Marital problems and a heavy caseload helped create the "perfect psychological storm" for a city court judge who began jailing defendants for not taking responsibility for a ringing cell phone in his courtroom one day in 2005, his attorney told New York state's highest court Tuesday.
Overwork does not excuse Niagara Falls City Court Judge Robert M. Restaino's tirade, but it helps explain why it happened and should mitigate against his removal from the bench as recommended by the Commission on Judicial Conduct, Terrence M. Connors argued before the Court of Appeals.
"If there is no venal intent, there is no dishonesty or fraud or efforts to try to improve your own personal gain, then, where you have an aberration -- in this case, an hour and a half -- you don't impose the judicial death penalty on a judge," Connors argued. "He has so much more to give. He is regarded so highly."
Restaino failed to recognize the "stressors" in his life that led to his outburst on March 11, 2005, when the judge ordered 46 defendants in a Domestic Violence Court detained because no one would own up to having the cell phone, Connors said. Fourteen defendants were eventually sent to the Niagara County Jail because they could not make bail. All the defendants were released by the end of the day.
Connors cited Restaino's heavy caseload as one of his major stressors. The judge typically handled between 100 and 125 cases a day in court and from 1996 to 2006 he was responsible for some 90,000 cases, his attorney said.
In addition to his full-time assignment to the Niagara Falls City Court bench, Restaino also accepted temporary assignments as acting Buffalo City Court judge, acting Niagara County Court judge and acting Niagara County Family Court judge.
Medical experts who worked with the judge after his outburst also suggested that working on domestic violence cases raised his personal anxieties about the growing rift in the judge's own marriage, according to Connors.
Connors told the Court of Appeals that Restaino's case presents them with an opportunity to address an issue the Court has never written about: "judicial burnout and stress."
"Judges need to know, just like lawyers need to know, that you can come forward with these individual stress problems that you have and that are likely to experience in the type of profession that you're in," Connors argued. "You can come forward and you can seek help. It is not a stigma. It is not a sign of weakness. It is not a character flaw."
Restaino has undergone counseling and learned to better recognize and cope with stress, his attorney said.
Chief Judge Judith S. Kaye and Judges Robert S. Smith and Susan P. Read all noted Tuesday that heavy dockets are the norm for state court judges. Read observed that if Restaino is returned to the bench, "I don't suppose that his caseload is going to get any lighter."
"We've got to deal with a judge, a very hard-working judge with an excellent record," Smith said. "Well, we have a lot of very hard-working judges with excellent records. He [Restaino] went completely off the rails. He victimized several dozen harmless, innocent people, or at least innocent of anything that would have justified his conduct. How can we say to the community, 'Well, we understand why he did it and he's not going to do it again?'"
Connors said the 10 amici curiae briefs filed on Restaino's behalf by bar, civic and government groups in the Niagara Falls region show the community's confidence that the judge will not repeat his behavior.
Commission on Judicial Conduct attorney Edward Lindner sought to downplay the significance of the amici briefs supporting the judge and urged the court to give them a "very limited role" in its deliberations about Restaino's judicial fate.
"They are simply unsworn character references," Lindner said.
"Well, they're more than that, Lindner," Kaye replied. "They are the expressions of people who dealt with him over an 11-year period or more as a judge."
At another point Tuesday, the chief judge remarked that the "outpouring of support" for Restaino made his appeal unusual.
Lindner urged the court to look past the local backing Restaino enjoys and consider the message about appropriate judicial conduct it wants to send to the state as a whole with its ruling.
"How are people on Long Island and New York City, how are people in the Capital District who read your decision going to take this?" Lindner asked.
Lindner argued that Restaino's case is analogous to that of former Supreme Court Justice Laura D. Blackburne of Queens, who was removed from the bench in 2006 for helping a robbery suspect evade arrest. The Commission on Judicial Conduct's removal recommendation was upheld by the court in Matter of Blackburne, 7 NY3d 213 (2006).
Connors, of Connors & Vilardo in Buffalo, N.Y., argued that censure is the appropriate sanction for Restaino, not removal. The judge has an otherwise spotless judicial record.
The commission voted for removal by a 9-1 margin, finding that Restaino's behavior "transcended poor judgment" and brought the judiciary into "disrepute." The former chairman of the commission, Raoul Felder, disagreed in what he called the most difficult decision in his four years on the panel.
Felder wrote in a dissent that "two hours of inexplicable madness" should not cost Restaino his judicial career. He favored censure.
Restaino was appointed to a part-time city judgeship in Niagara Falls in 1996 and elected to a 10-year full-time term in 2001. He has been suspended with pay since December as he challenged the commission's removal recommendation before the Court of Appeals.
Since the inception of the commission in 1983, the Court of Appeals has upheld 63 of the panel's 72 removal recommendations. The other nine were reduced to censure, most recently Lockport City Court Judge William Watson's recommended removal for making inappropriate campaign promises to be tougher on criminals than his predecessor.
Connors successfully argued for a reduction in sanction for Watson before the court.