In
the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the
Judiciary Law in Relation to SHIRLEY B. HERDER, a Justice of the Vienna Town
Court, Oneida County.
THE
COMMISSION:
Lawrence
S. Goldman, Esq., Chair
Honorable
Frances A. Ciardullo, Vice Chair
Stephen
R. Coffey, Esq.
Colleen
C. DiPirro
Richard
D. Emery, Esq.
Raoul
Lionel Felder, Esq.
Christina
Hernandez, M.S.W.
Honorable
Daniel F. Luciano
Honorable
Karen K. Peters
Alan
J. Pope, Esq.
Honorable
Terry Jane Ruderman
APPEARANCES:
Robert
H. Tembeckjian (Kathryn J. Blake, Of Counsel) for the Commission
Melvin
& Melvin, PC (by Ronald S. Carr)
The
respondent, Shirley B. Herder, a Justice of the Vienna Town Court, Oneida
County, was served with a Formal Written Complaint dated May 24, 2004,
containing two charges.
On
July 1, 2004, the Administrator of the Commission, respondent and respondent’s
counsel entered into an Agreed Statement of Facts pursuant to Judiciary Law §44(5),
stipulating that the Commission make its determination based upon the agreed
facts, recommending that respondent be censured and waiving further submissions
and oral argument.
On
August 5, 2004, the Commission approved the agreed statement and made the
following determination.
1.
Respondent has been a Justice of the Vienna Town Court, Oneida County,
since January 1, 1980. Respondent
is not an attorney.
As
to Charge I of the Formal Written Complaint:
2.
On or about July 30, 2002, Martin Droz appeared before respondent for
his arraignment on an appearance ticket alleging a violation of the Town of
Vienna’s zoning ordinance. Mr.
Droz appeared without an attorney and refused to enter a plea.
John Anderson, the code enforcement officer who had written the
appearance ticket and was Mr. Droz’s adversary in the matter, attended the
arraignment. Respondent questioned
Mr. Droz about the alleged work performed on his property in putative violation
of the zoning code. When Mr. Droz refused to respond to the inquiry, Mr. Anderson
presented Mr. Droz with two additional appearance tickets for alleged zoning
code violations. Respondent
adjourned the proceeding to August 13, 2002.
3.
Notwithstanding that Mr. Droz had not admitted to the original code
violation and that respondent had not received any offer of proof as to the
additional alleged zoning code violations, respondent ordered Mr. Droz to obtain
a permit for “whatever” work he was performing on his property and to
provide proof of such permit when he returned to court on August 13, 2002.
4.
On at least one occasion between July 30, 2002, and August 13, 2002,
respondent engaged in an unauthorized ex
parte communication with Mr. Anderson, for the purpose of ascertaining
whether Mr. Droz had in fact sought the permit in compliance with her order.
When Mr. Droz appeared on August 13, 2002, respondent was aware that he
had not obtained the permit.
As
to Charge II of the Formal Written Complaint:
5.
On August 13, 2002, Martin Droz appeared in the Vienna town hall to await
his appearance before respondent in response to the zoning violations alleged
against him. Code Enforcement
Officer John Anderson was again present. Mr.
Anderson approached Mr. Droz, who was reading notices posted on a bulletin
board, and asked Mr. Droz to reveal the contents of a shopping bag in his
possession, which Mr. Droz declined to do.
Mr. Droz did not threaten Mr. Anderson or any other individual, and no
court process was disrupted by the brief exchange.
6.
Prior to the convening of the court, Mr. Anderson met with respondent in
her office and, in an ex parte
conversation, alleged that Mr. Droz had declined to disclose to him the contents
of a shopping bag he was carrying. Respondent
agreed with Mr. Anderson that Mr. Droz should be reported to the State Police.
7.
Thereafter, Mark Murray, the town supervisor, telephoned the State
Police, and Trooper P. J. McCadden was dispatched to the Vienna Town Court. Trooper McCadden spoke to respondent about Mr. Droz, and
respondent confirmed that she wanted him arrested for Contempt.
Trooper McCadden then confronted Mr. Droz, determined that the shopping
bag contained a tape recorder and note pad and arrested Mr. Droz.
Trooper McCadden transported Mr. Droz to the State Police barracks, where
he was detained for several hours awaiting arraignment on the Contempt charge.
8.
