In
the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the
Judiciary Law in Relation to ETTORE A. SIMEONE, a Judge of the Family
Court, Suffolk 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 (Jennifer Tsai, Of Counsel) for the Commission
Vincent
J. Messina, Jr., for Respondent
The
respondent, Ettore A. Simeone, a judge of the Family Court, Suffolk County, was
served with a Formal Written Complaint dated May 26, 2004, containing one
charge. Respondent filed an answer
dated June 7, 2004.
On
September 14, 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 either admonished
or censured and waiving further submissions and oral argument.
On
September 23, 2004, the Commission approved the agreed statement and made the
following determination.
1.
Respondent was admitted to the practice of law in New York in 1981.
He has been a judge of the Family Court, Suffolk County, since August
1997.
2.
Suzanne Mitsos is not an attorney. She
is the director of Montfort House, a residential youth services facility in
Suffolk County.
3.
Respondent and Ms. Mitsos first met at a professional conference in 1998,
when Ms. Mitsos was associated with Hope House Ministries, an affiliate of
Montfort House.
4.
In December 2001, the relationship between respondent and Ms. Mitsos
became romantic.
5.
From on or about December 21, 2001, to in or about May 2003, respondent
remanded numerous Persons in Need of Supervision (PINS) to non-secure detention.
The Department of Probation assigned some of the PINS to Montfort House,
one of two primary residential youth services facilities in Suffolk County.
Respondent was aware of the assignments. Respondent continued to preside over matters involving PINS
remanded to Montfort House, notwithstanding that he was involved in a romantic
relationship with Ms. Mitsos, the director of Montfort House.
6.
From on or about December 21, 2001, to in or about May 2003, when she
appeared in respondent’s court on matters related to Montfort House, Ms.
Mitsos sat at the same table with and consulted with Jane Bernstein, Esq., the
law guardian representing PINS remanded to Montfort House.
Ms. Mitsos sometimes addressed the court on the record to advocate
positions in substantive cases on which respondent had to pass judgment.
In many cases, Ms. Mitsos submitted behavioral reports concerning PINS to
the court. Her stated views sometimes opposed the recommendations of the
county attorney, the Probation Department, Child Protective Services, and the
Office of Children and Family Services.
7.
Respondent never disclosed
to the parties and the attorneys his relationship with Ms. Mitsos.
8.
Respondent recognizes the impropriety and appearance of impropriety in
his conduct, notwithstanding his effort in every case to render decisions on the
merits.
Upon
the foregoing findings of fact, the Commission concludes as a matter of law that
respondent violated Sections
100.1, 100.2(A) and 100.3(E) 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. Charge I of the Formal Written Complaint is sustained, and
respondent’s misconduct is established.
A
judge’s disqualification is required in any matter where the judge’s
impartiality might reasonably be questioned (Section 100.3[E][1] of the Rules
Governing Judicial Conduct). As
respondent has stipulated, he violated that standard by presiding over numerous
matters involving a youth services facility at a time when he was romantically
involved with the facility’s director. Over
a period of 17 months, respondent remanded youths who were then assigned to the
facility, and he continued to preside over proceedings involving those youths,
notwithstanding his personal relationship with the facility’s director, who
appeared in respondent’s court, filed reports and advocated positions on which
he had to pass judgment. On
occasion, those positions were contrary to those of the County Attorney and
other advocates in respondent’s court. Notwithstanding respondent’s efforts
to be impartial, respondent’s conduct violated his duty to avoid impropriety
and the appearance of impropriety, and each time he favored the position
advocated by the facility’s director, he raised a suspicion that his ruling
was influenced by personal considerations.
Sections 100.1 and 100.2 of the Rules; Matter
of Robert, 1997 Annual Report 127, accepted, 89 NY2d 745 (1997); Matter
of DiBlasi, 2002 Annual Report 87 (Commn on Jud Conduct).
In
DiBlasi, a judge was disciplined, inter
alia, for presiding for two months over cases involving an attorney for a
social services agency with whom he had a romantic relationship, notwithstanding
the judge’s prompt efforts to be transferred out of the attorney’s part.
Here, there is no such mitigation, and respondent continued to preside
over his friend’s cases for a significant period. Each time his friend appeared in his court, respondent should
have been reminded of the conflict presented and should
have recognized his ethical obligation not to preside in cases involving the
facility.
By
reason of the foregoing, the Commission determines that the appropriate
disposition is censure.
Mr.
Goldman, Judge Ciardullo, Ms. DiPirro, Mr. Felder, Judge Peters and Judge
Ruderman concur.
Mr.
Coffey and Mr. Emery vote to accept the agreed statement of facts but dissent
from the sanction and vote to admonish respondent.
Dated:
October 6, 2004
