
    In the Matter of Morris E. Spector, a Justice of the Supreme Court of the State of New York, Petitioner, v State Commission on Judicial Conduct, Respondent.
    Argued March 29, 1979;
    decided June 5, 1979
    
      POINTS OF COUNSEL
    
      Irving Anolik for petitioner.
    I. This court ought to reject the determinations of the majority opinion of the Commission on Judicial Conduct since there is insufficient evidence justifying the finding of an "appearance of impropriety”. The criteria of the commission, which apparently precludes the appointment of a relative of a sitting Judge by another sitting Judge despite overwhelming ability and fitness of the appointee, is arbitrary, capricious, and without any rational basis. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Colton v Berman, 21 NY2d 322; United States v Nix, 501 F2d 516; Landry v Daley, 280 F Supp 968.) II. The hearing before the Commission on Judicial Conduct was tainted by extraneous, inflammatory remarks by the administrator, adverting to matters not within the purview of the charges. Thus, a fair hearing was denied. Moreover, the timing of the charges, coming on the eve of mandatory retirement, was also unfair and perhaps unconstitutional (Fourteenth Amendment). (Matter of Ruffalo, 390 US 544, 391 US 961; Erdmann v Stevens, 458 F2d 1205, 409 US 889; Goss v Lopez, 419 US 565; Morrissey v Brewer, 408 US 471; Bell v Burson, 402 US 535; Goldberg v Kelly, 397 US 254; Willner v Committee on Character, 373 US 96.) III. Since the proceedings herein were started at a point in time where it was impossible for petitioner to receive 30 days’ time within which to file an application to this court to contest the determination against him, coupled with the fact that the charges were brought almost at the eve of Justice Spector’s mandatory retirement, the complaint should be dismissed for procedural violations of due process. (Ker v California, 374 US 23.)
    
      Gerald Stern for respondent.
    I. An appearance of impropriety is created when a Judge appoints the sens of other Judges who appoint his son; such an appearance of impropriety is compounded when (a) the appointing Judge knows of the other appointments and (b) friendship with the other Judges is a motivating factor. (Matter of Suglia, 36 AD2d 326; United States v Paramount Pictures, 334 US 131; Milgram v Loew’s, Inc., 94 F Supp 416; People v Connolly, 253 NY 330; Sarisohn v Appellate Div., 2d Dept., Supreme Ct. of State of N. Y., 265 F Supp 455; Matter of Pfingst, 33 NY2d [a]; Bartlett v Enea, 45 AD2d 471; Bartlett v Flynn, 50 AD2d 401; Napolitano v Ward, 317 F Supp 79, 457 F2d 279, 409 US 1037.) II. Neither the conduct of the administrator nor the timing of the charges resulted in a denial of a fair hearing. III. The imposition of a determination during the last month of a Judge’s term does not violate procedural due process or fundamental fairness, and is consistent in every respect with the letter and spirit of the applicable law. IV. The commission’s combination of investigative and adjudicative functions is valid under the United States Constitution. (Withrow v Larkin, 421 US 35; Halleck v Berliner, 427 F Supp 1225; Hortonville Dist. v Hortonville Educ. Assn., 426 US 482; Trade Comm. v Cement Inst., 333 US 683; Friedman v State of New York, 24 NY2d 528, 397 US 317; Matter of Sarisohn, 21 NY2d 36.)
   OPINION OF THE COURT

Per Curiam.

It is appropriate in the circumstances disclosed in this record that petitioner be admonished for the appearances of impropriety stemming from appointments made by him of the sons of two other Judges during periods when such other Judges were making appointments of his son.

In June, 1978 a formal complaint was served on petitioner by the Commission on Judicial Conduct alleging four charges of misconduct arising out of petitioner's appointment of attorneys as guardians ad litem, receivers, referees and in one instance the committee of an incompetent in judicial proceedings pending before him. After hearings, the Referee appointed to hear and report to the commission found that two of the four charges had not been sustained. As to the other two charges, the Referee concluded that, while there was no basis for other criticism of petitioner’s conduct, two of the appointments of Burton Fine, the son of Mr. Justice Sidney Fine, and four of the appointments of Sanford Postel, the son of Mr. Justice George Posted, were not "free from the appearance of impropriety”. The Referee did not, however, find any actual impropriety.

