When Niagara Falls City Court Judge Robert Restaino abruptly imprisoned 46 defendants in 2007, after nobody took responsibility for a ringing cell phone in his courtroom, the State Commission on Judicial Conduct quickly voted to remove him from the bench.

The New York Court of Appeals unanimously upheld the Commission’s ruling last week, and for casual observers and aficionados alike that will probably be the end of the matter.

But lost in the details of the jurist’s intemperance and ultimate punishment is the reality of Restaino’s otherwise distinguished reputation and impeccable service record. He was, after all, hand-picked to start Niagara County’s volatile Domestic Violence Part, while simultaneously presiding in two other of the County’s overwhelmed courts, hearing a total of 300-500 cases each week.

“The Commission didn’t care about the mitigating facts,” said Joel Daniels, Restaino’s attorney, who argued that Restaino’s high volume of cases, along with a deteriorating and stressful marriage, set the stage for his combustion. He called it a classic example of judicial burnout.

“When we tried to explain the psychological aspects, they had no interest,” said Daniels of the Commissioners. “I felt like I was going a couple rounds with Muhammad Ali. They banged us around. It seemed to me they’d made up their minds before we said a word.”

Added attorney Terry Connors, who argued the case before the Court of Appeals: “I thought we’d presented a strong case — that this was two hours in an otherwise stellar career. Obviously, they took the position [that] sometimes it doesn’t matter why it happened if the conduct is egregious enough.”

Restaino is one of several well-respected judges to have been removed recently for either aberrational behavior or judicial errors. His cases and others have involved heavily contested Commission proceedings and subsequent appeals that both featured unusually adamant dissents.

Taken together, these cases — involving Restaino, former Albany Supreme Court Justice Thomas Spargo, former Brooklyn Surrogate Court Judge Michael Feinberg, and former Troy City Court Judge Henry Bauer — demonstrate the inexact science of determining a judge’s fitness to serve.

They also amplify the often spectacular disagreement among Commissioners as to appropriate sanctions and reveal a more structural complaint voiced by critics: that judges caught in the Commission’s crosshairs face strategic and due process disadvantages that afford them fewer protections than many criminal defendants.

All in all, the claims of “judge police” brutality lend an ironic cast to discussion of a Commission that historically has counted many critics who have faulted the agency for timidity and a lack of resources.

The latest backlash, by contrast, comes in light of recent budget increases that might have led to a more aggressive agency.

In calling for Restaino’s ouster, the Commission revisited its logic from a 2006 case, in which it recommended removing Queens Supreme Court Justice Laura Blackburne for ushering a robbery suspect (innocent, as it turned out) sought by police out the back door of her courtroom to protect his status in a drug treatment court. Agreeing with the Commission’s assessment that Blackburne had become an “adversary” of police, the Court of Appeals corroborated another of the commission’s findings: that a single act in an otherwise unblemished career (such as Blackburne’s) might justify removal.

The Commission’s “one strike” theory is based on an obvious truism: Some transgressions are so bad that they trump any good a judge has done.

“We certainly consider character and reputation,” said Robert Tembeckjian, the Commission’s administrator for the past five years who spent two decades before that serving as deputy. “But what I think Blackburne demonstrated, and what we argued in Restaino, is that sometimes the misconduct is so egregious that even if it is an aberration, character is not redeeming. An act so inimical to the role of judge that it compromises a judge’s ability to discharge his or her office requires removal.”

But interestingly, the Commission’s decisions in Blackburne and Restaino were tempered by unusually strong dissents.

“In the end, the essential point is that before this case, neither this Commission nor the Court of Appeals has ever removed a judge in a single-incident misconduct case for acts that were not venal or did not constitute a ‘serious breach of trust,’ ” attorney and Commissioner Richard Emery wrote in defense of Blackburne. “Justice Blackburne’s misconduct was neither; rather, it was a misguided attempt to protect the sanctity of her court and uphold her oath of office.”

“I cannot find it within myself to destroy this individual’s professional life,” wrote since-departed Chairman Raoul Lionel Felder in Restaino. “The record shows without contradiction that he is a decent, humble, dedicated individual who is well-liked and respected. . . . On a human level, I simply do not believe that such an episode should outweigh a lengthy, distinguished career of public service.”

Felder, of course, was famously reprimanded by his fellow Commissioners for intemperate (even racist) writings. And he has gone so far as to call for the Commission’s abolition, accusing his former colleagues of too often engaging in a game of “gotcha” with judges.

But he also leveled a systemic critique that transcended either of these cases. A central failing of the process, he argued, is the lack of an intermediate sanction between the wrist-slap of censure and the guillotine of removal.

“I would have preferred to vote for a more serious penalty than censure, but a lesser one than removal; however, none is available,” he wrote. “This speaks for the value of the Commission having the ability to vote to suspend a judge without pay, as a penalty that would be in severity between censure and removal.”

