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When a judge writes a letter of reference on court letterhead does it constitute judicial misconduct?
According to the state's Rules Governing Judicial Conduct it does.
The state Commission on Judicial Conduct has issued past opinions in sanctioning judges that by writing a letter on judicial stationery as a reference for others, a judge violates well-established ethical standards barring a judge from lending the prestige of judicial office to advance the private interests of the judge or others.
Saratoga Family Court Judge Gilbert Abramson wrote such a letter of reference on Feb. 10 "To Whom It May Concern" on court stationery in support of Susan M. Kahn, owner of Supervised Visitations Inc. of Clifton Park. (See below)
In his letter, Abramson said that he would "like to take this opportunity to state that for as long as I have been a Family Court judge, it has been my pleasure to work with Susan Kahn, owner of Supervised Visitation Services".
Abramson has been a family court judge since March 2000 when he was appointed by Gov. George Pataki to fill a vacancy created when the former family court judge, Thomas D. Nolan Jr. was appointed to the Supreme Court.
Abramson was elected for a full 10-year term in November, 2000.
From 1987 to his appointment in 2000, Abramson had served as chief counsel to the New York State Senate Committee on Children and Families. From 1993 to 2000, he also served as an assistant county attorney of Saratoga representing the county in the Family and Supreme Courts and as the deputy town attorney of Halfmoon. For eight years he was engaged in the private practice of law in Clifton Park, specializing in family and matrimonial law and also served as a law guardian.
Deborah Fellows, founder of the New York Civil Rights Council, says that the National Association of Social Workers, entertained a complaint about Kahn, one its members. Fellows says that the complaint stems from Kahn allegedly failing her licensing test and because Abramson was using Kahn for "supervised therapeutic visits".
Fellows says that Kahn had failed her New York State licensing test as a social worker and was allegedly unlicensed to practice in New York State. A hearing by NASW ensued and Fellows says it was determined that Kahn had violated the group's code of ethics, breached her confidentiality and allegedly practiced beyond her scope of education and practice.
According to Fellows, the hearing also resulted in a determination that Kahn had "no ethical right to send ex parte letters to the judge (Abramson) concerning cases prior to a judge receiving cases or during active cases if they are unsolicited, both of which Ms. Kahn did".
The day before the NASW hearing was held, Fellows said she and the complainant against Kahn were served with a lawsuit brought by Kahn. "Because of this lawsuit, the committee of NASW closed the complaint on her and told us to, basically, take it to court", Fellows said.
That suit is pending in Saratoga Supreme Court before Judge Steven A. Ferradino and a countersuit has been filed against Kahn by Fellows, alleging perjury, fraud, defamation of character, slander, libel and conspiracy.
Fellows says that as a result of the discovery motions in the case, the letter of character reference written by Abramson for Kahn surfaced.
Fellows says she has now asked for the recusal of Ferradino due to the letter written by Abramson because if Ferradino is aware of Abramson's prohibited actions and fails to act upon it himself as required by the Rules Governing Judicial Conduct, then "he is just as guilty" as Abramson if he does not report the alleged ethics violation.
She says with the names of Judge Courtney Hall and support magistrate James Densmore also appearing on the letterhead, it gives the appearance that they are condoning Abramson's actions.
Fellows says that she is following a custody case, Rohling v. Rohling and on Sept. 9, 2003, Susan Kahn sent her first letter concerning the case to Judge Abramson but Fellows says the case wasn't even filed in Saratoga Family Court until Sept. 10, 2003. She says the case was not filed by a client of Ms. Kahn's nor had Kahn ever met the filing party.
"At least three more letters were mailed or faxed to Judge Abramson prior to Oct. 23, 2003", Fellows said and charges that Kahn and Abramson were engaged in prohibited ex parte communications regarding the Rohling case. "At the Oct. 23 hearing, Judge Abramson's opening statements were: "I have letters here, from Susan Kahn, that were sent to Betty Donahue (respondent's attorney), also sent to me, and she didn't send them to your client, because she didn't know that your client was represented."
