In a stunning decision that calls into question the entire concept of representative democracy here, a faceless state bureaucracy went against the wishes of its own chairman and overturned the results of an election here in its decision to remove wildly popular City Court Judge Robert Restaino from the bench.
The judge was never charged with any crime, let alone convicted. Prior to the infraction, which the state's Commission on Judicial Conduct found serious enough to ruin his life and career over, his 11-year record on the bench was unblemished.
But on March 11, 2005, Judge Restaino ordered the detention of 46 men, all of whom previously had been convicted of violence and abuse against women and children, after one of them violated a standing order of the court by having a cell phone, pager or other device turned on while court was in session.
The device rang 10 or 11 times, according to witnesses, and Restaino ordered whoever was responsible to come forward. In much the same way that whoever it was had shown cowardice in the beating of a woman or the terrorizing of a child, the man responsible chose to remain silent. No one else in the room, at least some of whom had to know who the culprit was, would come forward either, and, in disgust, the judge ordered the lot of them detained.
Of the 46, most were released almost immediately because they were still on bond from their previous arrests. Fourteen remained incarcerated until 5 p.m. that day, the commission records show.
In other words, a gang of convicted criminals belonging to the lowest order of society were inconvenienced for periods ranging from about 20 minutes to seven hours.
"You get what's coming to you, eh?" said one of the men detained that day, Mark Glavin, when told of the commission's decision.
The rest of us can only hope so. Although he's a young man, Glavin is a familiar face around city court. In 1999, he was arrested for assault, later taking a plea deal that reduced the charge to harassment. In 2002, he was once again charged with harassment, and also with filing a false police report in connection with a phony burglary he said occurred at his 77th Street home. In 2005, shortly before the incident in Restaino's courtroom, he was arrested on charges of menacing and harassment.
Another defendant gloating over Restaino's downfall was Marcellus Overton, whom city police have arrested on numerous charges over the years, including criminal mischief, harassment and violation of a court order.
Combined, the 46 defendants whose busy schedules were interrupted for a few minutes or a few hours that day were responsible for more than 200 police incidents in recent years. Most of them had orders of protection issued against them barring them from further contact with their victims.
Clearly, the vast majority of people in Niagara Falls thought these individuals should be in jail anyway, and offered little sympathy. After all, the seven hours 14 of them spent behind bars that day were seven hours that they weren't beating a woman or causing trouble for the Niagara Falls Police Department.
"Quite a few of these guys have been arrested since the incident in the judge's courtroom," one top cop told the Reporter. "It's the same old story where a really small number of individuals causes 90 percent of the problems we have."
The New York State Commission on Judicial Conduct was created as a temporary agency by legislative fiat in 1974, and was slipped into the labyrinthine state constitutional amendment bills approved by voters in 1976 and 1978. Since that time, any number of judges around the state have been tried and convicted of crimes ranging from drunk driving to shoplifting to sex offenses, and not been removed from the bench by the commission.
Currently, the commission is one member short. Of the 10 remaining spots, no fewer than six are political appointees named by former governor George Pataki, Senate strongman Joe Bruno, Assembly honcho Sheldon Silver and their party underlings. The remaining four members are judges, more or less, including Thomas Klonick, town judge in Perinton, N.Y., Jill Konviser, who was appointed as a claims court judge just two years ago, and Terry Jane Ruderman, another appointed claims court judge.
In any event, at least eight of the 10 commission members who stripped the people of Niagara Falls of their duly elected representative in city court have never been elected to anything by anyone.
One member, Colleen Di Pirro, now serves as president of the Amherst Chamber of Commerce. Given that her background in retail sales would hardly qualify her for a position on the commission, one can only assume that it was her skill as a Republican fund-raiser that led to her appointment by Pataki.
The commission maintains offices in New York City, Albany and Rochester, and its budget amounts to millions of dollars a year. Just how many millions could not be determined, as the commission chose not to respond to numerous Reporter requests for financial information.
In an effort to justify its extravagant budget, the commission has removed 38 full-time judges from the bench since 1978, a little more than one per year. It is uncertain how many of the judges were political appointees like Konviser and Ruderman, how many of the removals resulted from actual criminal convictions as opposed to behavior the commission deemed inappropriate, and how many of those removals stood up under appeal.
Several elected judges contacted this week told the Reporter that they were under orders from Administrative Law Judge Sharon Townsend, herself a Republican political appointee, not to comment on the case.
"(Judge Restaino) got the shaft and the people of Niagara Falls got the shaft," one highly respected jurist told the Reporter on the condition he remain anonymous. "I never thought in a million years such a thing would be possible."
Asked what effect Restaino's actions had on the legal system in Niagara Falls, the judge laughed.
"Everybody makes sure their cell phones are turned off before they come into court, I can tell you that," he said. "Even the police officers."
Niagara County District Attorney Matthew J. Murphy, who was elected county court judge in November and will take office in January, is currently not bound by Townsend's dictates.
"I'm very disappointed by the decision," he said. "I have the greatest respect for Judge Restaino and I hope he'll get through this."
Murphy's sentiments echo those of City Court President Judge Mark Violante and Judge Angelo Morinello, both of whom provided evidence in the case.
Violante told the commission that Restaino was a dedicated judge who quickly rose to become vice president of the New York State City Court Judges organization.
"Judge Restaino handled himself as a distinguished member of our group and as a distinguished member of the bench," he told the commission. "On his social, his personal and his professional character, it's been nothing but impeccable from what I can comment on and that would be my only response."
Renowned civil rights attorney David Jay, who has represented the Niagara Falls Reporter in the past as well as five of the men incarcerated by Restaino that day, concurred.
"To remove him for this incident is way over the top," he said. "Hopefully, cooler heads will prevail in the Court of Appeals."
Commission Chairman Raoul Felder cast the lone vote against Restaino's removal, calling his dissent "the most difficult decision for me to make" during his four years of service.
Felder pointed out numerous cases in which the commission merely censured judges who improperly held defendants for far lengthier periods, including a case in which a city court judge ordered a college student locked up in solitary confinement for four days after the student had interrupted him, and another in which a courtroom spectator was handcuffed for several hours for having used an expletive in the courthouse parking lot.
A third case cited by Felder involved a judge the commission chose not to remove who had left the bench and attempted to physically assault a defendant, but was unsuccessful only because he was restrained by court officers. The judge later instructed a police officer to "thump the shit" out of a second defendant, Felder noted, and still was not removed.
He noted that Restaino had served in the public defender's office for a decade prior to the 11 years he sat on the city court bench, and that his record over the entire 21 years had been nothing short of exemplary.
"On a human level," Felder concluded, "I simply do not believe that such an episode should outweigh a lengthy, distinguished career of public service."
Here in the Falls, we can only hope that the appellate court judges who hear Restaino's appeal possess some of Felder's wisdom. If not, the state commission will be remembered here for victimizing the decent, law-abiding citizens of Niagara Falls in much the same way that the 46 criminals in court that day victimized their wives, lovers and children.
| Niagara Falls Reporter | www.niagarafallsreporter.com | Dec. 4 2007 |