SCJC No. 64
In the Matter of Honorable
Joseph J. Cerbone, Justice of
the Mount Kisco Town Court,
Westchester County,
Petitioner,
For Review of a Determination of
State Commission on Judicial
Conduct,
Respondent.
2004 NY Int. 78
June 3, 2004
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Richard E. Grayson, for petitioner. Robert H. Tembeckjian, for respondent.
Per Curiam:
Petitioner, a Justice of the Mount Kisco Town Court,
Westchester County, seeks review of a determination of the State
Commission on Judicial Conduct. The Commission decided that
petitioner should be removed from office because of (1) conduct
as an attorney in converting funds from an escrow account and (2)
conduct as a Judge which, the Commission found, was intended to
retaliate against the Westchester County District Attorney for
making a previous complaint to the Commission about petitioner.
In view of the conduct of petitioner that led to this and five
previous Commission proceedings, we accept the sanction as
determined by the Commission.
Petitioner's Previous History with the Commission
In 1993, the Commission sent petitioner a Letter of
Dismissal and Caution addressing two instances of petitioner's
misuse of his judicial position. He had directed some defendants
who appeared before him "to attend a Village Board meeting to
complain about snow emergency regulations" and thus to "advance
[petitioner's] personal position on *** snow emergency signs."
He had also made, from the bench, a complaint to an attorney for
a carting company that was a defendant in a criminal proceeding
before him; petitioner had expressed unhappiness with the
company's operation of trucks on a Mount Kisco street. The
Commission dismissed the complaint against petitioner that was
based on these incidents, but cautioned him to adhere to the
relevant provisions of the Rules of Judicial Conduct. In 1996, the Commission admonished petitioner on the
basis of two separate series of events. The first of these
occurred during a criminal case before petitioner in which the
defendant was the son of people petitioner had represented.
Petitioner telephoned the complaining witness ex parte and made
favorable remarks about the defendant that persuaded the witness
to withdraw the complaint. Petitioner then dismissed the
charges, over the prosecution's objection, without disclosing
either his prior relationship with the defendant's family or his
conversation with the witness. The Commission found that
petitioner's telephone call and his failure to disclose it
created an "appearance of favoritism." The other basis for the
1996 admonition was a practice followed by petitioner for a few
months in late 1993 and early 1994 of conducting arraignments in
the Mount Kisco police station, rather than in a public
courtroom. In 1997, petitioner received two more Letters of
Dismissal and Caution from the Commission. The first of these
related to a lawsuit by petitioner's sister against the Village
of Mount Kisco, in which petitioner had listed himself as his
sister's attorney and engaged in settlement discussions with
counsel for the insurance carrier. The Commission told
petitioner that "[a] part-time judge should not act as an
attorney in a lawsuit against the municipality in which the judge
sits."
Later in 1997, the Commission again cautioned
petitioner, this time on the basis of a letter petitioner had
written on judicial stationery to a former public official
"concerning files that [the recipient] had supposedly kept on
[petitioner] and others ***." Petitioner had "demanded a list of
all those upon whom such files were maintained." The Commission
told petitioner that "[b]y using judicial stationery in
connection with what was essentially a private, political
dispute, you used the prestige of your office to further your
political interests." The Commission added: "It is troubling that
even on reflection you insist that the use of judicial stationery
under these circumstances was appropriate."
In 1999, petitioner received his last Letter of
Dismissal and Caution. This one concerned an attorney who had
appeared before him. The Commission's 1999 letter stated that
"in several cases, you advised clients of [the attorney] that he
had made a complaint to the Commission against you and inquired
as to whether they would seek your recusal." The Commission said
that by taking this approach -- i.e., by making the attorney's
clients aware of the problem, rather than simply deciding for
himself whether he should be recused -- petitioner was
"interfering with attorney-client relationships in apparent
retaliation for the complaint made against you." The Commission
also noted that, in one case where the attorney was defense
counsel, petitioner "restored the case to the court calendar a
day after it had been disposed of so that [he] could discuss an
advisory opinion concerning disqualification with *** [the
attorney]." This conduct, the Commission's letter stated,
"constituted abuse of your judicial powers" because petitioner
had placed the defendant again in jeopardy in order to "make a
point" with her attorney. The Commission added that this
"extraordinary procedure *** created the reasonable impression
that you were retaliating against [the attorney]."
The Present Proceeding
A. The Escrow
The first of the two charges against petitioner that
the Commission sustained in this proceeding arose out of
petitioner's private law practice. In 1999, while petitioner was
representing the executrix of an estate, a tax refund check, made
out to the executrix, was sent to petitioner. Without his
client's knowledge or consent, petitioner deposited the check in
his escrow account and then wrote a check on that account to
himself for his attorney's fee. As a result of this action, petitioner was suspended
from the practice of law for one year. ( Matter of Cerbone, 295
AD2d 66 [2d Dept 2002]). In choosing to suspend petitioner
rather than to disbar him the Appellate Division relied upon "the
totality of circumstances, including the absence of venality."
