January 4, 2010
No Joking Matter
The New York Commission on Judicial Conduct has censured a village court justice for refusing to take an agreed-upon plea of guilty in a case until the agreement allowed him to impose fines for the benefit of the Village. He had been pressured by the Village Board to generate revenue for the Village. Both the prosecutor and defense had objected. His "persistence in misconduct even after the attorneys' warnings compounds the impropriety." He then made improper public comments about the case while an appeal was pending.
One controversial finding of misconduct related to his political activity in nominating a candidate for Village Trustee at a local party caucus. The commission majority found that this activity was a prohibited endorsement. One member would have found no violation, as the applicable rules and carved-out exceptions with respect to political activity fail to provide sensible guidance:
The upshot is confusion, ad hoc results and unintended, yet staunchly defended, hypocrisy. In [two cited cases], the Court of Appeals struggled to make sense of the non-sensical. When judges cannot even figure out what political activity is misconduct, how can a realistic scheme be enforced? The distinction the Rules and their interpretations rely on are so fine that they are, at best, meaningless. At worst they suffer from the looming reality of the pervasive fact of life that judges have to generate campaign contributions from the very people they judge. As long as this profoundly unethical activity resides at the heart of judicial elections, all other "political" activity pales by comparison....New York's judiciary is in a state of extremis. Judges are as cynical about their exalted work as are the litigants who are judged. Feeding this cynicism by engaging in official hypocrisy over so-called "political activity" misconduct is a joke. Regrettably, the situation does not call for humor.
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