Justice seeks review from COA to stop investigation

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Disappointed with an Appellate Division decision dismissing his petition to stop an investigation by the state Commission on Judicial Conduct, a town justice in Onondaga County plans to seek a review by the Court of Appeals.

Salina Town Justice Andrew N. Piraino claims the commission exceeded its authority in investigating him for imposing the wrong fines in hundreds of traffic cases; that such matters fall within the jurisdiction of the appellate courts or the Office of Court Administration. He claims it was an administrative error related to the high volume of cases in his court and that his actions did not rise to the level of unethical judicial misconduct, as alleged.

The Appellate Division, Fourth Department, in a two-page unanimous decision issued Friday, disagreed and dismissed his petition, allowing the commission to proceed. It agreed with the first decision of Onondaga County Supreme Court Justice John C. Cherundolo who said the commission had the authority to investigate complaints and gave it the green light to continue.

Justice Cherundolo, however, later revisited his decision after Justice Piraino brought an Article 78 proceeding, granted permission to re-argue and directed the commission to provide discovery, prompting the most recent appeal. The second decision, filed in October 2011, almost five months after the first, was reversed by the Appellate Division.

“I appreciate the court’s decision,” said Robert H. Tembeckjian, administrator and counsel for the Commission on Judicial Conduct. “The Appellate Division, Fourth Department has affirmed, as have other courts, that under New York law, an Article 78 is not the proper forum in which to adjudicate charges of judicial misconduct. The Constitution grants that authority to the commission, subject to review by the Court of Appeals. The commission may now resume its disciplinary case against Judge Piraino.”

The commission was represented by attorney Kathleen M. Treasure of the state Office of the Attorney General.

Piraino is represented by Syracuse attorney Aaron M. Zimmerman, who agreed with Justice Cherundolo’s second decision calling for discovery and allowing for re-argument.

“We think Judge Cherundolo’s most recent decision correctly analyzed the law and his determination for a fact-finding hearing was correct to determine if the commission was exceeding its jurisdiction,” Zimmerman said. “We feel the commission was exceeding its jurisdiction and has acted in a fashion akin to bullying because the commission acknowledged Judge Piraino has not acted out of venality.”

The commission alleges Justice Piraino failed to follow the law by imposing incorrect fines, resulting in nearly $20,000 in overcharges and more than $6,000 in undercharges in about 900 traffic cases. There are no allegations Justice Piraino overcharged defendants to enrich himself. Fines and fees are split between the local courts and the state.

The commission began an investigation in 2009 after two people who had pleaded guilty to not wearing a seatbelt complained they were overcharged. The defendants each paid a $60 fine and later complained to the commission that the fine, by law, should have been $50.

The commission had stipulated that Justice Piraino’s actions were not intentional, but said it was his responsibility to know the law.

In dismissing Justice Piraino’s initial challenge, Justice Cherundolo noted the commission’s inquiry was not whether Justice Piraino had misbehaved, but whether the commission, after a hearing, had the power to determine whether or not misconduct had occurred.

That prompted Justice Piraino to file the Article 78 proceeding to prohibit the commission from investigating and possibly disciplining him, which was followed by Justice Cherundolo’s reversal and new order.

The commission, according to the Appellate Division decision, claimed Justice Piraino had not established a clear right to prohibition and had an adequate remedy in that he could appeal, by right, any decision it would make to the Court of Appeals.

The Appellate Division ruled the lower court erred in reversing its earlier decision.

“Prohibition will not ordinarily be warranted where the grievance can be adequately addressed by alternative proceedings at law or in equity, such as by motion, appeal, or other applications,” the panel wrote, citing Matter of Feldman v. Marcus, 23 AD3d 559, 560, leave denied 7 NY3d 703; Matter of Town of Huntington v. New York State Division of Human Rights, 82, NY2d 783, 786; and Matter of Eberhardt v. City of Yonkers, 305 AD2d 501,502.

Because he can appeal a decision to the Court of Appeals, the Appellate Division found Justice Piraino is not entitled to prohibition and that “prohibition is only available when a court of quasi-judicial body exceeds its jurisdiction in a manner that implicates the legality of the proceeding itself (see Matter of Rush v. Mordue, 68 NY2d 348, 353; and Matter of State of New York v. King, 36 NY2d 59, 64), which is not the case here.”

The higher court concluded the commission has jurisdiction to investigate and discipline petitioner for the alleged misconduct, (see generally Matter of Gilpatric [State Commission on Judicial Conduct], 13 NY3d 586,589 [at 588-90]).

Zimmerman said the way the system is set up, the commission can basically do whatever it wants and that only once a judge has been “tarred, feathered and run out of town,” can he ask the Court of Appeals for a review.

“That’s what this Appellate Division decision implies is that the judge has no right, no recourse until the commission does whatever it decides to do,” he said.

Zimmerman maintains if there is no impropriety, the commission does not have jurisdiction to conduct an investigation.

“The Appellate Division has chosen not to accept that argument,” he said. “The Appellate Division judges don’t seem to understand that they are as subject to the subjective analysis of the Judicial Commission as the lowest town and village judge and they have now chosen not to accept the opportunity to limit the procedures utilized by the Judicial Commission.

“If a judge commits an error, that’s what the appellate courts are for,” Zimmerman said. “A judge should only be subject to disciplinary action if a judge has acted with intemperance, has stolen or acted based on impure motive or the like.”

The case is Matter of John Doe v. New York State Commission on Judicial Conduct (2012 NY Slip Op 07428). The title now refers to John Doe, commonly used in confidential matters, because it is reverting back to the commission where proceedings are confidential. Article 78 proceedings are open to the public, as are those of the Court of Appeals.

Justice Piraino has been one of the town’s justices since being elected in 1993.