The Matter of the Honorable Alan M. Simon a Justice of the Spring Valley Village Court and the Ramapo Town Court, Rockland County ( 2016 )

This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 135
In the Matter of the Honorable
Alan M. Simon, a Justice of the
Spring Valley Village Court and
the Ramapo Town Court, Rockland
County,
Petitioner,
State Commission on Judicial
Conduct,
Respondent.
Lawrence A. Mandelker, for petitioner.
Edward Lindner, for respondent.
PER CURIAM:
At the request of petitioner, Alan M. Simon, we review
a determination of the State Commission on Judicial Conduct
(Commission), which sustained six charges of misconduct against
petitioner and recommended that he be removed from his judicial
offices. Petitioner has been a Justice of the Spring Valley
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Village Court since 2005 and a Justice of the Ramapo Town Court
since 2011. He also was appointed an Acting Justice of the
Hillburn Village Court in 2016.
In seeking review, petitioner "concedes his
misconduct," but he challenges the Commission's recommendation
that he be removed (see Judiciary Law § 44 [7]). Specifically,
petitioner contends that, in lieu of removal, we should direct
that he be censured and restored to his judicial offices. We
reject that contention and accept the determined sanction of
removal.
In matters involving judicial misconduct we have broad
statutory and constitutional authority to determine the
appropriate sanction (see Matter of Aldrich v State Commn. on
Jud. Conduct, 58 NY2d 279, 282 [1983], rearg denied 59 NY2d 967
[1983]). Judicial misconduct cases involve "institutional and
collective judgment calls based on assessment of their individual
facts, in relation to prevailing standards of judicial behavior
and the prospect of future misconduct and continued judicial
service" (Matter of Roberts, 91 NY2d 93, 97 [1997]). "[W]e have
long defined the purpose of a judicial disciplinary proceeding
not in terms of punishment for its own sake, 'but [for] the
imposition of sanctions where necessary to safeguard the Bench
from unfit incumbents'" (Matter of Restaino [State Commn. on Jud.
Conduct], 10 NY3d 577, 589 [2008], quoting Matter of Duckman, 92
NY2d 141, 152 [1998]).
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The ultimate sanction of removal typically is "reserved
for 'truly egregious circumstances' that extend beyond the limits
of 'even extremely poor judgment'" (Restaino, 10 NY3d at 589,
quoting Matter of Kiley, 74 NY2d 364, 369, 370 [1989]), but it
must also be kept in mind "that the 'truly egregious' standard is
measured with due regard to the higher standard of conduct to
which judges are held" (Restaino, 10 NY3d at 589-590 [some
internal quotation marks omitted]). Removal thus is warranted
when a judge exhibits "a pattern of injudicious behavior . . .
which cannot be viewed as acceptable conduct by one holding
judicial office" (Matter of VonderHeide [State Commn. on Jud.
Conduct], 72 NY2d 658, 660 [1988]) or an "abuse[] [of] the power
of his [or her] office in a manner that . . . has irredeemably
damaged public confidence in the integrity of his [or her] court"
(Matter of McGee v State Commn. on Jud. Conduct, 59 NY2d 870, 871
[1983]).
Here, the Commission held, and petitioner concedes,
that he violated these Rules Governing Judicial Conduct:
22 NYCRR 100.1 (entitled, "A judge shall
uphold the integrity and independence of the
judiciary");
22 NYCRR 100.2 (A) ("A judge shall respect
and comply with the law and shall act at all
times in a manner that promotes public
confidence in the integrity and impartiality
of the judiciary");
22 NYCRR 100.2 (C) ("A judge shall not lend
the prestige of judicial office to advance
the private interests of . . . others");
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22 NYCRR 100.3 (B) (1) ("A judge shall be
faithful to the law and maintain professional
competence in it. A judge shall not be
swayed by partisan interests, public clamor
or fear of criticism");
22 NYCRR 100.3 (B) (3) ("A judge shall be
patient, dignified and courteous to
litigants, jurors, witnesses, lawyers and
others with whom the judge deals in an
official capacity . . . .");
22 NYCRR 100.3 (B) (6) ("A judge shall accord
to every person who has a legal interest in a
proceeding, or that person's lawyer, the
right to be heard according to law. . . .");
22 NYCRR 100.3 (C) (1) ("A judge shall
diligently discharge the judge's
administrative responsibilities without bias
or prejudice and maintain professional
competence in judicial administration, and
should cooperate with other judges and court
officials in the administration of court
business"); and
22 NYCRR 100.5 (A) (1) (c) and (d) ("Neither
a sitting judge nor a candidate for public
election to judicial office shall directly or
indirectly engage in any political activity.
