In
the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the
Judiciary Law in Relation to MARTIN SCHNEIER, a Justice of the Supreme
Court, Kings 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:
Gerald
Stern (Vickie Ma, Of Counsel) for the Commission
Molod,
Spitz, DeSantis & Stark, P.C. (by Martin J. Semel) for Respondent
The
respondent, Martin Schneier, a Justice of the Supreme Court, Kings County, was
served with a Formal Written Complaint dated November 27, 2002, containing four
charges. Respondent filed an answer
dated December 11, 2002.
On
May 13, 2003, the Administrator of the Commission, respondent’s counsel and
respondent entered into an Agreed Statement of Facts, agreeing that the
Commission make its determination based upon the agreed facts, jointly
recommending that respondent be admonished and waiving further submissions and
oral argument.
On
May 21, 2003, the Commission approved the Agreed Statement of Facts and made the
following determination.
1.
Respondent was elected to the Supreme Court, Kings County, on November 2,
1999. His term commenced on January
1, 2000 and will expire on December 31, 2004, at which time he will have reached
the age of 70 and would be eligible for three, two-year terms as a certificated
Justice. Prior to January 2000,
respondent served as a Civil Court Judge for 20 years.
As
to Charge I of the Formal Written Complaint:
2.
In 1999, respondent was campaigning for re-election to the Civil Court
when he received a nomination to the Supreme Court.
After his nomination, respondent withdrew his candidacy for re-election
to the Civil Court.
3.
Respondent’s campaign treasurer sent a letter dated September 22, 1999,
to each contributor to respondent’s Civil Court campaign advising the
contributor of respondent’s nomination to the Supreme Court and the formation
of respondent’s Supreme Court campaign committee.
The letter further provided the contributors with the option of having
their contributions returned to them or transferred to respondent’s Supreme
Court election committee. The
letter stated, in part,
If
I do not hear from you within ten days, I will assume that you wish your prior
contribution to be used to elect Judge Schneier to the Supreme Court and I will
turn over your contribution to the “Committee to Elect Judge Martin
Schneier Justice of the Supreme Court.”
If
however, you wish to have your prior contribution returned to you, please
indicate this on the enclosed self addressed postal card and return the card to
me within ten days. (Emphasis in
original.)
4.
The letter of September 22, 1999, sent to campaign contributors did not
justify the transfer of funds from one campaign to the other.
No contributor requested a refund.
5.
Respondent authorized the transfer of funds from his Civil Court campaign
committee to his Supreme Court campaign committee.
His Civil Court campaign committee made two transfers totaling $19,415 to
his Supreme Court election campaign.
6.
The only authorized methods of disposing of unexpended campaign funds are
to return the funds to the contributors on a pro rata basis or to use the
funds to purchase office equipment or furniture for the court, provided that
such items become the property of the court.
As
to Charge II of the Formal Written Complaint:
7.
Under Section 100.0 (Q) of the Rules Governing Judicial Conduct, the
applicable window period during which respondent, as a judicial candidate, could
participate in authorized political activity ended six months after the November
1999 election, i.e., on or about May 2, 2000.
8.
Respondent retained surplus funds totaling $10,923 in his campaign
committee account until December 22, 2000, which was more than seven months
after the window period ended and more than a year after his election to the
Supreme Court. Respondent failed to take steps to close his campaign committee
account within a reasonable time after his election to the Supreme Court.
9.
On December 22, 2000, respondent authorized his Supreme Court campaign
committee to contribute $10,923 in unexpended campaign funds to the Respect for
Law Alliance, a not-for-profit organization.
10.
Respondent authorized his Supreme Court campaign committee to spend
$19,949 in unexpended campaign funds to finance an induction reception and
dinner that was held at the Brooklyn Marriott Hotel on November 18, 1999, to
celebrate his election to the Kings County Supreme Court.
More than 500 persons were invited; and more than 250 guests, including
family members, members of the judiciary, and employees of the Unified Court
System, attended the reception. About
175 persons had contributed to respondent’s campaign.
11.
The amount expended for the dinner was an unreasonably large amount of
campaign funds to be spent for a dinner to celebrate respondent’s induction as
a Supreme Court Justice. Pursuant
to existing rules and policies, the surplus funds should have been returned to
contributors on a pro rata basis or used to purchase office equipment or
furniture for the court.
As
to Charge IV of the Formal Written Complaint:
12.
Between November 1999 and March 2000, as set forth below, respondent
authorized his Supreme Court campaign committee to make payments totaling $710
from unexpended campaign funds for his attendance at various post-election,
non-political functions, which was an unjustified use of unexpended campaign
funds.
Upon
the foregoing findings of fact, the Commission concludes as a matter of law that
respondent violated Sections 100.1, 100.2 100.5(A)(1) and 100.5(A)(5) of the
Rules Governing Judicial Conduct. Charges
I through IV of the Formal Written Complaint are sustained, and respondent’s
misconduct is established.
By
authorizing unexpended funds from his Civil Court campaign to be transferred to
his campaign for Supreme Court in 1999 and by authorizing unexpended funds from
his Supreme Court campaign to be used for his private benefit, respondent
violated both the letter and spirit of the ethical standards pertaining to
judicial campaign funds.
The
Rules Governing Judicial Conduct explicitly prohibit the use of campaign funds
for the candidate’s private benefit (Section 100.5[A][5]), and, since 1987,
numerous opinions of the Advisory Committee on Judicial Ethics have interpreted
this provision to strictly limit the permissible use of any unexpended funds.
The Advisory Opinions have held unequivocally that unexpended campaign
funds may not be used in a subsequent campaign for office, or even contributed
to charity, but must be returned to the donors on a pro rata basis or
used to purchase such items as office equipment which become the property of the
court system (Adv. Op. 87-02, 88-59, 88-89, 89-152, 90-6, 91-87, 92-68, 92-94,
92-104, 93-04).
The
transfer of over $19,000 raised by respondent’s Civil Court campaign to his
campaign for Supreme Court was clearly improper, even with the consent of the
contributors (see Adv Op 91-12,
93-15). In this case, the
“consent” of the donors was passive at best, since respondent’s campaign
placed the onus on the donors to specifically request a refund if they did not
want the funds to be transferred. In
any event, the consent of donors would not permit a candidate to use unexpended
campaign funds in a manner prohibited by the ethical standards.
Under
the applicable guidelines, it was also improper for respondent to use campaign
funds totaling $710 to attend various post-election, non-political functions,
$11,000 for a contribution to the Respect For Law Alliance, a not-for-profit
organization, and nearly $20,000 for a post-election reception and dinner.
There is no justification in the rules for using unexpended campaign
funds to pay such expenses. Although surplus funds may be used to finance a “modest and
reasonable” victory party (Adv Op 87-16), the amount expended for
respondent’s celebratory reception and dinner was, as he has acknowledged,
“unreasonably large.”
By
permitting his campaign funds to be used in a manner inconsistent with
well-established ethical standards, respondent was insensitive to the special
ethical obligations of judges and judicial candidates.
By
reason of the foregoing, the Commission determines that the appropriate sanction
is admonition.
Mr.
Berger, Judge Ciardullo, Mr. Coffey, Mr. Goldman, Ms. Hernandez, Ms. Moore, Mr.
Pope and Judge Ruderman concur.
Judge
Luciano and Judge Peters were not present.
Dated:
September 19, 2003
