Viewpoint: A Tale of Two Judges

Luis A. Gonzalez, as presiding justice of the Appellate Division in Manhattan, is one of the most powerful judges in the state. He not only heads a prestigious court, but sits on the governing board for the state’s court system.

Lee H. Holzman, until the end of last year, had presided over the Surrogate’s Court, which handles the estates of persons who die in the Bronx. Despite serving in one branch of a court widely regarded as a patronage pit, Holzman won kudos in 2002 when he led an oversight body that developed citywide guidelines which in most instances limited attorney’s fees to 6 percent of the value of an estate.

Public scandals unfolded in both judges’ courts. Prompted by tabloid headlines blaring wrongdoing in the judiciary, the New York State Commission on Judicial Conduct, on its own initiative, commenced investigations of two.

At the core of both investigations were accusations that the judges had exercised their powers to benefit court insiders. The Gonzalez investigation examined his signing off on the hiring of six relatives of personnel working in his chambers. Holzman was investigated for protecting the lawyer he had hired to handle the estates in his court of persons who died without wills. Upon first learning of improprieties in the way the lawyer, Michael Lippman, was compensated, Holzman allowed Lippman, to work off money he owed estates rather than firing him.

Lippman, who had been under investigation since 2006 for the manner and amount of fees he had received, was indicted in 2010 for stealing $300,000 in excessive fees from five estates. Holzman was not implicated in Lippman’s misdeeds. His trial is scheduled to start on March 25th.

The commission proceeded full bore against Holzman, charging him with four counts of misconduct which produced a record-breaking 15-session hearing. Based upon a referee’s findings, commission prosecutors called for his removal. Last December, the commission unanimously found Holzman guilty on one count, failure to report Lippman’s misdeeds to law enforcement and disciplinary authorities. By a 7-3 vote, the commission rejected the prosecutors’ call for Holzman’s removal but instead censured him.

Despite the courts’ sensitivity to patronage charges, the commission decided not to charge Gonzalez with misconduct. There was documentary evidence that he had approved the hiring of the six relatives, including his own ex-wife. Nonetheless, the commission opted for an unprecedented resolution. It decided to forego disciplinary proceedings and instead to issue a public report.

The report recommended changes in hiring procedures at all four departments of the Appellate Division, including the First. The day after the report was released, the governing body of the courts adopted the commission’s proposals.

‘The Everybody Does It Defense’

I do not know why the commission shed its normal procedures for handling the Gonzalez case. Perhaps, it was reluctant to punish such a highly placed judge. No Appellate Division justice has ever been publicly punished in the commission’s 34-year history. Perhaps, it was leery that a successful prosecution of Gonzalez would lead to even more public scorn than had been raised by the charges directed solely at Gonzalez.

Gonzalez’ lawyer, Ben B. Rubinowitz, had presented a version of “the everybody does it defense” by calling the commission’s attention to approximately 50 instances in which previous presiding justices at the First Department had hired personnel with inside connections. Had the commission succeeded in punishing Gonzalez, Rubinowitz’s evidence that other presiding justices had made hires based on favoritism would have become part of the public record.

Commission proceedings are required to remain confidential until it issues a finding of misconduct. At that point any evidence used during the disciplinary proceeding becomes public. Absent a waiver, however, information developed during the investigative phase of a case, before formal charges are filed, always remains confidential. The issuance of formal charges,  the commission’s analogue to an indictment in a criminal case, demarcates the end of the commission’s investigation and the start of formal disciplinary proceedings.

Report’s Drawbacks

The commission’s decision to issue a public report, in lieu of seeking to hold Gonzalez responsible for his actions, had several drawbacks, not the least of which was that he appeared to be getting off lightly. That approach also blurred the lines of authority which have been established to protect the integrity of commission proceedings and provide transparency in those cases where judges are found guilty of misconduct.

The decision to truncate the process and issue a public report compressed the entire process into the investigative phase of the case. That is significant because during commission investigations its prosecutorial staff operates under the supervision of the commission itself (at full strength the commission has 11 unpaid commissioners).

