In
the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the
Judiciary Law in Relation to IRA J. RAAB, a Justice of the Supreme Court,
Nassau County.
THE
COMMISSION:
Henry
T. Berger, Esq., Chair
Honorable
Frances A. Ciardullo
Stephen
R. Coffey, 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:
Gerald
Stern (Robert H. Tembeckjian, Of Counsel) for the Commission
Emery
Cuti Brinckerhoff & Abady PC (By Richard D. Emery and John R. Cuti) for
Respondent
The
respondent, Ira J. Raab, a Justice of the Supreme Court, Nassau County, was
served with a Formal Written Complaint dated November 15, 2001, containing five
charges. Respondent filed an answer
dated January 9, 2002.
On
August 7, 2002, the Administrator of the Commission, respondent’s counsel and
respondent entered into an Agreed Statement of Facts, stipulating that the
Commission make its determination based upon the agreed facts.
The Commission approved the agreed statement on September 19, 2002.
Each side submitted memoranda as to sanction.
On
December 12, 2002, the Commission heard oral argument, at which respondent and
his counsel appeared, and thereafter considered the record of the proceeding and
made the following determination.
1.
Respondent was admitted to the practice of law in the State of New York
in 1958. He was elected a Nassau
County District Court Judge in November 1996 and assumed office in January 1997.
He was elected as the Presiding Judge of the District Court in November
1999 and assumed office in January 2000. He
was elected a Justice of the Supreme Court in November 2000 and assumed office
in January 2001.
2.
In each of his campaigns for judicial office, respondent financed his
campaign with his own personal funds in order to avoid potential conflicts of
interest. Neither he nor any
committee on his behalf solicited or accepted campaign funds from lawyers, law
firms or other individuals or groups, although
respondent notes that the solicitation of funds from campaign committees was and
continues to be an accepted practice for judicial candidates on Long Island and
elsewhere. Respondent filed
reports of his campaign expenditures with the State Board of Elections as
required.
3.
Respondent maintains that he is a conscientious, efficient and productive
judge and that, during his years of service in the District Court and in the
Supreme Court, respondent has initiated many novel procedures – including
ordering oral argument on all motions and encouraging lawyers to participate in
telephone conferences (often during the lunch recess or in the evening) to
resolve motions and other aspects of pending cases – that dramatically reduced
the number of resource-wasting adjournments and significantly decreased the
court’s docket.
As
to Charge I of the Formal Written Complaint:
4.
From 1990 through 1994, the Nassau County law firm of Russ & Russ
represented Jay Schadoff in matters that were not before respondent.
In 1995, Russ & Russ commenced an action against Mr. Schadoff
entitled Russ & Russ PC v. Jay
Schadoff to recover legal fees that Mr. Schadoff had not paid for services
rendered from 1990 through 1994.
5.
In November 1995, after trial, Mr. Schadoff signed a confession of
judgment for $81,332.55 in legal fees and disbursements that he owed to Russ
& Russ, exclusive of interest, for the period from 1990 through 1994.
6.
From November 1995 to April 2001, notwithstanding the confession of
judgment, Mr. Schadoff did not pay the debt owing to Russ & Russ.
7.
In November 1996, Mr. Schadoff commenced a professional malpractice suit
against Russ & Russ, which was finally dismissed by the Appellate Division,
Second Department, in December 2000. Russ
& Russ had not sought to execute the confession of judgment pending final
disposition of the malpractice action.
8.
Mr. Schadoff and his ex-wife Carole Schadoff owned a parcel of vacant
land in Nassau County. Pursuant to
a real property execution brought on by Russ & Russ after the Appellate
Division’s dismissal of Mr. Schadoff’s malpractice suit, the Sheriff of
Nassau County scheduled a sale of Mr. Schadoff’s interest in the real estate
for May 2, 2001.
9.
In January 2001, respondent was assigned to hear matrimonial cases in Nassau
County. One of the cases assigned
to respondent was Jay Schadoff v. Carole
Schadoff, in which a judgment of divorce had previously been granted and in
which the parties were litigating equitable property distribution issues.
10.
By order to show cause dated April 3, 2001, in connection with the Schadoff
v. Schadoff matrimonial action, a case in which Russ & Russ was not
involved, Mr. Schadoff moved to stay the Sheriff’s sale which was pending in
connection with the Russ
& Russ v. Schadoff debt collection case.
The order to show cause contained an ex
parte temporary restraining order (TRO) staying the sale pending a hearing
and determination on the motion.
11.
Respondent
granted the TRO on April 3, 2001. Notwithstanding
some concern by respondent and his law secretary that he may not have
jurisdiction over Russ & Russ, they concluded that it was appropriate to issue the TRO.