The commission found that in the period from March, 1968 to November, 1974 petitioner appointed the son of Justice Fine on 2 occasions while Justice Fine appointed petitioner’s son on 8 occasions and appointed the son of Justice Posted on 10 occasions while Justice Posted appointed petitioner’s son on 5 occasions. The commission further found that at the time petitioner was making these appointments he was aware of the appointments of his son being made by the other Judges and concluded that, although there was no "quid pro quo” understanding, the cross appointments gave the "appearance of impropriety” in violation of Canon 4 of the Canons of Judicial Ethics and the applicable portion of section 33 of the Rules Governing Judicial Conduct. A majority of the members of the commission determined that the appropriate sanction was that petitioner be admonished. Three members of the commission, however, while adopting all the factual findings made by the Referee, concluded that such findings did not warrant the imposition of discipline under subdivision 7 of section 44 of the Judiciary Law.

Preliminarily, we note that, undoubtedly because we are the only court vested with power to review the commission’s determination, the scope of our review is unusually broad, encompassing as it does authority not only to "review the commission’s findings of fact and conclusions of law”, but also to "impose a less or more severe sanction * * * than the one determined by the commission, or [to] impose no sanction”. (NY Const, art VI, § 22, subds a, d; Judiciary Law, § 44, subd 9.) Thus, the issues before us include the correctness of the commission’s findings of fact and conclusions of law, as well as the appropriateness of the commission’s determination that petitioner be admonished, the lowest in the scale of sanctions prescribed for judicial misconduct. As a result of our review we accept the determination made by the commission.

It serves first to identify and to consider the nature of the judicial conduct which is the subject of this disciplinary proceeding. Our analysis recognizes two levels of consideration. The progression may be simply stated. First, nepotism is to be condemned, and disguised nepotism imports an additional component of evil because, implicitly conceding that evident nepotism would be unacceptable, the actor seeks to conceal what he is really accomplishing. Second, and this is peculiar to the judiciary, even if it cannot be said that there is proof of the fact of disguised nepotism, an appearance of such impropriety is no less to be condemned than is the impropriety itself.

Nepotism in the judiciary was outrightly condemned when the first Canons of Judicial Ethics were adopted by the American Bar Association in 1924. Canon 12 as then adopted provided in pertinent part:

"Appointees of the Judiciary and Their Compensation.

"Trustees, receivers, masters, referees, guardians and other persons appointed by a judge to aid in the administration of justice should have the strictest probity and impartiality and should be selected with a view solely to their character and fitness. The power of making such appointments should not be exercised by him for personal or partisan advantage. He should not permit his appointments to be controlled by others than himself. He should also avoid nepotism and undue favoritism in his appointments.”

This unequivocal disapproval has been carried forward, undiminished, into the present Code of Judicial Conduct. Canon 3 (subd B, par [4]) now provides: "A judge should not make unnecessary appointments. He should exercise his power of appointment only on the basis of merit, avoiding nepotism and favoritism. He should not approve compensation of appointees beyond the fair value of services rendered.”

A similar and more explicit injunction is now to be found in section 33.3 (subd [b], par [4]) of the Rules Governing Judicial Conduct (22 NYCRR 33.3 [b] [4], filed Jan. 21, 1974, effective Jan. 1, 1974): "A judge shall not make unnecessary appointments. He shall exercise his power of appointment only on the basis of merit, avoiding favoritism. A judge shall not appoint or vote for the appointment of any person as a member of his staff or that of the court of which he is a member, or as an appointee in a judicial proceeding, who is a relative within the sixth degree of relationship of either the judge or the judge’s spouse. A judge shall also refrain from recommending a relative for appointment or employment to another judge serving in the same court. He shall not approve compensation of appointees beyond the fair value of services rendered.”

Concededly this case does not present an instance of open nepotism. The appointment of his son by any Judge would be both unthinkable and intolerable whatever might be the son’s character and fitness or his father’s peculiar qualification in the circumstances to assess such character and fitness. The enlarged evil in this instance is that an arrangement for cross appointments would not only offend the antinepotism principle; it would go a step further, seeking to accomplish the objectives of nepotism while obscuring the fact thereof.

