In
the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the
Judiciary Law in Relation to WILLIAM WATSON, a Judge of the Lockport City
Court, Niagara County.
THE
COMMISSION:
Henry
T. Berger, Esq., Chair
Honorable
Frederick M. Marshall, Vice 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 (John J. Postel, Of Counsel) for the Commission
Timothy
P. Murphy for Respondent
The
respondent, William Watson, a Judge of the Lockport City Court, Niagara County,
was served with a Formal Written Complaint dated November 30, 2000, containing
one charge. Respondent filed
an answer dated December 22, 2000.
On
January 5, 2001, respondent filed a motion to dismiss the Formal Written
Complaint. By affirmation dated
January 18, 2001, the administrator opposed the motion.
On February 8, 2001, the Commission denied the motion to dismiss.
By
order dated January 8, 2001, the Commission designated C. Bruce Lawrence, Esq.,
as referee to hear and report proposed findings of fact and conclusions of law.
A hearing was held on August 17, 2001, in Rochester, New York.
The referee filed his report with the Commission on January 10, 2002.
The
parties filed briefs and replies with respect to the referee’s report.
On May 9, 2002, the Commission heard oral argument, at which respondent
and his counsel appeared. Thereafter,
additional briefs were filed at the Commission’s request.
The Commission considered the record of the proceeding and made the
following findings of fact.
1. Respondent
has been a judge of the Lockport City Court, Niagara County since January 2000.
2. In
1999 respondent, who was then a Niagara County Assistant District Attorney,
became a candidate for Lockport City Court Judge.
3. Respondent
was a candidate in the primary election on September 14, 1999, for the
Republican, Democratic, Conservative, Independent and Liberal nominations for
Lockport City Court Judge.
4. Respondent's
opponents in the primary election were the incumbent Lockport City Court Judges
Betsy Hurley and David Wendt.
5. In
connection with his announcement of his candidacy in April 1999, respondent
issued a statement, published in the Lockport Union-Sun & Journal,
which stated, in part:
We
must no longer put up with drug dealers and other violent criminals from
Rochester, Buffalo and Niagara Falls, who feel that it is acceptable for them
to come into City of Lockport and commit crimes.
*
*
*
Watson
said a city judge can "make it very unattractive for a person to be
committing a crime in the City of Lockport," both in setting bail and
sentencing. "You have to use those to your best advantage," the
prosecutor said.
6.
In a campaign letter published in the Lockport Union-Sun & Journal
on August 3, 1999, respondent
stated, in part:
Drug
crimes are the biggest problem the City of Lockport is currently facing.
Fortunately, this being an election year the voters get an opportunity
to do something about it.
*
*
*
.
. .vote out of office those
people who have contributed to the situation in which we currently find
ourselves.
*
*
*
In
fact, under the terms of office of both of my opponents, drug arrests have
increased dramatically, in the City of Lockport.
According to the US&J (5/7/99), the Lockport Police Department made
30 arrests for criminal possession of a controlled substance in 1996.
That figure sky rocketed to 149 arrests in 1998.
That is an astonishing increase of almost 400 percent and should not be
tolerated by the voters. Likewise, this trend is not only limited to drug
related arrests. Between 1997 and 1998, trespass arrests jumped up 369
percent, criminal possession of stolen property arrests rose 151 percent,
robbery arrests were up 61 percent, and burglary arrests increased 56 percent.
* *
*
Currently
Lockport is attracting criminals from Rochester, Niagara Falls and Buffalo to
come into our city to peddle their drugs and commit their crimes.
We, as voters, must bring this to an end.
I urge all voters to take a stand on primary day, Sept. 14, 1999.
Vote for the candidates who have proven themselves successful in the
war against crime. We need to take back our city and elect those people who are
part of the solution, not part of the problem!
7.
On September 5, 1999, respondent wrote a letter addressed to employees of
the Lockport Police Department that stated, in part:
We
are in desperate need of a judge who will work with the police, not against
them. We need a judge who will
assist our law enforcement officers as they aggressively work toward cleaning
up our city streets.
8.
In the same letter to
the Lockport Police Department employees, respondent asked his readers to vote
for him and urged them to get the message to their relatives, friends, neighbors
and acquaintances. Respondent
concluded the letter by stating in bold capital letters:
"PUT A REAL PROSECUTOR ON THE BENCH!"
Respondent testified that his intent was to distinguish his prosecutorial
experience from that of the incumbent City Court judge, Betsy Hurley, who had
previously worked in the District Attorney’s office for 18 years and had been
the First Assistant District Attorney.