B. The Dispute with the District Attorney
The second charge sustained by the Commission in this
proceeding is based on petitioner's inappropriate expressions of
displeasure with the Westchester County District Attorney during
2001 and 2002. This displeasure apparently grew out of the
proceeding which led the Commission to admonish petitioner in
1996. As noted above, the Commission found that petitioner had
acted improperly by having an ex parte conversation with a
complaining witness that led her to withdraw a criminal
complaint. Petitioner evidently blamed the District Attorney for
bringing this incident to the Commission's attention, and as a
result, the Commission found in the present case, he engaged in
the following conduct:
1. He "prepared and distributed to defense attorneys
who appeared before him in criminal cases a form letter which he
asked them to complete and mail to the office of the District
Attorney." The form letter disclaimed any professional or social
relationship between the defendant in the criminal case and
petitioner. 2. When distributing the form letter, petitioner
"frequently made remarks to the effect that the District Attorney
had previously filed a complaint against him which had cost him
half a million dollars to defend against and that due to
illnesses in his family he had neither the time or money to
defend himself against future complaints." These remarks were
made in open court, in the hearing of an Assistant District
Attorney and of defense lawyers and defendants present for the
call of the criminal calendar. 3. Petitioner "recused himself sua sponte from four
shoplifting cases while stating that he was doing so because the
District Attorney had failed to prosecute former Mount Kisco
employees for their private use of computers belonging to the
Town, despite clear evidence of their crimes." As a result of
petitioner's recusal, the cases had to be reassigned to
petitioner's co-Justice, who would not sit until the following
month, thus necessitating an extra court appearance for
defendants and their lawyers. 4. Petitioner stated on several occasions to those
present in his court "that his office telephone was 'tapped,'
that the District Attorney was keeping 'dossiers' on him, and
that he was 'being watched.'"[1]
C. The Commission's Ruling
Based on its findings of fact, the Commission concluded
that petitioner had violated eight provisions of the Rules of
Judicial Conduct: Sections 100.1 (general requirement of "high
standards of conduct"); 100.2(A) (obligation to "respect and
comply with the law and *** act at all times in a manner that
promotes public confidence in the integrity and impartiality of
the judiciary"); 100.3(B)(2)(obligation to "require order and
decorum in proceedings"); 100.3(B)(3) (obligation to be "patient,
dignified and courteous" to litigants and others); 100.3(B)(4)
(obligation to perform duties "without bias or prejudice");
100.3(B)(7) (obligation to "dispose of all judicial matters
promptly, efficiently and fairly"); 100.4(A)(2) (prohibition on
extra-judicial activities that "detract from the dignity of
judicial office"); and 100.4(A)(3) (prohibition on extra-judicial
activities that "interfere with the proper performance of
judicial duties" or are "incompatible with judicial office").
The Commission also determined that, because petitioner
"converted funds entrusted to his care" and "used his courtroom
as a forum for expressing his personal grievances against the
District Attorney," he "lacks the judgment and temperament to sit
on the bench, and is unfit for judicial office."
Discussion
Our role in this proceeding is to review the
Commission's findings of fact and conclusions of law, and to
decide whether the sanction determined by the Commission, or
another sanction or no sanction, should be imposed. (NY Const,
Art VI, §22[d]). Petitioner does not challenge the Commission's findings
of fact. We agree with those findings and with the Commission's
conclusions that petitioner violated Sections 100.1, 100.2(A),
100.3(B)(3), 100.3(B)(4) and 100.3 (B)(7) of the Rules of
Judicial Conduct. It is not necessary to consider the other
sections relied on by the Commission.
Petitioner's sole argument is that the sanction of
removal is too severe for this case. In making this argument, he
relies on our statement in Matter of Cunningham, , 57 NY2d 270, 275
(1982): "Removal is an extreme sanction and should be imposed
only in the event of truly egregious circumstances ***. Indeed,
we have indicated that removal should not be ordered for conduct
that amounts simply to poor judgment, or even extremely poor
judgment ***" (citations omitted). Petitioner points out that we have sometimes rejected
the sanction of removal where we found misconduct to be based on
failings of judgment rather than on more profound flaws of
character. ( See Matter of Kelso, , 61 NY2d 82 [1984] [Judge who,
as a private lawyer, mishandled a case and misled his client
about it, but did not receive any fee or other sum from his
client]; Matter of LaBelle, , 79 NY2d 350 [1992] [improper rulings
that were "motivated primarily by compassion"]; Matter of Kiley,
, 74 NY2d 364 [1989] [improper actions at the request of friends
with no "element of venality, selfish or dishonorable purpose"]).
The Commission stresses that the present case, unlike those cited
above, involved the conversion of client funds, and relies on
Matter of Boulanger, , 61 NY2d 89 (1984), Matter of Tamsen, , 100 NY2d 19 (2003) and Matter of Embser, , 90 NY2d 711 (1997) as
holding that financial improprieties are the sort of egregious
conduct that warrant removal. Petitioner responds that in
Boulanger, Tamsen and Embser there was an element of "venality,"
which the Appellate Division, in suspending petitioner from the
practice of law for one year, found to be absent here. In deciding the appropriate sanction we consider both
the severity of the misconduct involved in this proceeding and
petitioner's extensive prior history. This is his sixth
encounter with judicial discipline, and several of the prior
proceedings were, as this one is, based on more than one
incident. While the facts of the cases differ greatly, many of
them involve a common theme: petitioner seems incapable of
understanding, despite repeated warnings, that a Judge performing
judicial duties must both act and appear to act as an impartial
arbiter serving the public interest, not someone with an axe to
grind. A Judge who does not know this, and is not capable of
learning it, should not be on the bench. Accordingly, the determined sanction should be accepted
without costs.
Footnotes
1 Petitioner asserted at the hearing before the Commission in
this case that his telephone had indeed been "tapped" from 1993
to 1997. The basis for this allegation was that, until 1997, two
lines used by petitioner's court were linked to the telephone
system of the police department (which was in the same building),
so that the police department's recording equipment could record
calls originating from those two lines. After petitioner became
aware of and complained about this situation, the District
Attorney conducted an investigation and concluded that, while the
connection between the court and police lines did exist, neither
court nor police personnel had been aware of it.
Evidence before the Commission also established that the
District Attorney had in her file four documents relating to the
matter that resulted in the 1996 admonition. These documents, in
petitioner's view, constituted a "dossier."