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In re Yaccarino

Decided: December 27, 1985.


On an order to show cause why respondent should not be removed from judicial office.

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

Per Curiam

[101 NJ Page 348] This is a judicial removal proceeding brought under N.J.S.A. 2A:1B-1 to -11, against Judge Thomas L. Yaccarino of the Superior Court of New Jersey (respondent). The proceedings

were initiated by a complaint authorized by this Court in February 1984 following two presentments of the Advisory Committee on Judicial Conduct (ACJC). The subject matter of the complaint and underlying presentments concern conduct of respondent dating back to 1979. Respondent was charged with professional ethical misconduct in violation of N.J.S.A. 2A:1B-2, Rule 2:15-8(a), and Canons 1, 2A, 2B, 3A(3), 3A(4), 3C, 5C(1), and 5C(7) of the Code of Judicial Conduct. The Court designated a three-judge panel pursuant to N.J.S.A. 2A:1B-7 to conduct a hearing, take evidence, and to report its findings to the Court.

Respondent filed an answer in which he denied the allegations against him. In addition, he asserted several defenses, seeking both the dismissal of the entire proceedings on constitutional, statutory, and procedural grounds and the dismissal of particular charges on grounds relating specially to these charges.

The special panel denied respondent's several motions based on his affirmative defenses and proceeded with hearings, which were held from March through May 1984. The panel rendered its report dated July 3, 1984. It found generally that the evidence showed a "pattern of misconduct" that warranted respondent's removal from the bench. Accordingly, on July 12, 1984, this Court issued an order to show cause why respondent should not be removed.


We deal first with a threshold contention made by respondent that the report of the special panel was not authorized by the statute governing judicial removal or any appropriate Rule and should be struck as ultra vires. Respondent argues that the panel is statutorily empowered only "to take evidence," N.J.S.A. 2A:1B-7, that is, to compile the evidence and summarize it. It is claimed that the panel exceeded its authority by making factual determinations and recommending disciplinary sanctions.

We reject this contention. In Matter of Coruzzi, 95 N.J. 557 (1984), this Court recognized that the Judicial Removal Act was passed to implement removal procedures as authorized generally under the Constitution. N.J.Const. of 1947, art. 6, § 6, para. 4. We stated that the Act "left much to the Supreme Court's discretion," citing N.J.S.A. 2A:1B-8.

The interests involved are so great that the Legislature required that the matter be heard directly by the Supreme Court or through its designated three-judge panel. [95 N.J. at 570.]

The Constitution and enabling statute confer a broad authority upon this Court. N.J.S.A. 2A:1B-8 provides that "[e]xcept as otherwise provided in this act, proceedings shall be governed by rules of the Supreme Court." Clearly the Act contemplated authority in this Court to effectuate fully the power to be exercised in the area of judicial discipline. The Court has done so in this case by specific order. There is nothing inconsistent with the purpose or provisions of the Act in the Court acting by directive to constitute a three-judge panel and authorizing it, as an aspect of its hearing function, not only to receive evidence but also to make findings of fact and recommendations as to appropriate discipline.

This procedure is fully consistent with the legislative scheme because all functions undertaken by the panel are strictly ancillary to the ultimate disciplinary functions performed by this Court. Because the final determinations of fact are made by this Court after its independent review of the record and, further, the ultimate or final discipline to be imposed rests in the sole judgment of the Court, the findings of fact and recommended discipline of the panel are essentially advisory. Matter of Hardt, 72 N.J. 160, 164-65 (1977); see also Matter of Yengo, 72 N.J. 425, 429 (1977) ("This Court * * * reached independent conclusions of its own on the evidence so taken. . . .").

We add that the absence of a formal Rule of Court authorizing generally the constitution of a three-judge panel in

judicial disciplinary proceedings in these circumstances does not vitiate the jurisdiction of the panel to conduct these proceedings and issue a report that includes its findings of fact and recommendations. The Court's Rule-making authority may be exercised by the promulgation of formal rules to be included in the published Rules of Court, R. 1:1. It may also be exercised in the form of general directives or specific orders. See, e.g., Matter of Coruzzi, supra, 95 N.J. 557; Matter of Albano, 75 N.J. 509 (1978).

Respondent also contends that the judicial-removal proceeding should be dismissed because its conduct violated the right of due process. We conclude that this removal proceeding does not deny respondent's rights under the constitution of the United States and the constitution of New Jersey.