9. In
a letter published in the Lockport Union–Sun & Journal on September 7,
1999, respondent stated, in part:
Last
year arrests skyrocketed in Lockport; burglary up 56 percent, robbery up 61
percent, possession of stolen property up 151 percent and trespass up 369
percent. Astonishingly,
drug
possession has increased 396 percent over the last two years!
10.
In a letter published in the Lockport Union–Sun & Journal on
September 9, 1999, respondent stated, in part:
My
opponents have been in office together for the last several years.
Arrests have skyrocketed in Lockport recently, even though crime is
down countywide, statewide and nationally.
11.
In a campaign advertisement also published in the Lockport Union–Sun
& Journal on September 9, 1999, respondent stated, in part:
Are
you ready to take back the City of Lockport?
ARRESTS
TELL THE STORY
Burglary
up 56%
Stolen
Property Possession up 151%
Trespass
up 369%
Robbery
up 133%
Drug
Possession up 396%
12.
In his written response to questions published in the Lockport
Union–Sun & Journal on September 13, 1999, respondent stated, in part:
It
is absolutely unacceptable that arrests are skyrocketing in Lockport when
crime is going down nationally.
*
*
*
We
must begin to deter criminals before they come into the city.
*
*
*
.
. .criminals from surrounding
communities are flocking into Lockport. Once
we gain a reputation for being tough, you'd
be
surprised how many will go elsewhere, making the caseload more manageable.
13. As
a result of the primary election on September 14, 1999, respondent received the
Republican, Democratic, Conservative and Independent nominations for Lockport
City Court.
14.
In connection with his campaign during the general election in the fall
of 1999 in which he was opposed by incumbent Lockport City Court Judge Betsy
Hurley, who was the Liberal candidate, respondent stated, in part, in a campaign
advertisement: “In the last
two years drug possession has increased 396% in the City of Lockport.”
15.
Respondent defeated Judge Hurley in the November 1999 election and was
elected to the Lockport City Court.
16. The
themes of respondent’s campaign were that respondent would be a “tough judge
who would be tough on crime” and that his campaign opponents were to blame for
an increase in crime within the City of Lockport.
17.
By advertising his intention to be a "tough judge" who would be
tough on crime and by stating repeatedly his intention to make Lockport a city
that was "very unattractive" for criminal defendants who resided
outside the city, including his statements concerning his intended use of bail
against defendants, and by urging police department employees to “PUT A REAL
PROSECUTOR ON THE BENCH!", respondent created the appearance that he would
not be impartial as a judge, would not judge cases on an individual basis or
upon the merits, and would be biased against criminal defendants.
18.
Respondent's focusing his repeated campaign advertisements and statements
upon the increase in arrests in five specific crime categories was an
intentional attempt to create the impression with the public that his opponents
were responsible for an increase in crime in Lockport.
19.
Since respondent knew at the time he published his campaign material that
arrest statistics change for complex reasons that are most likely to be wholly
unrelated to a judge's actions, and since he had no way to determine why the
arrest statistics he cited in his campaign material had increased, respondent's
conduct in attributing to his campaign opponents the responsibility for the
increase in arrests in the five crime categories was intentionally misleading to
the public.
20. Further,
respondent's campaign material
was intentionally misleading to the public in that:
(i) respondent included
in his campaign material only those arrest
statistics published in the Lockport Union–Sun & Journal article on May 7,
1999, that displayed an increase, while knowing that the article also reported
significant declines in other serious crime categories, and (ii) the campaign
material failed to make reference to the explanations in the article provided by
police officials for the increasing arrests.
Upon
the foregoing findings of fact, the Commission concludes as a matter of law that
respondent violated Sections 100.1, 100.2(A), 100.5(A)(4)(a), 100.5(A)(4)(d)(i),
100.5(A)(4)(d)(ii) and 100.5(A)(4)(d)(iii) of the Rules Governing Judicial
Conduct. Charge I of the Formal
Written Complaint is sustained, and respondent’s misconduct is established.
The
campaign activities of judicial candidates are significantly circumscribed.
See Matter of Decker, 1995 Ann Rep 111, 112 (Commn on Jud
Conduct, Jan 27, 1994). A judicial
candidate may not “make pledges or promises of conduct in office other than
the faithful and impartial performance of the duties of the office”; nor may a
candidate “make statements that commit or appear to commit the candidate with
respect to cases, controversies or issues that are likely to come before the
court” (Sections 100.5[A][4][d][i] and [ii] of the Rules Governing Judicial
Conduct). To do so compromises the
impartiality that is essential to a judge’s unique role.