12.
On April 9, 2001, Kenneth Lauri, an attorney in the Russ & Russ firm,
appeared before Appellate Division Justice Sandra J. Feuerstein pursuant to CPLR
5704 to seek review of respondent’s ex
parte TRO. Attorneys for both
Jay Schadoff and Carole Schadoff were present.
After hearing argument, Justice Feuerstein struck the TRO.
13.
Justice Feuerstein’s law secretary instructed Mr. Lauri to serve
Justice Feuerstein’s order on respondent promptly.
Mr. Lauri immediately proceeded to respondent’s courtroom.
14.
When Mr. Lauri arrived in respondent’s courtroom in the late afternoon
of April 9, 2001, there were no cases remaining on respondent’s calendar for
the day. Respondent was engaged in
a telephone conference
at the bench. The only other person
present was respondent’s law secretary, Jennifer Feingold.
The courtroom is relatively small.
15.
Ms. Feingold was fully familiar with the Schadoff
matrimonial case. She and
respondent had worked diligently in the preceding months to effectuate a settlement of the outstanding equitable property
distribution issues between Jay Schadoff and Carole Schadoff.
Ms. Feingold and respondent believed they had effected such a settlement,
which depended in part on a private sale of the parcel of land in Nassau County,
which Carole and Jay Schadoff had
indicated that she had negotiated with a potential buyer.
16.
Respondent and Ms. Feingold believed that the settlement in the Schadoff v. Schadoff matrimonial action would be thwarted if the
parcel of land were sold at a Sheriff’s sale, which they believed would result
in a lower sale price than what Carole Schadoff had said she had privately
arranged.
17.
When he came into respondent’s courtroom on April 9, 2001, Mr. Lauri
spoke first with Ms. Feingold, informing her that Appellate Division Justice
Feuerstein had vacated respondent’s TRO.
Ms. Feingold was upset with the
potential consequences of the
appellate order and conveyed her views to Mr. Lauri, explaining in exasperated
tones that vacating the TRO would not advance the interests of any party in either
of the underlying litigations.
Ms. Feingold, in essence, was trying to persuade Mr. Lauri not to proceed
with the Sheriff’s sale of the Schadoff property.
18.
Respondent was on the telephone,
but noticed that Mr. Lauri and
Ms. Feingold were conversing and that Ms. Feingold was upset.
When respondent got off the telephone, Mr. Lauri and Ms. Feingold
approached the bench. Respondent
asked Ms. Feingold what was going on, and Ms. Feingold told respondent she was
upset.
19.
After respondent attempted to defuse the tension by making a facetious
remark, Ms. Feingold told him that Justice Feuerstein had vacated his TRO as to
the Schadoff property sale, and that
the settlement respondent had worked so hard at effecting would be jeopardized.
20.
Respondent told Mr. Lauri that Ms. Feingold was right about the negative
effect a Sheriff’s sale would have on the Schadoff
case.
21.
Mr. Lauri indicated that his firm intended to proceed with the sale now
that the TRO had been vacated.
22.
Respondent then said he would be on the bench for 11 more years, that he
had a “long memory,” that he would “remember” what Mr. Lauri’s firm
had done should it appear before him on other matters, and that it was a “good
thing” the firm did not practice matrimonial law.
23.
Respondent states that although he did not intend to threaten or
intimidate Mr. Lauri, on reflection, respondent realizes that his comments were
inappropriate and intimidating and could be construed as a threat. Respondent states that when he said it was a “good thing”
the Russ firm did not practice
matrimonial law, he meant that the firm would not do well in such cases because
it did not seem to understand the intricacies of matrimonial litigation, and
that Mr. Schadoff would be in a position to pay his full debt,
including interest, to
the law firm from the proceeds of the property sale that was part of the
matrimonial settlement respondent had worked out. Respondent now realizes that his comment could reasonably be
construed to mean that he would be biased against the firm should it appear
before him in matrimonial cases.
24.
Subsequently, on plaintiff’s motion, respondent disqualified himself
from Russ & Russ v. Jay Schadoff.
Thereafter,
Jay Schadoff apparently satisfied the judgment against him with proceeds from
the sale of a property other than the parcel of land at issue in the TRO.
The Nassau County Sheriff did not conduct a sale of the disputed
property, which had not been sold privately or otherwise as of the date of the
Formal Written Complaint against respondent in this proceeding, i.e.
November 15, 2001.
As
to Charge II of the Formal Written Complaint:
25.
In the spring of 2000, respondent, who was then a District Court judge,
announced that he was a candidate for the Democratic nomination for Supreme
Court.
26.
