In the Matter of Honorable
Elizabeth A. Shanley, Justice of
the Esopus Town Court, Ulster
County,
Petitioner,
For Review of a Determination of
State Commission on Judicial
Conduct,
Respondent.
2002 NY Int. 94
Petitioner, a Justice of the Esopus Town Court, Ulster
County, seeks review of a determination of the State Commission
on Judicial Conduct sustaining one charge of misconduct and
imposing the sanction of admonition (see NY Const, art VI, § 22;
Judiciary Law § 44). The charge contains two separate
allegations, both involving petitioner's campaign activity while
running for her present position. The first asserts that
petitioner circulated campaign literature stating she was a
"graduate" of "Judicial Law Course[s]" at Albany Law School, St.
The second allegation charges her with using campaign literature in which she identified herself as a "Law and order Candidate." In the Commission's view, that phrase committed, or appeared to commit, petitioner to a pro-prosecution bias in criminal cases.
The Referee who heard the complaint determined that petitioner misled voters by misrepresenting herself as a "graduate" of Judicial Law Courses at Albany Law School, St. Lawrence University and Columbia/Greene Community College. The Referee determined, however, that the allegation as to her "law and order" campaign literature could not form the basis for any disciplinary action. In the Referee's opinion, the phrase "law and order candidate" is "subject to several interpretations," and as such did not constitute an improper pledge or promise.
The Commission affirmed, and petitioner does not
challenge, the Referee's findings as to petitioner's
misrepresentation of her academic credentials. The Commission,
however, rejected the Referee's finding on the "law and order"
charge. In the Commission's view, the phrase created the
In pertinent part, the Rules Governing Judicial Conduct require that candidates[1] for elective judicial office shall not
"(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;
"(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or
"(iii) knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent" (22 NYCRR 100.5 [A] [4] [d] [i]; [ii]).
The Commission argues that by holding herself out as a "law and
order candidate," petitioner violated subsections (i) and (ii).
The Commission argues that petitioner's invocation of "law and order" was meant to, and did in fact, convey the image of petitioner as a criminal law conservative. We need not determine whether this was petitioner's intent, or whether a reasonable person viewing the advertisements would have seen it that way. Even under its own interpretation, the Commission has not shown that the phrase carries a representation that compromises judicial impartiality. "Law and order" is a phrase widely and indiscriminately used in everyday parlance and election campaigns. We decline to treat it as a "commit[ment]" or a "pledge[] or promise[] of conduct in office."
Petitioner has conceded that it was improper for her to
refer to herself as a "graduate" of the judicial law courses that
she took in her capacity as court clerk. While petitioner urges
us to dismiss her public admonition, we consider her
misrepresentation serious enough to justify it. Reasonable
voters viewing petitioner's advertisements would be led to
believe that the courses trained enrollees in judging, and voters
Accordingly, the determined sanction should be accepted, without costs.
1 We disagree with petitioner's contention that the Commission lacks jurisdiction to evaluate the campaign practices of non-judge candidates for judicial office. We have already permitted the Commission to discipline a judge for conduct occurring prior to taking office (see Matter of Nicholson v State Commission on Judicial Conduct, , 50 NY2d 597, 605 [1980].