We address then the circumstance that both the Referee and the commission have concluded that in this instance there was in fact no quid pro quo impropriety in the appointments made by petitioner. Both have also determined, however — and this, of course, is the predicate for the disciplinary action taken — that petitioner’s participation in the pattern of cross appointments gave an appearance of impropriety, in effect permitting the inference that each of the Judges involved was by this means securing appointments for his own son. Additionally, the commission observed that petitioner might be perceived as having resorted to this device to avoid a charge of nepotism. Here, too, the articulation of the canons has been clear and undeviating. When first adopted in 1924 the Canons of Judicial Ethics likewise proscribed the appearance of impropriety. Canon 4 provided: "A judge’s official conduct should be free from impropriety and the appearance of impropriety; he should avoid infractions of law; and his personal behavior, not only upon the Bench and in the performance of judicial duties, but also in his everyday life should be beyond reproach.” Canon 2 of the present Code of Judicial Conduct states the continuing principle succinctly: "A judge should avoid impropriety and the appearance of impropriety in all his activities.” Similarly, section 33.2 of the Rules Governing Judicial Conduct must be read to condemn the appearance as well as the fact of impropriety (22 NYCRR 33.2).

Reluctance to impose a sanction in this case would be taken as reflecting an attitude of tolerance of judicial misconduct which is all too often popularly attributed to the judiciary. To characterize the canonical injunction against the appearance of impropriety as involving a concern with what could be a very subjective and often faulty public perception would be to fail to comprehend the principle. The community, and surely the Judges themselves, are entitled to insist on a more demanding standard. As Chief Judge Cardozo wrote in Meinhard v Salmon (249 NY 458, 464): "A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior”. And there is no higher order of fiduciary responsibility than that assumed by a Judge. It would ill befit the courts and the members of the judiciary to suggest that Judges are to be measured against no higher norm of conduct than may at times and in some places unhappily have been perceived as reflecting the mores of a judicial marketplace. Petitioner in this case makes no plea to be measured by any such coarse or mean yardstick. To suggest, as does the dissenter, that there has been a modus operandi which has condoned the making of appointments subject to the personal preferences of the appointing Judge (pp 470-471) affords no proper ground on which to excuse the present conduct. To the extent that such a practice may have existed in certain areas, it has been aberrant; certainly it has had the support and approval only of its practitioners.

In the present case the fact that cross appointments were knowingly made by petitioner during the period in question is not disputed. Notwithstanding the absence of proof of any actual or intended impropriety there was thereby inescapably created a circumstantial appearance of impropriety.

While petitioner’s personal relationship with the appointees may indeed have enabled him better to evaluate their qualifications, we do not subscribe to the view expressed by the dissenting members of the commission that, if the appointee is otherwise fully qualified to receive the appointment, his filial relationship with another member of the judiciary can be ignored. It may be that, in special circumstances where the appointee is uniquely qualified and the appointment is openly made with the consent of the parties or such consent is withheld for mere tactical partisan advantage or other insufficient reason, an otherwise disabling relationship between the appointing Judge and the appointee may not preclude appointment. But this is not that case. Nor do we accept the dissenters’ conclusion that the cross appointments here may be overlooked as de minimis in view of the "thousands of appointments made by the petitioner during his judicial service” and his extended record of public service. Finally, we perceive no proper basis for giving prospective effect only to condemnation of the appearance of impropriety created by cross appointments as was further suggested by one of the dissenting members of the commission.

It remains to make one additional observation. We think it entirely improper on the part of the administrator, on argument of the motions addressed to the Referee’s report in connection with the commission’s consideration of the sanction to be imposed, to have introduced evidence of additional, alleged misconduct on the part of petitioner. The subject matter of these supplemental allegations had not been included in the charges or raised before the Referee. It is irrelevant that the administrator claims to have given petitioner’s counsel advance notice of his intention to refer to this impertinent material. Unproved charges, for which there was no basis in the record, had no place in the commission’s consideration as to the sanction appropriately to be imposed on the predicate of its findings of fact and conclusions of law drawn from the proof in the record. In all the circumstances we are satisfied, however, that the erroneous references to this extraneous material did not affect the determination made by the commission.

Accordingly, we accept the determination of the commission that petitioner be admonished.

Fuchsberg, J.

