The esteemed former Boston federal district judge, Nancy Gertner, addressed a group of admirers at a gathering just after she left the bench to go into private practice. Among the many lessons she imparted to the gathering was that, as a judge, she had a hard time getting a reservation at restaurants. But now that she was no longer a judge she has no problem. You see, she said, while she was a judge she could not use her title when she called for a booking. Now retired, she could identify herself as “Judge Gertner” and immediately get the best table.

An excess of caution or an ethical imperative? Three recent cases decided by the New York State Commission on Judicial Conduct cast a harsh light on the persistent problem of judges using their office to benefit themselves or others. Regrettably, the context for these cases is invariably far more serious than Judge Gertner's restaurant reservations. Even more regrettably, these Commission decisions betray a tolerance for off-bench judicial misconduct that raises the question of whether the Commission is too lenient in addressing a fundamental tenet of judicial behavior: that a judgeship may never be used to advance “private interests” because of the severe corrosive effect on the public's perception of judicial integrity. (Rule 100.2(C) of the Rules Governing Judicial Conduct (22 NYCRR 100.2[C]) provides: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.”)

This two-part column addresses the issue of using judicial influence which furthers private interests. This first column will review decisions of the Commission. The forthcoming second column will review Court of Appeals' precedents, including an important very recent case, and the juridical underpinnings of discipline for this slice of judicial misconduct.

The Commission's Recent Decisions

In Matter of Aluzzi, after agreeing to help an acquaintance get his traffic ticket dismissed, a town justice took the ticket to the court where it was pending. First, he told a court clerk, who knew him as a judge, to “Give this to Judge Hawthorne and have him dismiss it for me.” When she refused to take it, she told him, “We don't do that here.” Aluzzi persisted and said, “Just take it, and just give it to him,” and when she still refused, he placed the ticket on the counter and directed her to write his name and phone number on the ticket so the judge, whom he knew, could call him about it. Feeling pressured because of Aluzzi's judicial status, the clerk reluctantly complied. Aluzzi admitted that he used his judicial status in an attempt to get the ticket dismissed.

It is noteworthy that the clerk—a high school graduate who performed secretarial work and who had started working in the court the same year that Aluzzi became a judge (13 years earlier)—immediately recognized the impropriety of the judge's request. Though she was intimidated by Aluzzi's bullying, to her credit, she attempted to stand up to him despite his judicial status.

It is hard to imagine a more blatant assertion of special influence than “Have him dismiss it FOR ME.” Yet, in June, the Commission censured Aluzzi, allowing him to remain on the bench.

A month earlier, in Matter of Ramirez, the Commission admonished an Acting Supreme Court Justice for wielding the prestige of her office to advance personal interests by invoking her judicial title in two affirmations on behalf of her son who was challenging a murder sentence and in a letter on judicial letterhead on behalf of her former childhood babysitter who was seeking to vacate her nine-year old gambling misdemeanor conviction. The affirmations for her son, which were attached as exhibits to his petition as support for the relief requested, contained “wherefore” clauses which conveyed the appearance that the judge was making the applications on her son's behalf and urging the court to grant them.

The judge's letter for the babysitter, written on judicial stationery, is described in the Commission's decision as “a classic 'character letter,' … [d]escribing her friend as 'part of my family,' referring to her presence at family functions and in family photos, and providing details of their close relationship over several decades and their past and present contacts.” The letter also made gratuitous references to her judicial status.

The Commission admonished Ramirez based on her consent to stipulated facts and her admission of misconduct. Admonition is the least severe public sanction available to the Commission.