Until 1978, when New York’s Constitution was amended, the Commission could suspend judges with or without pay for up to six months. Reviving the tool would require a Constitutional amendment — which doesn’t appear likely any time soon.

On this, at least, Tembeckjian and his controversial former Chairman agree.

“It was eliminated over the Commission’s objections,” said Tembeckjian. “The Commission realizes that it is missing an important disciplinary tool, and has in numerous annual reports advocated its return.”

Daniels, Restaino’s attorney, concurred. “In this case we would have said, ‘sure, suspend him, sure, he’ll take a year off,’ ” he said.

Two years ago, the New York County Lawyers Association set up a task force on judicial independence. Concerns from judges about the Commission’s procedures prompted Betty Ellerin, a former Appellate Division Judge who chairs the task force, to examine a number of questions — including the lack of an option to suspend — in a report that is forthcoming.

“Some judges see the Commission’s procedures as not consistent with due process,” Ellerin said, declining to elaborate for now.

In fact, attorneys appearing before the Commission reiterate common complaints, including that judges often feel forced to stipulate to charges and fast-forward to the penalty phase because they can’t afford a full legal defense. Further, the Commission’s protection of complainants’ anonymity complicates building a defense.

“If there’s a political aspect [to the complaint], you may never know,” said Deborah Scalise, who has represented approximately 10 judges in Commission proceedings. “Because the complainant is often anonymous, a judge can’t say, ‘This person isn't credible because I ruled against them or because we know the same parties in town.’ ”

(In the event of a full investigation, the identity of an accuser is unveiled 10 days before the start of a fact-finding hearing, over which a Commission-appointed referee presides.)

“One client of mine ran independent of the ruling town politics,” continued Scalise. “Once we figured out who filed the complaint, it was actually easy to say, ‘This is politics, this is more personalized than altruistically done.’ ” (It was only after a year-long investigation that Scalise convinced the Commission to hand over a copy of the complaint, revealing the politically-motivated complainant and leading to the case’s dismissal.)

Tembeckjian concedes that the CJC sometimes keeps secret the identity of complainants when asking a judge to respond in writing to a Formal Written Complaint. He also says judges find out the identity of the complainant "very early in the process" — though this didn't appear to be the case for Scalise’s client.

“In the majority of cases we do include the identity of the complainant,” he said. “Where we don't, it's because there are other judges mentioned in the complaint whose confidentiality we want to protect, or because we want to give people the confidence they can make a complaint without being unnecessarily revealed to the judge.”

In other instances, he said, the claim at hand might require extensive refinement.

“Many complainants are not lawyers and don't necessarily know or appreciate the nuances of what is or isn't ethical misconduct,” Tembeckjian said. “In doing witness interviews, we'll actually specify and narrow the subject that needs to be addressed, so the witnesses, rather than the complainant, become the primary sources. . . . It really doesn't make a difference who told us, unless the credibility of the witness becomes an issue. It's a case-by-case proposition.”

In the end, he concluded, the frequently public nature of the dispute at issue puts the question in a different light from, say, a criminal matter: “More often than not, the facts are not disputed, but whether those facts constitute misconduct are disputed.”

Queens Supreme Court Justice James Golia, President of the New York State Association of Supreme Court Justices, spoke to another common complaint — that the Commission’s dual role of Grand Jury (in fielding complaints) and adjudicator (in meting out punishment) is potentially compromising.

“The Commission thinks a charge should be brought, so they bring it,” he said. “Then, they try the charge, after appointing a referee. Well, you can’t be the person who brings the charge, investigates, and sentences. How do you separate those roles? Some people have a problem with that. A DA’s office prosecutes charges, but they don't bring charges — a Grand Jury does. And police can make arrests, even a citizen can, but not a DA. There’s a distinction.”

This sentiment dovetails with another criticism leveled against the Commission by attorneys — that Commissioners, appointed and unpaid, maintain too cozy a relationship with staff attorneys, overseen by Tembeckjian, and referees.

“They [staff attorneys] cater lunches for the Commission. It’s like a bar mitzvah,” said Felder, the ex-chair. “If the Commission is in bed with administrators, there’s no control in the system. The facts are presented in a way that bespeaks the results. The Commission okays any investigation that the staff suggests.”

Tembeckjian — who argues the penalty phase of each case before commissioners and, perhaps consequentially, receives the brunt of many procedural criticisms — counters that the process is sufficiently compartmentalized.

“This is not easy stuff,” he said. “It’s one thing to say we’ll review and analyze these things on a case by case basis. But the actual analysis is pretty intense. We don’t approach this with anything but a serious and somber attitude and purpose.”

The Court of Appeals, at least, would appear to agree. It has reversed the commission only once in 18 removal cases over the last decade.

NEXT WEEK: THREE CASE STUDIES IN DISCIPLINE