(dissenting). As were three of the members of the commission, I am of the opinion that the imposition of discipline, even the one lowest in the scale of sanctions, is not warranted in the circumstances of this case.

I accept the proposition that a Judge’s appointment of a person who enjoys a filial relationship with a second Judge, particularly where the two Judges are members of the same court, may be perceived as creating an appearance of impropriety. Nor do I doubt that the same proposition may apply when, though innocently intended, appointments made by both Judges have produced a crossover situation. And, of course, I approve the commission’s enforcement of such a standard where appropriate.

In my view it is not appropriate to do so here. The system governing the selection of referees, guardians ad litem, and other ad hoc functionaries essential to the conduct of court business for a long time was one subject to the personal preferences of the appointing Judges. There was no secret about this modus operandi. No canon or rule specifically assigned any impropriety or appearance of impropriety to it. To apply a current perception of impropriety retrospectively as the basis for the finding that acts that were once regarded as proper when performed are now to be classified as improper is fundamentally wrong. To do so exacts from the petitioner expiation for the legal community’s failure to have articulated and imposed a clearer standard in the past.

Before amplifying my views, a few words about the petitioner are in order. Justice Spector reached the extended retirement age of 76 in 1978. He had then completed 38 years of continuous and unblemished public service, the last 22 as a member of the judiciary with the final 6 the result of three two-year appointments, the maximum granted to Judges where there is a felt need for their continued services after they have reached the regular retirement age of 70. Even when, in mid-December, on the very eve of his departure from office, the commission issued its public recommendation that he be admonished, it raised no question concerning the integrity or competence with which he functioned in his public career.

The operative facts pertaining to the commission’s charge are simple. They were fully developed and ultimately presented to us in extensive hearings conducted by the commission and its able and conscientious counsel. And, since Justice Spector gave the inquiry his full co-operation, they are not in dispute. They involve the inclusion of two lawyer-sons of fellow Justices among the thousands of appointments the Justice routinely was called upon to make in the course of facilitating the processing of cases. One of the appointees was chosen on only two occasions over a three and a half year period almost a decade ago. The other averaged about two appointments a year over a five and a half year span. None of these assignments was of major import. All were made , publicly. Each fulfilled his responsibilities completely. It is not suggested that any conflict of interest was involved in any way. The appointees received only the modest fees customarily allowed in such cases; in some instances, no charge was made at all.

During the years in which the two appointees undertook these assignments, the petitioner’s son, also a lawyer and indisputably qualified, was called upon to discharge similar tasks for the other Justices on a very limited number of occasions. The appointments did not correspond with those made by Justice Spector, nor was there any evidence that there had been either a matching of fees or any attempt at reciprocation. As a result, there is no contention that one was a quid pro quo for the other. To the contrary, petitioner testified without any contradiction that his long personal and professional acquaintance with the appointees and their families provided him with an unusually reliable basis for personally judging their suitability for the appointments.

Nevertheless, the commission concluded that the choice of the two appointees runs counter to a broadly worded judicial canon adopted administratively in New York at about the end of the period during which these appointments had issued. The canon enjoins Judges to avoid the appearance of impropriety. However, the commission points to no canon of ethics or other rule of judicial conduct which up to now interdicted the appointment of relatives of other sitting Judges, none automatically disqualifying such individuals from being considered for appointments, and none advising that such selections would give rise to an appearance of impropriety. Rather, at the argument of this appeal, the commission’s counsel candidly conceded there were none.

The "appearance of impropriety” concept is beset by legal and moral complexity. The concern is with what can be a very subjective and often faulty public perception. It is significant that the official reporter’s notes, after characterizing the canon on appearance of impropriety as virtually "hortatory”, illustrates its commentary solely with a discussion of problems involving "influence peddling”, obviously a form of conduct in which "appearance” is often an integral part of the substantive evil; under ejusdem generis principles, this is hardly an indication that the section is to be freely applied, and even less that it is to be extrapolated to circumstances akin to those present here (see Thode, Reporter’s Notes to Code of Judicial Conduct, p 49). It would appear to follow that, absent an accompanying substantive breach, a mere appearance of impropriety should not automatically merit condemnation.