The judicial nominating convention for selecting Democratic Party
candidates for Supreme Court was scheduled for mid-September 2000. The general election was scheduled for November 2000.
27.
Respondent, who had been endorsed by the Working Families Party (WFP) in
prior years when he was a Democratic candidate for judicial office, planned on
seeking that party’s support in his Supreme Court campaign in 2000.
28.
On June 3, 2000, the WFP held a screening meeting in Nassau County at
which candidates for various judicial and non-judicial offices were questioned
in connection with the party’s intention to endorse candidates.
Respondent was not scheduled to be interviewed on that date.
29.
Respondent nevertheless attended the screening meeting on June 3, 2000.
He does not recall who invited
him to attend.
30.
When he arrived, respondent sat at a table with members of the WFP who
would be questioning the various candidates scheduled to appear for interviews.
Respondent advised the party members that it would be inappropriate to
ask a judicial candidate to express substantive views on particular issues.
31.
Respondent remained at the meeting for the interviews of at least the
following five candidates: State
Senate candidates Michael Balboni and Charles Fuscillo, and judicial candidates
Denise Sher, Francis Rucigliano and William O’Brien.
Respondent asked each of these five candidates at least one question:
whether they would publicize the WFP endorsement on their campaign
literature, should they in fact be endorsed.
Respondent believed that such a commitment would both publicize the party
and benefit his own campaign should he be endorsed by the WFP later in the year
for Supreme Court.
32.
Respondent did not participate in the WFP’s deliberations or decisions
on the endorsement of candidates.
33.
Respondent’s motive in attending and participating in this WFP meeting
was to generate good will within the party for his own candidacy and to enhance
his chances of being endorsed by the party later in the year for Supreme Court.
Respondent maintains he was so
motivated in light of the political realities of Nassau County, where from
around 1963 to 1996 virtually all elections for full-time judicial office were
won by candidates who were on the Republican and/or Conservative ballot lines.
Respondent never ran on either of these ballot lines.
34.
Respondent now realizes that his mere attendance at, let alone
participation in, a meeting in which a political party was screening candidates
for endorsement purposes constituted improper participation in partisan party
politics and the political campaigns of others, notwithstanding that he was
himself a candidate for judicial office at the time.
Respondent regrets and apologizes for having attended this meeting and
having participated in the screening interviews of other candidates.
35.
Respondent was nominated for Supreme Court by the Democratic Party in
September 2000, was endorsed by the WFP and appeared on their ballot line (as
well as being endorsed by and on the ballot line of the Independence, Right to
Life, and Liberal parties, and receiving the endorsement of the Green and
Libertarian parties), and was elected to Supreme Court in November 2000.
He assumed his new office in January 2001.
As
to Charge III of the Formal Written Complaint:
36.
In March 2000, during a special election to fill a vacancy in the Nassau
County Legislature, the Working Families Party (WFP) operated a “phone bank”
on behalf of Democratic candidate Craig Johnson, who also had the endorsement of
the WFP. The purpose of the phone
bank was to telephone registered voters and encourage them to vote for Mr.
Johnson in the special election.
37.
On one evening in March 2000, respondent, who was then a District Court
judge, attended and participated in the WFP phone bank, at an office in Nassau
County. He does not recall who invited
him to attend.
38.
For approximately one hour, respondent made telephone calls to
prospective voters on behalf of Craig Johnson.
In making such phone calls,
respondent did not mention his own name or identify himself as a judge.
39.
Respondent’s motive in attending and participating in the WFP phone
bank was to generate good will within the party for his own candidacy and to
enhance his chances of being endorsed by the party later in the year for Supreme
Court.
40.
Respondent now realizes that his mere attendance at, let alone
participation in, a political party phone bank for a candidate other than
himself, constituted improper participation in partisan party politics and the
political campaign of another, notwithstanding that he was himself a candidate
for judicial office at the time. Respondent
regrets and apologizes for having attended and participated in the WFP phone
bank on behalf of another candidate.
As
to Charge IV of the Formal Written Complaint:
41.
The charge is not sustained and is, therefore, dismissed.
As
to Charge V of the Formal Written Complaint:
42.
In the spring of 1995, respondent, who was not a judge at the time,
announced that he was a candidate for the Democratic nomination for Supreme
Court.
43.
The judicial nominating convention for selecting Democratic Party
candidates for Supreme Court was scheduled for mid-September 1995. The general election was scheduled for November 1995.
44.
During
the spring and summer of 1995, respondent met several times with other
prospective Democratic judicial candidates and with the party’s then-chair, Steve Sabbeth, to discuss and coordinate certain joint campaign
activities and expenses of the judicial
slate of candidates. It was
agreed that respondent’s share of such joint expenses would be about $10,000;
respondent maintains that other
candidates for judicial office also agreed to pay round figure sums.
