In re Gibbons 98 N.Y.2d 448, 749 N.Y.S.2d 211, 778 N.E.2d 1041

98 N.Y.2d 448 • 749 N.Y.S.2d 211 • 778 N.E.2d 1041

[778 NE2d 1041, 749 NYS2d 211]

In the Matter of Kenneth W. Gibbons, a Justice of the Glenville Town Court, Schenectady County, Petitioner. State Commission on Judicial Conduct, Respondent.

Argued September 11, 2002,

decided October 10, 2002

POINTS OF COUNSEL

Roche, Corrigan, McCoy & Bush, Albany (Robert P. Roche of counsel), for petitioner.

I. The conversation from the point of view of Kenneth Gibbons, respondent Judge, is credible and truthful. II. The testimony of James Towne is an unreliable *449basis for the Court’s decision and was an unreliable basis for the Commission’s findings that Judge Gibbons should be removed from the bench, because such decision implies that it was the intent of Judge Gibbons to so inform Mr. Towne at the time the conversation was had or the first call was placed. This is not so. III. The net effect of the conversation and exchange between Gibbons and Towne must be considered in ascribing any punishment to Judge Gibbons. IV. This Court has established a standard for the removal of judges, which the proof offered by the Commission on Judicial Conduct has not reached. (Matter of Steinberg, 51 NY2d 74; Matter of Shilling, 51 NY2d 397; Matter of Aldrich v State Commn. on Judicial Conduct, 58 NY2d 279; Friedman v State of New York, 24 NY2d 528; Sarisohn v Appellate Div., Second Dept., Supreme Ct. of State of N.Y., 265 F Supp 455; People v La Carrubba, 46 NY2d 658; Matter of Owen, 47 NY2d [q]; Lanzetta v New Jersey, 306 US 451; Papachristou v City of Jacksonville, 405 US 156; Smith v Goguen, 415 US 566.)

Gerald Stern, New York City, and Cathleen S. Cenci for respondent.

I. Petitioner’s brief fails to address the real issues. II. Petitioner’s disclosure of the impending search for ethylene glycol and advice to Mr. Towne that he should advise his client to deal with the ethylene glycol problem establish that petitioner is unfit to carry out judicial duties. (Matter of Sims, 61 NY2d 349; Matter of Assini, 94 NY2d 26; Matter of Going, 97 NY2d 121.)

OPINION OF THE COURT

Per Curiam.

Petitioner, a Justice of the Glenville Town Court, Schenectady County, seeks review of a determination of the State Commission on Judicial Conduct sustaining one charge of misconduct and imposing the sanction of removal from office (see NY Const, art VI, § 22; Judiciary Law § 44). The charge alleges that after petitioner signed a search warrant authorizing investigators to search the premises of Capitaland Motors for environmental violations, he phoned the company’s attorney and informed him of the impending search.

At an evidentiary hearing before a Referee, petitioner admitted that he told the attorney about the search warrant, but claimed that he did so because he was irritated by Capitaland’s behavior. Petitioner testified that he had recently helped Capitaland get a building permit and felt betrayed when he *450learned of Capitaland’s alleged violations. He stated that he called Capitaland’s attorney to express outrage at Capitaland’s behavior regarding the environmental laws, and not to compromise the investigation or tip off the attorney about the search.

The Referee concluded that petitioner revealed to Capitaland’s attorney that he signed a search warrant and suggested that the attorney speak to his client right away. The Referee found that petitioner’s purpose in making the call was neither to foil the investigation nor out of his concern over any environmental law violations, but that petitioner phoned the attorney out of frustration at the behavior of a company he had helped. The Referee found petitioner guilty of violating several Rules Governing Judicial Conduct, notably 22 NYCRR 100.1 (high standard of conduct), 100.2 (A) (impropriety, appearance of impropriety, promoting confidence in integrity of judiciary), 100.3 (B) (6) (ex parte communication) and 100.3 (B) (10) (disclosing nonpublic information).

The Commission agreed with the findings of guilt, terming petitioner’s actions “egregious misconduct that was inconsistent with the fair and proper administration of justice.” The Commission determined that even if petitioner did not phone the attorney to tip him off about the search warrant, but acted merely out of anger, petitioner’s conduct merited removal. We agree and therefore accept the Commission’s determination.

Effective law enforcement and the fair administration of justice command that judges maintain strict confidentiality in connection with the issuance and execution of search warrants. Investigators and the public must have full confidence that judges will maintain secrecy in connection with those and other proceedings requiring confidentiality. By telling the target’s attorney of the impending search, petitioner committed a serious breach of trust. Judges are not free to violate that trust, whether motivated by sinister design or by anger.

By informing the attorney of the search warrant, petitioner jeopardized the very legal system he was duty-bound to protect and administer. His conduct therefore goes beyond “simple careless inattention to the applicable ethical standards” and instead manifests an “utter disregard of the Canons of Judicial Ethics,” which warrants his removal (Matter of Steinberg, 51 NY2d 74, 81, 82 [1980]).

Accordingly, the determined sanction of removal should be accepted, without costs.

*451Chief Judge Kaye and Judges Smith, Ciparick, Wesley, Rosenblatt and Graffeo concur in per curiam opinion; Judge Levine taking no part.

Determined sanction accepted, without costs.

In re Gibbons
98 N.Y.2d 448 • 749 N.Y.S.2d 211 • 778 N.E.2d 1041

Case Details

Name
In re Gibbons
Decision Date
Oct 10, 2002
Citations

98 N.Y.2d 448

749 N.Y.S.2d 211

778 N.E.2d 1041

Jurisdiction
New York
Court
New York Court of Appeals

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