New York State Commission on Judicial Conduct
In the Matter of the Proceeding Pursuant to Section 44, in Relation to Edward J. Williams, a Justice
CONCURRING OPINION BY MR. FELDER
I concur in the majority's sanction, but arrive there at a less traveled route - one that should certainly, in my opinion, be visited more often in our Commission's journeys.
Given the respondent's position that he sought a censure - when, in my mind, the appropriate sanction in this case hovered between censure and something less - censure it is. In explanation of the foregoing conclusion, the fact is that only one of three substantive charges was sustained, and even censure could arguably be too severe in view of the fact that the single sustained charge basically involved an off-hand comment at a local fair. As the majority notes, it is undisputed that the respondent did not seek out the trooper to investigate the defendant's credibility, but spoke to him in a chance encounter for the understandable purpose of advising him not to tell defendants the potential outcome of a charge. I certainly disagree with the dissenter who would impose an even stronger punishment.
I am taken aback that missing from the Commission's rationale (and certainly that of the dissenter) is a significant consideration: life has already penalized this judge far more than our ability to do so.
The respondent has been a judge for 25 years, having been elected by his community multiple times. For his duties as a Town Court Justice, he receives $5,400 a year, and additionally, receives $4,200 a year for serving as a Village Justice.
For the last 39 years, the respondent has been a quadriplegic. A large portion of his life has effectively been taken away. He cannot dress himself, get out of bed without help, attend to his grooming, embrace a loved one, pick up a child, arrive at court, make his own notes when hearing cases, etc. For this individual, each day is surely filled with physical challenges - often insurmountable, sometimes humiliating - which most of us can scarcely imagine. Respondent was consigned to ride in the freight elevator of the building to arrive and leave the Commission hearing. Under the facts as presented, it troubles me that a serious effort was made by the Commission in its prosecutorial role (and endorsed by the dissenter) to take away another large portion of the respondent's life, his judicial position, based on what now appears to be no more than a single inappropriate ex parte comment.
It is difficult for me to accept that - in my view - in our rulings and prosecutions we do not fully allow the panoply of the human condition (other than those often rehearsed easy-to-fake emotions of remorse or contrition) to play a more prominent role in our considerations and actions as a Commission. We cannot claim to be a civilized and caring society, and yet, in our actions, not enfold into our judgments, where pertinent, the terrible burdens that others must bear in order to traverse the landscape of life.
The respondent did not seek special treatment from the Commission because of his personal hardships. No doubt he would be the first to say that he should receive no special consideration or accommodation from us, nor, indeed, has he received such treatment. But it is our obligation to be mindful that in rendering our judgments, we are dealing with far more than abstract legal concepts. We are affecting the lives of human beings and, in this case, an individual whose life gives testimony to his personal courage.
In all the papers, including the referee's Report presented to us, there is but one passing mention of respondent's condition which appears in the Memorandum of Law by his attorney. Aside from this, it is totally lacking in our analysis. Surely it, and respondent's accomplishments in the face of it, deserve recognition. If missing from our considerations is the spark of empathy that sets us apart from all others of God's creatures, our decisions are as nothing.
Respondent has acknowledged that he should not have spoken to the trooper out of court about the defendant, and his misconduct is appropriately subject to discipline. It should be noted, however, that any suggestion that he repeatedly engaged in the same misconduct and repeatedly ignored our prior disciplinary warnings is simply not supported by the record. The judge was privately cautioned in 1993 and was admonished in 2001. The following year he was censured for misconduct that predated his previous discipline. This record does not establish that he has disregarded our disciplinary warnings, especially since his misconduct in this case, in my view, is significantly different from the misconduct for which he was previously disciplined. In the earlier case, he asked another judge to rescind an order of protection after both the complaining witness and the defendant (a couple who were respondent's friends) asked him to do so. Although both matters involve a form of ex parte activity, in my view it is inaccurate, or certainly very misleading, to characterize it as "the same" misconduct. I also note that in this case, it appears that respondent was genuinely attempting to do the right thing when he disclosed his conversation to the defendant's attorney, which suggests that he has learned from his previous discipline. Indeed, had he not disclosed the conversation, it is likely it would never have come to light since the trooper did not even recall the conversation when questioned about it at the hearing.
I vote to censure, and present my rationale - for better or worse - as it may be received by my colleagues, in the hope that the thoughts engendered will impact on their future deliberations and considerations.
Dated: November 13, 2007
|© 2010 Raoul Lionel Felder|