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In re Alvino

Decided: July 19, 1985.

IN THE MATTER OF ERNEST L. ALVINO, JUDGE OF THE SUPERIOR COURT OF NEW JERSEY


On an Order to Show Cause why respondent should not be publicly reprimanded or otherwise disciplined.

For dismissal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

In this matter the Advisory Committee on Judicial Conduct (Committee, or ACJC) has recommended a public reprimand as the appropriate discipline for the misconduct of which it has accused Judge Alvino. The charges originally brought against him, all resulting from the complaints of an attorney who had practiced before him, are that the judge was biased against that attorney, was dilatory in the performance of his judicial duties, delayed the disposition of matters unreasonably, and consistently failed accurately to complete his weekly reports. The Committee found that the evidence before it sustained two charges: that the judge's delay in disposing of some matters before him was unreasonable, and that the judge had consistently failed accurately to complete his weekly reports. Finding insufficient evidence to sustain the other charges, the Committee dismissed them. Based on the charges that it sustained, it found judicial misconduct and recommended public reprimand.

At the outset, given respondent's counsel's criticism of it, some mention should be made of the work of this Committee. It meets monthly, and, like other Supreme Court committees, its members serve without compensation. The responsibilities of the Committee are of extreme significance to the administration of justice in this state. Most of its work is never mentioned or known, for the overwhelming proportion of charges against judges have been found by the Committee, after investigation, to be unsubstantiated, indeed often frivolous. Those matters are dismissed and never made public. Much time is consumed in these matters, and on occasion a particular matter -- such as the one before us -- may take days of hearings both before a panel of the Committee and before the entire Committee itself. The members are people of the highest caliber, with a combination of backgrounds and experiences that are essential to assure a full understanding of the various

matters brought before them and to assure, as well, public confidence in their proceedings. We mention this, as noted above, because of the questions raised by respondent's counsel about the Committee and its work, referred to later in this opinion.*fn1

Given this Committee's findings of fact (with which we have no disagreement), its conclusion that there was judicial misconduct and that a public reprimand was warranted requires our grave consideration. The Committee dealt with matters that, in the context of judicial discipline, have not yet received any judicial treatment in this state -- judicial delay in disposing of litigation and judicial failure to perform administrative functions. Given the lack of prior judicial precedent on these issues, the Committee concluded that these clear violations of the Code of Judicial Conduct warranted discipline -- in this case, in its opinion, a public reprimand. While we disagree, and conclude that no discipline is required under the circumstances before us, we believe that the Committee was discharging its function precisely in the manner intended by our Rules, and indeed, intended by this Court. In this case, despite the complaints of respondent's counsel, we not only find no fault with the Committee's procedures and with its substantive resolution of the matter, we commend the Committee for its work. The result we reach is different from the Committee's and this difference

is based on our interpretation of the Code of Judicial Conduct and, ultimately, of the responsibilities of a judge, an interpretation that we have not heretofore been called upon to make.

Judge Alvino has been a member of the judiciary since March 20, 1967. He is one of the senior members of our bench. His record, like that of practically all New Jersey judges, is singularly free of judicial misconduct of any kind. The record before us is uncontradicted to the effect that he works hard, and is both diligent and responsible in the discharge of his duties. The Trial Court Administrator's testimony concerning his performance portrayed him as above average in both diligence and productivity. In this respect, the evidence in the record was inconsistent with the charges made.

It was on the basis of that record that the ACJC dismissed the charge that Judge Alvino was not diligent in the performance of his duties. It did find, however, that the Judge had allowed unduly long delays in disposing of two matters. Various reasons were advanced for those delays. We need not decide whether, under all of the circumstances, an unreasonable amount of time was taken in handling and disposing of them. Indeed, we think it would be unfair to Judge Alvino to do so. A judge who has served so long and well and whose record is generally characterized by diligence cannot be said to be guilty of judicial misconduct when, out of the thousands of matters he has handled, two have been unreasonably delayed.

The Code of Judicial Conduct, adopted by this Court in 1974, requires that "[a] judge should dispose promptly of the business of the court." Canon 3A(5). Literally, Judge Alvino may have violated that provision. That does not mean, however, that judicial misconduct has occurred, or that discipline, whether a private or public reprimand, is appropriate. Not every failure of a judge to conform to the standards of the Code amounts to judicial misconduct or merits formal discipline. While judges are held to the very highest standards of performance in this state, they are not infallible. It was never intended

that each and every failure to conform to the standards of the Code would lead to judicial discipline. Some shortcomings were undoubtedly contemplated as inevitable, and, assuming good motives, they were not thought to provide cause for either criticism or discipline. The failure on two occasions expeditiously to dispose of matters is such a shortcoming. We are totally satisfied that atypical violations of this kind were not intended to, and do not, constitute judicial misconduct.*fn2 There is a difference between achieving high standards and perfection. The former may fall short of the latter, but it is no cause for discipline.

There are obviously other standards, goals, and requirements of the Code whose violation, no matter how atypical, and no matter how "minor," will call not only for discipline, but for the harshest discipline. Judicial misconduct, for example, involving dishonesty of any kind will ordinarily require removal as the appropriate discipline. This case is not the appropriate occasion to attempt a complete explanation of the various circumstances that will and will not constitute a violation of the Code, nor a similar explanation of what violations of the Code will and will not call for judicial discipline.*fn3 These issues are too important to be treated apart from the circumstances in which they may arise. It is sufficient for present purposes to

note that an inadvertent delay in disposing of matters before the judge, a delay that is not at all typical of his performance, warrants not judicial discipline but rather administrative correction.

The other charge against Judge Alvino sustained by the ACJC arose from the Committee's investigation of the original charges brought by complaining counsel. It is a serious charge, and, but for the circumstances mentioned hereafter, would clearly support the Committee's recommendation of a public reprimand. The charge is that the judge regularly and knowingly failed to complete ...


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