March 10, 2008
Stipulated Result Questioned
A Town Court Justice who is not a lawyer received an admonition from the New York State Commission on Judicial Conduct. "Without a trial or guilty plea, he convicted the defendants and imposed two consecutive fines and a one-year conditional discharge based on unsubstantiated ex parte information from the code enforcement officer. Such conduct violates well-established ethical standards and warrants discipline."
How much discipline? A dissenting opinion concludes that "entering into an Agreed Statement with Commission Staff should not be a 'Get Out of Jail Free' card in a game of judicial misconduct. The sanction of admonition that [the justice] receives for fundamental breaches of due process...is so inconsisent with our precedent and what the public expects of us that it betrays an expedient approach to judicial discipline not consistent with our constitutional obligations...[t]his conduct, reminiscent of Politburo justice, has no place even in rural New York, where it seems we give more leeway than we should."
The dissent finds another "troubling aspect to this case." The lack of qualifications may result in judges "who clearly would be unqualified if there were reasonable, minimum standards...We should all be deeply concerned with the easy escape route [the stipulated disposition] we have provided in this case..." The justice's answer "betrays such a poor facility with basic writing skills that it is glaringly reflective of the problem of having no minimum standards for judicial office."
The dissent raises a point that troubles me as it relates to bar discipline. My experience suggests that a disciplinary system cannot function without the ability of the prosecutor and accused to agree to a particular set of agreed facts and result, subject to appropriate review. However, the "plea bargaining" of bar cases must ensure that the discipline is commensurate with the misconduct and not a "Get To Keep Your Bar Ticket" sweetheart deal. It's probably the most significant enforcement issue out there these days. Of course, fair minds also can differ on the what constitutes "appropriate review" of stipulated dispositions. (Mike Frisch)
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