A family court judge who abruptly resigned in April should be prohibited from holding judicial office again in New York after he acknowledged having sexual contact 40 years ago with his 5-year-old deaf niece, the state Commission on Judicial Conduct recommended in a determination released yesterday.

Former Family Court
Judge Bryan Hedges

The commission voted 7-2 to retroactively remove from office former Onondaga County Family Court Judge Bryan Hedges, 65, despite the fact that the incident occurred before he was admitted to the bar and nearly 13 years before he was elevated to the bench.

"The nature of respondent’s conduct involving an admitted sexual act with a defenseless child is abhorrent and not attenuated by the passage of time," the commission determined in an unsigned majority decision. "This reflects adversely on his fitness to perform the duties of a judge and is prejudicial to the administration of justice notwithstanding that it predates his ascension to the bench."

Commission administrator Robert Tembeckjian said in a statement that "it is not common to remove a judge for behavior that occurred years before taking the bench. But sexual misconduct with a child is so egregious that, even if it comes to light decades later, it must be addressed. An act of such moral turpitude undermines the integrity of the judiciary and disqualifies the perpetrator from being a judge."

Tembeckjian said the decision "makes public a horrible 40-year secret that, had it been known, would likely have prevented Mr. Hedges from being a judge in the first place. Removal from office insures that he will never return to the bench, delivers some measure of justice to the victim, and sends an important message to the public that the integrity of the judiciary will be protected."

Hedges’ attorney, Robert Julian of Utica, said his client would appeal the commission’s recommendation to the state Court of Appeals. He declined other comment pending the court’s determination.

Hedges released a brief statement through Julian’s office in which he said he was "devastated" by the commission’s recommendation.

"The allegations are untrue," Hedges said. "The administrative process is deficient in terms of being a fair fact-finding procedure. I hope the Court of Appeals will reverse."

The allegations came to light after the girl’s mother recently reported the 1972 encounter to Onondaga County District Attorney William Fitzpatrick. According to the commission, in a conversation recorded in Boulder, Colo., in March, when the judge visited the girl’s mother, Hedges conceded that his behavior was "abhorrent," "totally wrong," "indefensible" and "very, very, very bad."

Fitzpatrick arranged to have the mother of the victim, the sister of Hedge’s wife, wear a wire.

The statute of limitations for criminal prosecution had expired, and Fitzpatrick referred the matter to the commission, which has no statute of limitations. Hedges resigned for publicly unspecified reasons and filed for retirement after being informed by the commission that it was investigating.

Although there were some differences in the accounts Hedges and his niece gave of the incident, the commission concluded that the girl had entered his room while he was masturbating and touched his hand, which was on his exposed penis. The commission said he continued to masturbate for two to four seconds with her hand on top of his hand before he stopped.

The girl was profoundly deaf and unable to communicate after having suffered a viral infection in utero. Now 45, she is still deaf but can communicate through sign language and writing.

The commission acknowledged that its recommendation would have little practical effect on Hedges judicial career at this point, except to guarantee that he will be barred from holding judicial office in the future.

"While it would be rare indeed for conduct so remote in time to disqualify a person from serving as a judge, we find that under the unique circumstances in this case, respondent’s misconduct is of sufficient gravity as to render him unfit for judicial office," the commission said.

According to the commission, Hedges’ behavior violated §§100.1 and 100.2(A) of the Rules Governing Judicial Conduct.

Section 100.1 requires judges to "uphold the integrity and independence of the judiciary." Section 101.2(A) stipulates that "a judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

Tembeckjian, who has worked for the commission for 35 years, said the Hedges’ matter is the first case he knows of where a judge has been sanctioned for sexual misconduct involving a child.

Nine of the 10 commission members who heard the matter agreed that Hedges committed misconduct. Seven—Chairman Thomas Klonick, Vice Chairwoman Terry Jane Ruderman, Rolando Acosta, Joseph Belluck, Richard Emery, Karen Peters and Richard Stoloff—agreed that removal was the proper sanction.

