A unanimous Appellate Division, First Department, panel has refused to vacate an order releasing the court records of a criminal case against Brooklyn attorney Seth Rubenstein to the Commission on Judicial Conduct when it was investigating Manhattan Surrogate Nora Anderson ( See Profile).

Rubenstein gave Anderson a $100,000 donation and a $150,000 loan during her 2008 campaign for surrogate, far above the legal limit of $33,000. Anderson failed to disclose the donation and loan in campaign filings and the two were prosecuted by the Manhattan District Attorney’s office. Both Rubenstein and Anderson were acquitted of offering a false instrument for filing ( NYLJ, April 2, 2010).

Normally, a criminal case in which the defendant is acquitted is sealed. However, in a separate proceeding brought by the Commission on Judicial Conduct against Anderson, the commission asked for Rubenstein’s trial record, and the trial court ordered it released. Rubenstein moved to vacate the release order citing concerns that the records could become public, but Manhattan Supreme Court Justice Fern Fisher ( See Profile) denied the motion.

The commission ultimately resolved the case by reaching a stipulation with Anderson, who agreed to be censured. Rubenstein nonetheless appealed to the First Department to vacate the release order, arguing that even though the commission no longer needed the records, the court should resolve the issue in the interest of future cases.

The First Department in New York State Commission on Judicial Conduct v. Rubenstein, 5768/08 refused. "We find that the matter has been rendered moot and decline to pass on whether the release order was justified," the panel wrote on Feb. 5.

The panel consisted of Justices David Saxe ( See Profile), Karla Moskowitz ( See Profile), Helen Freedman ( See Profile) and Rosalyn Richter ( See Profile).