State Commission on Judicial Conduct Recommends Judge McGuire Be Removed From Bench
Doherty, Brooks Stand By County Attorney Appointment
Judge Michael McGuire, whose 10-year term as Sullivan County Judge/Surrogate and Family Court judge was scheduled to expire this December, is still expected to become County Attorney next month - despite the determination announced yesterday (Thursday, March 26) by the State Commission on Judicial Conduct that he should be removed from the bench.
Commission Administrator Robert H. Tembeckjian made the following statement. “The breadth of Judge McGuire’s misconduct is stunning. He wrongfully ordered people to jail and handcuffed Family Court litigants; often berated and yelled at court staff and litigants; presided in matters despite having a disqualifying conflict; impermissibly practiced law and used court staff to assist him; and otherwise misused court staff. He compounded it all with untruthful testimony during the Commission’s proceedings. Such egregious misconduct warrants removal from judicial office.”
In response to a question from The SullivanTimes about whether he may file an appeal of the determination with the Court of Appeals, McGuire said on a media call Thursday that he had not yet decided but will be consulting with his attorneys. He has 30 days to file such an appeal, according to the Commission.
A key excerpt from the start of the Commission referee's report points to McGuire’s decisions in 2012-2014 to take litigants into custody, often for just disrespecting the court and, without due process.
"During the years 2012 through 2014, Judge McGuire believed that litigants "gained greater insight and appreciation of the authority of the court" after they were taken into custody and handcuffed (Tr 2440-41 ). He thought at that time that the Judiciary Law permitted him to place litigants in custody if they disrespected him, and that he could summarily remove litigants from the courtroom in handcuffs and hold them in custody without due process (Tr 2498 - 2500). He believed that due process rights only attached if he held the litigant in contempt (Tr 2499). However, Judge McGuire conceded that he never read any Commission determinations regarding the use of summary contempt (Tr 2518-21), did not review any legal authority about the use of summary contempt (Tr 2522-23) and never asked his law clerk to do research or consulted with other judges on the issue (Tr 2524-25)."
At his hearing (in May 2019), Judge McGuire conceded that when he ordered litigants to be taken into custody, "he failed to warn what behavior he found offensive, did not give them an opportunity to correct the behavior or a chance to apologize, did not find them an attorney if they were not represented and failed to draft an order stating the facts that constituted the offense," the report said.
Mark Levine, the attorney representing the Commission at the oral argument on January 23, 2020 argued:
“...And in this case, as you can see, the judge not only failed to follow the summary contempt procedures which you have repeatedly disciplined judges for failing to follow, but in fact added insult to injury by mocking comments, sarcastic comments. And as the referee found in his report that oftentimes these - the unlawful contempts were accompanied by angry, abrupt outbursts, some of which can only be described as explosive. When you put two of these things together, you can see how this can undermine public confidence in the judge's court and why it requires removal from judicial office. “ Levine is the deputy administrator of the Commission's New York office.
Despite these and multiple other findings in the report, County Legislature Chair Rob Doherty and Vice Chair Michael Brooks say that they are standing by their decision to appoint the former Assistant District Attorney as County Attorney to replace the departing Cheryl McCausland, who has stayed onboard part-time in recent months.
McGuire said Thursday that the six cases cited by the Commission, “while largely regrettable are long in the past.” He added that that "self corrections took place" since then and that has since figured out "better ways of achieving objectives in court.”
"Mistakes were made in the transition from private practice to the bench,” McGuire said in a prepared statement that he read on Thursday. “Mistakes were made in the matter in which I interacted with some litigants and mistakes were made in the manner in which I interacted with some members of the staff. I take full responsibility for those things and regret that they occurred. (One of the people who testified at the May 2019 hearing is a court officer who told the Commission that he almost got into a physical confrontation with the judge, who was acting aggressively toward him). However, overall, over nine years on the bench, I'm exceedingly proud of the work that we have done and what has been accomplished. The cases that were cited are a miniscule percentage, some six cases out of some 60,000 plus appearances that I've made in Surrogate's Court, Family Court, Criminal Court and Supreme Court."
McGuire added: "I was given a fair opportunity to present evidence. And we did. The referee made findings and although I dispute them I respect them. Just as a judge who sat for nine years, I recognize that you make findings of fact , you do it based on the evidence and based on how it is presented in making credibility determinations. And I respect the judge that heard this case did just that. The fact that I disagree with some but not all should not suggest that I do not own or take responsibility.”
Doherty said he was given a copy of the report, read it and asked McGuire many questions about it between last Saturday and yesterday. Brooks said Thursday: "When you speak with Mike, it becomes apparent that he is extremely competent." Both Doherty and Brooks made the point during the media call with McGuire on Thursday that the six cases cited by the Commission were not representative of his judicial career.
Yet, The SullivanTimes has interviewed multiple people in February and early March of this year who have and had Family Court cases in front of McGuire. At least four of those interviewees believe that the judge has not treated them with proper respect, has awarded custody to violent fathers and hostile- in- laws and did not listen to them when they complained that their appointed attorneys were not representing them fairly. Late Thursday, some of them contacted The SullivanTimes to say that none of the six cases cited by the Commission were their cases.
(Note: The Family Court series of stories are still being worked on by The SullivanTimes at press time but Part 1 was published earlier this month and can be read below.).
Doherty and Brooks did not express any concerns during the call about McGuire’s behavior with litigants and staff that the judge has said was regrettable. On February 27, the County Legislature appointed McGuire by a 6-1 vote after weeks of interviewing him and three other attorneys that included current Assistant County Attorney Thomas Cawley.
District 8 Legislator Ira Steingart voted no, saying he thought the position should have gone to Cawley, who he said has been in the County Attorney's office for decades. "I always thought we should promote from within when someone has the skill sets to do it," Steingart said.
District 7 Legislator Joe Perrello abstained, noting that he did not have enough information and that he had appeared before McGuire in court two times. District 2 Legislator Nadia Rajsz was not present. Doherty and Brooks were joined by Alan Sorensen, Luis Alvarez, Nicholas Salamone Jr. and George Conklin III and voted in favor of McGuire.
Late Thursday, Goshen attorney Michael Sussman who has appeared before Mcguire said: "The idea that a person with this number of serious infractions would be appointed county attorney is shocking. "
The SullivanTimes also reached out to others for their reaction. E. Danielle Jose-Decker, president of the Sullivan County Bar Association, could not comment since she is a declared candidate for McGuire's seat in November. Her law firm donated $500 to McGuire's campaign for judge on November 27, 2010.
One of the members of the Commission from 2011 until 2019 was Monticello attorney Richard Stoloff, who also served for 19 years as Town Attorney for the Town of Mamakating and is a past President of the Sullivan County Bar Association and has chaired its Grievance Committee since 1994. His law firm donated $100 to McGuire's campaign in 2010.
McGuire is the fourth judge inside Sullivan County judge to be recommended for removal since the Commission was formed in 1978. The others were Gerard Deckelman (1987), Kathleen Armbrust (1993) and David Schiff (1993), all town and village judges.