Tuesday, May 26, 2020

Not Fun And Games

The New Jersey Supreme Court has ordered the removal of a judge as described in the court's syllabus

Based on its review of the extensive record, the Court finds beyond a reasonable doubt that there is cause for removal. Because of Respondent’s multiple, serious acts of misconduct -- in particular, his inappropriate behavior in a matter involving an alleged victim of domestic violence -- the Court orders his removal from office.

Count I involves Respondent’s conduct during and after a hearing for a final restraining order. The plaintiff, an unrepresented litigant, alleged that the defendant threatened her life, sexually assaulted her, and made inappropriate comments to their five-year-old daughter. On the first day of the hearing, the plaintiff testified that defendant “force[d] himself on [her] to have sex with him.” She described that alleged attack as well as other events of alleged domestic violence. During cross-examination, defense counsel at one point asked the plaintiff if she had ever worked as an exotic dancer, which she admitted. Soon after, Respondent took over the questioning and asked the plaintiff at length about her efforts to stop the alleged assault, including whether she had tried to “[b]lock [her] body parts,” “[c]lose [her] legs,” “[c]all the police,” or “leave.”

No witness, alleged victim, or litigant should be treated that way in a court of law. As the ACJC found, the questions were “wholly unwarranted, discourteous and inappropriate.” The questions also shamed the alleged victim by intolerably suggesting she was to blame. Respondent claimed he was trying to help a “demoralized” witness on cross-examination and “get her re-engaged in the hearing.” That explanation does not square with the record. Beyond that, Respondent’s coarse questions about how the plaintiff responded during the alleged assault were not relevant. Sexual assault turns on the alleged aggressor’s use of physical force, not the victim’s state of mind or resistance.

Respondent’s comments to his court staff and law clerk after the hearing ended are just as problematic. He asked if they had “hear[d] the sex stuff” and said, “You think it’s all fun and games out here.” Respondent also said, “I am the master of on the record being able to talk about sex acts with a straight face.”

Judges set the tone for a courtroom. Especially when it comes to sensitive matters like domestic violence and sexual assault, that tone must be dignified, solemn, and respectful, not demeaning or sophomoric. Respondent failed in that regard. Respondent said his remarks about “fun and games” were part of an effort to give guidance to his law clerk about the complexity of domestic violence cases. But the exchange that Respondent initiated was not an instructive lesson of any sort.

The court sustained other charges of misconduct including

During a nine-minute ex parte phone conversation in front of a crowded courtroom, Respondent threatened the defendant mother in a paternity case with financial penalties and a loss of credibility with the court when she said she was scared to disclose her address. He also said, “he’s going to find you, ma’am. We’re all going to find you.” As the panel correctly observed, Respondent’s disturbing comments and questions were insensitive, threatening, and discourteous, and they reflected poorly on his temperament.

Notably, the Advisory Committee on Judicial Conduct had recommended a three-month suspension without pay with a minority favoring a six-month unpaid suspension.

The court took a harsher view

Viewed together, Respondent’s multiple acts of misconduct have lasting consequences. His pattern of misconduct and unethical behavior not only undermined the integrity of different court proceedings but also impaired his integrity and the Judiciary’s. His overall behavior reflects a lack of probity and fitness to serve as a judge. And his conduct breached the public’s trust. The vast majority of the more than 400 judges who serve on the Superior Court abide by the highest of ethical standards. In carrying out their responsibilities, they must uphold the law. Occasionally, judges are required to make difficult decisions that may be unpopular. They have no reason to fear that discipline will be imposed in such instances. Judicial independence, which is central to a constitutional democracy, rests on those core values. Judges may also make mistakes while reasonably carrying out their duties in good faith. That is not a basis for discipline either. Potential legal errors are properly challenged and reviewed on appeal instead. The series of ethical failures that Respondent committed are not errors of law, innocent missteps, or isolated words taken out of context. Viewed as a whole, they are flagrant and serious acts of misconduct. Respondent’s explanations under oath about what occurred also reveal a lack of candor on multiple occasions, which factors into the Court’s judgment in this matter.

Chief Justice Rabner authored the opinion. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/05/the-new-jersey-supreme-court-has-ordered-the-removal-of-a-judge-based-on-its-review-of-the-extensive-record-the-court-finds.html

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