Racially Biased Judicial Speech and Aggravating Conduct Can Warrant Removal

1. Introduction

The New York Court of Appeals accepted the State Commission on Judicial Conduct’s determination that Justice Walter W. Jones should be removed from the Canandaigua Town Court. The proceeding concerned two incidents involving racial language: repeated use of a racial slur during a conversation outside a jail, and comments from the bench about a Black defendant shortly after her arraignment.

The central issues were whether Jones’s explanations defeated the finding of misconduct and whether removal, rather than a lesser sanction, was justified. The Court concluded that the record established misconduct and that the combination of offensive statements, adverse credibility findings, failure to appreciate the statements’ impact, and prior cautions warranted removal.

The decision is best understood as a context-sensitive application of established judicial ethics principles, not a new automatic-removal rule for offensive language. It also establishes that an older decision imposing censure for use of the same slur does not set a permanent ceiling on discipline, particularly given subsequent training, guidance, and the aggravating circumstances of the present case.

2. Background and Procedural History

The parties and disciplinary proceeding

Jones was first elected to the Canandaigua Town Court in 1999, and his current term was scheduled to expire on December 31, 2027. In April 2025, the Commission served him with a formal complaint containing two charges. A referee heard testimony and sustained both charges. The Commission agreed and determined that removal was appropriate. Jones sought review in the Court of Appeals under article VI, § 22 of the New York Constitution and Judiciary Law § 44.

Charge I: Repeated use of a racial slur

The first charge concerned a May 10, 2024 conversation with a court staff member and an Assistant Public Defender in the parking lot outside the Ontario County Jail after court proceedings. Jones used the racial slur identified in the opinion as “the n-word” at least three times.

Jones maintained that he was recounting a story about his father intended to promote tolerance, dignity, respect, and friendship. Although he described the word as derogatory and horribly inappropriate, he insisted that he was quoting his father rather than using the word himself. He also asserted that the quotation supplied authenticity and context and that a euphemism would have made the story unintelligible.

The referee rejected important parts of this account. Those adverse credibility findings concerned Jones’s assertions that he used the slur only once, prefaced the story with a disclaimer about historical vernacular, and would have told it in the same way if a Black person had been present. The referee also rejected his explanation that using the word was necessary.

Charge II: Comments about a Black defendant

The second charge arose from the May 15, 2024 arraignment of a Black woman identified as Ms. D. She had visible facial injuries and said she needed further hospital treatment. After Jones denied her request for release without bail, she accused him and the county of racism.

After Ms. D left the courtroom, Jones stated from the bench, “Naturally she played the race card.” He then told her Assistant Public Defender that she probably would have attacked the attorney had she not been handcuffed.

Jones gave inconsistent testimony about whether his “race card” comment was appropriate or could create an appearance of bias. The referee also disbelieved his claim that he had not appreciated the extent of Ms. D’s injuries. The Commission rejected his explanation that he made the comment because he “felt badly” for her and concluded that the statements, taken together, showed indications of racial animus and insensitivity.

3. Summary of the Opinion

The Court independently reviewed the record and upheld both the misconduct findings and the sanction. Its principal conclusions were:

• The evidence supported the findings. Jones’s admissions, other witnesses’ testimony, corroborating evidence, and the adverse credibility findings sufficiently established conduct demonstrating at least the appearance of racial bias.
• The conduct violated judicial ethical obligations. Judges must both be impartial and appear impartial, including through their speech inside and outside the courtroom.
• The explanations did not excuse the conduct. The claimed purpose of the story and the asserted quotation of another person did not defeat the misconduct finding on this record.
• Removal was justified by cumulative aggravation. The offensive statements were accompanied by credibility problems, minimization, insufficient understanding of their impact, and two earlier caution letters.
• The constitutional challenges lacked a supporting record. Jones first raised his as-applied constitutional objections in the Court of Appeals, leaving the Court without the factual basis needed to address them.

The Court accepted the determined sanction without costs and ordered Jones removed from office. All participating judges concurred; Judge Rivera took no part.

4. Analysis

A. The governing ethical framework

The referee found violations of four related provisions of the Rules Governing Judicial Conduct:

These rules protect more than the correctness of individual judgments. They protect the public’s ability to trust that a judge will treat litigants fairly. Accordingly, the disciplinary issue did not depend on a separate finding that Jones’s bail ruling was racially discriminatory. The opinion does not decide the legality of that ruling.

B. Precedents cited and their influence

Review of facts and credibility

• Matter of Greenfield, 76 NY2d 293, 295 (1990), supplies the Court’s “plenary power to review the law and the facts.” This establishes that review of a Commission determination is substantive and independent, rather than merely a search for procedural error.

• Matter of Collazo [State Commn. on Jud. Conduct], 91 NY2d 251, 253 (1998), requires “due deference” to adverse credibility findings made by the Commission and referee. The Court reconciled that deference with its independent review authority: it assessed the entire record while respecting the credibility determinations arising from the disciplinary hearing.