"Judge Abramson should know and should have informed Ms. Kahn that even though Ken Rohling was not represented at that time, he still must receive a copy of all letters or faxes sent to the court", Fellows said. "Judge Abramson did not and continues to accept ex parte communication from Ms. Kahn. Mr. Rohling still has not been given a copy of what was faxed to the court on Oct. 18, 2003. Several other letters from Susan Kahn to Judge Abramson has surfaced since his recusal in the matter", Fellows charges.
When an attorney for Rohling, Dennis Englert, a part-time justice in Glenville Town Court, raised the fact before Abramson that Kahn was unlicensed, Abramson stated,"we like her. I like (her). She has very high credibility. Not only do we like her, we really, really like her. Be advised".
Fellows says that Judge Abramson then accepted into evidence at least three more letters that are known and she says it is suspected there are more and unlimited ex parte telephone conversations. She says that while she and Rohling have three such letters, reference was made to others on the record, comments she alleges have been erased from the original court CDs. Fellows says that the Civil Rights Counsel previously placed a complaint about the missing 50 minutes on the CD, a complaintwhich was dismissed".
She says as a result of the prohibited, ex parte communications between Abramson and Kahn Judge Abramson would not allow Mr. Rohling's children to see their father.
When Englert asked that the temporary order of protection (TOP) placed against Mr. Rohling from Ballston Town Justice Keith Kissinger be altered, Judge Abramson replied, "He's is the NRA pistol permit instructor, and I don't want him to shoot me. He told my wife how to shoot a .357. You have to hold that in very high regard, one because Beth (Abramson's wife) likes him, and two, because I - he could shoot me if he wants to."
Fellows says that Englert referred to the TOP as "illegal, unconstitutional and unethical" before Judge Abramson and she says Abramson agreed but says that even when the underlying charges which had resulted in the TOP being issued were dropped against Mr. Rohling in criminal court, the TOP stayed in effect per Judge Kissinger.
At the next hearing in the Rohling case, Fellows says a letter from Judge Kissinger stating that he would modify the TOP was given to Judge Abramson. Judge Abramson refused to accept it stating, "No. He would have told me and he would've sent me a letter. He didn't do that."
Fellows says that Abramson continued to make reference to Susan Kahn and her alleged ex parte telephone calls and letters to him. She says that when referring to those conversations, Abramson would say, "which is sort of thumb on the scales of against your guy…continue to see her through Susan Kahn, Or don't see the kid." "Cause that makes me hate you" {referring over to Mr. Rohling}"based on what I'm seeing and what I'm hearing has been hellacious." "It's not a level playing field - we do like Susan {Kahn} very much and she calls a spade a spade".
Fellows says that she and Rohling then found note pads with Susan Kahn's letterhead on it in Judge Abramson's courtroom and in the clerk's office.
Rohling, between Oct. 23, 2003 and Jan. 27, 2004 had gone through a series of supervised/therapeutic visits conducted by Susan Kahn. On Dec. 15, 2003 a report was issued by Dr. Horenstein's report came out.
From Dr. Horenstein's report: On page 42, paragraph 6, item #3 -
"I would recommend a resumption of visitation as quickly as possible. I do not feel that supervised visitation is necessary as I do not regard Ken (Rohling) as an inherently dangerous, belligerent or hostile individual.
Despite that report, Fellows says that on Jan. 27, 2004 Abramson dismissed all custody/visitation petitions from Mr. Rohling.
She says that after three months of supervised/therapeutic visits continually ordered from Judge Abramson to Susan Kahn, this is what occurred:
Abramson: So Greg, (stand in attorney for Dennis Englert) your client is gonna do those things?
Attorney for Mrs. Rohling: January 21, confirming all this -
Greg: If necessary - if I could just have a second, your honor -
Abramson: Sure
Greg: I'm going through the recommendations
Abramson: Betty, do you want to
Greg: Perhaps one - perhaps one or two - one, or two supervised visits -
Abramson: Two
Greg: With another. Perhaps the recommendations was perhaps
Abramson: Greg
Greg: Greg, it's an absolute recommendation.
Greg: One or two
Abramson: Two
Greg: Greg, I can read it. You don't want to pick this fight with me, Greg. Two. They've been scheduled. This is brokered with Dennis. Done. Come back when it's done. Doctor Etu's gonna send me a letter, yeah?
