In the Matter of the Honorable Glen R. George, a Justice of the Middletown Town Court, Delaware County, Petitioner, State Commission on Judicial Conduct, Respondent.

Brief

N.Y.Nov 14, 2013

To be Argued by: THOMAS K. PETRO (Time Requested: 30 Minutes) Court of Appeals of the State of New York In the Matter of the Proceeding Pursuant to Section 44, subdivision 4, of the Judiciary Law in Relation to GLEN R. GEORGE, A Justice of the Middletown Town Court, Delaware County. –––––––––––––––––––––––––––––– GLEN R. GEORGE, Petitioner, – against – STATE OF NEW YORK COMMISSION ON JUDICIAL CONDUCT, Respondent. BRIEF FOR PETITIONER LAW OFFICES OF THOMAS K. PETRO Attorney for Petitioner 71 Maiden Lane Kingston, New York 12401 Tel.: (845) 338-1162 Fax: (845) 338-5662 Date Completed: September 2, 2013 JCR-2013-00002 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii STATEMENT OF FACTS ........................................................................................ 1 PROCEDURAL HISTORY ....................................................................................... 5 ARGUMENT ............................................................................................................. 6 POINT I The facts of the case and the record of the case do not support the Commission on Judicial Conduct’s Determination to remove Judge George as Justice of the Town of Middletown and should be modified to a censure ....................................................................................... 6 CONCLUSION ........................................................................................................ 11 ii TABLE OF AUTHORITIES Page(s) Cases: Matter of Assini, 94 N.Y.2d 26 (1999) ...................................................................................... 10 Matter of Bulger, 48 N.Y.2d 31 (1979) ........................................................................................ 8 Matter of Cohen, 74 N.Y.2d 272 (1989) .................................................................................... 10 Matter of Conti, 70 N.Y.2d 416 (1987) ...................................................................................... 7 Matter of Cunningham, 57 N.Y.2d 270 (1982) ...................................................................................... 6 Matter of McGee, 59 N.Y.2d 870 (1983) .................................................................................... 10 Matter of Reedy, 64 N.Y.2d 299 (1985) ...................................................................................... 7 Matter of VonderHeide, 72 N.Y.2d 93 (1997) ...................................................................................... 11 1 STATEMENT OF FACTS On May 29, 2009 Lynn K. Johnson was issued a Uniform Traffic Ticket by New York State Trooper Matthew Burkert. Burkert accused Johnson of violating Section 1229(C) of the Vehicle and Traffic Law, commonly referred to as “No Seat Belt – Driver”. Burkert used a form of ticket which is referred to as an “E” or electronic ticket, which describes how the ticket is filed with the court hearing the matter. Burkert also selected the return date on the ticket, which was Monday, June 01, 2009, at 9:00 a.m. before the Town of Middletown Justice Court. A motorist/defendant may appear in an action by mail or in person. Mr. Johnson appeared in person before the Honorable Glen R. George who was presiding in Court that day. The proceedings in Court were audio taped. The record was marked and maintained by the Court. Johnson’s case was called by the Court. Johnson indicated he did not own a 2000 red Mercedes Benz automobile. He did own a 1976 red Mercedes Benz automobile and produced a title to such an automobile which was last issued in the year 2000. 2 The Judge examined the document. He took a copy of it for the Court record and then dismissed the ticket. In Delaware County the District Attorney’s Office prosecutes traffic infractions. The Court meets four times a month. The District Attorney appears twice each month. On June 01, 2009, as today, the First Assistant District Attorney John Hubbard is assigned to the Court. Hubbard was not present on June 01, 2009. There was no direction or protocol from the District Attorney’s Office to law enforcement directing them to make tickets returnable on days they appeared. Judge George testified that he advised Hubbard at his next appearance before the Court. Hubbard did not recall whether or not he was told. The charges have not been re-filed, nor has any motion been made relative to the dismissed charges. Lynn Johnson founded Titan Well Drilling in the middle sixties. He owned the company until 1997 when he sold the company to his two sons. He remained active in the company until 2000. Lynn Johnson hired Judge George as an employee of Titan Well Drilling