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Restaino ordered removed as judge Commission says he abused power

A state commission has ordered City Judge Robert M. Restaino removed from the bench because he sent 46 people to jail one day when no one would admit owning what the judge thought was a cell phone ringing in his courtroom.

Restaino "became a petty tyrant, abusing his judicial power and placing himself above the law he was sworn to administer," the state Commission on Judicial Conduct declared Tuesday in ordering Restaino removed. The vote was 9-1 in favor of removal, with one member, Commission Chairman Raoul L. Felder, voting for the lesser penalty of censure.

Restaino's attorneys said he would appeal the decision to the state's highest court. The Court of Appeals has the power to change the decision to censure, which is what Restaino told the commission he thought he should receive.

"You get what's coming to you, eh?" commented Mark Glavin of Niagara Falls, one of the people who was jailed in the March 11, 2005, blowup in the city's Domestic Violence Court.

"I don't think it was a cell phone," said Glavin. "It could have been a watch. It could have been anything. It rang 10 or 11 times."

Restaino, who was presiding in Traffic Court Tuesday afternoon, referred requests for comment to his new attorney, Terrence M. Connors, who said he will handle the appeal. Connors said he hasn't had a chance to review the ruling but intends to meet the 30-day deadline to file the notice of appeal.

"The court can hear the matter in four or five months," Connors said.

Connors was the winning lawyer the last time the Court of Appeals reversed a decision to remove a judge. That was Lockport City Judge William J. Watson, whom the commission thought should have been removed because of comments he made during his 1999 election campaign, before he was a judge, which were deemed prejudiced against defendants. In 2003, the Court of Appeals decided Watson should be censured instead.

Commission Administrator Robert Tembeckjian said Restaino is the fourth judge in the state to be ordered removed this year.

Tembeckjian said while an appeal is pending, the Court of Appeals can suspend Restaino with or without pay. Restaino is paid $113,900 a year.

Attorney Joel L. Daniels, who represented Restaino before the commission, declined to comment on the ruling other than to note that the panel did not have the option to suspend Restaino. "It's either censure or you're gone. The [State] Legislature should visit that issue," Daniels said.

Felder made the same point in his dissent and also said there should be standards for reacting to ringing phones, which most judges ban.

Felder called the case "awful" and Restaino's actions "bizarre" and "beyond reprehensible," but said he thought it should be left up to the voters of Niagara Falls whether they wanted to remove Restaino from office at the next election. That would be in 2011, since Restaino won a 10-year term in 2001. Before that, he had been a part-time judge since 1996.

Glavin and several other defendants sued Restaino in federal court last year, but their case was thrown out on the grounds of "judicial immunity."

Office of Court Administration spokesman David Bookstaver said if Restaino is removed from office, it would be up to the mayor, who will be Paul A. Dyster after Jan. 1, to appoint a temporary successor for the rest of 2008. An election for a full 10-year term would be held in November.

The panel, comprising judges, attorneys and one civilian, Amherst Chamber of Commerce President Colleen C. DiPirro, issued a scathing majority decision, dated Nov. 13 and released Tuesday. It said Restaino's actions were illegal, going far beyond the legal norms for revoking bail or finding people in contempt of court.

The commission called the incident "an egregious and unprecedented abuse of judicial power."

"When the cell phone rang while [Restaino] was presiding in a Domestic Violence Part, he immediately directed the owner to come forward or else 'everybody could take a week in jail . . . Everyone is going to jail. Every single person is going to jail in this courtroom unless I get that instrument now,' " the decision said, quoting the courtroom transcript.

The ruling went on to say, "It is also ironic that in repeatedly berating the 'selfish' and 'self-absorbed' individual who 'put their interests above everybody else's' and 'doesn't care what happens to anybody,' [Restaino] failed to recognize that he was describing himself."

The commission report said defendant after defendant protested against being jailed and said the judge "alternated between verbalizing sympathy and outright sarcasm."

The report said that 15 of the 46 defendants were bailed out before leaving the court building, while 17 others were released because the court still had bail previously posted in their criminal cases. The other 14 were taken to the Niagara County Jail in Lockport, where some were confined for as long as seven hours.


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