Complaints Against Judges Rise; Fewer Public Sanctions Issued

Daniel Wise
New York Law Journal
September 8, 2004

The number of complaints lodged against New York judges continued to rise last year, according to the state Commission on Judicial Conduct.

At the same time, the number of actions taken against judges has declined, said the commission's latest report on activity in 2003.

The report showed an increase to 1,463 in complaints compared with 1,435 in 2002 and 1,308 in 2001 -- a growth of 12 percent over the two years. Removals from the bench, censures and nonpublic cautions all declined since the previous year.

There were only three removals in 2003. The drop in public sanctions was partly attributable to a type of disposition used for the first time last year, a voluntary permanent resignation, said the commission's administrator, Robert H. Tembeckjian.

The 11-member commission has been hearing misconduct complaints against judges since 1978. Its legal staff investigates and presents misconduct cases to the commissioners. The commission is empowered to recommend the removal, censure or admonition of judges found to have violated the state's Code of Judicial Conduct.

Judges have a right to appeal to the New York Court of Appeals, and all removal orders must be issued by the Court, even in cases where no appeal is taken. Removals are public as are censures and admonitions, a less severe sanction.

In 2003, the year covered by the report, 17 judges received public sanctions. Of those, three were removed, nine censured and five admonished.

The three judges removed from the bench were:

• Mount Kisco Town Court Judge Joseph J. Cerbone, for using his courtroom to express grievances against the district attorney. Judge Cerbone, a part-time justice, was also suspended from practicing law for a year because he had engaged in improper financial practices.

• Root Town Court Judge Pamela L. Kadur, for presiding over cases involving her relatives, concealing her misconduct through false entries in court records and not telling the truth to the commission.

• Hancock Town Court Judge Calvin M. Wescott, after being convicted of endangering the welfare of a mentally retarded person.

Ten of the publicly sanctioned judges were nonlawyer town and village justices.

Five were Supreme Court justices:

• Queens Justice Luther V. Dye was censured for making two comments that conveyed the appearance of bias.

• Nassau County Justice Ira J. Raab was censured for improper political activity and telling an attorney that he had "a long memory" after the attorney appealed one of his orders.

• Suffolk County Justice John C. Bivona was admonished for signing an ex parte order in his home in a case assigned to another judge. The lawyer who had presented the order to Justice Bivona was representing him in a civil case.

• Justice John G. Connor of Columbia County was admonished for considering law guardians' reports without giving the parties copies and for recusing himself on spurious grounds.

• Justice Martin Schneier of Brooklyn was admonished for the improper use of campaign funds.

In addition, Acting Justice Diane Lebedeff was censured for failing to pay her accountant for tax preparation services. The lapses in payment occurred when Justice Lebedeff was approving payments to the accountant after having appointed her to fiduciary positions.

NEW STIPULATION

The 17 public sanctions compare with 28 in 2002 and 26 in 2001.

For the first time last year, four judges were permitted to leave the bench after investigations had begun as long as they publicly agreed never again to seek a judgeship, Tembeckjian said.

A fifth judge, Justice Alan L. Lebowitz, who turned 70 in 2003, could not have remained on the bench unless he was approved as fit by the Office of Court Administration. Justice Lebowitz, who sat in Staten Island, denied the single charge against him but agreed to retire and not seek approval to stay. The commission and Justice Lebowitz agreed that the charge did not involve acts that warranted removal from the bench.

Tembeckjian explained that the commission decided to introduce the never-seek-office-again stipulations because they are the functional equivalent of a litigated resolution. Only a removal order issued by the Court of Appeals carries a permanent bar on re-seeking judicial office, he said.

The four judges who left the bench and agreed not to seek office again were:

• Justice Raab, who thereby resolved several complaints against him, the nature of which was not disclosed. They were unrelated to the censure described above.

• Tarrytown Village Court Judge William R. Crosbie, who was accused of making improper ethnic and racial remarks in connection with two cases.

• Hunter Village Court Judge Robert Hamley, who was accused of making improper remarks about domestic violence victims and disposing of two matters over which he lacked jurisdiction.

• Constable Town Court Judge Beverly J. LaClair, who was accused of engaging in ex parte communications, sentencing a defendant without a trial or a guilty plea and mishandling several other cases.

In addition, to the public sanction, the commission issued 34 nonpublic warning to judges in 2003. It was the lowest number in 10 years. The highest number was in 2000, when there were 68.

FEWER RESOURCES

Finally, 15 judges voluntarily left the bench last year after the commission began investigations against them, and the investigations were dropped, the report said.

Some investigations stopped because removal would not have been appropriate to the allegations, so there was no need for promises not to return. Some cases could not be completed in the four months after the judges' departure when the commission still had jurisdiction over them, Tembeckjian said.

The number of complaints filed against judges in 2003 -- 1,463 -- was 56 percent higher than in 1978, the first year the commission was in operation.

Over the years, the size of the commission's staff has declined by more than half.

In 1978, with a budget of $1.6 million, it had 21 attorneys and 18 investigators. In 2003, according to the report, it had 10 attorneys and seven investigators with a budget of $2.4 million.

Because of staff shortages, Tembeckjian said, "it takes longer than it should to complete our inquiries" and "that is unfair to both the judge and the complainant."