after George had retired from the New York State Police in 1982. George worked there until 1990 when he was let go because of lack of work. 3 The Commission on Judicial Conduct issued a letter of Dismissal and Caution to Judge George April 6, 2000. In the letter it stated that he had “socialized with them on occasion”. Judge George went back to work for Titan in the late nineties and his retirement from the company was May 31, 2009, the day before the event. There is no financial connection i.e. retirement benefit between Titan and Judge George. Most, if not all, of the social contacts with Lynn Johnson occurred before the Letter of Dismissal and Caution. Johnson and George liked one another and had a good working relationship. George worked for Lynn Johnson’s two sons upon his return to work for Titan. He worked with all of the children, except one, who were employed by Titan before and after his return to work for Titan. Michael Guidice had been a litigant in several small claims matters, which had been heard by the Honorable Glen R. George. As a result of those matters, Guidice had filed a complaint against the Judge with the Commission on Judicial Conduct. Guidice claims he attempted to file another small claims action against a neighbor at Justice Court : Town of Middletown, but was discouraged from doing so by Judge George. 4 Judge George indicates he answered the telephone one day when the clerk was busy. He had a conversation with Michael Guidice concerning the nature of the claim which was about the diversion of water onto his property. Judge George advised Guidice he could file his small claims but that he (Judge George) would not handle it. Guidice filed the claim. Both judges in Middletown recused themselves and the matter was sent to County Court for re-assignment to another Justice Court. The Town of Roxbury Justice Court was re-assigned the case. The case was never pursued because the neighbor fixed the condition allegedly after he heard from Guidice that Judge George could not hear the case. The implication being that once the case was moved from Middletown and Judge George, then the defendant fixed the offending condition. The Judge in Roxbury is Judge George’s daughter and she recused herself when she was advised that the case was assigned to her Court (R 298). 5 PROCEDURAL HISTORY The Respondent, Glen R. George, a Justice of the Middletown Town Court, Delaware County, was served with a Formal Written Complaint dated January 5, 2012, containing two charges. Respondent filed a Verified Answer dated March 9, 2012. By Order dated April 4, 2012 the Commission on Judicial Conduct designated Linda J. Clark, Esq. as Referee to hear and report proposed findings of fact and conclusions of law. A hearing was held by the Referee on June 19, 2012 in Albany, New York. The parties submitted Briefs and proposed findings of fact and conclusions of law to the Referee. The Referee filed a Report dated December 04, 2012. On March 14, 2013 the Commission on Judicial Conduct heard oral argument. On May 01, 2013 the Commission issued a Determination to remove Glen R. George from office. 6 On May 31, 2013, by letter dated May 29, 2013, Judge George requested the Court of Appeals to review the Determination made by the Commission on Judicial Conduct. ARGUMENT POINT I The facts of the case and the record of the case do not support the Commission on Judicial Conduct’s Determination to remove Judge George as Justice of the Town of Middletown and should be modified to a censure. Judge George’s conduct did not rise to the level of being “truly egregious”. It was the product of poor or extremely poor judgment, Matter of Cunningham, 57 N.Y.2d 270, 275 [1982]. Lynn Johnson was charged with “No Seat Belt – Driver”, a zero point traffic infraction which carries a maximum fine of Fifty Dollars and a surcharge. The fact that the charge is minor is of no consequence to Judge George since it is his conduct not the nature of the charge which is in question. The reason for bringing up the type of charge is that it reduces any motivation to “fix” the situation since it does not require “fixing”. The lack of material benefit reduces or eliminates any reason to suspect anyone of “ticket fixing”. In virtually every other case the ticket that is “fixed” is a 7 “speeding” ticket which carries points and increases insurance premiums. Some tickets were dismissed and some reduced to zero point infractions as in the case of the Matter of Reedy, 64 NY2d 299 [1985], Matter of Conti, 70 NY2d 416 [1987]. In this case Judge George did not hide any of his actions. He acquired the case because Trooper Burkert selected the return date on the ticket. Judge George properly recorded the entire proceeding and he further documented and kept the Court’s file just like any other matter he handles. Everything