More Selective Action by The Commission on Judicial Conduct (MORE, CLICK HERE)

Commission says Jung violated litigants' rights
The Daily Gazette By Jim McGuire - February 20, 2008
Panel orders judge's removal

Judge David Jung

JOHNSTOWN — The state Commission on Judicial Conduct on Tuesday ordered the removal of the Fulton County judge for violating the rights of five people he sent to jail in 2005, labeling his actions as "serious misconduct."

The commission's ruling was sharply critical of Judge David F. Jung's decisions to send people to jail for contempt when they were not present, or not represented by an attorney, or both. "In considering the appropriate sanction," the commission decision said, "we note that as a consequence of [Jung's] disregard of fundamental rights, five litigants were sentenced to significant terms of incarceration, and the record indicates that at least three of those litigants served several months in jail on the unlawful sentence he imposed."

The panel said Jung's "continued insistence that his actions were consistent with law and his insensitivity to the overriding importance of protecting the rights of litigants    as shown by his record, strongly suggest that if he is allowed to continue on the bench we may expect more of the same." To leave Jung in office, the decision said, "would continue to place the rights of litigants in serious jeopardy." A staff member in Jung's office referred a reporter to Jung's attorney, Vincent Capasso Jr. of Schenectady. Capasso was unavailable for comment Tuesday, a receptionist in his office said.

Commission Administrator Robert Tembeckjian said Jung will have 30 days in which to file a notice of appeal in the case. If he takes that option, Tembeckjian said, the state Court of Appeals would allow a month for each side to file briefs. With oral arguments to follow, a final decision could be delayed until June. While Jung could remain on the bench during that time period, Tembeckjian said, the commission uses its option in some cases to suspend a judge pending the appeal.

Jung's troubles began in 2005 when lawyers representing four of the people sent to jail filed appeals in state Supreme Court. Judge Richard T. Aulisi released the first two people after finding that Jung's actions violated their constitutional rights. Soon after, Judge Joseph M. Sise released two other people on the same grounds. Jung appealed Aulisi's decisions to the Appellate Division of state Supreme Court and lost. The Court of Appeals refused to hear his case.

Meanwhile, at least two lawyers involved in those cases filed complaints with the commission. Amsterdam lawyer Elmer Robert Keach III, who represented two of the people, declined comment Tuesday. James T. Murphy of Legal Services of Central New York, the lawyer who filed the first two petitions, was unavailable Tuesday for comment. While the four appeals were publicized, the commission's decision reveals there was a fifth case involving Jung in which a woman was refused an attorney and then sentenced to 90 days in jail for failing to pay child support.

"In five cases," the commission said, "[Jung] deprived litigants in Family Court proceedings of fundamental constitutional and statutory rights, including significantly, the right to be heard and the right to be represented by counsel, while depriving them of liberty and, in three cases, their parental rights. [Jung's] handling of these matters was patently lacking in fundamental fairness and showed a profound disregard for the rule of law and for the basic rights of the individuals before him. Such a systematic disregard of basic legal requirements constitutes serious misconduct," the decision said. The commission was also critical that in three cases Jung conducted hearings for litigants who were absent because they were in custody or jail and the court issued no orders to have them produced.

"[Jung] took no action to determine whether the parties had voluntarily waived their right to be present and to be heard when their parental rights were being litigated," the commission found. In several instances, those sentenced by Jung spent months in jail. The possible removal of Jung would create a vacancy to be filled by gubernatorial appointment. Gov. Eliot Spitzer is a Democrat and almost all the lawyers in Fulton County are Republicans.

Those interested would have to apply to Spitzer. To keep the job, the appointee would then have to run in the next election. Fulton County Republican Chairman Dexter Risedorph said a possible succession has not yet been discussed. Political observers in the county have mentioned the names of Edward Skoda and Arthur C. Spring — both of whom lost a close three-way race for county court judge in 2001. Judge Polly A. Hoye won the Republican primary in that race by fewer than 50 votes.

When Jung ran for his last term, he defeated Russell P. Martin in the party primary. Current District Attorney Louise K. Sira has also been mentioned as a possible candidate.