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Jacob R. Evseroff, for petitioner.
Robert H. Tembeckjian, for respondent.
PER CURIAM:
Petitioner, a
Judge of the County Court, Nassau County, has requested review of the determination
of the State Commission on Judicial Conduct that from January through October
1994 he engaged in a course of misconduct directed at an attorney and that
he further displayed a lack of candor and testified falsely before the
Commission during its investigation of this matter, and imposing the sanction
of removal (see, NY Const, art VI, 22[a]; Judiciary Law 44[1],[7]).
Having conducted a plenary review of the record (Judiciary Law 44[9]),
we conclude that the Commission's determination is supported by a preponderance
of the evidence, and that the sanction of removal is appropriate.
The evidence
before the Referee established that, at least as early as 1991, petitioner
was involved in a feud with a member of the criminal defense bar of Nassau
County over the
attorney's activities in the Criminal Courts Bar Association of that
County, of which both petitioner and the attorney were members. When
the attorney became president of this bar
association in 1993, petitioner publicly criticized the attorney's
conduct and announced that he was boycotting the organization during the
attorney's tenure in that office. In
December 1993, the attorney wrote to petitioner's court administrators
complaining of petitioner's judicial conduct and competence. One
of these Administrative Judges shared the
contents of this letter with petitioner who, despite the redaction
of the attorney's letterhead and signature, recognized its source.
A second letter from the attorney to the
Administrative Judges regarding petitioner followed, and, in early
1994, a speech given by the attorney at an induction ceremony for newly
elected Nassau County Court Judges contained thinly veiled criticisms of
petitioner.
The Referee
found, and the evidence clearly demonstrates, that in the ensuing four
months petitioner responded by sending eight anonymous communications to
the
attorney which were harassing, threatening and otherwise offensive.
Then, in June 1994, at an annual social event of the bar association, petitioner
distributed a four-page statement
printed on his judicial stationery entitled "13 Suggestions for 'Confrontational'
or Intentionally Offensive Criminal Defense Attorneys." This statement
contained numerous disparaging and offensive comments regarding the conduct
of criminal defense lawyers, including many indirect references to the
attorney with whom petitioner was engaged in conflict. In addition,
the statement contained repeated warnings to lawyers against making unfounded
complaints against a Judge, indicating that doing so could result in serious
personal consequences, including retaliation by the targeted Judge and
the Judge's colleagues. Petitioner's statement also ridiculed a specific
defense strategy being considered in a highly publicized case then pending
before another Judge of petitioner's court. Subsequent to this bar
association event, petitioner sent the attorney at least two more anonymous
threatening and abusive communications.
Following the
Commission's investigation into these allegations of misconduct, during
which petitioner testified before members of the Commission at their request
(see, Judiciary
Law 44[3]), petitioner was served with a formal written complaint
containing eight specific charges of misconduct. Charge I was based on
the anonymous communications petitioner
sent to the attorney, Charge II related to the statement petitioner
circulated at the June bar association event, and Charges III through VIII
alleged that petitioner had given false
testimony, or had made other false statements, in connection with these
events and the Commission's investigation of them.
Following a
ten-day hearing, which produced over 1,600 pages of testimony from 42 witnesses,
the Referee found that six of these charges were supported by a preponderance
of the evidence as required by the Commission's Rules (see, 22 NYCRR 7000.6[i][1])
and that petitioner's misconduct had been established. The Commission
confirmed the Referee's report in all essential respects and determined
that petitioner should be removed.1 Petitioner now seeks review of
both the sufficiency of the evidence before the Commission and its determination
that the sanction of removal be imposed.
In contending
that the Commission failed to sustain its burden of proof, petitioner relies
on the fact that the findings in this case rest largely on circumstantial
evidence and
credibility determinations. Petitioner errs, however, to the
extent that he claims that the nature of the proof alone is sufficient
to undermine the Commission's findings. There is no
question that misconduct need only be established by a preponderance
of the evidence (Matter of Seiffert, 65 NY2d 278, 280 [Commission's rule
requiring proof only by preponderance of the evidence satisfies constitutional
requirements]). Nor can there be any doubt that the Commission may
meet its burden of proof with either circumstantial or direct evidence
(see, e.g., Matter of Reedy, 64 NY2d 299, 302 [misconduct consisting of
ticket-fixing established by circumstantial evidence]; Matter of Spector
v State Commn. on Judicial Conduct, 47 NY2d 462, 469 [appearance of impropriety
established by circumstantial evidence]), or that findings may rest on
credibility determinations (see, Matter of Schiff, 83 NY2d 689, 693; Matter
of Gelfand, 70 NY2d 211, 215-216, rearg denied 70 NY2d 747, cert denied
484 US 977; cf., Matter of Shilling, 51 NY2d 397, 402 [effect of favorable
character evidence on Commission's findings depends on the strength of
the evidence establishing misconduct], adhered to on rearg 52 NY2d 758,
appeal dismissed 451 US 978). Thus, the only evidentiary issue we examine
is whether the proof establishes by a preponderance of the evidence that
petitioner engaged in the acts of misconduct in the six charges sustained
by the Referee and Commission. We conclude that it does.