We need look no further than to two of the qualities we demand of our Judges — courage and independence — to see how ready jurists must be, if the need arises, to brook "public clamor, or fear of criticism” (Code of Judicial Conduct, Canon 3, subd A, par [1]). Yet, the appearance provision’s general "caution against unidentified wrongs” (McKay, The Judiciary and Nonjudicial Activities, 35 Law & Contemp Prob 9, 14) has led respected authority to conclude that it is so "troublesomely vague as a guide to conduct” that "it comes close to being an appeal to conformity for conformity’s sake” (Frank, Disqualification of Judges: In Support of the Bayh Bill, 35 Law & Contemp Prob 43, 59-60). Since "appearances” are matters of perception rather than fact it is not difficult to appreciate the fear so expressed and the need to invoke the canon with great restraint.

Indeed, lack of specificity as to what conduct makes a Judge vulnerable to a charge of appearance of impropriety may bear serious due process implications. Leaving the rules expected to be observed unidentified is bound to burden our Judges with uncertainty as to whether what is acceptable today will be deemed aberrant tomorrow. Putting men and women who have to judge the rights of others under such undeserved stress tends to undermine their own sense of worth. Our legal system should treat those who preside over it with more regard (Fuller, The Morality of Law [rev ed, 1969], 26-29, 38-39).

The drawbacks inherent in the uncharted vagueness of the "appearance” canon were also remarked upon by former United States Supreme Court Justice Arthur Goldberg, who, after characterizing the canon as "unbelievably ambiguous”, warned that "to avoid the appearance of impropriety, it helps both the public and the judge to know the guidelines”. Echoing the sentiments of other leaders of the American legal community, including Professor Philip Kurland, and the late United States Supreme Court Justice Tom Clark, Justice Goldberg went on to say, "Our Judges are men, not gods, and like all of us, they can benefit greatly from having some ground rules against which to measure their conduct * * * particularly * * * in this area of avoiding even the appearance of impropriety” (Nonjudicial Activities of Supreme Court Justices: Hearings on S 1097 and S 2109 Before the Subcommittee on Separation of Powers of the Senate Comm on the Judiciary, 91st Cong, 1st Sess [1969], pp 159, 165, 175, 185).

Inflexible enforcement of a vague standard of conduct brings untoward results. Regard the nature of the criticized appointments which were the subject matter of this proceeding. They did not go to the quality of justice the petitioner was dispensing. They were not part of the Judge’s decisional function at all. Rather, they were made incidental to an administrative chore that could as well, if court organization had provided for it, have been handled by a nonjudicial functionary operating on a management level pursuant to well-defined procedures. But that was not the pattern of court administration which prevailed throughout the State when the petitioner first came on the Bench, nor when he made the appointments in question, nor, for that matter, when he retired.

Furthermore, it is agreed that here there was no finding of nepotism, overt or concealed. Nor, tracking the canons, code and rules set out in the majority opinion, is there any question of the "probity and impartiality” or "character and fitness” of the Justice’s appointees. It is also not claimed that he permitted "his appointments to be controlled by others than himself’, that they were "unnecessary”, that he approved compensation "beyond the fair value of services rendered” or that he had "recommended” the appointment of his son "to another judge serving in the same court”. I respectfully suggest, therefore, that the history of nepotism from the Han dynasty to the present, while interesting and useful as background, does not go to the heart of the issue in this case. And the language quoted by the majority from Meinhard v Salmon is hardly apropos; the words there were spoken in a context in which, to paraphrase Cardozo rhetoric, a private interest actually collided with that of a fiduciary and not one in which it only appeared or was imagined to have done so (Cardozo, The Growth of the Law, Yale U Press, 96).

True, "new times and new manners may call for new standards and new rules” (Cardozo, The Nature of the Judicial Process [1921 ed], p 88), but with their adoption should come fair notice and an opportunity to accommodate to the change, not precipitous implementation of a heretofore uncharted standard in an unexpected context. So, when the seminal model for our State’s Code of Judicial Conduct was first approved by the American Bar Association in 1972, it was thought wise and fair to create a special committee to promote awareness of its existence (Martineau, Enforcement of the Code of Judicial Conduct, 1972 Utah L Rev 410, 417-418; see, also, Bray, The Problems of Sanctions, U of Chi Law School Conference on Judicial Ethics, Conference Series, No. 19 [1965], p 42). In contrast, to apply standards of today to judge the conduct of yesterday is of a kind with ex post facto statutes (see, generally, Marks v United States, 430 US 188; Bouie v City of Columbia, 378 US 347).