. . . Prohibited political activity shall
include . . . [c] engaging in any partisan
political activity . . . [and] [d]
participating in any political campaign for
any office or permitting his or her name to
be used in connection with any activity of a
political organization").
The misconduct giving rise to that concession
"qualifies as 'truly egregious'" (Restaino, 10 NY3d at 590). The
record reflects that, among other things, petitioner used a
sanction -- a tool meant to "shield" from frivolous conduct -- as
a "sword" to punish a legal services organization for a perceived
slight in an inexcusable and patently improper way (see 22 NYCRR
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130-1.1 [a] [authorizing the imposition of sanctions, but
precluding town and village courts from applying such
penalties]). The record is also replete with instances in which
petitioner used his office and standing as a platform from which
to bully and to intimidate. To that end, it is undisputed that
petitioner engaged in ethnic smearing and name-calling and
repeatedly displayed poor temperament -- perhaps most
significantly, by engaging in a physical altercation with a
student worker.
Those actions are representative of an even more
serious problem. Petitioner -- in what allegedly was a grossly
misguided attempt to motivate -- repeatedly threatened to hold
various officials and employees of the Village of Spring Valley
in contempt without cause or process. Those threats "exceeded
all measure of acceptable judicial conduct" (Matter of Blackburne
[State Commn. on Jud. Conduct], 7 NY3d 213, 221 [2006]), and we
are particularly troubled by the testimony of one court officer,
who suggested that petitioner's threats were so common that they
became "a joke." The matter may have been a laughing one to that
officer, but it was not to others.
Significantly, too, petitioner's hectoring extended
beyond the courthouse. In what ostensibly was an attempt to
undermine a former co-Judge and an apparent political adversary,
petitioner willfully injected himself into the political process
involving the election of an office other than his own. All of
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the foregoing actions reflect a pattern of calculated misconduct
that militates against petitioner's assertion that the
misbehavior complained of will not be repeated if he is allowed
to remain on the bench.1 Petitioner's misconduct apparently was
tempered only by the intervention of the Commission, and at the
hearing held with respect to this matter he appeared unrepentant
and evasive, testifying falsely on at least two occasions in an
attempt to minimize his misconduct -- all of which renders
suspect his guarantees of better behavior.2
Accordingly, the determined sanction should be
accepted, without costs, and Alan M. Simon removed from the
offices of Justice of the Spring Valley Village Court, Rockland
County, and Justice of the Ramapo Town Court, Rockland County.
1
By operation of the New York State Constitution,
petitioner is "ineligible to hold other judicial office" (NY
Const, art VI, § 22 [h]).
2
Petitioner also claims that the Commission ignored the
theory of the case that he presented to it, namely, that he
acknowledged that his misconduct was not justified, but that "his
motives were to protect the independence and integrity of the
court from the undue influence of a corrupt mayor and improve its
efficiency." Even assuming the truth of that representation, the
"means" by which petitioner attempted to effectuate those "ends"
are unacceptable.
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* * * * * * * * * * * * * * * * *
Determined sanction accepted, without costs, and Alan M. Simon
removed from the offices of Justice of the Spring Valley Village
Court, Rockland County, and Justice of the Ramapo Town Court,
Rockland County. Opinion Per Curiam. Chief Judge DiFiore and
Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia
concur.
Decided October 20, 2016
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