First, as to
Charge II, premised on petitioner's "13 Suggestions" contained in the statement
admittedly his at the June 1994 bar event, the evidence of misconduct was
direct -- the
contents of the document itself and the very act of disseminating it
under circumstances in which it would be perceived as representing petitioner's
official viewpoint.2 In this instance,
the document is unambiguously threatening and intimidating regarding
attorney complaints against Judges, in promising that retaliation would
follow unless "your first figurative blow is so credible, powerful, and
based upon indelible truth as to put the [Judge] 'down for the count.'
If not, and your target can arise after your most potent broadside, you've
had it!" [Emphasis in original.] We agree with the Commission that
petitioner's public dissemination of these offensive and threatening remarks
constitutes judicial misconduct as a matter of law (see, e.g., Rules Governing
Judicial Conduct, 22 NYCRR 100.2[a] ["A judge * * * shall conduct himself
or herself at all times in a manner that promotes public confidence in
the integrity and impartiality of the Judiciary."]; Code of Judicial Conduct
Canon 2[A]).
Moreover, the
quantity and quality of proof linking petitioner to the anonymous communications
underlying Charge I, although circumstantial, leads directly to the inference
that
petitioner was the source of these communications. Notably, there
are striking similarities between the anonymous communications and the
documents that petitioner admittedly
prepared. There is a strong resemblance not only in tone
and style, but also in subject matter (dwelling on retaliation for outspoken
comments against the judiciary including public
revelation of the complainant's personal indiscretions), and in addition,
there is overlap in the specific language, symbols and references used.
Likewise, the
record establishes that petitioner repeatedly displayed a lack of candor
and made both misleading and patently false statements in connection with
the Commission's
investigation of his misconduct. To give only one example, two
of the misconduct charges are based on statements petitioner made in connection
with an e-mail message allegedly sent by him to the White House in which
he criticized the President's policy toward Haiti. Upon receipt of
an acknowledgement letter from the White House, petitioner contacted a
member of the Nassau County Police Department claiming that, as he had
never communicated with the President on any subject, someone must be communicating
with the President in his name and insinuating that the attorney with whom
he was feuding might have been the individual who had done so. Petitioner
then repeated this general allegation, without naming
the attorney, in a letter to the Commission's staff counsel, and, when
testifying before the Commission, repeatedly denied that he had sent the
e-mail in question. However, the evidence before the Referee cogently
establishes that petitioner's allegations and steadfast denials were false:
there was evidence that the message was received at a time when petitioner's
personal on-line account was in use, that the account was only accessible
by a secret password, that petitioner had shared this password with only
one person (his secretary) who had never used it or revealed it to others,
and that under such circumstances there was little likelihood that anyone
other than petitioner had sent the message.
Moreover, as
to another false testimony charge, regarding his enclosing in one of the
anonymous mailings several pills for which he had prescriptions, petitioner's
prevarications
were demonstrated by documentary proof.
Finally, having
concluded that the Commission's findings are supported by the evidence
in the record, we agree that the offensive, harassing and vindictive nature
of petitioner's conduct, and his repeated dishonesty before the Commission,
requires the sanction of removal (see, Matter of Gelfand, 70 NY2d 211,
supra [misconduct consisting of harassment
of former law clerk with whom petitioner had an extramarital affair
and the giving of false testimony before Commission warrants removal from
office]).
Accordingly,
the determined sanction should be accepted, without costs, and petitioner
should be removed from his office of Judge of the County Court, Nassau
County.
F O O T N O T E S
1. Specifically, the Commission found that petitioner had
violated Rules 100.1, 100.2(a) and 100.3(a)(6) of the Rules Governing Judicial
Conduct and Canons 1, 2A and 3A(6) of the Code
of Judicial Conduct.
2. Notwithstanding a disclaimer that the views expressed were "personal," the statement identified the petitioner as a Judge of the County Court, was printed on his judicial stationery and distributed at a local bar association function, and was written from the perspective of a Judge.
* * * * *
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* * * * *
Determined sanction accepted, without costs, and Honorable B. Marc Mogil removed from the office of Judge of the County Court, Nassau County. Opinion Per Curiam. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
Decided October 15, 1996