See Matter of Birnbaum, 1998 Ann Rep 73, 74 (Commn on Jud
Conduct, Sept 29, 1997). Every
judicial candidate should be mindful of the importance of adhering to these
standards so that public confidence in the judiciary may be preserved.
Although
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” (Republican Party of Minnesota v. White, 536 US ___
[June 27, 2002]), the “announce” rule, held unconstitutional in White,
is not a part of New York’s ethical code.
The existing prohibitions in New York against “pledges or promises”
and “statements that commit or appear to commit the candidate” focus
precisely on conduct which goes to the heart of judicial neutrality,
impartiality and independence; indeed, without these restrictions, campaign
speech by judicial candidates might be as unfettered and unapologetically biased
as that of partisan, non-judicial office-seekers.
These provisions are not within the ambit of the White decision.
And while the Court of Appeals in Matter of Shanley, 98 NY2d 310
(2002), recently held that the phrase “law and order candidate” does not, by
itself, suggest a pro-prosecution pledge or compromise judicial impartiality,
respondent’s entire campaign for City Court in 1999 presented him as a
candidate who would bring to the bench a pro-prosecution bias.
Flouting
the ethical standards, respondent’s campaign literature vowed that he would be
a "tough judge" who would use bail and sentencing to make Lockport
"unattractive" for outsiders who come there to commit crimes.
In campaign advertisements, published letters and public statements,
respondent repeatedly urged voters to join him in a “war on crime” and
declared his intention to “work with the police” and assist them in
“cleaning up our city streets.” The
unmistakable bias of respondent’s campaign theme is exemplified in his letter
to police employees, urging them to “PUT A REAL PROSECUTOR ON THE BENCH!”. While such pro-prosecutorial rhetoric may be common in
non-judicial political campaigns, it is highly inappropriate for judicial
candidates and created the appearance that respondent would not be impartial as
a judge. See Matter of
Hafner, 2001 Ann Rep 113 (Commn on Jud Conduct, Dec 29, 2000).
Particularly
offensive were respondent’s efforts to link his opponents, the incumbent
judges, with an increase in crime. Referring to the increase of arrests for drug crimes,
respondent urged voters to “vote out of office those people who have
contributed to the situation” and to “elect those people who are part of the
solution, not part of the problem!”. Respondent
selectively cited statistics indicating increasing arrest rates to support his
contention that “criminals…are flocking into Lockport” and that if “we
gain a reputation for being tough, you’d be surprised how many will go
elsewhere.” Although respondent
has acknowledged in this proceeding that arrest statistics change for complex
reasons that are most likely wholly unrelated to a judge’s actions, his
campaign rhetoric made no such allowances (“ARRESTS TELL THE STORY”).
As the referee concluded, respondent’s use of arrest statistics was
“intentionally misleading” and was an intentional effort to blame the
incumbents for an increase in crime in Lockport, contrary to Section
100.5(A)(4)(d)(iii) of the Rules.
As to his letter urging police department employees to “[p]ut a real
prosecutor on the bench,” respondent explained that it would have been
improper to make that appeal to the public but testified that he avoided
impropriety by directing his words to police employees.
Yet in the same letter to the police employees, he called upon them to
get his message out to their friends and relatives.
Moreover, the reference to “a real prosecutor” was intended to
distinguish respondent’s prosecutorial service with that of the incumbent City
Court judge, who, in fact, had far more prosecutorial experience than
respondent. Respondent offered the
rationale that in his briefer tenure in the District Attorney’s office, he had
done more to reduce crime than the incumbent had done; indeed, in campaign ads,
respondent personally took credit for significant reductions of drug cases in
the county. Implicit in
respondent’s statements was the message that his prosecutorial efforts would
give him a pro-prosecutorial bias that would be an asset in the “war on
crime” he intended to wage. Such
statements may pander to popular views, but they do a disservice to the public
and the judiciary.
Respondent’s
campaign statements, which contributed to his election over two incumbent
judges, are far more egregious than those in other cases the Commission has
previously considered. See, e.g., Matter of Hafner, supra; Matter
of Herrick, 1999 Ann Rep 103 (Commn on Jud Conduct, Feb 6, 1998); Matter
of Polito, 1999 Ann Rep 129 (Commn on Jud Conduct, Dec 23, 1998); Matter
of Maislin, 1999 Ann Rep 113 (Commn on Jud Conduct, Aug 7, 1998).
As a candidate for judicial office, respondent had as much of an
obligation as a sitting judge to know the applicable rules pertaining to
elections and to ensure that his campaign statements were consistent with the
standards articulated in the rules and in numerous Commission determinations.
