Opinion
Argued October 8, 1980
Decided November 25, 1980
Stanley D. Steinhaus for petitioner. Gerald Stern and Jean Savanyu for respondent.
A Judge whose conduct off the Bench demonstrates a blatant lack not only of judgment but also of judicial temperment, and complete disregard of the appearances of impropriety inherent in his conduct, should be removed from office, notwithstanding that his reputation for honesty, integrity and judicial demeanor in the legal community has been excellent. The commission's findings of fact should be confirmed but its determined sanction of censure should be rejected and the sanction of removal imposed, as hereafter directed.
Petitioner is a Judge of the Civil Court, Kings County. He is also a trustee of the Associated Humane Societies of New Jersey (AHS), a not-for-profit corporation which in 1977 was seeking a permit to operate an animal shelter in Kings County. In December, 1977, John Esteves, the manager of the AHS shelter, received three summonses, one from the city department of health for operating the Kings County shelter without a permit, and two from the ASPCA for violations relating to health certificates for dogs shipped from New Jersey and to the manner in which certain animals were kept. Other violations were investigated apparently in March or May, 1978, and a further summons issued.
In relation to the permit application, petitioner had several telephone conversations with Dr. Alan Beck, Director of the New York City Department of Health, Bureau of Animal Affairs. In these conversations, petitioner identified himself as a Judge, inquired why the AHS permits had not been granted and on receiving an explanation became angry and screamed so loudly into the telephone that Dr. Beck could not keep the phone to his ear. He also informed Dr. Beck that he had more political clout than Dr. Beck, and in vulgar language told Dr. Beck he should stop impeding the AHS application. The permit came up also in the courtroom corridor conversation, hereafter detailed, between petitioner and Dr. Howard Levin, Chief Veterinarian of the City Department of Health, when petitioner raised the question why it had not been issued and suggested that "he had people in high places that he hadn't even tapped as yet."
In relation to the summonses, petitioner was called by Esteves at the time the 1978 summons was issued. Esteves then put Dr. Levin, who had just inspected the shelter, on the phone with petitioner. Levin was told by petitioner, in what Levin characterized as a threatening voice, that the department was abusing its authority. Petitioner also contacted Dr. John Kullberg, Executive Director of the ASPCA, and Eric Plasa, its Law Enforcement Director, in an effort to have the 1977 summonses dropped. Dr. Kullberg declined that suggestion but informed petitioner that the society would make an unannounced reinspection and inform the court of its results when the violations came on for trial. Petitioner requested that he be notified in advance of such a reinspection. No reinspection was ever made.
Thereafter, when the Esteves matter came on before Judge EUGENE NARDELLI in Criminal Court, petitioner sat in the rear of the courtroom, and Judge NARDELLI was informed by the AHS attorney, during discussions, that petitioner sat on the AHS board. After the matter had been adjourned, petitioner approached the Bench and commented to Judge NARDELLI that if the ASPCA and the department of health were really interested in animals, they would not be proceeding as they were. In the corridor outside Judge NARDELLI'S courtroom there ensued a heated discussion participated in by petitioner, the AHS attorney, Dr. Levin, the ASPCA attorney and two ASPCA officers. All three of the ASPCA personnel testified, as did Dr. Levin, that petitioner was angry, was talking in a loud voice and stated during the conversation both that he was a Judge and that he had friends in high places.
The commission determined that it was improper for petitioner to have attempted to persuade ASPCA officials to withdraw the summonses and to identify himself as a Judge while so doing, to interfere with department of health officials on behalf of AHS in relation to issuance of a permit, to have identified himself as a Judge in so doing and to have addressed those officials in a hostile, profane and loud manner, to have spoken in a loud voice in the public corridor outside the courtroom and referred to his political influence, and to have interfered in the Esteves case by speaking to Judge NARDELLI about the case. It concluded that "the blatant impropriety [petitioner] has evinced [is] seriously compounded by his refusal in this record to acknowledge that his actions even appear improper," but nevertheless determined that the appropriate sanction was censure, which was what the commission administrator, with some misgivings, had recommended.
Immediately following the portion of the administrator's statement quoted in the second paragraph of the dissent appears the following:
"But where a judge so totally lacks sensitivity to his obligations, his ethical obligations, and where he acts in such a manner to distort the processes of justice, removal was not and is not out of my mind a question as a recommendation.
"However, there are only two alternatives in my mind, and I recommend public censure."
Petitioner denied any intent to influence anyone and testified that as a Judge elected as a reform Democrat in Brooklyn he had no political clout, but never directly denied making the remarks attributed to him. He admitted speaking in emphatic tones, and did not deny the vulgarity attributed to him, saying that he did not remember the exact words and that he could have used another word (a euphemism, which would have conveyed the same meaning). Though he, thus, has not categorically denied the factual basis for the charges, he argues before us, as he did before the commission, that he was not acting as a Judge and gave no appearance of impropriety, that the evidence does not sustain the charges, that the procedures followed were improper and that the Referee improperly ignored the many lawyers and Judges who testified to his reputation for integrity, honesty and judicial demeanor.
