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In re Albano

Decided: March 20, 1978.

IN THE MATTER OF NICHOLAS ALBANO, JR., JUDGE OF THE ESSEX COUNTY DISTRICT COURT


For censure -- Chief Justice Hughes, Justices Sullivan, Pashman, Clifford, Schreiber and Handler and Judge Conford. Opposed -- None.

Per Curiam

Respondent Nicholas Albano, Jr. is an Essex County District Court Judge appointed on April 5, 1973. Presently, he is the Presiding Judge of the Essex County District Court. The instant proceedings against him had their origin in a complaint filed with the New Jersey Supreme Court Advisory Committee on Judicial Conduct by Essex-Newark Legal Services Corporation charging respondent with misconduct as a judge.*fn1 Pursuant to R. 2:15 the Committee made a preliminary investigation of the complaint, respondent's answer thereto and numerous transcripts of Essex County District Court trials presided over by respondent.

The Committee then conducted a hearing at which respondent appeared. The charges against him as reflected in the trial transcripts were reviewed and respondent was afforded the opportunity to respond.

Thereafter the Committee filed its Presentment and Recommendation for Institution of Formal Proceedings for removal of respondent as Judge of the Essex County District Court pursuant to N.J.S.A. 2A:1B-1 et seq. The Committee found that nothing before it reflected in any way on respondent's integrity, his inherent legal abilities or his hardworking attention to his duties. However, on the basis of the trial transcripts and other relevant documents placed before it, the Committee found beyond a reasonable doubt

that respondent was unsuited by temperament and demeanor to continue as a Judge of the Essex County District Court and that his judicial conduct had been shown to be in violation of the Code of Judicial Conduct, Canons 1, 2, 3A(1), (2), (3) and (4).

Respondent then filed a motion under R. 2:15-13 for an order denying or rejecting the Committee's Recommendation for Institution of Formal Proceedings. This Court allowed respondent to present oral argument on this motion and also ordered him to show cause why he should not be censured or reprimanded in lieu of being subjected to formal proceedings for removal. The matter has now been fully argued before this Court. Our conclusion is that respondent's conduct as a judge, hereinafter referred to, has been shown to be improper and in violation of the Code of Judicial Conduct. Censure for his actions is required. However, the extreme penalty of removal, carrying with it the drastic sanctions*fn2 it does, is not warranted.

The Committee's findings of judicial misconduct fall into four general categories. They are: (a) intemperate conduct duding judicial proceedings; (b) repeated misapplication of law; (c) bias against attorneys from Essex-Newark Legal Services Corporation; (d) criticism of tenant-oriented laws. There is also one instance of an ex parte communication by respondent to the Rent Leveling Board of East Orange regarding a decision by the Board which respondent felt had attempted to overrule one of his decisions.

It is unnecessary to discuss specifically each instance of misconduct as set forth in the Presentment. Some of them, in the light of respondent's explanations, are debatable as to whether or not respondent exceeded the bounds of judicial propriety. Others, however, clearly manifest a lack of judicial demeanor, patience and understanding and, in some

instances, an attempt at sarcasm and humor that does not belong in a courtroom.

One case, referred to by the Committee in its Presentment, reflects several of the charges of alleged judicial misconduct on respondent's part. Rabinowitz v. Bennett, heard on November 28, 1973, involved a summary proceeding to dispossess a tenant for non-payment of rent. At the hearing a law student from the Rutgers Urban Legal Clinic appeared for the tenant pursuant to R. 1:21-3(c). When the landlord, "as a taxpayer," complained about the tenant being provided with a "free lawyer," respondent said there was nothing the court could do about it but suggested that an attorney be consulted as the landlord was entitled to know the basis on which the application for representation was made and if there was a false statement, there would be a prosecution for false swearing.

The hearing then commenced with the landlord testifying to the tenancy, the tenant's non-payment of one month's rent amounting to $210 and the tenant still remaining in possession. The law student representing the tenant then sought permission to ask the landlord some questions about conditions in the ...


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