Respondent complains that this Court acts, or has acted, as "an investigator, complainant, prosecutor, grand jury, trial court and appellate court," and that the Court cannot, therefore, be a fair final arbiter in this matter. It is clear that this Court and the Legislature have honored the requirements of both procedural and substantive due process in separating the investigatory, prosecutorial, and adjudicative functions entailed in judicial disciplinary proceedings. Matter of Coruzzi, supra, 95 N.J. at 573; see Mazza v. Cavicchia, 15 N.J. 498 (1954). The fact that this Court authorized a complaint to be filed with the ACJC does not cast the Court in the role of an investigator; that the complaint was tried and heard by the ACJC does not cast this Court in the role of a prosecutor. And the additional fact that this Court empaneled a three-judge tribunal to hear these proceedings ancillary to this Court's final independent review does not itself constitute prejudgment or an earlier appellate adjudication by the Court. These proceedings amply observe the appropriate separation of all important functions implicated in disciplinary proceedings. Moreover, it is abundantly clear that the procedures provided in removal proceedings as to notice, opportunity to be heard, and the confrontation

of adverse witnesses and evidence, see N.J.S.A. 2A:1B-6; see also R. 2:14-1 and R. 2:14-2, meet all the requirements of procedural due process.

Respondent also claims that the act governing judicial removal, vesting as it does the power to remove judges in the Supreme Court, is an unconstitutional delegation of authority by the Legislature. Respondent cannot be heard to complain on the basis of the New Jersey Constitution. Article 6, section 2, paragraph 3 and section 6, paragraph 4 empower this Court to control the disciplinary aspects of the judiciary. The Legislature has implemented this constitutional authority by the enactment of the Judicial Removal Act, and specifically N.J.S.A. 2A:1B-2 and -3. The omissions from the Act of provisions for removal of members of the Supreme Court is not, as suggested by respondent, fatal from a constitutional standpoint. The Constitution itself has furnished other avenues for removal involving these judicial positions. N.J.Const. of 1947, art. 6, § 6, § 6, paragraph 4.

The Respondent further contends that under the federal constitution judges can be removed by different procedures and substantive standards. See U.S. Const. art. III § 1, art. II § 4. Clearly, these federal constitutional provisions do not preempt state control of its own judiciary. A state that creates a public office can set standards of conduct for the state officer. See Gruenburg v. Kavanagh, 413 F. Supp. 1132 (E.D.Mich.1976); Sinclair v. Schroeder, 225 Kan. 3, 586 P. 2d 683 (1978).

These considerations also address respondent's further claims that the judicial removal statute is unconstitutionally vague. The Act, as supplemented by the Code of Judicial Conduct, establishes a sufficiently definite standard upon which to impose discipline or base a decision of removal. See Matter of Coruzzi, supra, 95 N.J. 557; Matter of Hardt, supra, 72 N.J. 160.

Respondent stresses the fact that the Attorney General decided not to present any aspect of these matters to a grand jury. Respondent asserts that the failure by a grand jury to return an indictment for some of these asserted offenses requires a finding by this Court that there is insufficient evidence to warrant removal. We disagree. Conduct that in itself does not constitute a criminal offense may be violative of standards governing performance, warranting discipline or removal for cause. Napolitano v. Ward, 457 F.2d 279, 284 (7th Cir.), cert. denied, 409 U.S. 1037, 93 S. Ct. 512, 34 L. Ed. 2d 486 (1972). Further, the principle of collateral estoppel, which is pleaded as a defense, has no application here. With respect to the actions of the Attorney General, there was no definitive determination of the merits of the underlying charges with respect to a breach of judicial ethics. Matter of Coruzzi, supra, 95 N.J. at 568, 569 n. 6. Finally, the power of the judiciary, stemming from the doctrine of separation of powers, must prevail to control its own members. Any decision by the Attorney General's office not to present this matter to a grand jury involves a discretionary determination by the executive branch and cannot bind or affect the judicial branch in matters concerning the governance of the judiciary. Accord Knight v. Margate, 86 N.J. 374 (1981).

In sum, we determine that respondent's claims that these proceedings should be dismissed in their entirety on constitutional and statutory grounds are without merit. We concur in the determination of the panel that respondent's defenses based on these claims should be rejected.


Several of the charges of misconduct focus upon respondent's actions towards litigants, witnesses, and other persons appearing before him in particular court proceedings over which respondent presided. We deal initially with these.


The Ricca Matter

This matter arises out of respondent's conduct while presiding in a non-jury civil proceeding entitled Elastomers Limited, Inc. v. Gino Ricca. This was an action brought against the defendant for an alleged embezzlement of funds.