As in Matter of Steinberg ( 51 N.Y.2d 74, 83), so here, we cannot accept petitioner's "contention that conduct off the Bench may give rise to removal only where there has been some act of overt illegality or extreme `moral turpitude'", since "[a]ny conduct, on or off the Bench, inconsistent with proper judicial demeanor subjects the judiciary as a whole to disrespect and impairs the usefulness of the individual Judge to carry out his or her constitutionally mandated function" (Matter of Kuehnel, 49 N.Y.2d 465, 469). Thus, petitioner's insistence that because he was acting on behalf of a not-for-profit corporation his acts had "nothing to do with my judicial position" is misguided. Equally misguided is the suggestion that general reputation testimony, even though in the numbers and from persons of such standing as testified on petitioner's behalf, make the findings of the Referee and the commission against the weight of the evidence. As we noted in People v Miller ( 35 N.Y.2d 65, 69): "Character evidence does not exist in a vacuum, and its value, influence or the weight to be accorded it depends in great part upon the other evidence in the case. * * * If the evidence of guilt against a defendant is cumulative and reliable, the influence of contrary evidence of good character is likely to be slight. Under other circumstances, such evidence may be so good, if believed, as to create a reasonable doubt where without it none would exist."
After careful review of the record we find the evidence of petitioner's misconduct, which comes not only from other witnesses but from the subjective nature of his defense and his inability to contravert the objective evidences of that misconduct, to be both cumulative and reliable, and find neither reason to disturb the commission's findings and conclusions concerning that misconduct nor any basis for holding that there was any infirmity in the procedure followed.
We do, however, reject the commission's determined sanction. We recognize that the power given us by subdivision 9 of section 44 of the Judiciary Law to do so is not lightly to be exercised and that the ultimate sanction of removal is not normally to be imposed for poor judgment, even extremely poor judgment (Matter of Steinberg, supra, at p 81). The situation with which we deal here is clearly more egregious than that involved in Matter of Lonschein ( 50 N.Y.2d 569) where the Judge sought special consideration for a license applicant but never asserted his judicial office and did no more than request expedition of the application. Here petitioner, having identified himself as a Judge, nevertheless thought it not improper to request the ASPCA, the complaining and prosecuting agency, to cause dismissal of pending charges. He also asked for preferential treatment for AHS, clearly contrary to the spirit and purpose of the regulatory provisions being enforced, by requesting that he be given advance notice of when reinspection might take place. Likewise, he felt it not improper to address a remark to the Judge before whom the matter was eventually called and which impugned the motives of ASPCA and the department of health in seeking to enforce those regulatory provisions. That it may have been improbable that the same Judge would sit when the matter was again called before the court appears, like petitioner's suggestion that he lacks political clout, to be an afterthought which may temper but does not excuse the initial transgression.
Also not improper in petitioner's mind was the threat, made on two separate occasions to Dr. Beck and during the courthouse corridor confrontation, to use political influence to obtain the ends he sought, made in intemperate tones and with the use of vulgarity. That he could be wholly unmindful of the impression that would be made upon others present in that corridor by the spectacle of a person identifying himself as a Judge and speaking in loud and threatening tones of his friends in high places strongly suggests a lack of judicial temperament. Not without significance in that respect is the private admonishment of petitioner by the former State Commission on Judicial Conduct in March, 1977 for having used profane, vulgar and inappropriate language in open court on several occasions in November, 1976.
Compounding those four separate instances of impropriety, as the commission noted, is petitioner's continued insistence that his actions involved neither impropriety nor the appearance of impropriety. Judicial office, concerned as it is with concepts of reasonable care, arbitrariness, capriciousness, substantiality of evidence, excessiveness of discipline, involves a large measure of discretion. Public acceptance of the judicial product, however exemplary on a substantive level, cannot survive the acceptance of such invective and pressure politics as petitioner's conduct suggests. As in Matter of Steinberg ( 51 N.Y.2d 74, 84, supra), we conclude "that petitioner's complete insensitivity to the special ethical obligations of Judges [renders] him unfit for judicial service".
For the foregoing reasons we confirm the commission's findings and conclusions except as to sanction and direct that petitioner be removed from office as a Judge of the Civil Court of the City of New York effective at midnight December 31, 1980, and that, during the period between the date of service upon him of a copy of the order to be entered on this decision and December 31, 1980, petitioner be suspended, with pay, from office except to the extent necessary to complete matters begun but not completed by him at the time of such service.
