
    In the Matter of George C. Dixon, a Justice of the Town Court of Ghent and the Village Court of Chatham, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Submitted May 4, 1979;
    decided July 3, 1979
    
      POINTS OF COUNSEL
    
      Connor, Curran, Connor, Flint & Schram for petitioner.
    The determination of the State Commission on Judicial Conduct that Justice Dixon be censured is completely unwarranted, excessive in nature, and constitutes an abuse of discretion, and should be reversed.
    
      Gerald Stern for respondent.
    I. Petitioner had waived his right to a hearing. II. The commission’s determination was based on all the evidence. III. Petitioner admitted the conduct set forth in charge III. IV. Petitioner admitted the conduct set forth in charge I. V. The commission’s determination of censure is based on the nature of the admitted, sustained charges alleging favoritism, is appropriate and is not excessive. (Matter of Bolte, 97 App Div 551; Friedman v State of New York, 24 NY2d 528; Bartlett v Enea, 45 AD2d 471.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, George Dixon, took office as Justice of the Village Court of Chatham in March of 1973, and as Justice of the Town Court of Ghent in January of 1976. He is not an attorney. As a result of an investigation conducted by the former State Commission on Judicial Conduct, charges were brought against the petitioner for requesting other Judges to accord favorable treatment to two defendants charged with traffic violations. On January 8, 1978 respondent was served with a notice of hearing and a complaint. In his answer he waived a hearing.

Among the exhibits submitted to the commission was a letter dated May 20, 1975 sent by the petitioner to a Justice of a town court concerning Ronald Reinemann, charged with driving without a license and driving an unlicensed vehicle. The letter states: "Mr. Reinemann is a nice fellow who has a great many personal problems at the moment, therefore I truly appreciate your kind consideration in the disposition of this matter.” Petitioner was also charged with improper conduct in seeking special treatment from a Justice of another town court for George Bidwell, charged with a speeding violation. In connection with this speeding charge petitioner admitted in his affidavit to the commission: "Mr. Bidwell was unemployed at the timé- and also recovering from a lengthy illness, and he approached me and asked me if I could help him. I felt compassion for this individual, and did talk to [the Town Court Judge] about the case.”

The former commission sustained the two charges, and imposed the penalty of censure. Before the commission transmitted its findings to the Chief Judge, the Legislature replaced it with the current State Commission on Judicial Conduct, the respondent on this appeal. The new commission adopted the findings and determination reached by the former commission. The petitioner contends that the record does not support the commission’s decision, and that the penalty imposed is excessive.

Initially we note that we are empowered to "review the commission’s findings of fact and conclusions of law” as well as to "impose a less or more severe sanction” than imposed by the commission (NY Const, art VI, § 22, subd d; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462). While we find that the record does support the commission’s finding of misconduct, we agree with the petitioner that the penalty of censure is excessive, and that admonishment would be a more appropriate sanction. In so deciding we consider various mitigating factors. Firstly, the petitioner neither sought nor obtained any personal benefit in either the Reinemann or Bidwell case. As his affidavit indicates he was "doing what [he] felt was the right thing to do in the interest of justice.” Petitioner also claims, insofar as the Reinemann case is concerned, that all he intended was to make the Town Court Justice aware of the circumstances of the case; presumably as one might make known background circumstances to a sentencing Judge. Nothing in the record contradicts these assertions.

Despite these mitigating factors we conclude nonetheless that the petitioner did violate the Canons of Judicial Conduct, for even if his motives were not culpable, his actions created the appearance of impropriety. Canon 2 (subd A) states: "A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” (See, also, Code of Judicial Conduct, Canon 1.) Communications from one Judge to another requesting, or appearing to request, special consideration for a defendant indicate a lack of impartiality and constitute misconduct within the meaning of the code. The record supports the commission’s finding that the petitioner engaged in such misconduct.

Accordingly the determination of the commission should be modified to the extent of reducing the sanction to admonishment.

Jasen, J.

(dissenting). Although the majority holds that the record supports the commission’s finding of misconduct on the part of petitioner, it nonetheless modifies the sanction imposed from censure, which it deems excessive, to admonishment. I cannot subscribe to this view and, therefore, dissent.

It is clear from the record that on two occasions petitioner requested that Town Justices give special consideration to individuals known by petitioner and charged with traffic violations. These requests were made by telephone and later confirmed in writing on petitioner’s official stationery. Moreover, in the letter sent by petitioner to Justice Cleary regarding the matter of Mr. Reinemann, petitioner closed: "Again please accept my thanks and if there is ever anything I can do for you, do not hesitate to call.”

The fact that nothing in the record contradicts petitioner’s assertion that he received no personal benefit in either of these cases, cited by the majority as a mitigating factor, is not dispositive. Canon 2 (subd B) of the Canons of Judicial Conduct unambiguously demands that a Judge "should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him.” In the present case, petitioner violated this obligation irrespective of whether he derived any personal benefit from his conduct.

Nor do I find persuasive petitioner’s plea that as a layman he was not fully aware of the bounds of proper judicial conduct. I remain skeptical that petitioner, especially in light of his quid pro quo promise to Judge Cleary to accommodate him in the future, was unaware of the improper nature of his conduct. But even assuming the validity of this rather implausible premise, it would be most inappropriate to establish a two-tiered level of professional conduct for Judges: that of the lawyer and the nonlawyer. Upon taking the oath of office, a Judge, whatever his background, has an affirmative obligation to make himself aware of the bounds of proper judicial conduct. "A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.” (Code of Judicial Conduct, Canon 1.)

For these reasons, I would not disturb the sanction imposed by the commission.

Judges Gabrielli, Jones, Wachtler and Fuchsberg concur in Per Curiam opinion; Judge Jasen dissents and votes to accept the determined sanction in a separate opinion in which Chief Judge Cooke concurs.

Determined sanction modified, without costs, by reducing the sanction to admonishment. 
      
      . A third charge alleging that the petitioner was improperly influenced to reduce a traffic charge in People v Trask was dismissed on the prosecutor’s representation that he had consented to the reduction.
     
      
      . (L 1978, ch 156.)
     