Our independent review of the record discloses that respondent in the course of this proceedings discussed in open court his own financial dealings, threatened the witness-defendant, extensively questioned the defendant concerning the falsification of federal tax returns, and pointedly demeaned defendant with certain comments. Respondent, for example, told the defendant, "You are in this thing up to your hipboots with Uncle Sam. Forget about defending yourself. You are dead . . ." In a direct appeal of that case, the Appellate Division specifically criticized respondent's conduct at trial in these respects.*fn1

Based upon our independent assessment of the record, the evidence demonstrated beyond a reasonable doubt that, in their

totality, respondent's comments in this matter were such that he threatened the defendant and expressed a personal bias and hostility against him that was wholly inconsistent with the judicial obligation to remain objective and neutral. This evidence also demonstrated beyond a reasonable doubt that respondent's conduct of this case reflected discourtesy, disrespect, and impatience, clearly constituting improper decorum and a lack of dignity, which vitiated the atmosphere of fairness and impartiality. Based upon these findings, we conclude that respondent violated Canons 1, 2A, 3A(3) and 3A(4).


The Bornstein Matter

This matter arises out of respondent's conduct of a matrimonial proceeding entitled Andrea Bornstein v. Alan Bornstein. The particular aspect of the matrimonial proceedings over which respondent presided involved the visitation rights of defendant, Dr. Bornstein, with respect to two minor children who were in the custody of their mother, the plaintiff. Dr. Bornstein had remarried and failed to exercise his visitation rights for a substantial period of time. He subsequently changed his mind and sought to visit the children, who were 13 and 9 years of age. However, he was unsuccessful because the children refused to see him. Mrs. Bornstein did not force the children to see their father nor did she discipline them for refusing to do so.

Respondent at one time expressed his attitude toward defendant by stating that "[i]n plain English, * * * if I had a stick thirty feet long to reach him now, I would bop him one. * *" Later, he invoked his own personal views about child rearing when, referring to the fact that the Bornstein children would not call Dr. Bornstein "father" or "daddy," but only by his first name, Alan, or simply as "he," respondent stated, "[i]f I had a kid and he called my wife Gail, his nose would be out of joint and his teeth would rattle."

Respondent also indicated that his personal views concerning religion took precedence over the law. When Mrs. Bornstein explained that she was in court because the children did not want to see their father, and not because of an intention on her part to stop them from doing so, respondent told her that she had "an absolute affirmative duty cast upon [her] by [her] God, not by Yaccarino, not by me, but by God" to persuade them to change their attitude and to respect and revere their father, and that she was not relieved of that responsibility because the father might have been a "100 carat cad." Respondent again criticized Mrs. Bornstein for permitting the children to refer to their father as "Alan" and then invoked a religious example by reminding Mrs. Bornstein of how God destroyed Sodom and Gomorrah. When Mrs. Bornstein informed respondent that two independent psychiatrists had advised her that it would be harmful if the children were forced to see their father, he stated, "I am not talking about a psychiatrist. I am talking about God."

Respondent also advised those present in court of his personal views on divorce. He announced from the bench that he did not believe in divorce. With respect to custody, respondent commented that he could not imagine a situation in which a court would say to him "[y]ou may or you may not see your children." In addition, respondent stated that if confronted with such a situation, "I would pull this courthouse right off the hinges. There wouldn't be a courthouse. There can't be a world where those are the rules in my life." When counsel demurred, respondent informed the attorney that while both he [the attorney] and his client were "civilized," he himself was "uncivilized" since "I don't believe in divorce." The respondent expressed his personal views that the State's matrimonial laws and the court's authority to limit a parent's visitation rights would not be enforced by him. Respondent also expressed his willingness to kill anyone including himself for the protection of his children.

We appreciate that this was an unusual, difficult, and exasperating case. A prominent and experienced matrimonial practitioner personally solicited respondent to attempt to resolve the dispute. The respondent made extraordinary efforts to reconcile the father and his children. The judge struggled to assure each party that he understood that party's position. For example, the lawyers involved testified that they believed the judge, in describing the husband as a "cad," was not only making it clear that the court did not condone anything that he had done, but wanted the wife to recognize how intractable the situation was. The case was undoubtedly stressful. Still,

[n]o matter how tired or vexed, * * * judges should not allow their language to sink below a minimally-acceptable level. Judges, like other members of society, will occasionally have a "bad day." Even on such days, however, a judge must conduct court proceedings in a manner that will maintain public confidence in the integrity and impartiality of the judiciary. [ Matter of Sadofski, 98 N.J. 434, 441 (1985).]