45.
During the spring and summer of 1995, respondent participated with the
other Democratic judicial candidates in active campaigning.
46.
Pursuant to Section 100.5 of the Rules and Opinions of the Advisory
Committee on Judicial Ethics, e.g.
Opinion 91 of 1994, a judicial candidate may reimburse actual expenses incurred
by a political organization on the judicial candidate’s behalf.
47.
On September 21, 1995, after winning the Democratic nomination for one of
several available Supreme Court Justice positions, respondent paid $10,000 by
personal check to the Nassau County Democratic Committee.
48.
The $10,000 payment was in part to cover expenditures already made by the
party’s
judicial campaign committee
– at a time when respondent was not yet the party’s official nominee – to
promote in a general way the election of the entire slate of Democratic judicial
candidates that would be on the ballot in November 1995.
49.
The $10,000 payment was also in part to cover expenditures the party
intended to make over the next six weeks on behalf of respondent’s candidacy.
50.
At the time respondent made the $10,000 payment, he did not seek or have
an itemized accounting from the party as to its actual expenses on behalf of his
own campaign, and he took no steps to assure that his payment was used strictly
to reimburse the party for reasonable and actual expenses incurred on his
behalf.
51.
Respondent, who was defeated in the November 1995 general election,
reported the $10,000 payment in a timely manner to the State Board of Elections.
52.
Although the foregoing practice may not have seemed unusual at the time,
respondent now realizes that it is improper for a judicial candidate to make a
lump sum retroactive payment to a political party to offset general,
non-itemized expenditures previously made on behalf of a slate or individual
candidates before the judicial candidate is an actual nominee of the party.
Respondent also now realizes that it is improper for a judicial candidate
to make a lump sum advance payment to a political party for non-itemized
expenditures not yet made on his behalf.
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)(3), 100.3(B)(4),
100.5(A)(1) and 100.5(A)(1)(c), (d), (e), (f), (g) and (h) of the Rules
Governing Judicial Conduct and Section 700.5(e) of the Rules of the Appellate
Division, Second Department. Charges
I, II, III and V of the Formal Written Complaint are sustained insofar as they
are consistent with the above facts, and respondent’s misconduct is
established. Charge IV of the
Formal Written Complaint is not sustained and is therefore dismissed.
Respondent’s
conduct is not excused by the motivation to enhance his own political prospects
by generating good will in support of his own candidacy.
See Matter of Maney, supra, where the Court of Appeals, in
removing a judge for impermissible political activity, rejected the contention
that his partisan political involvement “was necessitated by the political
realities that face elected judges” and underscored that the governing rules
“only allow involvement in a political organization under narrowly
circumscribed conditions” (70 NY2d at 30, 31).
It
was also improper for respondent to make a lump sum payment to a political
party, in part to cover expenditures already made – before respondent had been
officially nominated – for
general promotional purposes, and in part as an advance payment for intended
future expenditures on respondent’s behalf.
Such a payment, without appropriate receipts, itemization or other
records to support the expenditure, was not a mere technical violation of the
ethical rules, but a prohibited political contribution.
See Matter of Salman, 1995 Ann Rep 134 (Commn on Jud Conduct, Jan
26, 1994) (issued the year before respondent’s conduct).
A judge may not make a contribution to a political party or organization,
but may reimburse the party for the judge’s proportionate share of actual and
reasonable expenses made on behalf of the judge’s campaign (Rules Governing
Judicial Conduct §100.5[A][1]; see Adv Op 92-97, 91-94).
Moreover, an agreement by a candidate to make such a lump sum payment
before actually being nominated inevitably conveys the appearance of a quid
pro quo – which would, of course, be an egregious impropriety.
We
reject respondent’s contention that he should not be disciplined for his
political transgressions because the cited restrictions on political activity
are constitutionally infirm. The
applicable rules are not within the ambit of Republican Party of Minnesota v.
White, 536 US 765 (2002), in which the U.S. Supreme Court recently held that
the First Amendment protects the right of judicial candidates to “announce
[their] views on disputed legal or political issues.”
By
reason of the foregoing, the Commission determines that the appropriate sanction
is censure.
Mr.
Berger, Judge Ciardullo, Mr. Coffey, Mr. Goldman, Judge Luciano, Ms. Moore,
Judge Peters and Judge Ruderman concur.
Ms.
Hernandez and Mr. Pope were not present.
Note: On review of this
determination, the Court of Appeals accepted the censure. Matter
of Raab, 100 NY2d 305 (2003).
