
    In the Matter of Arthur W. Lonschein, a Justice of the Supreme Court, Queens County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued May 27, 1980;
    decided July 3, 1980
    
      POINTS OF COUNSEL
    
      J. Irwin Shapiro for petitioner.
    I. The findings of fact to which petitioner’s cross motion was addressed directly contradicted all of the testimonial evidence adduced at the hearing. II. The conduct of petitioner was not improper and did not involve the prestige of his office. (Matter of Filipowicz [Temporary State Comm, on Judicial Conduct], 54 AD2d 348; Matter of Schwerzmann, 44 NY2d [a]; Matter of Schamel, 46 AD2d 236; Matter of Jordan, 47 NY2d [xxx]; Matter of Sarisohn, 27 AD2d 466; Matter of Pfingst, 33 NY2d [a]; Matter of Jones, 47 NY2d [mmm]; Matter of Mertens, 56 AD2d 456; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462; Matter of Bloodgood, Lipton, Polonsky, Longo, Kuehnel, Rosinski, Lahey, Mills, Thompson, Wittenberg, 45 NY2d [y].) III. Should a Judge be disciplined for actions which are not improper when done by a private individual.
    
      Gerald Stern, Jeanne O’Connor and Robert Straus for respondent.
    I. Petitioner’s conduct violated established ethical standards, is properly subject to discipline and should be condemned. (Sharisohn v Appellate Div., 2d Dept., Supreme Ct. of State of N. Y, 265 F Supp 455; Matter of Feinberg, 39 NY2d [a]; Matter of Maidman, 42 AD2d 44; Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465.) II. All factual findings are supported by the record.
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Justice of the Supreme Court, Eleventh Judicial District, seeks review pursuant to subdivision 7 of section 44 of the Judiciary Law of a determination that he be censured for certain actions undertaken while a Judge of the Civil Court of the City of New York.

The determination is based upon two sustained charges that petitioner used the prestige of his office on behalf of a close personal friend who had applied for a lease and licenses from various New York City administrative agencies. In connection with Charge I, it was established that petitioner requested a member of the New York City Council to meet with one of his constituents, petitioner’s close friend, John Mazzuka, to assist Mazzuka in clearing up administrative difficulties encountered with various administrative agencies in connection with a lease of a private car service base station. Petitioner testified that he had long-standing social and professional relationships with both the council member and Mazzuka although the two had never met. As Mazzuka was a constituent of the council member, it was to the latter that Mazzuka would naturally be expected to go in order that any problems with city agencies would be resolved. The two ultimately met, eventuating with the council member’s office writing two letters on Mazzuka’s behalf.

Charge II dealt with petitioner’s contact with a deputy counsel of the New York City Taxi and Limousine Commission in connection with a license application Mazzuka had pending before that body. Mazzuka had informed petitioner that a lucrative contract hinged upon the license being granted by a certain date and that various impediments were thwarting approval. Petitioner phoned the deputy counsel and informed him that Mazzuka believed that the agency was giving him "a runaround”. In the same conversation, petitioner asked the counsel to "See what you can do for this fellow”. At a subsequent chance meeting between petitioner and the deputy counsel, petitioner mentioned that "a friend of mine * * * has a case before your Commission that deserves to be heard”. Soon thereafter, a conditional license was granted.

Analysis begins with recognition of the fact that no Judge should ever allow personal relationships to color his conduct or lend the prestige of his office to advance the private interests of others (Rules Governing Judicial Conduct, 22 NYCRR 33.2 [b] [c]). Members of the judiciary should be acutely aware that any action they take, whether on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved (Matter of Kuehnel v State Comm. on Judicial Conduct, 49 NY2d 465, 469). There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. Thus, any communication from a Judge to an outside agency on behalf of another, may be perceived as one backed by the power and prestige of judicial office. That is not to say, of course, that Judges must cloister themselves from the day-to-day problems of family and friends. But it does necessitate that Judges must assiduously avoid those contacts which might create even the appearance of impropriety.