Impartiality, racial bias, and judicial standards

• Matter of Ayres [New York State Commn. on Jud. Conduct], 30 NY3d 59, 64, 66 (2017), performs two important functions. It states that judges must both be and appear impartial, and it identifies failure to recognize serious misconduct and failure to heed a prior warning as significant aggravating factors that can support removal. It therefore links the underlying ethical violation to the sanction analysis.

• Matter of Putorti [New York State Commn. on Jud. Conduct], 40 NY3d 359, 366-368 (2023), is a central authority throughout the opinion. It reinforces the prohibitions on racially biased judicial speech and explains that repeated, gratuitous references to a litigant’s race can reveal bias or implicit bias. It also supplies guidance on removal and the significance of insufficient remorse, denial of previously stipulated facts, and prior conduct under investigation. Those details concern Matter of Putorti [New York State Commn. on Jud. Conduct]; they are not additional factual findings about Jones.

• Matter of Spector v State Commn. on Jud. Conduct, 47 NY2d 462, 466 (1979), appears through the Court’s discussion of Matter of Putorti [New York State Commn. on Jud. Conduct]. Its quoted language supports attention to repeated and gratuitous racial references. The citation helps explain why the pattern and context of language matter in evaluating apparent bias.

• Matter of Pennington, 2006 Ann Rep of NY Commn on Jud Conduct at 224, 226, is a Commission determination rather than a Court of Appeals decision. It supports the proposition that judicial language can undermine public confidence whether it is knowingly racist or merely ill-considered. Its relevance is the inadequacy of an explanation focused exclusively on the speaker’s asserted intention.

• Matter of Senzer, 35 NY3d 216, 219 (2020), quoting Matter of Tamsen, 100 NY2d 19, 21 (2003), appears in the discussion of Jones’s objection to being judged differently from the general public. The Court ultimately reaffirmed that judicial officers are held to a higher standard. A supposed lack of public consensus about acceptable language did not negate the showing of racial bias in this record.

Removal, aggravation, and mitigation

• Matter of Restaino [State Commn. on Jud. Conduct], 10 NY3d 577, 589 (2008), quoted through Matter of Putorti [New York State Commn. on Jud. Conduct], supplies the limiting principle: removal is an “extreme sanction” reserved for “truly egregious circumstances.” The Court retained that demanding threshold rather than treating offensive speech as automatically sufficient for removal.

• Matter of Mason [State Commn. on Jud. Conduct], 100 NY2d 56, 60 (2003), identifies lack of candor, including inconsistent and evasive explanations, as significant to removal. It supports consideration of Jones’s credibility during the disciplinary process, not merely the initial incidents.

• Matter of Aldrich v State Commn. on Jud. Conduct, 58 NY2d 279, 283 (1983), emphasizes a judge’s failure to recognize the inappropriateness of the conduct. It supports the conclusion that persistent misunderstanding of an ethical breach can aggravate the underlying misconduct.

• Matter of Going, 97 NY2d 121, 126 (2001), highlights lack of contrition and prior admonishments. It reinforces the cumulative significance of a judge’s response to charges and previous disciplinary warnings.

• Matter of Watson, 100 NY2d 290, 303-304 (2003), supplies a contrasting example. There, the Court reduced removal to censure where the judge expressed remorse, admitted extremely poor judgment, and acknowledged the misconduct. The comparison demonstrates that meaningful acceptance of responsibility can materially affect sanction selection.

• Matter of Agresta, 64 NY2d 327, 329-330 (1985), was central to Jones’s defense. He characterized it as establishing a strict-liability rule and argued that its censure sanction for use of the same slur from the bench made his removal excessive. The Court rejected both arguments. It said the case established no such strict-liability rule and explained that more than four decades of subsequent judicial training and guidance must inform the present assessment. The Court distinguished the earlier sanction without overruling the decision.

Constitutional claims and procedural treatment

• Walker v Martin, 562 US 307, 321 (2011), appears in a footnote addressing the treatment of federal claims. The Court found no basis to conclude that its approach operated to their particular disadvantage. The citation supports the procedural treatment of inadequately developed claims; it does not provide a substantive ruling on the constitutionality of disciplining Jones’s speech.

C. Why the explanations did not defeat misconduct

Jones sought to separate personally endorsing a racial slur from quoting someone else. The Court did not treat that distinction as dispositive. His account had to be evaluated alongside the repeated use of the word, the setting, the witnesses’ evidence, and the racially biased comments made from the bench only days later.

The reasoning therefore concerns the whole record, not simply the presence of a prohibited word. A claimed benevolent purpose did not eliminate the objective effect of the statements on confidence in impartial justice. Nor did Jones’s insistence that the story required the actual word overcome the referee’s contrary findings.

The opinion should not be expanded into a categorical holding that every quotation of offensive historical language constitutes misconduct. The Court expressly rejected Jones’s description of its precedent as imposing strict liability and relied on the circumstances established here.

