Published: December 17, 2007 10:13 pm      

RESTAINO CASE: Appeal benches judge

City Court judge is removed with pay pending review of removal order

Niagara Falls City Court Judge Robert Restaino was suspended from the bench on Monday pending the outcome of a hearing before New York’s highest court on his future in the judiciary.

Restaino will be on paid suspension while the New York Court of Appeals reviews a decision by the state Commission on Judicial Conduct that ordered the judge permanently removed from the bench for what the commission called “an egregious and unprecedented abuse of judicial power.”

The removal order from the commission was based on a March 2005 incident that saw Restaino put 46 defendants behind bars after no one would take responsibility for a suspected ringing cell phone in his courtroom.

“We knew (the suspension) was being considered. We did not oppose it,” said Terrence Connors, the attorney representing Restaino in his appeal. The New York Court of Appeals ordered the suspension. It was dated Dec. 13, but wasn’t received until Monday. It follows by one month the removal order from the commission.

Connors said he hopes to be able to make his case to the Court of Appeals by March.

“(The review) goes on a relatively fast track,” Connors said. “I have 30 days to file and the commission gets 30 days to respond, so we could be in front of the court in 90 days.”

The court has the power to reduce the commission’s decision to one of censure, instead of removal from the $113,900-a-year post.

“Our focus will be to convince the court that the punishment is excessive,” Connors said. “This is obviously a difficult time for (Restaino), but he is focused on helping us prepare the materials on his exemplary life that we want the court to hear.”

The commission also heard passionate arguments about Restaino’s character and experience, but did not appeared swayed by them.

In a stinging eight-page decision, supported by nine of the commission’s 10 members, Restaino was called “a petty tyrant” whose behavior constituted “a gross deviation from the proper role of a judge.”

During a hearing before the commission, Restaino told the panel his conduct “was improper and inexcusable.” He told commissioners “he knew that he had no legal basis for (his actions).” He explained that he simply focused on attempting to locate the phone’s owner and was frustrated by his inability to do so.

The commission called his actions “an egregious and unprecedented abuse of judicial power ... in a bizarre, unsuccessful effort to discover the owner of a ringing cell phone.” Commissioner’s said Restaino’s conduct “caused irreparable damage to public confidence in the fair and proper administration of justice in his court.”

The judge told the commission he returned to court later in the day to release all the defendants who had been jailed. However, the commissioners challenged Restaino on that, saying that he began making arrangements to release the defendants only after court clerks begin fielding calls from reporters about what had happened.

Since 1978, the commission has recommended the removal of 156 judges, 38 of them full-time judges like Restaino, across the state. The Court of Appeals has reviewed 85 commission recommendations since its creation and upheld those decisions 71 times.

Of the remaining 14 cases, two were increased from censure to removal. Twelve recommendations were reduced, while nine recommended removals were modified to censures.

Restaino received support Monday from members of the Niagara Falls City Council, who agreed to submit information to the court of appeals reflecting the “quality of the judge’s character, his over 25 years of dedicated service and his otherwise exemplary record as a judge.”