Hero Judge of the Day: Hon. Joseph W. Bellacosa

Spin Obscured Real Results in 'Ambrecht'
By Hon. Joseph W. Bellacosa, Retired Justice of NYS Court of Appeals – November 28, 2008

Since I argued M/O Ambrecht before the Commission on Judicial Conduct on June 19, 2008, my perspective is necessarily partisan, (“Censure Advised for Judge Whose Personal Lawyer Appeared in Court,” Nov. 10, 2008). So, too however are perspective and comments of the commission’s administrator and counsel, Robert Tembeckjian, since he argued the commission’s side at that time.

For balance, I did not know Judge Michael R. Ambrecht when former Judge John Martin asked me earlier this year to join him in representing the judge before the commission, both of us on a pro bono basis. What we two former judges did know was that a profound principle of judicial independence, critical to the fair administration of justice, was at stake. That was the crux, as we saw it, of Charge 1 of the commission’s accusation of political motivation against Judge Ambrecht. [Charge 1 alleged that before the 2005 Democratic primary in which Manhattan District Attorney Robert M. Morgenthau was running for re-election, Judge Ambrecht conducted an investigation of the prosecutor’s office and issued a decision that appeared to be politically motivated accusing the office of misconduct].

I write, on my own initiative entirely, to emphasize that the baseless Charge 1 was dismissed by the commission as unproven. Notwithstanding Mr. Tembeckjian’s partisan “spin” to various media including in the New York Law Journal, a 4-3 vote does not diminish the force of the commission ruling itself. Neither does it matter one whit, as Mr. Tembeckjian argues, the commission’s chosen referee was a former “distinguished” judge of the State Court of Appeals. That referee (unquestionably “distinguished” and my former colleague) might perhaps agree with me that evidence not pedigree is what counts. Moreover, he was simply a fact finder, so the conclusion he stated is of no relevance whatsoever since the only adjudicating entity, the commission, rejected that conclusion and the Charge 1 itself.

Mr. Tembeckjian’s comments compel this commentary from me in the constructive hope that the commission, with several new members and new leadership, may find it useful and appropriate to re-examine its procedures and especially the “spokesperson” role of its chief counsel. Serious questions to explore might be whether it is appropriate for the chief counsel to media-spin a commission determination, after it is rendered, to the extent of (1) questioning the force of a 4-3 dismissal of an unfounded and unproven charge; (2) challenging a concurring opinion rendered by a voting member of the commission; and (3) re-arguing and re-iterating the merits with prejudicial rhetoric, despite the dismissal of the substantive Charge 1. In courts, like the one I served in for 25 years, opinions of the tribunal are sacrosanct and are said to speak for themselves, with no emendations allowed by anyone including the judges. Why is the commission different, and its counsel free to speak in this fashion?

Because accountability for and transparency of official conduct by all the cogs in this wheel are so important, a word is also necessary concerning the erroneous inclusion in the Law Journal of Justice James Catterson’s role in the run-up of the Alvarez matter. With all due respect to Justice Catterson, he made no rulings whatsoever; indeed he never even issued to Judge Ambrecht any kind of judicial order, the sine qua non of judicial actions. He simply conducted a single-justice prohibition stay conference at the district attorney’s insistance from which no ruling, opinion or appellate division actions ensued. Moreover, he had no authority in that posture, in any event, to countermand or even question a presumptively valid sealing order of a justice of coordinate jurisdiction. A prior sealing order was still extant, and being vigorously protected by Sullivan & Cromwell on behalf of their clients, at the very time of the Manhattan District Attorney’s application to unseal material that was sought as potentially politically detrimental to the candidate incumbent’s primary for. Even that “official” maneuver, the application itself (idiomatically referred to as “dirty tricks”), nor its sequelae, have ever been fully aired for their questionable professional conduct implications (see e.g., M/O Elizabeth Holtzman, 78 NY 2d 184).

In the end, the painful irony of this rueful saga containing yet unsolved mysteries, is that, but for the dismissed and baseless Charge 1, there never would have been a later-added Charge 2 leading to the unfortunate censure of Judge Ambrecht.

I am particularly dismayed by the skewed emphasis on this disproportionate and unmitigated sanction, without adequate attention being given to Judge Ambrecht’s successful defense of his threshold conduct, to wit, he was exonerated of political motivation and he was vindicated in upholding the principle of judicial independence. That is the real story and the real journalistic lead here, not Mr. Tembeckjian’s irresponsible commentaries, nor the Inspector Javert- like persecution for over three years of a good man and a fine judge, just for doing his duty as he saw fit.

Joseph W. Bellacosa
The author is a retired judge of the State Court of Appeals