Finally, in Ayres, a recent Commission decision that did remove a judge who attempted to fix a traffic ticket for his daughter and who communicated ex parte with the court where one of his decisions was on appeal denigrating the appellant, the Commission's decision to remove the judge relied primarily on the judge's failure to acknowledge his misconduct and far less on the serious nature of the off-bench judicial wielding of influence. In fact, in her concurring opinion lamenting the absence of counsel to represent Ayres, Commission member Akosua Garcia Yeboah states that “the [Commission's] choice between censure and removal hung in the balance” and “[a]s the Commission's determination indicates, the judge's failure 'to recognize the impropriety of his actions' was a significant factor in determining that removal was appropriate … .” Id. at Yeboah concurrence

Far from being a change of direction for the Commission even though a rare removal was the result, it appears that the Commission in Ayres continues with its pattern of placing primary emphasis on Ayres' failure to accept responsibility or offer other mitigation, rather than on the extremely serious off-bench judicial misconduct. It is hard to think of a worse example of off-bench, private interest misconduct than that described in Ayres. Yet, it is clear from the Commission's determination that Ayres could have staved off removal if he had only expressed remorse.

If, as discussed below and in the second column about the Court of Appeals' precedent, the imperative of upholding the public's perception of integrity of the judiciary is the animating value for gauging penalties for off bench judicial misconduct, then it is hard to fathom why the Commission or the Court of Appeals would focus away from the actual misconduct, in favor of mitigation factors, such as acceptance of responsibility after-the-fact. Mitigation of this sort may create sympathy for the individual judge. But it does little if anything to address the harmful effect on the public's perception of judicial integrity, which is the stated goal of judicial discipline. The public can hardly be reassured if judges can remain on the bench after blatantly using their office for personal gain.

Prior Commission Decisions

In the late 1970s, the Commission uncovered a widespread pattern of ticket-fixing throughout the state in which judges routinely exchanged requests and grants of special consideration in traffic cases. “Ticket-Fixing: The Assertion of Influence in Traffic Cases,” NYSCJC Interim Report, 6/20/77, p. 1. A judge making a request for lenient treatment of a friend or relative would send a letter, often on judicial stationery, to the court where the case was pending. Sometimes the letter specifically requested a reduction or dismissal of the charge, with no explanation; sometimes no specific request was made (“I would appreciate any assistance you could provide”; or, “See what you can do for her … She said she was speeding, but she is my babysitter”).

In the first few years of its existence, the Commission disciplined scores of judges for engaging in the practice. Many were cautioned; others were admonished or censured, even those who had engaged in dozens, or in some cases more than 100 incidents of such conduct. The basis for discipline was Canon 2 of the Code of Judicial Conduct and §100.2(C) of the Rules (then numbered Rule 33.2). See Rule 100.2(C), supra.

While incidents of ticket-fixing have since declined sharply, some judges have continued to use their judicial position in other kinds of cases to advance private interests. Based on violations of Rule 100.2(C), judges have been disciplined for such conduct as using judicial stationery in connection with a private matter (Matter of Nesbitt [2002] [contacting a school official to challenge an administrative determination concerning the judge's son]); soliciting charitable donations from attorneys and others (Matter of McNulty [2007]; Matter of Post [2010]); promoting the judge's law firm through laudatory references to his judicial reputation on the firm's website (Matter of Burke [2014]); referring to judicial status during a traffic stop (Matter of Maney [2010]; Matter of Landicino [2015]) or in connection with a private dispute (Matter of Dumar [2004] [confrontation with a snowmobile dealer over repairs]); or “contact[ing] other judges, law enforcement officials or other persons in a position of authority in order to advance private interests” (Matter of Ramirez, supra; e.g., Matter of Horowitz [2005] [contacting court personnel on behalf of friends with pending cases and advising them that the litigants were “really nice people” and the judge's friends]; Matter of Hurley [2007] [calling the police on behalf of a friend to report alleged violation of order of protection]; Matter of Smith [2013] [sending unsolicited letter on judicial stationery to the Division of Parole on behalf of an inmate at the request of his mother, a friend of the judge's relative]).

In all of these cases, even when Commission counsel sought removal (Burke and Horowitz), the Commission admonished or censured the judges.

