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].