ACTUAL JUDICIAL ETHICS COMMISSION DETERMINATION. Right from the New York State Judicial Ethics Commission website. Allegany Town Court Judge David Porter Disqualified. Was ‘ADA’ Elizabeth Ensell involved?
In May 2015 respondent (PORTER) spoke with E. K., a neighbor, who had come to respondent’s (PORTER) home seeking his assistance as a judge with a boundary dispute between his daughter, K. K., and her neighbors, L. C. and C. M. E. K. told respondent that attempts to resolve his daughter’s escalating boundary dispute through a town code officer had been unsuccessful. Respondent told E. K. that the court could not become involved in the boundary dispute until charges were brought and that law enforcement officers were responsible for filing charges. Respondent (PORTER) told E. K. that he could contact law enforcement directly, provided him the names of seven law enforcement officers, including New York State Trooper David Kendzior, and informed him that all of the officers lived near E. K.’s home.
L. C. drafted a three-page letter to K. K. dated May 17, 2015, detailing her complaints on their boundary dispute and describing a MOTHERS DAY VISIT by a Trooper to L. C.’s home, during which the Trooper allegedly suggested how the boundary dispute might be resolved. L. C. sent a copy of her letter to respondent (PORTER).
On July 23, 2015, respondent (PORTER) issued a criminal summons for E. K. directing him to appear and answer charges that he committed Harassment in the Second Degree in violation of Section 240.26 of the Penal Law. Before issuing the summons, respondent reviewed the accusatory instrument alleging that on July 22, 2015, E. K. struck the hand of his daughter’s neighbor, C. M., with a hammer, and C. M.’s supporting deposition, in which he requested that the court issue an order of protection against E. K.
On July 27, 2015, respondent (PORTER) arraigned L. C. for Harassment in the Second Degree pursuant to Section 240.26(2) of the Penal Law, for allegedly cursing at K. K. on July 22, 2015.
On August 17, 2015, respondent (PORTER) arraigned C. M. for Criminal Tampering in the Third Degree pursuant to Section 145.14 of the Penal Law, for allegedly removing K. K.’ s posted signs on July 22, 2015. The sworn statement filed with the complaint against C. M. was affirmed by E. K. on July 28, 2015. Respondent did not disclose his May 2015 communication with E. K. concerning the boundary dispute. Respondent issued a temporary order of protection against C. M. and in favor of K. K., pursuant to a request from the Cattaraugus County Sheriff Deputy who took E. K.’s statement and filed the complaint. During the arraignment, C. M. again asked for an order of protection against E. K.
On September 14, 2015, respondent arraigned E. K. for allegedly striking C. M. with a hammer on July 22, 2015.
Upon the foregoing findings of fact, the Commission concludes as a matter of law that respondent violated Sections 100.1, 100.2(A), 100.3(B)(l) and 100.3(E)(l) of the Rules Governing Judicial Conduct (“Rules”) and should be disciplined for cause, pursuant to Article 6, Section 22, subdivision (a), of the Constitution and Section 44, subdivision 1, of the Judiciary Law. Charge I of the Formal Written Complaint is sustained, and respondent’s misconduct is established.
A judge’s disqualification is required in matters in which the judge’s impartiality “might reasonably be questioned” (Rules, §100.3[E][l]), and judges must assiduously avoid even the appearance of impropriety (Rules, §100.2[A]). Since respondent had discussed with his neighbor an escalating boundary dispute involving the neighbor’s daughter and her neighbors, a reasonable person might question whether he could be impartial in three cases arising out of the dispute that came before him within the next few months. See Matter of Valcich, 2008 NYSCJC Annual Report 221 Judge failed to disqualify herself despite having a professional and social relationship with the defendant and having discussed the underlying facts ex parte with her); Matter of Trickier, 2011 NYSCJC Annual Report 14 7 (before disqualifying himself, judge arraigned a defendant notwithstanding that he knew the defendant and complaining witness, had observed at least some of the underlying events and had spoken to the complaining witness about the matter). The moment that respondent welcomed his neighbor into his home and began to discuss the dispute, he should have realized that he was engaging in an ex parte conversation that would require his disqualification if the matter came to his court. Yet, instead of immediately stepping down when three cases arising out of the dispute came before him, or even disclosing his earlier discussion with his neighbor, respondent issued a criminal summons, conducted the arraignments and made determinations regarding the issuance of an order of protection. As respondent has acknowledged, his behavior was inconsistent with the above-cited ethical requirements.
When a judge has engaged in such an ex parte discussion or has any other conflict going into a case that requires disqualification, the judge must recuse at the outset of the case and, therefore, may not conduct the arraignment since “[a ]n arraignment is not merely administrative, but, rather, is a significant stage in the criminal proceeding” (Does this include County Judges???) requiring the exercise of discretion (NYS Jud Adv Ops 14-166, 09-223). See Matter of Astacio_ NY3d _,No. 94 (2018) (despite knowing that her recusal was required in her former client’s case, judge conducted the arraignment before disqualifying herself, set low bail, and asked the clerk not to transfer the case to a particular judge); see also Matter of LaBombard, 11 NY3d 294, 298-99 (2008) Gudge arraigned his former coworker’s son despite recognizing that his disqualification was required in cases involving the defendant, and his handling of the matter created an appearance of partiality).
Here, respondent’s handling of the arraignments in each case included a significant exercise of discretion in making determinations as to the issuance of an order of protection.
Compounding the appearance of impropriety, he issued such orders against two individuals involved in the dispute with his neighbor’s daughter, but did not issue an order of protection against his neighbor, the only defendant alleged to have engaged in a physical attack. Respondent’s impartiality in making those decisions can reasonably be questioned in view of his earlier conversation with his neighbor.
It is unclear to what extent that discussion addressed the merits of the dispute, but even if the discussion focused on procedures, as the stipulated facts suggest, the appearance created by a private discussion about the dispute created a significant issue that needed to be addressed. Thus, at the very least, when each of the cases came before him respondent should have disclosed the conversation. Even if he believed he could handle the cases impartially, disclosing the conversation would have afforded the prosecutor and defendants an opportunity to be heard on the issue of his participation in the matters. See Rules, § 100.3(F)1; Matter of Merkel, 1989 NYSCJC Annual Report 111