Had the commission followed the normal course once it finds misconduct, it would have issued a written decision, detailing which of its prosecutorial staff’s positions it accepted, and which it rejected. Here there is no way for the public to discern where the work of the commission’s staff ended and that of its commissioners started. Who decided that a report should be issued that spared Gonzalez the cost and embarrassment of defending himself?  Why was that decision made? How deeply were the commissioners involved in the drafting of the report?

A Telling Omission

The commission’s report was further marred by the omission of any reference to a seventh instance of nepotism at the First Department. That situation involved Gonzalez’ hiring the niece of another judge sitting in the First Department as a secretary in his chambers. As I previously reported (Click here to read story), that omission was telling because the hiring of the niece was the only one of the seven which fell without question within a bright-line rule, which prohibits the hiring of certain relatives, including nieces, of any judge serving on the same court—i.e. the First Department insofar as relevant to the Gonzalez investigation.

The Gonzalez report also took the unorthodox step of publicly identifying one of its sources as an “Appellate Division justice.”  That disclosure seemed further uncalled for since the commission was terminating its investigation and no witnesses would be called to testify.  “It seems unusual to publicly refer to a source as an ‘Appellate Division justice’ and seems to discourage judges from reporting misconduct to the commission,” said Frederick P. Hafetz, a former chief of the criminal division in the U.S. Attorney’s Office in Manhattan.

Four of the commission’s members are appointed by the governor, three by the chief judge and one each by the majority and minority leaders of the state Senate and Assembly. Two commissioners did not participate in the Gonzalez investigation: Richard Emery, a civil rights lawyer, and First Department Justice Rolando T. Acosta.

The three dissenters in the Holzman case filed two opinions. One of the dissents was written by Nina M. Moore, and joined by Thomas A. Klonick, who has a private practice near Rochester, NY. He also serves as a part-time judge, and is the commission’s chairman.

Their dissent took issue with the majority’s decision to dismiss a count which charged Holzman with relying on the 6 percent guideline in setting Lippman’s fees rather than assessing the 10 factors listed in the Surrogate Court Procedure Act as governing the setting of attorney’s fees. They also parted with the majority in urging that Holzman should have been removed from the bench. In the other dissenting opinion, Emery provided the third vote for removing Holzman.

The bottom line in the two cases is that Gonzalez remains at the helm of the First Department and will presumably remain there until the end of 2015 when he will be required at age 70 to step down as presiding justice. He will remain eligible for certification to remain on the bench for another six years. Holzman meanwhile left the bench three weeks after he had been censured because he had turned 70 in 2012. Surrogates, unlike Supreme Court justices, are not eligible to be certified to serve an additional six years.

The Holzman Dissenters’ Citation to the Gonzalez Report

Support for the notion that the commission’s different handling of the two judges cases was unwarranted comes from a surprising source: the dissenting opinion in the Holzman case of Moore and Klonick. Though the two commissioners cited to the Gonzalez report as supporting their position, they blocked out several precepts that cast doubt on the path chosen in the Gonzalez report.

The dissenters’ remarks were aimed at the majority’s acceptance of a variant of “the everybody does it defense”: that the 6 percent guideline created a safe harbor for judges who relied upon it in setting attorneys’ fees.

Among the guiding principles identified by the two dissenters were: When the commission is confronted with “widespread lapses of judgment by judges,” it must not “turn a blind eye.” “The buck must stop here” i.e. at the commission. “The everybody does it” defense is an empty one—the public is likely to “find little solace” in the commission’s having given a judge a “special pass” based on that premise.

Did the commissions’ determination to issue a call for reforms rather than to hold Gonzalez responsible for his actions advance those precepts? Hardly.

Rather than the buck stopping at the commission, it stayed its hand, declining to seek to punish Gonzalez for the hiring of his ex-wife, the niece of another judge who had previously been his law secretary, and nephews of two of his top aides.

Further, the commission plainly stated that it was swayed by “the everybody does it” defense when it wrote in the Gonzalez report that “detailed comments and recommendations for reform” are required because hiring practices at the First Department “both before and during Judge Gonzalez’ tenure, raise serious questions.”

©DanielJWise 2013

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