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Judicial conduct commission authority questioned

The New York State Commission on Judicial Conduct has the green light to proceed with a complaint against a town of Salina justice in Onondaga County.

The commission alleges Justice Andrew N. Piraino failed to follow the law by imposing incorrect fines in approximately 900 traffic cases before him, resulting in excess fines of $13,451 from 791 of the cases.

In about another 150 cases, fines were dispensed at $6,404 below the statutory minimum, according to the original complaint filed May 20, 2010.

Justice Piraino, a Syracuse attorney, filed an Article 78 proceeding early this year under the name of “John Doe,” questioning the commission’s jurisdiction. Justice Piraino asked that the commission’s formal complaint be vacated and that it be permanently restrained from further action against him on the complaint.

“The acts complained of are mere administrative failures and do not rise to the level of unethical judicial misconduct,” Justice Piraino’s petition said. “The formal complaint does not allege petitioner engaged in any acts of venality or judicial intemperance.”

Justice Piraino claimed the commission was strictly limited to prosecuting acts of unethical judicial misconduct. Onondaga County Supreme Court Justice John C. Cherundolo disagreed and lifted his restraining order, which prevented the commission from pursuing the matter pending a decision.

Justice Cherundolo, in his May 12 order, made public last week on the commission’s website, ordered that the Commission on Judicial Conduct may resume its proceedings against Justice Piraino and that the case be listed under his real name.

Robert H. Tembeckjian, the commission’s administrator and counsel, said commission proceedings are confidential unless a decision is made to publicly admonish, censure or remove a judge from office.

State supreme court proceedings are open to the public. Justice Piraino’s move to the trial court was originally sealed at his request, which Justice Cherundolo initially granted and later denied, at the same time ordering all related papers be unsealed.

Tembeckjian said a hearing will be scheduled on the initial complaint. He said the results range from dismissing the complaint to removing the judge from office. Other options in such proceedings include a confidential caution or publicly admonishing or censuring a judge.

Justice Piraino is going to appeal to the Appellate Division, Fourth Department, according to his attorney Aaron M. Zimmerman, with whom he has shared an office for several years.

“It’s my position that the motion judge either misunderstood the law or misapprehended the impact of the Court of Appeals on this,” Zimmerman said. He and Justice Piraino do not deny incorrect fines were rendered; just that it was a mistake not rising to the level of judicial misconduct.

“Justice Piraino did not even know that a mistake had been committed until the commission had contacted him,” Zimmerman said. “The commission plays a game of ‘gotcha’ and is simply wrong and inequitable.”

Justice Piraino, who was first elected Salina town justice in November 1993, notes in court papers that the quality of his work had never been questioned before the initial Letter of Inquiry from the commission on May 14, 2009.

The letter indicated the commission was concerned about the fines and surcharges being imposed on traffic-related matters, as well as Justice Piraino’s allowing matters to be reduced by pleas to the lesser charge of failure to obey traffic laws.

In response, Justice Piraino voluntarily produced copies of all court records pertaining to the cases listed and issued a local rule that he would no longer accept pleas to Vehicle and Traffic Law Section 1101.

The investigation began following a complaint by two people in the same car who had pleaded guilty to not wearing a seatbelt. Each was fined $60, which they paid, followed by a complaint letter to the Commission on Judicial Conduct that the fine, by law, should not have exceeded $50.

Zimmerman said the commission never contacted Justice Piraino or his court; that it instead opened a secret investigation and when they told the commission it had exceeded its authority, it filed a formal complaint. Tembeckjian acknowledges there are no claims that Justice Piraino was charging the wrong amounts to enrich himself. He said the charges allege he violated various rules that require judges to respect and comply with the law, be professionally competent in the law and faithful to it.

The commission was represented by Assistant Attorney General Heather R. Rubinstein of the Syracuse office.

Justice Cherundolo, in his decision, notes that the inquiry is not whether Justice Piraino committed misconduct, but whether the commission has the power to determine whether or not the misconduct has occurred, after a hearing.

Justice Cherundolo points out that according to the state constitution, the commission has the authority to “receive, initiate, investigate and hear complaints” and determine whether or not a judge should be disciplined for misconduct.

He also cites Matter of Banks 2009 WL 2400327 (N.Y. Comm. On Jud. Conduct) in which the commission found a judge violated New York State Codes, Rules and Regulations when he imposed fines above the maximum amount allowed.

“The commission stated that although it was stipulated that the judge acted unintentionally, it was his responsibility to know the law and his conduct was harmful to individuals and society in creating at least an appearance that the judge was imposing higher fines in order to increase the town’s revenues,” Justice Cherundolo’s decision says. “Here, it is unclear whether or not the petitioner ultimately committed misconduct or violated the canons of judicial ethics. What is clear is that this is a determination to be made by the NYS Commission on Judicial Conduct.”

He ruled the matter warrants a full hearing and a full record through which the commission can reach a decision.

Tembeckjian said after the hearing, the referee reports to the commission and may recommend what, if any, punishment should be imposed.

He said it is unusual for a judge to challenge the commission’s authority to investigate complaints and render disciplinary action.

“It was much more common 30 years ago in the early days of the commission when the commission was new and its constitutional authority had not been tested,” he said, noting the last time it happened was in 2007 when a Bronx family court judge filed a proceeding in supreme court to stop the commission.

Tembeckjian said the judge lost the initial application to proceed and keep the matters confidential, after which a stipulation was reached that included the judge’s leaving office.

“I want to express appreciation for Judge Cherundolo’s ruling, which is consistent with the state constitution and previous cases of this type that have been brought in Supreme Court,” Tembeckjian said.

“The commission’s conduct is unfair to Judge Piraino and reduces and lessens the public’s trust in the judicial system,” Zimmerman said. “The commission had a chance to correct an oversight and failed to do so. Their conduct is inexcusable. Instead, they blame Judge Piraino for a simple oversight.”

Zimmerman said the only time the commission is ever reviewed is when someone takes the matter to the Court of Appeals, which he said Judge Banks refused to do. Zimmerman said Judge Piraino has handled 70,000 cases and that the Salina Town Court is one of the most voluminous in the state as far as traffic violations with the New York State Thruway and Interstate 81 running through the town. I

In addition, Zimmerman said by law, towns are allowed two justices and at the time the seatbelt defendants appeared, Justice Piraino was the sole justice in the town due to an ongoing election dispute.

“The reality is every town judge makes mistakes,” Zimmerman said. “That doesn’t make a judge guilty of unethical conduct. Unless the judge has made a mistake through malice or a malicious act, it’s a simple mistake and does not rise to the level of misconduct.”

He said another factor is that the state Department of Motor Vehicles is constantly changing the law and that there are limits to how many surcharges may be imposed for multiple counts resulting from a single incident.

Zimmerman said Justice Piraino now uses a form he instituted that lists the maximum and minimum fines and surcharges on the various traffic cases before him.

Tembeckjian said it is possible the affected defendants may be able to recover what they were overcharged. He said fines and fees are divided between the state and the locality and what has happened in previous cases, is that the judges work with the town and state comptroller to refund the overcharges.