In
the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the
Judiciary Law in Relation to CHARLES PENNINGTON, a Justice of the
Alexandria Bay Village Court, Jefferson County.
THE
COMMISSION:
Henry
T. Berger, Esq., Chair
Honorable
Frances A. Ciardullo
Stephen
R. Coffey, Esq.
Raoul
Lionel Felder, Esq.
Lawrence
S. Goldman, Esq.
Christina
Hernandez, M.S.W.
Honorable
Daniel F. Luciano
Mary
Holt Moore
Honorable
Karen K. Peters
Alan
J. Pope, Esq.
Honorable
Terry Jane Ruderman
APPEARANCES:
Robert
H. Tembeckjian (John J. Postel, Of Counsel) for the Commission
Capone
Law Firm (by Andrew N. Capone) for Respondent
The
respondent, Charles Pennington, a justice of the Alexandria Bay Village Court,
Jefferson County, was served with a Formal Written Complaint dated August 9,
2002, containing two charges. Respondent
filed an answer dated August 29, 2002.
On
July 29, 2003, the Administrator of the Commission, respondent’s counsel and
respondent entered into a Superseding Agreed Statement of Facts, agreeing that
the Commission make its determination based upon the agreed facts, jointly
recommending that respondent be censured and waiving further submissions and
oral argument.
On
September 18, 2003, the Commission approved the Superseding Agreed Statement of
Facts and made the following determination.
1.
Respondent has been a justice of the Alexandria Bay Village Court,
Jefferson County since 1982. Respondent
is not an attorney.
As
to Charge I of the Formal Written Complaint:
2. On
or about December 1, 1994, respondent’s son was charged with a criminal
offense in the Village of Alexandria Bay. Respondent
disqualified himself and the arraignment was conducted by the acting village
justice.
3. Following
his son’s arraignment, respondent contacted and met with the Jefferson County
District Attorney to review the pending charge.
Respondent’s wife and son were present.
Respondent told the District Attorney that he was meeting with him in his
capacity as the defendant’s father and that he was not there to ask for any
favors or to use his position. Respondent
was aware that the District Attorney knew him as the Alexandria Bay Village
Justice.
4. Respondent’s
purpose in meeting with the District Attorney was to object to the manner in
which the police were investigating the case and the way in which respondent
believed his son had been treated by the police.
The District Attorney assured respondent that he would review the case.
5. Respondent
recognizes that by meeting privately with the prosecutor, who knew him to be a
judge, to discuss his son’s case, respondent created the appearance that he
was lending the prestige of his office to advance his son’s private interest.
He also now recognizes that while many fathers facing similar
circumstances would choose to meet with the District Attorney, a judge has a far
greater chance both of obtaining such a meeting and getting the District
Attorney’s heightened attention.
6. The
charge against respondent’s son was subsequently dismissed in local court for
lack of prosecution, which suggests that respondent’s advocacy was successful.
As
to Charge II of the Formal Written Complaint:
7.
On July 31, 2000, respondent was stopped by the New York State Park
Police in Keeywadin State Park, in the Town of Alexandria, as he drove a truck
towing a boat and trailer through the park entrance.
The police had stopped respondent for allegedly entering the park without
paying a fee.
8.
Respondent exited his vehicle and spoke with a New York State Park Police
Sergeant about the matter. When
questioned about his actions by the Police Sergeant, respondent objected to
being stopped, told the Police Sergeant that he had permission from the Police
Sergeant’s boss to use the boat ramp whenever he needed and stated, “I see
that the two sides communicate really well with each other, and that you should
find out what the fuck you are doing because you are harassing me right now.”
The Police Sergeant asked respondent if he had verbal permission, and
respondent, who was agitated, yelled at the Sergeant, “Yes, I told you that
already, this is fucking bullshit, I’m going to call my legislator, I’m the
fucking judge here in this village.”
9.
The Park Police Sergeant issued tickets to respondent, charging him with
various violations of the New York State Park regulations.
10.
On March 21, 2001, respondent was convicted in the Antwerp Town Court, to
which the case had been transferred, of two counts of Commercial Activity
Without A Permit (9 NYCRR §372.7[b]) and Failing To Pay A Fee Upon Entrance
Into A State Park (9 NYCRR §375.1[g]). Respondent
paid $140 in fines for both offenses.
11.
Respondent recognizes that if he were an average citizen using that
language, he would have risked further action by the police.
Upon
the foregoing findings of fact, the Commission concludes as a matter of law that
respondent violated Sections 100.2(C) and 100.4(A)(2) of the Rules Governing
Judicial Conduct. Charges I
and II of the Formal Written Complaint are sustained insofar as they are
consistent with the above findings and conclusions, and respondent’s
misconduct is established.
By
contacting the district attorney in connection with his son’s case and meeting
with the district attorney to discuss the investigation and the treatment of
respondent’s son by the police, respondent intervened in a pending proceeding
and lent the prestige of his judicial status to advance his son’s private
interests. Such conduct is
prohibited by well-established ethical standards, even in the absence of a
specific request for special consideration (Rules Governing Judicial Conduct §100.2[C]);
see, e.g., Matter of Edwards,
67 NY2d 153 (1986). As the
Court of Appeals has stated:
[N]o
judge should ever allow personal relationships to color his conduct or lend the
prestige of his office to advance the private interests of others.
Members of the judiciary should be acutely aware that any action they
take, whether on or off the bench, must be measured against exacting standards
of scrutiny to the end that public perception of the integrity of the judiciary
will be preserved. There must also
be a recognition that any actions undertaken in the public sphere reflect,
whether designedly or not, upon the prestige of the judiciary.
Thus, any communication from a judge to an outside agency on behalf of
another, may be perceived as one backed by the power and prestige of judicial
office. [Citations omitted.] Matter
of Lonschein, 50 NY2d 569, 571-72 (1980)
Although
respondent told the District Attorney that he was not seeking any special
treatment for his son because of his judicial position, respondent has
acknowledged that the mere fact of his judicial status increased the likelihood
that he could not only obtain such a meeting, but get the District Attorney’s
“heightened attention” to his concerns about his son’s treatment.
Notwithstanding his concerns as a parent, respondent, who is not an
attorney, could not properly assert his son’s legal interests or act as his
son’s legal advocate, a role which should properly be delegated to an
attorney. Respondent’s
“‘paternal instincts’ do not justify a departure from the standards
expected of the judiciary” (Matter of Edwards, supra, 67 NY2d at
155).
By
reason of the foregoing, the Commission determines that the appropriate sanction
is censure.
Mr.
Berger, Mr. Coffey, Mr. Felder, Mr. Goldman, Ms. Hernandez, Judge Peters, Mr.
Pope and Judge Ruderman concur.
Judge
Ciardullo dissents and votes to reject the Agreed Statement of Facts on the
basis that the 1994 incident set forth in Charge I is stale and warrants, at
most, a letter of dismissal and caution, but concurs that the appropriate
disposition with respect to Charge II is censure.
Judge
Luciano and Ms. Moore were not present.
Dated:
November 3, 2003
