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Friday, June 6, 2008

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.


Anonymous said...

Judy Kaye along with the Judicial system has irretrievably lost the public's confidence a long time ago. This poor slob (Robt. Restaino) is a sacrificial offering on the altar of corruption. He should have some intimate conversations with the federal folks, he must know where more than a few bodies are buried. Robert Tembeckjian, the conduct commission's administrator (married to a reporter at the Daily News) is a cover-up artist and should be terminated along with Judge Judy. He has been engaged in OBSTRUCTION for years and should be jailed.

Anonymous said...

I agree. If the 'system' really had faith in the judges elected by the people, then they would provide true oversight. It would help the judges and lawyers to keep on the straight and narrow line! But the Commission on Judicial Conduct only waits in the shadows, like an animal, just waiting to pounce on the next judge who some spineless party fat-cat has determined should be the next target.

Anonymous said...

The State Commission on Judicial conduct went after Restaino, because it made the news...that is how they target who it is they will remove, and who has been elected to their position! If the public views the judge as a menace or unethical..then the commission must show they do their job and remove that person.
I do agree that this judge had to go. So many upstate lower courts and specialty courts handle many, many cases which includes tremendous stress....combined with personal at home issues, that affect all employees that work in those courtrooms. The operation and situation here is that the court clerk and court reporter.... DO ALMOST ALL OF THE HARD , MUNDANE AND CONTINUOUS WORK, DURING THESE BRUTAL COURT SESSIONS! I never saw a judge cut a sweat during a court proceeding in years...accept if he personally allowed himself to become irritated with a deft!
This judge, no matter how nice and dear he may be to his friends and co-workers, is not competent to continue as a judge! His atty is a good lawyer, but he usually represents judges who are in trouble with the take what he believes with a grain of his sucking up!

Anonymous said...

I agree that Restaino is a sacrificial lamb, or pig, to justify the CJC taking taxpayer's money.

Interesting to me that Court of Appeals cited that "Petitioner deprived them of their liberty without due process".

Of course Restaino should go, but essentially he lost his temper, acted in anger, then realized his mistake and changed his mind,

In my case, Judge Herman Cahn placed a restraining order on me with no due process, then stole the transcript of the ex parte meeting that lead to that order.

The evidence was public record and uncontestable.
The CJC determined that Cahn had done nothing wrong,

The CJC deserves the harshest punishment for their abuse of power.

Anonymous said...

Wait. Let me get this straight. This guy is 82? Isn't the mandatory age for retirement 70? and Can't they only remain if they get "certificated" for another six years?
So they remove a guy who was too old to be a sitting judge anyway?
Ahh. New York justice at its finest.

Anonymous said...

Judge Restaino is 48! But, even if he was older, he would not have a high profile courtroom or stressful job..the certified have judicial retiremnet duties!

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See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:

               Video of 1st Hearing on Court 'Ethics' Corruption
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