During Mr. Droz’s detention at the police barracks, Trooper McCadden
telephoned respondent and, in an ex parte
conversation, respondent advised Trooper McCadden to charge Mr. Droz with
Criminal Contempt, Second Degree, pursuant to Section 215.50(1) of the Penal
Law, for “disorderly, contemptuous or insolent behavior, committed during the
sitting of a court, in its immediate view and presence and directly tending to
interrupt its proceedings.” Trooper
McCadden so charged Mr. Droz.
9.
Mr. Droz was returned to court for arraignment on the charge of Criminal
Contempt later on August 13, 2002, at which time respondent failed to disqualify
herself, although she was a potential witness and had conferred ex
parte on the matter with both Mr. Droz’s adversary in the zoning case and
the arresting officer on the Contempt charge.
10.
At arraignment, notwithstanding that respondent knew that the contents of
the shopping bag were innocuous and that Mr. Droz had not disrupted the court
proceedings or otherwise been contemptuous, respondent committed Mr. Droz to
jail for two weeks in lieu of $500 cash bail.
Respondent did not set bail in an alternative form, despite the
requirement of Section 520.10(2) of the Criminal Procedure Law that a judge set
bail in more than one form.
11.
On or about August 27, 2002, Mr. Droz appeared before respondent on the
Contempt charge, represented by assistant public defender Tina Hartwell, Esq.,
and, upon recommendation of the district attorney, respondent accepted the
disposition of the Contempt matter by Adjournment in Contemplation of Dismissal.
12.
On or about August 30, 2002, Mr. Anderson withdrew one of the zoning
violations pending against Mr. Droz. Respondent
subsequently disqualified herself from presiding over the trial of the remaining
zoning violations, and the matters were transferred to another judge.
Upon
the foregoing findings of fact, the Commission concludes as a matter of law that
respondent violated Sections
100.1, 100.2(A), 100.3(B)(1), 100.3(B)(4), 100.3(B)(6) and 100.3(E)(1)(a) of the
Rules Governing Judicial Conduct and should be disciplined for cause,
pursuant to Article 6, Section 22 of the New York State Constitution and Section
44(1) of the Judiciary Law.
Charges I and II of the Formal Written Complaint are sustained, and
respondent’s misconduct is established.
Respondent’s
gross mishandling of proceedings involving Martin Droz constituted an abuse of
judicial power and conveyed the appearance of bias.
When
the defendant appeared as scheduled before respondent on zoning violation
charges, respondent caused his arrest based on ex parte information that
he had refused to disclose the contents of a shopping bag.
Even after the police had detained the defendant and determined that the
shopping bag contained only a note pad and tape recorder, respondent told the
police that she wanted him arrested for Criminal Contempt.
As a result, the defendant was charged, pursuant to Penal Law Section
215.50(1), with engaging in “disorderly, contemptuous or insolent behavior,
committed during the sitting of a court, in its immediate view and presence and
directly tending to interrupt its proceedings,” notwithstanding that he had
not been disruptive and had not engaged in contemptuous behavior in the
court’s “immediate view and presence.”
Respondent had no reasonable basis to cause the defendant’s arrest, and
she compounded her misconduct by arraigning the defendant on the Contempt charge
and committing him to jail for two weeks in lieu of $500 cash bail, although the
Criminal Procedure Law requires that bail be set in more than one form.
The
totality of respondent’s conduct toward Mr. Droz conveyed the appearance that
she was biased against him, not only because of the “shopping bag” incident
but also because of his failure to respond to questions at the arraignment and
his lack of compliance with respondent’s order to obtain a permit.
The requirement of impartiality and the protections of the law apply
equally to all litigants, including those who may be annoying or difficult.
Respondent’s conduct violated her duty not only to be impartial, but to
avoid even the appearance of partiality (Sections 100.2 and 100.3[B][4] of the
Rules Governing Judicial Conduct).
By
reason of the foregoing, the Commission determines that the appropriate
disposition is censure.
Mr.
Goldman, Judge Ciardullo, Mr. Coffey, Ms. DiPirro, Mr. Felder, Ms. Hernandez,
Judge Peters, Mr. Pope and Judge Ruderman concur.
Mr.
Emery dissents and votes to reject the agreed statement of facts on the basis
that the disposition is too lenient.
Judge
Luciano was not present.
Dated:
August 16, 2004