In
arriving at an appropriate sanction, we have consistently weighed a judge’s
statements of apology in mitigation of punishment, when the judge is truly
contrite. Accordingly, if a judge
genuinely accepts responsibility for his or her acts at the earliest available
opportunity we will often pay deference to that confession and ameliorate the
sanction. In this case, respondent
displayed no honest remorse. Indeed,
his appeal to his youth and inexperience rings hollow.
Even after formal charges were served and respondent was given a full
opportunity to both explain his actions and apologize for them, he failed to do
so. Indeed, at the hearing he
offered excuses that either were disingenuous or bordered on the ludicrous.
It was only later, after he consulted and retained a competent attorney
and it was obvious that the charges were serious, that his position softened.
Only then, aware for the first time that both his conduct and his
outright refusal to acknowledge his malfeasance were a problem, did he come to
the conclusion that a contrite heart would serve him better than a defiant tone.
It would be inappropriate to reward respondent for arriving so belatedly
at the conclusion that not only his conduct but his subsequent refusal to
acknowledge wrongdoing were unacceptable.
A
judge’s election is tarnished when the judge’s campaign activity flouts not
only the ethical rules, but fundamental standards of honesty and fairness.
Respondent’s intentionally misleading use of arrest statistics and his
intentional effort to blame the incumbents for an increase in crime were
inconsistent with those standards and demonstrate that he is unfit to serve as a
judge. Moreover, to allow
respondent to retain his judgeship would be to reward him for intentional
misconduct and might encourage other judicial candidates, knowing that they may
reap the fruits of their misconduct, to ignore the rules applicable to judicial
elections. We conclude, therefore,
that the sanction of removal is appropriate.
By
reason of the foregoing, the Commission determines that the appropriate sanction
is removal.
Mr.
Berger, Judge Ciardullo, Mr. Goldman, Ms. Hernandez, Judge Luciano, Ms. Moore,
Mr. Pope and Judge Ruderman concur.
Mr.
Coffey and Judge Peters dissent only as to the sanction and vote that the
appropriate sanction is censure.
Judge
Marshall was not present.
December
26, 2002
OPINION CONCURRING IN PART AND
DISSENTING IN PART BY JUDGE PETERS
I
share the concern of the majority regarding the ramifications of permitting
respondent to retain his position on the bench.
Clearly, each time we impose discipline upon a judge for an election
violation, if such discipline falls short of removal, one can conclude that the
judge has reaped the benefits of such misconduct.
At present, candidates for judicial office may well believe that flouting
of the rules is worth the suffering of an admonition or censure when the success
of their campaign hangs in the balance. I
cannot, however, concur with my colleagues' determination that respondent must
be removed from office.
To
be sure, the conduct respondent engaged in warrants removal, but two factors
compel me to conclude that he should not suffer a greater penalty than censure.
First, had respondent considered Commission precedent, he would have
discovered that although we have repeatedly decried conduct similar to that he
engaged in (Matter of Hafner, 2001 Ann
Rep 113 [Commn on Jud Conduct, Dec 29, 2000]; Matter
of Polito, 1999 Ann Rep 129 [Commn on Jud Conduct, Dec 23, 1998]), the
violators were merely admonished. In
Polito, the candidate for Supreme Court exhorted the voters to
"pull the lever for Bill Polito, and crack down on crime" and
proclaimed that he would not "experiment with alternative sentences
[because] criminals belong in jail, not on the street."
In Hafner, a candidate for
County Court stated that he was "tired of seeing career criminals get a
'slap' on the wrist." Obviously,
this statement was critical of the incumbent's conduct.
Second, I am also mindful of the fact that while respondent was obligated
to follow the rules of conduct, he was not a judge when he ran for office and
therefore had no need to familiarize himself with such rules or abide by them
prior to the commencement of his campaign.
For
these reasons, I would censure respondent but note that since sanctions short of
removal have not deterred election misconduct, we will not hesitate to impose
this ultimate sanction in the future.
Finally,
I am compelled to comment upon the need for more timely response to complaints
concerning conduct of candidates for judicial office. I am of the opinion that while the Commission's practices and
procedures are wholly appropriate to address most complaints concerning judicial
conduct, they do not permit prompt resolution of allegations of misconduct
during campaigns. For this reason,
I suggest consideration of a procedure by which such complaints can be promptly
resolved.
December
26, 2002
Judge Marshall died on September 10, 2002.
He was not present on May 9, 2002, when oral argument was heard.
Note:
On review of this determination, the Court of Appeals modified the removal to
censure. Matter of Watson, 100
NY2d 290 (2003)