Attorney for Mrs. Rohling: Yes, I've I will ask Dr. Etu to send the Court a letter confirming that the visits have taken place, and any, if he wants, make any recommendation for how
Abramson: yeah, what conclusions he draws
Attorney for Mrs. Rohling: the visits should be structured
Abramson: then we'll come back, and then we'll talk about the unsupervised. So, third week in February?
Mr. Rohling: No
Abramson: No?
Mr. Rohling: No, I do not agree with the supervised visitation. I…
Abramson: Then you got nothin'. Refile your petition. I'm done with you, Ken. See ya.
Greg: Your honor, I respectfully again, point out that….
Abramson: GREG! I READ THE REPORT! SIT DOWN! TELL YOUR CLIENT TO LEAVE AND RE-FILE OR TELL HIM TO GO THE VISITS. I DON'T CARE THAT HE AGREES OR NOT. THAT'S THE ORDER OR THE COURT.
Deborah Fellows: Of course you don't. Because you already stated that you already hate the man. And, I'll leave. I will leave, but this is unfair and unjust and you're being….
Abramson: Do you want to do these visits now? This case is much better with her, you know.
Mr. Rohling: I'm tired. The run-a-round I've been getting from this court. I have….
Abramson: Do you wanna…
Mr. Rohling: there may not - anymore - but I'm…
Abramson: Do you want the supervised visits?
Mr. Rohling: Do you know what the reason for the supervised visits were?
Abramson: No
Mr. Rohling: Do you care?
Abramson: No. I read Horenstein's report.
Mr. Rohling: Do you - I'm not talking about talking about Horenstein's report
Abramson: I read Horenstein's report
Mr. Rohling: I'm…
Abramson: STOP TALKING TO ME OR GO TO JAIL! YOU GOT ME? YOU'LL BE IN CONTEMPT! STOP! YOUR PETITIONS ARE DISMISSED. START AGAIN WITH ANOTHER JUDGE. NO VISITIATION
Mr. Rohling: You're trying to make
Abramson: WE'RE OUTTA HERE! HE'S OUTTA HERE! THROW HIM OUT! THE PETITIONS - ALL OF DAD'S PETITIONS AE DISMISSED. WE COULDA DONE THIS …do you want to go on the record?
Greg: Your honor, I would ask the court please reconsider vis a sia - the emotional strain on Mr. Rohling has been very great. I will do my utmost, and Dennis to convince him of the necessity of following this orders.
Abramson: Do the thing or don't. But if you don't go through the supervised visits, they're not - no visits are gonna happen at all Ken. You need to know that. It's what Horenstein said.
Mr. Rohling: Can I speak?
Abramson: NO!
Mr. Rohling: I thought I was allowed to be heard in the Court.
Abramson: Petitions are dismissed, I'm not hearing any more. We're outta here. Nothin' else. Refile Greg.
Fellows says that Judge Abramson refused to allow Greg to read Dr. Horenstein's recommendations. He would not allow the plaintiff, Kenneth Rohling to read Dr. Horenstein's recommendations. After Dr. Horenstein clearly stated that he did not recommend supervised visits he later in the report stated:
"Perhaps one or two supervised visits with another visitation supervisor aimed in preparing the children for a resumption of visitation under new guidelines could be considered. During these brief introductory supervised visitations, the visitation supervisor can talk about the was visitation are to conducted, i.e. with the father having the sole responsibility for addressing the nutrition needs of the children". According to Fellows, Dr. Horenstein, throughout his 45- page report, stated things like Susan Kahn had to be taken off the case. The mother of the children had influenced the children and her alienation of the children from their father was unwarranted.
It continued, "Mrs. Rohling may well need counseling".
Abramson's letter of reference for Susan Kahn, written on court stationery, appears below:
For Abramson's letter of reference for Susan Kahn, written on court stationery, click here.
June Maxam is the publisher of The North Country Gazette, co-publisher and editor of The Empire Journal and co-managing editor, copy/layout editor of Diogenes, magazine of the National Judicial Conduct and Disability Law Project.
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