On orders to show cause why respondents should not be disbarred or otherwise disciplined.
For suspension of both respondents for one year -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. Opposed -- None.
[76 NJ Page 330] A complaint filed with the Morris County Ethics Committee alleged ethical violations arising out of
the same episode against respondents S. Victor DeLucia, then a recently resigned Judge of the Municipal Court of Rutherford, and Jack J. Terkowitz, a member of the bar of this State and a former Judge of the same municipal court. However, because respondent Terkowitz was ill, hearings proceeded in November 1975 against respondent DeLucia alone. Hearings with respect to respondent Terkowitz were not held until December 1976. The Morris County Ethics Committee returned separate presentments against each respondent. Thereupon we issued orders to show cause why each should not be disbarred or otherwise disciplined and heard both oral arguments on both orders on the same return day.
Under these circumstances we have considered and reviewed each record, including the testimony and exhibits, independently.
Upon our examination of this record we have concluded that Terkowitz's sworn statement (he was ill and unable to appear), offered with the consent of respondent DeLucia, was improperly rejected by the Committee, and we have considered it as part of the record. Our recitation of the facts, most of which are undisputed, which we find clearly and convincingly demonstrated in the record, follows.
Respondent DeLucia had been the municipal magistrate of the Borough of Rutherford for approximately four-and-a-half years when the incident which occasioned these disciplinary proceedings occurred. On October 31, 1973 Robert Alvarez, a Rutherford police officer, issued a summons to Barbara Spencer for passing a school bus in violation of N.J.S.A. 39:4-128.1. The summons was returnable on November 12, 1973.
Mrs. Spencer, after receiving the summons, drove to her job at the law offices of Jack J. Terkowitz, where she was employed as a secretary. Upon arrival at the office Mrs. Spencer, who was under some tension and physical difficulties
due to her pregnancy, explained her plight to Terkowitz. She claimed that she had not seen the bus because of other traffic. Terkowitz, who had been the municipal court judge in Rutherford for many years and who knew respondent, telephoned respondent and explained Mrs. Spencer's physical problems. He also stated that Mrs. Spencer's view had been obstructed so that she had not seen the school bus before passing it.
Respondent then spoke to Officer Alvarez and, after explaining the circumstances, asked, "Would you have any objections if we took care of it?" or words to that effect. The officer answered that he did not care and that it was up to respondent. On November 12, 1973, while in chambers and without appearance by anyone before him, respondent personally noted a not guilty plea on the court copy of the summons and entered a judgment of not guilty. In that portion of the summons relating to witnesses' testimony, respondent wrote "testimony that * * * defendant states view was obstructed by trees * * *." In fact, no court hearing was ever held and no testimony was taken. The acquittal was based solely on information received from respondent Terkowitz. On November 13, respondent DeLucia advised Mrs. Spencer that the charge had been dismissed.
Shortly after November 13, 1973, a member of the Bergen County Prosecutor's Office visited the office of the Clerk of the Rutherford Municipal Court and examined the Spencer summons. When that occurred the clerk immediately telephoned and alerted respondent. Upon learning of the Prosecutor's investigation, respondent visited Terkowitz at the latter's office. He was visibly upset and concerned. Respondent requested that Mrs. Spencer prepare an affidavit in which she would recite what occurred at the time of the motor vehicle violation.
It was his denial at the hearing before the Ethics Committee that he had requested the affidavit be backdated to a date before the return day of the summons which led to the request to amend his answer to the complaint. In his answer
respondent admitted that he told Terkowitz that he needed an affidavit for his file setting forth the circumstances surrounding Mrs. Spencer's receipt of the summons for passing the school bus, as well as her physical condition at the time. He wanted the affidavit dated as of the day when Mrs. Spencer gave the information to Terkowitz. Although respondent was permitted to amend his answer to deny that he requested the affidavit be backdated, and standing alone the effect of the admission in the answer may not have risen to the level of establishing clear and convincing proof, we are convinced from other evidence that he did. See Bauman v. Royal Indemnity Co., 36 N.J. 12 (1961).
On December 11, 1973 respondent was interrogated under oath by an Assistant Prosecutor of Bergen County. In that interrogation he stated that he had advised Mrs. Spencer to make out an affidavit and to date it the day on which she had relayed the information to Terkowitz. A relevant part of the statement reads as follows:
Q. At that time did you advise Mrs. Spencer to make out a sworn affidavit?
Q. What date was she told to put on this affidavit?
A. The date that she had told Mr. Terkowitz the information upon which I was relying.
Q. Was the subject matter of the affidavit discussed with Mrs. Spencer and Mr. Terkowitz?
A. Did I discuss it with him?
A. No. I listened while the affidavit was put together. But ...