It is a source of regret that I find it necessary to state my strong objection to the catastrophic consequences which the majority so sweepingly visits on the respondent.
Not a single one of those who officially have participated in the investigations and determinations, or in the personal confrontations on which they were based, expressed the opinion that the nature of respondent's improprieties warranted the judicial beheading ordered today. For instance, the counsel who, exhaustively and meticulously, presented the case on behalf of the Commission on Judicial Conduct summed up his conclusions in this way: "I regard the respondent, and I say this as an adversary to the Commission, as a person of integrity. His testimony was credible from the very beginning of this case. He cooperated; he told the truth. I think that removal from office would be too harsh a penalty".
So too all 11 members of the commission, each a distinguished jurist, lawyer or layperson, and each experienced in hearing and deciding such matters, voted, without exception, that the appropriate punishment be public censure. Consonantly, the respondent having elected to appeal to this court, the brief filed by the commission's administrator recommends that we accept the sanction. And, as to the majority's concern that the respondent is not contrite enough, the record shows that he has avowed that, "In the future I will not do it". More mea culpas would serve no purpose.
In passing on the sanction, it cannot be unimportant that there is here not even a suggestion that the acts on which these charges were based in any way or at any time interfered with the proper conduct of Judge SHILLING'S judicial duties. Nor is the unexampled and impressive demonstration of support by the host of 56 character witnesses, most of whom are Judges and one of whom is the Administrative Judge of the very court on which he serves, to be blithely cast aside. It certifies to the respect he has earned for his judicial deportment among those in whose midst he must carry out his public responsibilities day in and day out.
These appraisals were in the face of the private admonition he had once received some years earlier for courtroom use of "inappropriate" language, a circumstance that appears never to have repeated itself. As the unimpeached judicial testimony indicates, a sense of perspective requires us to also note that the sundial that marked this single blemish did not record the impartiality, industry, wisdom and otherwise excellent temperament that characterized Judge SHILLING'S judicial performance.
What is involved here essentially is overzealous conduct on behalf of an eleemosynary institution which, in the respondent's private life, he had long served as a devoted trustee. This organization, the Association of Humane Societies of New Jersey, is dedicated to animal welfare. Without gainsaying the lack of sensitivity with which it has been found that the respondent functioned on its behalf on the occasions which precipitated this proceeding, it would seem that a proper balance demands equal acknowledgement that the criticizable conduct was not motivated by venality or personal gain or any other mean, selfish or dishonorable impulse.
There was nothing wrong per se in the respondent's participation in the society's affairs. Jurists do not have to sit in isolated, cloistered, legal splendor, completely detached from responsibilities to the community at large. True, there are boundaries that must be respected, but they are free to live normal lives and to identify themselves with or engage in charitable activities. In fact, the Code of Judicial Conduct (Canon 5, subd B) expressly permits them to hold officerships and directorships in educational, religious, charitable, fraternal and civic organizations, so long as these activities are not conducted for the economic and political advantage of their members and so long as they do not detract from either the dignity or the performance of judicial office.
It is against this background that we now turn to the misguided conduct out of which this case arose. It started when the Humane Society decided to enlarge the geographical scope of its operations by establishing an animal shelter in Brooklyn. This brought on a flood of licensing, zoning and other objections from the American Society for the Prevention of Cruelty to Animals (ASPCA) and the New York City Department of Health. The Humane Society, justly or unjustly, was convinced that the objections were meritless and had been fueled by reluctance on the part of the ASPCA, which enjoys limited law enforcement powers in New York City, to abide the intrusion of the New Jersey agency. Be that as it may, when the grant of the license had been delayed inordinately and the ASPCA had issued several summonses against the Humane Society and John Esteves, the employee in charge of its newly opened Brooklyn facility, it turned to Judge SHILLING. As the Humane Society trustee who resided in Brooklyn, he was asked to and, undisputably, though very unwisely, did undertake to communicate with the ASPCA and the health department to try to persuade them to cease what he and his colleagues at the society perceived to be an attempt to destroy the society's newborn project. Initially, this took the form of the telephone calls to which the majority alludes, and, later, at the behest of the society's counsel, to his attendance in court, where he was asked to be available, on behalf of the society, to approve any agreement that might be arrived at between the parties at a conference expected to be held there that day.
There appears to be little question but that the respondent, moved by an obvious passion for the society's cause, waxed indignant about what he and his colleagues conceived to be the unfair exclusionary tactics of those in opposition to its Brooklyn inroads, and that, at times, the depth of his irritation, perhaps with some unconscious loss of control and dignity, came through in angry tones. And, in one telephone conversation, he did use an expletive which, while not acceptable in the "polite society" of a by-gone age, regrettably is no longer an uncommon feature of private parlance in the world of today. In the course of the conversations, he suggested that, if the ASPCA were intent on pressing the court proceedings it had started, these could just as well be tested against the society without involving the employee as an individual.
