 31 Dismissed Formal Written Complaints ••••••• ••• 32 Letters Of Dismissal And Caution. .. ••• 34 Matters Closed Upon Resignation •• •• . •• 35 Referrals To Other Agencies ••••••••• • • • 36 SUMMARY OF COMPLAINTS CONSIDERED BY THE TEMPORARY, FORMER AND PRESENT COMMISSIONS ••••••• 38 - i - REVIEW OF COMMISSION DETERMINATIONS BY THE COURT OF APPEALS •••••• •• 40 Matter of Lawrence L. Rater ·· ··· ··· · · 41 Matter of Patrick T. Maney. · · · · · · ·· · · 42 Matter of Lee Vincent . ······· · · · 43 Matter of Bertram R. Gelfand. · · ··· · ·· ··· · · 44 Matter of Ernest J. Conti . ··· ·· · ···· ·· 46 CHALLENGES TO COMMISSION PROCEDURES •• • 48 John Doe v. Commission. •• • ••• •• 48 Sims v. Wachtler et ale ••••••••• ·... 49 Matter of James R. Lenney •••••••••• ·••. 50 POLICIES AND PRACTICES OF THE COMMISSION • ·. • 51 The Commission's Budget ••••• •• ••• 52 The Commission's "Mandate". •••••••••• •••• 56 "Concentration" On Town And Village Justices•• •• 59 The "One-Tier" Versus "Two-Tier" Systems•••• •• 62 Education Of Judges ••••••••••••••• • 66 Confidentiality Of Commission Proceedings •••• • 69 SPECIFIC PROBLEM AREAS IDENTIFIED BY THE COMMISSION. • 73 Gender Bias • •• ••• ·...••.....•• • 73 Conflicts Of Interest ••• ·•••••••••• • 76 The Right To A Public Trial •• ·•••••••••• .81 The Assertion Of Influence. ·.......• . 84 Raising Funds For Charitable, Civic Or Other Organizations. •• • •••••• 85 "Screening" Of Potential Lawsuits By Judges ••• • 88 Access To Public Court Records. •••• ••• • 90 Ex Parte Communications With And Improper Reliance Upon Prosecutors•••••••• 92 Reducing Or Dismissing Charges Without Notice To The Prosecutor••••••• •••. 95 Mishandling Court Funds •••••••• ·•• .96 Advisory Opinions ••••••••••••••• ••. .99 ADMINISTRATIVE RECOMMENDATIONS MADE BY THE COMMISSION AS TO POLITICAL ACTIVITY RULES •• .101 Background. ••••• •••• .101 Recent Amendments •• ·..... .101 Political Activity By Judges ••••••• •••• .103 Political Activity By Court Personnel •• •••• .106 - ii - CONCLUSION ••••.•••.•••.•.••••.•••••110 APPENDIX A Biographies of Commission Members ••••••.•••.111 APPENDIX B The Commission's Powers, Duties and Operations.••••117 APPENDIX C Referees Who Presided in Commission Proceedings in 1987 ........•.••••••.125 APPENDIX D Commission Budget Figures, 1978-87 ..••.•••••.127 APPENDIX E Texts of Determinations Rendered in 1987 (Arranged Alphabetically) ••••••.•.••.••129 APPENDIX F Statistical Analysis of Complaints. .••••.••• .257 - iii - INTRODUCTION The State Commission on Judicial Conduct is the disci­ plinary agency constitutionally designated to review complaints of misconduct against judges of the New York State unified court system. The Commission's objective is to enforce the obligation of judges to observe high standards of conduct while safeguarding the independence of the judiciary. Judges must be free to act in good faith without fear of being investigated for their rulings or decisions, but they also are accountable for their misconduct. The ethics standards that the Commission enforces are found primarily in the Rules Governing Judicial Conduct and the Code of Judicial Conduct. The Rules are promulgated by the Chief Administrator of the Courts with the approval of the Court of Appeals, pursuant to Article VI, Sections 20 and 28 of the New York State Constitution. The Code was promulgated by the Ameri­ can Bar Association and was adopted in 1972 by the New York State Bar Association. This 1988 Annual Report covers the Commission's activi­ ties during calendar year 1987. As in previous annual reports, the Commission identifies "specific problem areas," which should be of assistance to judges and to the Office of Court Administra­ tion for its training programs. Because some of the Commission's attention in 1987 was directed to a legislative hearing on issues pertaining to policies, procedures and the law establishing the Commission, this report also addresses some of those issues. A history of the development of the Commission, begin­ ning with the creation in 1975 of a temporary State Commission on Judicial Conduct, and a description of the Commission's authority and procedures, are appended to this report. - 2 - COMPLAINTS AND INVESTIGATIONS IN 1987 In 1987, 1003 new complaints were received. Of these, 813 were dismissed upon initial review, and 190 investigations 1 were authorized and commenced. As in previous years, the majority of complaints were submitted by civil litigants and by complaining witnesses and defendants in criminal cases. Other complaints were received from attorneys, judges, law enforcement officers, civic organizations and concerned citizens not involved in any particular court action. Among the new complaints 49 were initiated by the Commission on its own motion. On January 1, 1987, 203 investigations and proceedings on formal charges were pending from the prior year. Some of the new complaints dismissed upon initial review were frivolous or outside the Commission's jurisdiction (such as complaints against attorneys or judges not within the state unified court system). Many were from litigants who complained about a particular ruling or decision made by a judge in the course of a proceeding. Absent any underlying misconduct, such as demonstrated prejudice, intemperance, conflict of inter- est or flagrant disregard of fundamental rights, the Commission does not investigate such matters, which belong in the appellate courts. 1The statistical period in this report is January 1, 1987, through December 31, 1987. Detailed statistical analysis of the matters considered by the Commission is appended in chart form. - 3 - ACTION TAKEN IN 1987 Of the combined total of 393 investigations and pro­ ceedings on formal charges conducted by the Commission in 1987 (203 carried over from 1986 and 190 authorized in 1987), the Commission made the following dispositions in 260 cases: 139 matters were dismissed outright. 47 matters involving 42 different judges were dismissed with letters of dismissal and caution. 12 matters involving 10 different judges were closed upon resignation of the judge from office. 35 matters involving 27 different judges were closed upon vacancy of office due to reasons other