Tested by this yardstick, we perceive nothing improper about petitioner requesting the council member to see one of his constituents in these circumstances and, accordingly, dismiss Charge I. That the request of the council member was made as a favor to petitioner forms no basis for disciplinary action. It is not suggested by the commission that in requesting that the council member meet with Mazzuka, petitioner utilized the prestige of his office in any manner. Indeed, specific findings of the referee to that effect were not disturbed by the commission. Nor could such a claim be made on this record. Petitioner simply directed one friend to another whom he believed could be of assistance and broached the subject with the council member. The council member, in turn, acted as he would have acted upon any legitimate constituent complaint. While there may be some instances in which such conduct could lead to disciplinary sanction, no appearance of impropriety has been demonstrated here.

The facts underlying Charge II, however, are a different matter. In requesting the deputy counsel of the Taxi and Limousine Commission to expedite the processing of Mazzuka’s license application petitioner placed the prestige of his office behind the request. Indeed, the referee and the commission made specific findings, which find ample support in the record, that the petitioner was aware that his judicial position would affect the subsequent conduct of the deputy counsel. To be sure, petitioner never asserted his judicial office in seeking special consideration on Mazzuka’s behalf. Yet, petitioner was aware that the deputy counsel knew of his position and should have realized that his requests would be accorded greater weight by an administrative official that they would have been had petitioner not been a Judge. In assessing the propriety of the sanction imposed, we note that there has been no finding that petitioner acted under anything but a sincere, albeit misguided, desire to accommodate a dear friend. There is no suggestion of malevolent or venal motive but a strongly felt desire to remedy a perceived injustice to a friend at the hands of an administrative agency. Mazzuka’s perceived plight, however, can in no way justify petitioner’s loss of perspective and his actions constitute misconduct under the rules. In these circumstances, the penalty of censure is excessive and admonishment is the more appropriate sanction.

Accordingly, the determined sanction should be rejected, Charge I dismissed and the sanction of admonishment imposed with respect to Charge II.

Fuchsberg, J.

(dissenting in part). As no two people are alike, so no two cases are alike. Only in that sense do the two charges on which this complaint was lodged differ from one another.

In each instance, the close friend and long time neighbor at whose behest the petitioner communicated with a third person was the same. In each, the one to whom the communication was made was an acquaintance of long standing. Each, in his own right a public official of some prominence, was not likely to be overawed by petitioner’s then relatively modest judicial rank; there is not the slightest indication in the record that they were and, in any event, since the condition of which Mazzuka was complaining was administrative inertia with regard to a ministerial bureaucratic matter, it could have had no substantive effect. Indeed, in each, the record is uncontradicted that no substantive benefit was sought or received by the friend, but only that his matter be processed without undue delay. And Deputy Director Basora of the License Department, who had personal responsibility for the matter on which the Per Curiam now admonishes the petitioner and whom the referee characterized as "credible”, testified without contradiction that he was unaware that the petitioner was involved in any way. Finally, in neither did the petitioner purport to act as a Judge; as the commission’s determination agrees, he never "expressly asserted his judicial office”, so that its language that he "knew or should have known” that his judicial position would carry weight, no matter how sincerely employed, is necessarily limited in its import by its conclusory nature (emphasis added).

Understandably then, the court now finds it necessary to dismiss the first charge and reduce the sanction on the very parallel second charge. In this connection, I would have thought that the fact that the petitioner is found blameless in the one instance would have served as proof positive of a standard of personal conduct that would dissipate any different assumption as to the very similar second one. One cannot help but reflect on the opposite inferences that may have flowed if the situation had been reversed.

Moreover, in this day, when, unfortunately; the moorings the teacher, the preacher and the pater once provided no longer hold sway, a Judge at times may find himself the Nestor to whom community friends will turn for wise direction.

If, on a single occasion — on which, concededly, here no substantive harm was done — 20-20 hindsight finds that, no matter with what innocent intentions, he strayed from the broad standards which are made more particular today, the taint of a sanction is not necessarily in order. For Judges are but men and women who are nonetheless worthy though, like all human beings, they are sometimes less than perfect.

Therefore, employing the extraordinary power the State Constitution grants to this court to act in such cases on both the facts and the law, I vote to dismiss the second count as well (NY Const, art VI, § 20, subd b; Matter of Spector v State Comm. on Judicial Conduct, 47 NY2d 462, 465-466).

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

Determined sanction rejected, without costs, Charge I dismissed and the sanction of admonishment imposed with respect to Charge II.  