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SARANAC LAKE - The state Commission on Judicial Conduct has determined that village Justice Paul Herrmann should be censured for his handling of a driving-while-ability-impaired plea in September 2006, and for nominating a candidate in the village Democratic caucus in January 2008.

In a Dec. 15 determination, the 10-member commission unanimously agreed Herrmann should be censured for his handling of Chad Amell's DWAI plea.

Three of the commissioners dissented from the determination of censure for nominating John Sweeney as a village trustee candidate, and two signed on to a dissenting opinion on this.

The determination has not yet taken effect, as Herrmann has 30 days after receipt of the decision to ask the Court of Appeals to review it.

Herrmann said Wednesday afternoon that he is reviewing the determination and had not yet decided whether he would request a review. He also said he hopes to run for another four-year term. Both village justice seats will be on the ballot in the March 2010 election, as Justice Charles Bell resigned about a month ago and someone needs to be elected to fill the remaining two years of his term.

Herrmann was served with the complaint on Sept. 15, 2008, and the commission held a hearing in Albany on May 18 and 20, listening to testimony from numerous people with knowledge of the matter.

Censure is more severe than admonishment, which is also made public, but not as severe as removal or forced retirement. Commission proceedings are only made public if one of these determinations is made, unless the judge waives confidentiality.

The determination says Herrmann "states that as a result of these disciplinary proceedings, he will refrain from such political activity and improper public comments in the future and that he is more sensitive to the proper role of a judge."

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The Amell case

The commission found that Herrmann had tried to coerce a plea from Amell to open-container and unlawful-possession-of-marijuana charges, as well as a DWAI plea the lawyers had worked out, because fine money from the open-container and marijuana pleas would go to the village while DWAI fine money would go to the state.

Herrmann said in court on Sept. 9 and Sept. 20, 2006 that he thought the court should help raise money for the village. He apparently acknowledged to the commission that he had considered the revenue implications of the plea deal, according to the determination.

"By so doing, respondent misused his judicial discretion and impaired the independence of his court, conveying the impression that its primary function is to generate revenue rather than 'to apply the law in each case in a fair and impartial manner.'"

The determination also criticized Herrmann for persisting despite the objections of both Amell's lawyer, Virginia Morrow, and Franklin County Chief Assistant District Attorney Jack Delehanty. When Amell pleaded guilty only to DWAI on Sept. 20, 2006, Herrmann sentenced him to 15 days in county jail, as he had said he would if Amell only pleaded to DWAI. However, Delehanty filed a motion to have Amell released pending an appeal the next day, which was granted.

The village Board of Trustees had told Herrmann the court has a revenue-generating function and had, at times, criticized him for not bringing in enough money, the determination says. Herrmann had, according to the report, occasionally supported requests for supplies and equipment to the board by emphasizing this. The commission acknowledged this pressure but said, "No judge should permit such considerations to influence the decision or sentence in a particular case, as respondent did here."

The commission also criticized Herrmann for talking to local news media about the case when he knew there was an appeal pending. Herrmann defended his actions to the Enterprise and WNBZ radio in late September 2006, saying he thought the court should raise money. This, the commission found, violated state rules on judicial conduct barring judges from discussing pending or impending proceedings.

Village police arrested Amell on Oct. 15, 2004 and charged him with driving while intoxicated, having an open container of alcohol and unlawful possession of marijuana. Herrmann said in court on Sept. 6, 2006 that he wouldn't accept the plea agreement for DWAI, a lesser charge than DWI, unless Amell pleaded guilty to an open-container violation as well and paid the maximum fine.

Amell reappeared in court on Sept. 20, prepared to plead to DWAI and open container. Herrmann mentioned that Amell had been charged with a subsequent open-container violation, saying to Morrow, "Why would the cop take the time to write the ticket if it weren't true?"

When Delehanty arrived, Herrmann said he wanted Amell to plead to the marijuana possession as well, also paying the maximum fine; this fine plus the one for the open container would be more than $1,000. Herrmann referred to the village's "expensive police department" and said he "wanted to be able to have some money go to the village rather than have it all go to the state."

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The caucus

Herrmann attended and participated in the village Democratic caucus on Jan. 29, 2008, nominating John Sweeney and asking him and another candidate to speak about themselves.

State rules bar a judge from taking part in any political activity other than his or her own campaign for office. A judge is allowed to attend and vote publicly at a caucus, and Herrmann argued that the nomination did not constitute an endorsement, which is specifically barred.

Richard D. Emery, one of the commission members, penned a dissenting opinion on this, in which Joseph W. Belluck joined. Emery said that Herrmann did not make a speech or otherwise lend support to Sweeney, and that the nomination of a candidate is not materially different from voting publicly on a candidate. Voting on a candidate, which is allowed, is "an overt, meaningful expression of political support, whereas a nomination, and no more, could be far less politically overt than a public vote."

Emery said the commission didn't even know if Herrmann voted for Sweeney, and people often nominate candidates they don't necessarily support at caucuses for a variety of reasons, such as "respect, a request from the candidate, tactical maneuverings and more."

Emery said the finding "once again highlights the folly of this commission's myopic attempts to regulate judges who have no choice but to engage in political activities in a system that requires them to run for office and raise campaign funds from the lawyers and their clients who appear before them."

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Contact Nathan Brown at 891-2600 ext. 26 or nbrown@adirondackdailyenterprise.com.