These cases make clear that even if a judge does not specifically refer to judicial status, a request that advances private interests may be improper if the recipient knows that a judge is making the request (Matter of McNulty). Moreover, conduct that signals a judge's interest in a pending matter may be improper even in the absence of a specific request for favorable treatment (Matter of Horowitz). While in some instances the judge's intent in asserting judicial status is crystal clear (e.g., referring to his judicial position while asking for “professional courtesy” during a traffic stop [Matter of Maney]), in many cases the Commission will infer the improper intent to assert judicial status to advance private interests. What is clear is that regardless of the judge's actual intent, “such conduct may convey an appearance of using the prestige of judicial office to advance private interests” in violation of Rule 100.2, which requires a judge to avoid even the appearance of impropriety (Matter of Sullivan [2015]). (One former member of the Commission—the author of this article—has written: “Public confidence in our system of justice requires that the outcome of every case, no matter who the parties are, 'must be fair, unbiased, untainted, and driven by the law and the facts,' not by 'the personal desires and interests of individual judges' (see, Matter of Cook, 2006 NYSCJC Annual Report 119, Emery Dissent; Matter of LaClair, 2006 NYSCJC Annual Report 199, Emery Dissent) … . [W]hen a judge attempts to use the system for personal gain by wielding special influence to advance private interests in pending cases, 'I consider this category of judicial misconduct to be the most serious of any that comes before the Commission' (Id.; Matter of Lew, 2009 NYSCJC Annual Report 130, Emery Dissent; see also Matter of Maney, 2011 NYSCJC Annual Report 106). Such behavior 'strikes at the heart of our justice system,' invidiously perverting the fair and proper administration of justice and eroding public confidence in the judiciary as a whole (Id.).” Matter of Sullivan, Emery Dissent.

These cases and several others over the last few years beg the question of whether the Commission is too tolerant of use of judicial office off the bench that serves a judge's private interests.

The fundamental distinction between misconduct that takes place in the course of judicial proceedings as compared to that which occurs off the bench is critical to calibrating discipline. The assertion of a judge's office to serve private interests rarely, if ever, triggers any concern for preserving the independence of the judiciary. By contrast, investigations and discipline for conduct that occurs on the bench invariably have a collateral consequence of threatening judicial independence, even when the Commission's intent is to protect this fundamental tenet of a healthy third branch of government.

When a judge sits in her robes, she is figuratively enshrined in the office of the third branch of government as a check on the other two. That official role requires protection—even tolerance for errors. Although misconduct that occurs while a judge is exercising her official authority can be a basis for discipline, the remedy for most on-bench errors is appellate review. And for on-bench misconduct that is not subject to appellate review, some substantial leeway—a calibrated tolerance for improper actions on the bench—is often necessary to preserve and support the imperative of judicial independence.

But this is not the situation for misconduct that serves private interests or other types of off-bench misconduct. “A judge who is willing to use judicial prestige to advance the interests of others in need may well earn the gratitude of friends and community, but such conduct is detrimental to the judiciary as a whole” (Matter of Martin). These infractions can only be addressed in a disciplinary format. This type of discipline, in contrast to discipline for on-bench misconduct, must be rigorous in order to redress the corrosive effect on the integrity of the judiciary and, most importantly, the public perception of judicial integrity, that is inevitable when judges use their office to serve private interests.

Obviously, each case must be judged on its facts, with legitimate mitigation firmly in mind. In general, however, when judicial independence is not compromised by sanctions for misconduct, personal behavior that undermines respect for the judiciary calls for strong discipline, presumptively removal from office. Accepting lesser penalties that allow judges to stay on the bench after clear misconduct, exacerbates a degraded public perception of the judiciary and signals official acceptance of a compromised justice system. Moreover, judges may deem it worth the risk to succumb to the constant temptation to use their judicial clout to benefit their personal interests or do “favors” for others.

Conclusion

This first of two columns reviews the Commission's decisions in judicial misconduct cases where judges choose to further their private interests, or those of their friends, relatives and others, by explicitly or implicitly invoking their judicial office off the bench. The second column will survey the Court of Appeals' precedents for this category of judicial misconduct and further explore whether the judicial disciplinary process is effectively addressing off bench misconduct cases and the harm that judges do to the integrity of the judiciary when they engage in misconduct that serves private interests.

Richard Emery is a founding partner of Emery Celli, Brinckerhoff & Abady. He was a member of the New York State Commission on Judicial Conduct from March 2004 until April 2017.