Vienna judge to face jury

The finding goes on to state that "[Herder] had no reasonable basis to cause [Droz's] arrest, and [that] she compounded her misconduct by arraigning [Droz] on the contempt charge and committing him to jail for two weeks in lieu of $500 cash bail, although Criminal Procedure Law requires that bail be set in more than one form."

The commission found that Herder had engaged in ex parte, or one-sided, conversations with Anderson and McCadden without Droz being represented, a violation of his civil rights and the state judicial code of conduct.

The finding concludes that "[Herder's] conduct violated her duty not only to be impartial, but to avoid even the appearance of partiality."

Droz's civil suit, filed after Herder's censure, originally named former Vienna Supervisor Mark Murray, the town of Vienna and Anderson's estate in addition to Herder and McCadden. Anderson died Jan. 24, 2005.

District Judge David N. Hurd initially dismissed the complaint against Herder since judges enjoy immunity from prosecution. He then required Droz to file an amended complaint or face dismissal of all his claims. But in his amended complaint, Droz sought to get around the judicial immunity issue by naming Herder in her "individual capacity" instead and dropped his complaint against Murray and the town.

The judge dismissed Droz's complaint against Anderson's estate earlier this month, leaving only Herder and McCadden as defendants.

McCadden, who has since been transferred to the Williamsville barracks, had sought to have his case tossed as well, since he claims in arresting Droz he was just doing his job on orders from Herder.

But Hurd denied McCadden's request for summary judgment on grounds that his version of events conflicts with that of Herder. Hurd's decision reads: a "jury could determine that McCadden and Herder conspired to violate [Droz's] constitutional rights."

Herder, in her deposition, states emphatically that she did not order Droz's arrest. A jury will decide who is telling the truth and whether Droz is entitled to collect damages.

Droz declined to be interviewed for this article. Herder did not return calls from the paper.

Documents filed by Droz, Herder and McCadden and decisions made so far by Hurd are matters of public record. The state Commission on Judicial Conduct's complete report on the Herder censure may be found at scjc.state.ny.us.

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