D. Why the combined circumstances justified removal

The Court assessed several aggravating considerations together:

1. Multiple incidents: The slur was followed within days by comments concerning a Black defendant.
2. Judicial context: The second incident involved statements made from the bench about a litigant who had just appeared before Jones.
3. Credibility problems: The referee rejected several explanations, and Jones’s testimony was inconsistent in material respects.
4. Failure to appreciate the harm: Jones minimized the conduct and did not adequately recognize its implications for public trust.
5. Prior cautions: Two earlier letters had warned him to comply with several ethical rules implicated by the present charges.

The earlier Letters of Dismissal and Caution require careful characterization. The August 2021 letter concerned alleged ex parte communications and alleged failures to follow COVID-19 safety protocols. The March 2024 letter concerned alleged administrative neglect associated with an unexplained surplus of court fines and fees. Neither concerned an earlier racial-language incident, and the opinion does not convert those allegations into adjudicated findings. Their importance was the prior warning to observe overlapping ethical obligations.

The Court also answered Jones’s concern that judges were being punished for failing to apologize. Its explanation focused on the Commission’s proper consideration of the risk of recurrence. In that framework, an inability to understand the misconduct matters because it bears on whether similar conduct may happen again.

E. Why the older censure decision did not control the sanction

The distinction from Matter of Agresta is particularly significant. Jones argued from the shared use of the same slur, but the Court rejected a word-for-word comparison as an adequate sanction analysis. Contemporary judicial obligations must be assessed against extensive intervening education and guidance about explicit bias, implicit bias, and inappropriate language.

The opinion does not find that Jones attended any particular training session. Its point is institutional: the judiciary’s ethical guidance has developed substantially since 1985. Earlier leniency therefore does not establish that comparable language, accompanied by the aggravating circumstances present here, must receive the same sanction today.

F. The limited constitutional disposition

Jones raised several as-applied constitutional challenges for the first time in the Court of Appeals. Citing Judiciary Law § 44(9), the Court concluded that they lacked a supporting factual record.

This is a procedural limitation, not a substantive resolution of those constitutional questions. The opinion should not be read as a comprehensive decision on constitutional protection for judicial speech or as a determination of every possible challenge to the governing rules.

5. Potential Impact

• Discipline will remain contextual. Future cases will turn on the language, setting, repetition, credibility, response to investigation, and prior warnings—not merely whether a particular word was spoken.
• Older sanctions are not fixed ceilings. Courts may consider intervening ethical guidance and training when comparing present misconduct with decades-old decisions.
• Off-bench speech remains relevant. The parking-lot incident confirms that judicial obligations extend beyond formal courtroom activity.
• Conduct during the investigation matters. Evasive explanations and minimization can aggravate the sanction, while genuine acknowledgment may support a different outcome.
• Nonidentical prior warnings can carry weight. Earlier cautions need not involve the same type of misconduct to be relevant when they address overlapping ethical duties.
• Constitutional objections require factual development. Judges seeking as-applied review should develop the necessary record during the disciplinary process rather than first presenting the issues to the reviewing court.

The decision strengthens enforcement of racial impartiality while preserving removal as an exceptional, fact-dependent remedy.

6. Complex Concepts Simplified

Appearance of impartiality

A judge must not only decide fairly but also behave in a way that sustains public confidence in that fairness.

Plenary review

The Court can independently examine both the facts and the legal conclusions underlying the Commission’s determination.

Due deference to credibility findings

The Court gives appropriate weight to the referee’s and Commission’s assessments of whether witnesses were believable, while retaining independent review authority.

Strict liability

Liability that does not depend on a particular mental state. The Court rejected Jones’s contention that the cited precedent created the strict-liability rule he described.

Implicit bias

Bias that may operate without conscious recognition. A judge’s denial of intentional prejudice does not necessarily answer concerns raised by the judge’s words or conduct.

Aggravating and mitigating factors

Aggravating factors support a more severe sanction; mitigating factors support a less severe one. Lack of candor and prior warnings aggravated this case, while the cited comparison cases show the potential mitigating importance of genuine acknowledgment.

As-applied constitutional challenge

An argument that a rule is unconstitutional in the challenger’s particular circumstances. Evaluating it ordinarily requires facts showing how the rule operated in that case.

Censure and removal

Censure is a formal disciplinary condemnation; removal ends the judge’s service in the office at issue.

7. Conclusion

Matter of Jones (New York State Commn. on Jud. Conduct) confirms that racially biased judicial speech can warrant removal when combined with serious aggravating circumstances. The decisive considerations were not offensive language alone, but repeated incidents, credibility failures, inadequate recognition of the harm, and prior ethical warnings.

Its broader significance is that judicial impartiality is both an actual obligation and a public trust. Earlier lenient sanctions do not prevent removal where contemporary ethical expectations and the full record demonstrate that confidence in a judge’s impartiality has been seriously compromised.