Understandably, no Judge can respond with less than pride to the flattering proposition that more may be expected of Judges than of ordinary mortals. It would be regrettable in the extreme, however, if we were driven to prove this by stripping members of oúr judiciary of the right they share with all people to be judged fairly. And it would be unfortunate to mistake an unwillingness to accede to a denial of this right as a tolerance of judicial misconduct whenever it truly exists.

Finally, it seems to me that appearance alone, in the main because it is so vague and unmapped, should not be permitted to reach out in disregard of all other considerations. Appearance, of course, is of moment only as suspicion attaches to an act. We like to think that no longer is condemnation to be meted out on mere suspicion. But "When we deal with what the public thinks, we must be careful not to accept the view of the most cynical as the true voice of the public, lest we accept a lack of faith in our institutions as a categorical basis for restricting otherwise quite ethical conduct” (International Electronics Corp. v Flanzer, 527 F2d 1288, 1294 [2d Cir]).

For all these reasons, I would vote no sanction.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in Per Curiam opinion; Judge Fuchsberg dissents and votes to reject the determined sanction and impose no sanction, in a separate opinion; Judge Meyer taking no part.

Determined sanction accepted, without costs. 
      
      . We observe that the commission did not discretely identify its findings of fact and conclusions of law as is contemplated by the statute (Judiciary Law, § 44, subd 7). Instead there is but a blanket characterization of the prose paragraphs of the determination — "The foregoing constitutes the findings of fact and conclusions of law required by Judiciary Law, § 44, subdivision 7.” Additionally, the cryptic statement, "Insofar as they are not inconsistent with the foregoing, the Commission accepts the findings of fact set forth in the Referee’s report”, although suggesting departure to some extent from the findings made by the Referee, is ambiguous and fails to reveal in what respect the commission differed with the Referee. In another case the failure of the commission to follow the procedure contemplated by the statute might significantly impair our review of the commission’s action.
      We also take note that the documents by which petitioner was notified of the determination of the commission and his request for review by the Court of Appeals are a part of the record in this proceeding.
     
      
      . Nepotism was a custom in the Han dynasty (4 Encyclopedia Brittannica, 310b) and often respected in the philosophies of the Middle East as reflecting a praiseworthy sense of family loyalty (16 Collier’s Encyclopedia, 162 d). In the western world, however, where it came to prominence as a practice of papal authority commencing with Pope Adrian I in the eighth century and reached its zenith during the Renaissance, it was repeatedly condemned (e.g., Dante, Inferno, 19.31, 19.52-81, 27.85-129; Petrarch, Epistulae sine nomine 11, ed P Piur, Petrarcas Buch ohne Ñamen und die pfipstliche Kurie [Halle, 1925]; G. H. Hist Cardinals II, 1.116 [1670] — "Ministers that buy the favour of the Nepotisme, do revive * * * a new Neronisme of Tyranny”). The church itself ultimately took steps to impede it through papal bull (Pope Pius V Admonet nos [1567]) and constitution (Romanum decet pontificem [1692]). More generally, it has been regarded as a form of misuse of authority, associated with corruption (11 International Encyclopedia of Social Sciences, 275).
     
      
      . (Forty-Seventh Annual Meeting of the American Bar Association, Philadelphia, Pennsylvania, July 9, 1924 [49 ABA Reports 764].)
     
      
       The Judicial Conference indicates there are well over 3,500 Judges in New York State ranging all the way from Judge of the Court of Appeals to Justice of a Town or Village Court. Many of these, in turn, serve in separate county or city subdivisions of our court system often hundreds of miles from each other. I do not deem it necessary, for the purposes of this case, to speculate as to whether the rule pronounced by the court today is to prohibit a judicial appointment of anyone with a filial relation to any other Judge in the State whatsoever or only to those within certain geographical, jurisdictional or administrative limits. For instance, must a Supreme Court Justice in Suffolk County refuse to appoint a lawyer because one of the latter’s parents is a local Justice in a town in Erie County? (See 22d Annual Report of the Administrative Board of the Judicial Conference.)
     