It is interesting to note, for whatever it is worth in these proceedings, that ultimately the license was granted and the summonses against the employee in the main were dismissed.
In the courthouse episode, though it was indiscreet for him to be there at all, the fact is that the respondent sat mutely in the back of the room until the conference was concluded, never speaking to the Judge, who in any event was not expected to have any continuing connection with the matter, until the meeting was over. After the court recessed, the parties and their attorneys were already engaged in a heated corridor discussion when the respondent, having approached the group to offer some information on the zoning question and having received a rejoinder that appeared to challenge his credibility, proudly responded, "I am a Judge of the City Court. I don't lie. When I state a fact, it is a fact".
Now, it would seem that altogether too much has been made of the fact that the respondent introduced himself as "Judge" SHILLING when he had the telephone conversations. It is clear that, if anything, the relevant association that was stressed was, in the words of a communicant called by the commission, "the Judge Shilling who was involved with the AHS". Titular identification of Judges, even after they no longer hold judicial office, is the accepted practice. Former Judges are usually so addressed when they appear in court as lawyers. It would be unreal then, to expect that Judges (or for that matter, clergymen, physicians, professors or doctors of philosophy), just because they may find themselves addressing people with whom they have a difference of opinion in private matters, should be required to move about with a cloak of anonymity. The important thing, of course, is that a Judge should conduct himself, off or on the Bench, in a manner respectful of the title he or she bears.
Now, we must not lose sight of the fact that, no matter how we subdivide it into its details, overall this case involves only one situation, the controversy between the Humane Society and the ASPCA, in which, the respondent, for idealistic and humane reasons, foolishly permitted himself to be swallowed up. Withal, he insists that he never intended to exert the influence of his office. This must be accepted for, whatever may be said about his judgment or the care with which he expressed himself in this instance, one thing that appears established, and confirmed, is his principled veracity.
Corroborative is the fact that, though some may have formed the impression that he intended to exert influence on behalf of the Humane Society, there is nothing at all to indicate that he ever tried to do so. The threat, indeed, may have been largely within the minds of the witnesses as a reaction to the vigor and vehemence of his repeated requests on behalf of the society. While the Judge should have been mindful that there could be such reaction and controlled his conduct accordingly, in the circumstances here I cannot accept judicial action, which, repudiating the commission's determination, insists on a result that not even a post-Watergate public image syndrome would justify. The sanction voted by the Commission on Judicial Conduct should be accepted.
Since none of the three disciplinary cases cited by the Per Curiam (Matter of Lonschein, 50 N.Y.2d 569; Matter of Kuehnel, 49 N.Y.2d 465; Matter of Steinberg, 51 N.Y.2d 74) would justify the drastic disposition in the present case, I append the following comments on each:
In Lonschein (pp 571, 572), the respondent had intervened in two nonjudicial matters, one on behalf of a close personal friend who had encountered difficulties with various New York City administrative agencies from whom he was seeking to obtain a lease to a car service base station, the other by communicating with a deputy counsel of the City Taxi and Limousine Commission to urge the removal of "various impediments * * * thwarting approval" of a "lucrative contract". The determination of the commission was that the Judge be censured on each. This court rejected the determined sanction as excessive on the one charge and, though it found that "petitioner was aware that his judicial position would affect the subsequent conduct of the * * * counsel" and nevertheless "placed the prestige of his office behind the request", it reduced the sanction on the second to admonishment.
In Kuehnel (p 469), where the commission's recommendation of removal was accepted by the court, the respondent, inter alia, after detaining four youths without cause, engaged in "two frenzied displays of overt physical violence" towards young boys, engaged in "repeated outbursts * * * [of] virulent racism", displayed "at the very least a gross lack of candor" before the officer who heard the charges. There can be no comparison between this case and that of Judge SHILLING.
In Steinberg, where the commission's recommendation of removal was accepted by the court, the respondent was found, inter alia, for years to have been using his chambers to conduct a loan brokerage business, had utilized a judicial employee to collect his loan payments and had deliberately falsified his income tax returns. Again, there can be no comparison between this case and that of Judge SHILLING.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and MEYER concur in Per Curiam opinion; Judge FUCHSBERG dissents and votes to accept the determined sanction in a separate opinion.
Determined sanction rejected, without costs, the sanction of removal imposed and Norman H. Shilling removed from his office of Judge of the Civil Court of the City of New York, effective at midnight December 31, 1980, and, during the period between the date of service upon him of a copy of the order to be entered herein and December 31, 1980, he is suspended, with pay, from office except to the extent necessary to complete matters begun but not completed by him at the time of such service.