Court System, not Judge, has 'irretrievably lost' public's confidence

For Whom the Bell Tolls: NY Judge Ousted After Meltdown Over Cell Phone Ringing in Court
The New York Law Journal by Joel Stashenko - June 6, 2008

ALBANY - The state's highest court yesterday upheld the recommended removal of an upstate judge for sending 46 defendants to jail when no one would admit to possessing the cell phone that rang in his courtroom. City Court Judge Robert M. Restaino of Niagara Falls has "irretrievably lost" the confidence of the public in his community due to his actions on March 11, 2005, a 6-0 Court of Appeals concluded in Matter of Restaino, 82. "By indiscriminately committing into custody 46 defendants, petitioner deprived them of their liberty without due process, exhibited insensitivity, indifference and a callousness so reproachable that his continued presence on the Bench cannot be tolerated," the Court held in a per curiam ruling.

The Court affirmed the removal recommendation contained in a 9-1 decision by the state Commission on Judicial Conduct. The commission similarly found that Judge Restaino had irreparably damaged public confidence in his ability to serve as a judge because of his 2005 tirade. The judge had urged both the commission and the Court to allow him to stay on the bench by finding that censure was the proper punishment. Judge Restaino became a part-time judge in Niagara Falls in 1996 and joined the bench full time in 2002. His current term would have ended in 2011. He had been suspended with pay from the $113,000-a-year job since he formally appealed the conduct commission's determination to the Court of Appeals in December.

The defendants detained by Judge Restaino appeared before him in a domestic violence session of Niagara Falls City Court. Signs in the courtroom warned visitors that cell phones must be turned off. When no one claimed ownership of the ringing phone, Judge Restaino declared, "Everyone is going to jail; every single person is going to jail in this courtroom unless I get that instrument now." He then systematically began to call defendants before him and to order them into custody when they denied knowledge of the cell phone, according to the Commission on Judicial Conduct. Fourteen of the defendants were unable to post bail at the city jail and were ultimately taken to the Niagara County Jail. They were all released by the end of the day, after Judge Restaino had reconsidered his actions.

Civic and governmental groups in Niagara County, including several local bar associations and the Niagara Falls Boys' and Girls' Club, filed 10 amici curiae briefs before the Court of Appeals urging the judges to reduce the sanction against Judge Restaino to censure. The judge's attorney, Terrence M. Connors, asked the Court during oral arguments in the case not to force Judge Restaino to forfeit an otherwise stellar judicial career because of his aberrant behavior on one day. Mr. Connors said the judge reacted inappropriately to the ringing phone because of marital problems and to a judicial caseload that Mr. Connors called one of the heaviest in the state. Mr. Connors estimated that Mr. Restaino was responsible for some 90,000 cases between 1996 and 2006.

The Court yesterday acknowledged Judge Restaino's "notable contributions to the administration of justice." The amici curiae briefs reflect how "well-respected" he is in his community, the Court noted. But the judges added that there are simply some "truly egregious circumstances" in which judicial misconduct cannot be excused, no matter the mitigating factors offered by judges. "Significantly, petitioner had more than 46 chances to correct himself and failed to do so," the Court declared. The judges also rejected the argument Mr. Connors made on Judge Restaino's behalf that to impose the most severe sanction for actions the judge attributed to extreme "psychological stressors" would discourage other judges from seeking help for psychological problems.

"The State has been proactive in ensuring that members of the Bench and Bar have access to critical services in strict confidence," the Court observed. "The New York State Lawyers Assistance Trust works closely with local bar associations to ensure that members of the Bench and Bar have ready access to early intervention and assistance to ensure that they do not reach a critical stage in their personal dilemmas." Mr. Connors, of Connors & Vilardo in Buffalo, said in a statement that Judge Restaino's removal "is a great loss to the bench, bar and western New York community." "During his years of service, he made significant contributions to the administration of justice in western New York," Mr. Connors said. Judge Restaino declined through Connors & Vilardo to comment on yesterday's ruling.

Robert Tembeckjian, the conduct commission's administrator, declined comment on the Court's decision. The ruling was the 64th time the Court of Appeals has upheld a removal recommendation by the commission. In nine other cases, the Court reduced recommended removals to censures. Court of Appeals' Judge Eugene F. Piggott Jr., a former presiding justice of the Appellate Division, Fourth Department, in which Niagara Falls is located, took no part in yesterday's decision. Judge Restaino, a graduate of Buffalo Law School who was admitted to the bar in 1986, had a private practice from 1986 to 2001.