Belluck pointed out in a concurring opinion, joined by Emery, that this was a rare case and cautioned that scrutinizing any judge’s life in detail, including time before joining the bench, would reveal "mistakes" and "indiscretions."

"A person should not be disqualified from being a judge because of remote or minor indiscretions," Belluck wrote. "This case does not involve a mistake or minor indiscretion, and respondent has done little to atone for his admitted conduct."

Time to ‘Close the Book’?

In a partial dissent, Joel Cohen and Paul Harding said Hedges’ judicial career and his reputation have been wrecked and that pursuing a removal recommendation is unnecessary in light of his resignation.

"Although respondent is a grossly unsympathetic figure given his conduct herein, the publication of the Determination herein will, even at this late date, publicly and permanently stigmatize him," wrote Cohen, a partner at Stroock & Stroock & Lavan.

He added that "it is now time to close this book," despite the "horrific conduct" of Hedges.

"We should want to encourage judges, directly confronted with the error of their ways, as here, to quickly and unqualifiedly resign in the face of egregious allegations of wrongdoing of which they are clearly guilty," said Cohen, who writes a Law Journal column on ethics and criminal practice. "We should not, except in an appropriate case which this is not, require a formal, post-resignation removal simply for a disciplinary authority to gain a very public pound of flesh, fearful of criticism for supposed leniency if it does not demand removal."

Cohen suggested that sensitivity to the sexual abuse of children in the Hedges case may have been heightened by highly publicized scandals involving sports coaches at Penn State and Syracuse University. Syracuse is in Onondaga County.

"I am not unmindful that, particularly in the wake of the sexual abuse scandals at Penn State and Syracuse…no public official or body wants to appear to have shown any leniency whatsoever to an alleged sex offender—even one whose offending act occurred so much earlier (longer in time than the lifetimes of many great and accomplished figures in history)," Cohen wrote. "And so, the Commission instituted formal proceedings against respondent."

Tembeckjian argued for Hedges’ removal on June 20 and 25 before commission hearing officer William Easton, a principal in the Rochester firm of Easton Thompson Kasperek Schiffrin. Easton sustained the charge of misconduct against Hedges.

Tembeckjian denied that the pursuit of sanctions against the former judge was influenced by the molestation scandals at Penn State and Syracuse.

"Other public allegations involving other institutions should not be, and I don’t believe were, a factor before the commission in deciding to discipline Judge Hedges," Tembeckjian said.

He said, in fact, that the commission would have been derelict in its duty not to seek to formally remove Hedges, knowing that he had acknowledged having improper contact with the niece, and yet still would be in a position to hold judicial office in the future.

Conduct commission member Nina Moore did not take part in the deliberations.

In opposing removal, Hedges argued that his actions had not violated the ethical rules cited by the commission and that his resignation effectively ended his judicial career, making a removal proceeding unnecessary.

The commission said Hedge’s niece, Ellen Cantwell Warner, asked to be identified in the commission’s disciplinary report. Warner, who planned to discuss the case publicly today in Syracuse, told the commission that during the encounter Hedges guided her hand to his hand, not that she touched his hand first.

Hedges told the commission he was "half asleep" at the time and immediately stopped when he realized what was happening.

The commission said that Hedges said nothing about the incident for years. When the girl began talking about what happened 10 years after the incident in "rudimentary terms," Hedges answered her father’s questions by saying only that the girl had come into his room while he was masturbating.

Hedges admitted in testimony before the commission that he probably should have been more forthcoming with his family about the event at that point.

Hedges told Easton he did not immediately inform the girl’s parents about what had happened because he thought the incident would not "remain in [his niece's] mind" because "she was so young."

But Easton said in his July 23 report that the girl had been "encased in silence" and "until she learned to communicate," her questions "would go unanswered and her fears unaddressed by those who loved and cared for her."

Hedges was 25 and a student at Syracuse University School of Law at the time of the incident. He was admitted to the bar in 1973.

A former assistant Onondaga County district attorney, he was elected to Family Court in 1984.