Amicus Briefs Pile Up in Bid to Sway N.Y. High Court on Judge's Removal Over Cell Phone Incident

Briefs cite Restaino's judicial record and community standing, as well as the isolated nature of the 2005 courtroom incident
New York state's Court of Appeals last week accepted 10 amicus curiae briefs filed by legal, judicial and civic groups, all pleading with the court to spare the job of Niagara Falls City Court Judge Robert M. Restaino. Restaino is appealing to the court a November recommendation by the Commission on Judicial Conduct that he be removed from the bench for ordering 46 defendants in his courtroom into custody one day in 2005 because no one would take responsibility for a ringing cell phone.

Joel Stashenko

New York Law Journal

2008-02-20 12:00:00 AM

New York state's Court of Appeals last week accepted 10 amicus curiae briefs filed by legal, judicial and civic groups, all pleading with the court to spare the job of Niagara Falls City Court Judge Robert M. Restaino.

Restaino is appealing to the court a November recommendation by the Commission on Judicial Conduct that he be removed from the bench for ordering 46 defendants in his courtroom into custody one day in 2005 because no one would take responsibility for a ringing cell phone.

The Court of Appeals is expected to hear oral arguments in this case in March or April. Restaino has been suspended with pay since December while awaiting the outcome of his appeal.

The amicus briefs cite Restaino's spotless 12-year judicial record, his standing in the community and the isolated nature of the incident in his courtroom on March 11, 2005, as all weighing in favor of the court reducing his punishment to censure.

"No evidence exists that his actions were motivated by anything other than an attempt on his part, misguided as it may have been, to protect the integrity of the domestic violence court," stated a brief filed by the bar associations of Niagara County, Niagara Falls, Lockport and the Tonawandas.

In addition to extolling Restaino's performance on the bench, a brief filed on behalf of the New York State Association of City Court Judges took the conduct commission to task for seeking to oust Restaino for actions occurring in a single day during a period of stress in his personal life.

"Regardless of how this Court rules on the issue of sanction in this case, it is our fervent hope that the Court will formally acknowledge that untreated emotional issues can have disastrous consequences for judges at every level," the judges' group stated in a brief written by Gerald Grace Jr. of Walsh, Roberts & Grace in Buffalo.

The record in Restaino's case, Grace continued, "clearly establishes that this fine Judge did not get help when he sorely needed it. We consider the Commission's dismissive treatment of Judge Restaino's emotional and psychological issues to be troubling."

Grace notes that Restaino has been active in the judges' association and is its first vice president.

The commission, in a 9-1 determination, noted that Restaino cited stresses in his personal life as contributing to his behavior regarding the cell phone incident. But the majority of commission members ruled "we find no mitigating circumstances" to excuse his actions.

Others filing or joining amicus curiae briefs in support of Restaino were the City of Niagara Falls, the Niagara County Sheriff's Department, the Phi Alpha Delta Law Fraternity, the Niagara Falls Boys' & Girls' Club, the Niagara Falls Library and the Niagara Falls Ministerial Council.

"There has been a torrent of support for Judge Restaino," said the judge's attorney, Terrence M. Connors. "The support has crossed all segments of our community, including organizations he has assisted and lives of people that he has affected."

Connors and other supporters of Restaino hope the Court of Appeals will adopt the stance taken by conduct commission Chairman Raoul L. Felder, who recommended censure. Felder wrote in his dissent that "two hours of inexplicable madness" by Restaino should not cost him his judicial career.

Robert H. Tembeckjian, the conduct commission's administrator and counsel, declined to comment Friday on the amicus briefs before the court.

Since the commission's inception in 1978, the Court of Appeals has accepted 63 of the 72 removal recommendations from the commission. It reduced the other nine to censure.

The last reduction was in 2003, in the case of Lockport City Court Judge William Watson, who was found by the commission to have improperly campaigned for office on the promise to be tougher on crime than his incumbent opponent.

Connors, of Connors & Vilardo in Buffalo, successfully represented Judge Watson before the Court of Appeals in that case.