in this case was done in open court and the Judge did not select the date nor did he have any more than an hour or so notice that the case was on the calendar. After the case was completed Judge George testified that he advised the Assistant District Attorney, John Hubbard, about the disposition. Hubbard does not recall being told or not. Although no definitive answer appeared on the record, it could be implied that since an audio recording exists and the file is documented that Judge George did indeed tell Hubbard about the disposition and Hubbard’s failure to recall may well be related to the minor nature of the charge. The record in this proceeding against Judge George does not contain any testimony about what a “normal” disposition would be for a charge such 8 as this. It is clear that Trooper Burkert, in regard to his interaction with Mr. Johnson, described Mr. Johnson as amicable, polite (R 112 L16-24) and he further described Johnson as an elderly gentleman (R 113 L1). It is not without reason to suggest that a dismissal or Adjournment in Contemplation of Dismissal of Johnson’s charge would have occurred. Trooper Burkert further testified that he was working a specific detail that week and he stated that was “the only time I am aggressively enforcing seatbelt enforcement is during the detail” (R 112 L 9, 10). “Ticket fixing” is seeking or showing preferential treatment not based on the facts of the case, but some other influence, Matter of Bulger, 48 NY2d 31 [1979]. In this case, unlike any other “ticket fixing” case, there is a zero point charge that is not a speeding ticket. There was, in fact, an error made on the ticket, namely the year of the vehicle being operated and the error was documented by evidence, the Certificate of Title (R 280), which showed it was issued in the year 2000 for a 1976 automobile. Trooper Burkert was aware before May 21, 2009, that Judge George dismissed tickets with clerical errors (R 117 L 6-11) and Judge George is well known for dismissing tickets with errors on the tickets (R 118 L 7,8). In this case there was a ticket with an error for which documentary evidence existed. The Judge was hard on clerical errors. His reputation was 9 well known and it was well known that he dismissed tickets with clerical errors. This minimizes or eliminates any question that Johnson received special treatment not associated with the case. John Hubbard, Esq., the Assistant District Attorney who prosecutes the tickets in the Town of Middletown Justice Court testified that there are circumstances where a ticket should be dismissed sua sponte (R 172 L 14- 21): “Q. And factual issues should be resolved at a hearing, correct? A. Typically, yeah. Q. They should not be dismissed solely upon the information of a defendant, correct? A. Well, there could be some factual issues that are patently incorrect and can be dismissed. For instance, if the town was wrong or the name of the individual was wrong or there is a date that said, you know, it happened in the future, or something like that.” The Assistant District Attorney outlines situations where the Court could and should dismiss a ticket, sua sponte. It also reflects a knowledge that by not appearing in Court twice a month there may be times when tickets are dismissed outside of the presence of the prosecutor. The answer given above states that if the “name” on the ticket was wrong, it could be dismissed. A parallel exists between the name on a ticket and the year of the make and model of the vehicle being operated. The 10 name that was used and the make and model both require amplification by the defendant. In this case the 1976 red Mercedes vehicle’s title was last issued in 2000. It is easy to see where the error occurred. There were no protocols in effect for a situation such as this on June 1, 2009. The referee, Linda Clark, Esq., found that the lack of protocols were of such concern that she did not find that the Judge had an ex parte conversation with the defendant (R 369). Judge George did not willfully disregard the caution he received. The caution advised him to consider a totality of the circumstances. He did that (R 254 L 13-15). He made the wrong choice unlike the Matter of Assini, 94 NY2d 26 [1999] where the judge ignored a specific direction to stop allowing an individual to accompany him to the bench and evaluate defendants for a defensive driving course given by that individual and he continued to do just that for months after receiving the directive. Here, Judge George considered it, but went forward in error. The dismissal of the “No Seat Belt” ticket was not of the magnitude of error that either damaged the public confidence in the integrity of his court or destroyed his usefulness on the bench, Matter of McGee, 59 NY2d 870 [1983] and Matter of Cohen, 74 NY2d 272 [1989].