The New York state Commission on Judicial Conduct has admonished a Rochester City Court judge for soliciting, from the bench, support from an attorney for the judge's Supreme Court candidacy moments before she presided over a case involving the attorney's client.
The commission also announced yesterday the admonishment of an Oneida County Family Court judge who threatened to hold two child advocacy officers and their agency in contempt because the officers arrested a man scheduled to appear before the judge in a child neglect case.
The electioneering case renewed the long-standing debate among some members of the conduct commission about whether state rules governing judicial conduct are confusing and impose unconstitutional First Amendment restrictions on the political activities of judges.
Ellen Yacknin, a lawyer and Rochester City Court judge since 2003 (See Profile), was accused of violating conduct rules during her unsuccessful 2005 Supreme Court campaign.
According to the commission, Judge Yacknin left a recorded phone message in July 2005 seeking attorney Eftihia Bourtis' support for Supreme Court, though Bourtis was on vacation and did not receive the message until July 25, 2005.
The next day, when Bourtis appeared in Judge Yacknin's court, the judge asked the attorney to approach the bench, according to the ruling. Bourtis told the commission that the judge told her again that she was running for Supreme Court, asked for her support and requested that she be allowed to use Bourtis' name in campaign materials.
Bourtis agreed, but later told the commission that she "felt terrible" after the conversation and realized it was inappropriate. She also testified to the commission that, given the circumstances, "I felt that I had to say yes" to the request.
A case was then called in which Bourtis represented the defendant. Bourtis' client rejected a plea bargain offered by prosecutors in a case that was later dismissed for failure to prosecute.
"By asking for political support from an attorney standing before her in court, respondent severely damaged any possibility that she could handle the attorney's case without an appearance of bias," the commission held. "Regardless of the attorney's response, respondent's impartiality was compromised."
Moreover, Judge Yacknin should have recognized that her request also represented a "serious professional conflict" for Bourtis, the commission decided.
Eight members of the commission agreed without caveat to the admonishment: Chairman Thomas A. Klonick, Colleen C. DiPirro, Paul B. Harding, Elizabeth B. Hubbard, Marvin E. Jacob, Jill Konviser, Karen K. Peters and Terry Jane Ruderman.
'KAFKAESQUE MAZE'
Richard D. Emery dissented, renewing his frequent criticism of what he contends are vague guidelines on judicial electioneering and conflicting rulings on the issue by the U.S. Supreme Court and the state Court of Appeals.
Emery argued that the rule the commission decided Judge Yacknin violated, §100.5[A][5], prohibits her from personally soliciting or accepting campaign contributions at the same time it does not block her from seeking the "support" -- "whatever that means," Emery added parenthetically -- from attorneys appearing before her.
Emery said that Judge Yacknin and other candidates must operate within a "Kafkaesque maze."
"The entire system of regulating judicial campaigns is riddled with hypocrisy," he wrote. "It reduces judges to supplicants of the lawyers and clients who should hold them in high esteem. Expressing ad hoc outrage when one judge happens to come to our attention for her obtuse behavior feels like fiddling as Rome burns."
Emery said he favored a private caution as the appropriate punishment for Judge Yacknin.
Emery, a partner at Emery Celli Brinckerhoff & Abady, has issued similar complaints about judicial electioneering rules in other decisions punishing judges for campaign transgressions, including the admonishment of Amherst Town Justice Mark G. Farrell (NYLJ, July 14, 2004) and the removal of Supreme Court Justice Thomas J. Spargo (NYLJ, April 3, 2006).
Commission members Stephen R. Coffey and Joseph W. Belluck concurred with Judge Yacknin's admonishment, but wrote in a brief concurring opinion that they agreed with Emery's "overall critical observation of the quite incomprehensible application of New York's rules pertaining to judicial political activity."
In its determination, the majority declared that the Court of Appeals has upheld New York's restrictions on political activity by judges as "not only constitutionally sound, but fair and necessary," citing Matter of Raab, 100 NY2d 205 (2003).
"The alleged anomalies in the rules, cited in the dissenting opinion, do not invalidate the entire body of the rules; nor are they relevant to respondent's conduct in this case, which, as Emery acknowledges, was clearly wrong," the commission held.
'PROUD' OF RECORD
Judge Yacknin's attorney, James C. Gocker of Trevett Cristo Salzer & Andolina in Rochester, said the judge is "proud of her record of fairness and integrity."
Judge Yacknin, he said Thursday in an interview, "apologizes for her lapse in judgment with respect to the isolated, inadvertent conversation in 2005 that led to the commission's finding. The judge's conversation did not in any way affect the rights of anyone who appeared in court or the outcome of any case."
Civil Court Judge Philip S. Straniere of Staten Island, president of the Board of the Judges of the Civil Court for New York City, said in an interview that issues Emery raised are a concern whenever judges seek election.
He said he did not allow attorneys to form a committee supporting his 2006 re-election, which is allowed under the law, because of the potential that he would have to recuse himself in matters involving those attorneys.
"You're between a rock and a hard place," Straniere said. "You are not supposed to raise any money, but you have to have people raise money for you. You're not supposed to know who gave you money, but if you go to a cocktail party, it's pretty obvious that everybody there paid to be there or had their tickets paid for by others."
Judge Straniere said he has come to the conclusion that judicial elections should be publicly funded, that candidates should run without party designation and that judges should not be elected the same time of year as other government offices are filled at the polls.
CONTEMPT THREAT FAULTED
The commission Thursday also admonished Oneida County Family Court Judge Joan E. Shkane for a Sept. 6, 2007, dispute she became embroiled in after two officers from the Oneida County Child Advocacy Center had taken into custody for child endangerment a man who Judge Shkane was expecting to appear in a proceeding in her court.
She threatened the officers and an administrator at the advocacy center with contempt and, when the officers returned to her court with the man, Judge Shkane "lectured them at length in an angry, impatient and discourteous manner, repeatedly sought admissions of wrongdoing from them and repeatedly threatened them with contempt," according to the commission's decision.
Judge Shkane, who has been on the Family Court bench since 2007, acknowledged losing her self-control and improperly threatening the center with contempt, according to the decision.
Belluck dissented, finding admonishment too lenient a punishment. Emery also dissented, finding the punishment too harsh.
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