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Thursday, June 13, 2013

Judge removed from his position for cause notwithstanding his earlier resignation from the position

A former Judge [Judge] appealed a determination of the State Commission on Judicial Conduct in which the Commission had sustained a single charge of judicial misconduct against him and determined that he should be removed from office (see NYS Constitution, Article VI, §22; Judiciary Law §44[1]).
The Judge had earlier resigned from his position after admitting to certain conduct that he characterized as “indefensible” that occurred 40 years earlier.
Notwithstanding the Judge’s resignation, the Commission continued the proceeding and ultimately sustained the charge*and ordered Judge’s removal, finding that his admission, standing alone provided a sufficient basis for the determination.**
Citing Matter of Going, 97 NY2d 121 and Matter of Aldrich, 58 NY2d 279, the Court of Appeals affirmed the Commission’s action, explaining that it measures “the necessity for removal ‘with due regard to the fact that judges must be held to a higher standard of conduct than the public at large’ as even ‘relatively slight improprieties subject the judiciary as a whole to public criticism and rebuke, it is essential that we consider’ the effect of the Judge's conduct on and off the Bench upon public confidence in his [or her] character and judicial temperament."

The Court said that it agreed with the Commission that Hedges' admissions, by themselves, were sufficient to warrant the finding of judicial misconduct. The admitted conduct undermined the integrity and impartiality of the judiciary and therefore, said the court, rendered Hedges unfit for judicial office.
Noting that “[I]t is troubling that the petition is based solely on conduct that occurred 40 years ago —- 13 years before [Hedges] was elevated to the bench,” the Court of Appeals said that the misconduct alleged is grave by any standard.
Accordingly, said the court, the determined sanction of removal should be accepted and Judge removed from the office of Judge.
* Two Commission members dissented in part on the ground that Judge had removed himself from his judgeship by resigning and that his post-resignation removal proceedings "served no purpose" in this case.
** Similarly, 4 NYCRR 5.3(b) of the State Civil Service Commission’s Rules, which applies to employees of the State as the employer, provides, in pertinent part, “…when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation.” Many local civil service commissions have adopted a similar provision.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2013/06/judge-removed-from-his-position-for-cause-notwithstanding-his-earlier-resignation-from-the-position.html

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