By JODI SOKOLOWSKI
Buffalo Law Journal

The Niagara Falls City Court judge who ordered 46 people to jail in 2005 after no one admitted to owning a ringing cell phone has been removed from the bench, affirming the determination of the state Commission on Judicial Conduct.

The New York State Court of Appeals Thursday announced its decision, by a vote of 9 to 1, to remove Robert Restaino because his actions "exceeded all measure of acceptable judicial conduct."

The decision stated that "in depriving 46 individuals of ‘their liberty out of pique and frustration, (Restaino) abandoned his role as a reasonable, fair jurist."

On the morning of March 11, 2005, Restaino was presiding over domestic-violence cases when a cell phone rang in the back of the courtroom. He demanded that whoever owned the ringing phone "bring it to me now, or everybody could take a week in jail."

No one approached the bench after Restaino issued a second warning that "every single person is going to jail in this courtroom unless I get that instrument now." After questioning each defendant, including 11 who had been released before the phone rang, Restaino imposed bail and ordered 46 defendants to be taken into custody.

Several defendants "pleaded with him for mercy," and one "exhorted (Restaino) to rethink his approach to an otherwise legitimate courtroom concern that could be handled differently."

"These pleas fell on deaf ears," the court wrote.

Fourteen of the 46 who were booked did not post bail and were transferred to a county jail 30 minutes away while Restaino attended a scheduled tour of an Erie County juvenile detention facility.

After Restaino received a page from his clerk informing him that members of the media were inquiring about his actions, he told his clerk to have the necessary paperwork for the defendants' release upon his return, the commission reported. The 14 were released but were not provided with transportation back to Niagara Falls.

After a formal written complaint was filed, the commission held a three-day hearing during which Restaino, represented by Connors & Vilardo partner Terrence Connors, said his actions were a result of frustration in a strained marriage.

Restaino told the commission that his reaction was "a function of ... letting my own difficulties bleed into the courtroom." Hon. Edgar Nemoyer, acting as referee, noted that Restaino had "expressed remorse (that) appeared to be sincere."

The court concluded that Restiano's conduct was "truly egregious."

"It is ironic that (he) displayed the very attributes by which he accused and summarily punished each defendant. Significantly, (Restaino) had more than 46 chances to correct himself and failed to do so," the court wrote.

Kenneth Krajewski, a Brown & Kelly LLP managing partner, said he believes the decision "sends a message."

"It appeared to me that the court took the allegations very seriously and issued a decision which I think was strongly worded," he said.

Connors relayed a comment through firm partner Vincent Doyle, who also worked on the case.

"Judge Restaino's removal is a great loss to the bench, bar and Western New York community," Connors said. "During his years of service, he made significant contributions to the administration of justice in our community."

David Edmunds, Phillips Lytle LLP special counsel and former chief counsel to the regional Attorney Grievance Committee, said it's unlikely that there will be any disciplinary actions from the committee against Restaino because "what he did occurred in the course of his performance as a judge and not while practicing law."