Based upon our independent assessment of the record, the evidence shows beyond a reasonable doubt that respondent spoke in crude terms, displayed a personal animus to the parties, invoked personal beliefs not legally relevant to the cause, and made irresponsible and reckless statements showing disrespect for and defiance of the law. Based on these findings, we conclude that respondent violated Canons 1, 2A, 2B, 3A(3) and 3A(4).


The Josephson Matter

Respondent presided in two proceedings at a hearing in which Milton Josephson, Esq. was counsel. In In re Estate of Kendall, Mr. Josephson represented one of the heirs of the estate. He made a motion to be relieved as counsel. Respondent evidently understood the motion to be for relief as counsel and an assessment of fees against a successor attorney. At the close of the hearing respondent directed critical remarks at

Josephson in a particularly offensive and harsh manner.*fn2 Following these remarks respondent granted Josephson's application to be relieved as counsel, but added "with pleasure," indicating that he was personally happy to have Mr. Josephson out of the case.

In the other proceeding, Rue v. Jones, respondent presided at a hearing on a motion brought by Mr. Josephson on behalf of the defendant to vacate a default that had been entered against his client. Although the motion was originally submitted under Rule 1:6-2, respondent ordered oral argument because it appeared that discrepancies existed between Mr. Josephson's affidavit and the affidavit previously submitted by opposing counsel, Leonard J. Coates. During the course of the hearing, Mr. Josephson represented to respondent that his client was in a hospital and therefore did not have knowledge of the attempted service by publication. The hospital was contacted at the request of respondent and it was indicated that there was no record of the client's admission during the entire year in question. At the conclusion of the hearing, respondent sanctioned Josephson, found him in contempt, and summarily fined him $200.

Based upon an independent review of the record we determine that respondent's conduct was not respectful or courteous; it betrayed personal feelings of hostility inconsistent with the objectivity, impartiality, and dignity required of a judge. We conclude, based upon these findings, that respondent's actions in these matters violated Canons 1 and 2.


The Bogewicz Matter

The case of Milewski v. Bogewicz was an action between two sisters for partition of jointly-owned land. Helen Bogewicz wrote a letter to respondent advising him ex parte of facts she believed demonstrated inadequate representation by her lawyer. The Organization of Women for Legal Awareness, an organization that seeks to protect the interests of women in legal proceedings, had recommended to Ms. Bogewicz that she write the letter.

Respondent became incensed with the letter. He thereafter repeatedly humiliated and degraded Ms. Bogewicz in open court by means of a series of sarcastic comments, questions and hypothetical situations. Even after Ms. Bogewicz had apologized, respondent engaged in continuing unprovoked and harsh criticisms, harping constantly on the impropriety of an ex parte communication with the court.

Based upon our independent assessment of the record, the evidence demonstrates beyond a reasonable doubt that respondent engaged in a course of conduct that tended to publicly humiliate and demean Ms. Bogewicz. He demonstrated a lack of sensitivity, civility, fairness and impartiality when he disregarded Ms. Bogewicz's apology and continued to berate and belittle her. Based on these findings, we conclude that this conduct constituted a violation of Canons 1, 2 and 3A(3).


The Stockton State College Matter

Another matter of asserted misconduct by respondent entails a personal family matter and the claimed misuse of his judicial office concerning this family interest. This arises out of an incident involving respondent's daughter, Cynthia Yaccarino, who was a student at Stockton State College during 1981.

We find from our independent review of the record these facts to have been established beyond doubt. On March 6, 1981, Sergeant John Niewender, of the Stockton State College Police Department, found a dog belonging to respondent's daughter walking unleashed near the College bookstore. Sergeant Niewender had warned Cynthia on prior occasions that the dog required a municipal license and that she could not leave it unattended on the college campus. Sergeant Niewender put a rope on the dog and began to walk back to his car with it, intending to impound the dog. Cynthia came out of the bookstore and became irate at the officer and began yelling at him. Sergeant Niewender informed her that he was impounding the dog for lack of a license. Cynthia then screamed at and physically attacked the officer, striking and kicking at him and pulling his clothing while he attempted to place the dog inside his car. Her physical assault and interferences continued despite warnings from the officer, who finally placed her under arrest. He later charged her with simple assault, N.J.S.A. 2C:12-1a, obstructing a governmental function, N.J.S.A. 2C:29-1, and harassment, N.J.S.A. 2C:33-4. Cynthia was kept at the police station for an hour while the arrest papers were prepared; she then left and obtained a dog license, and retrieved the dog.

Cynthia did not tell her parents of the incident until ten days later. She showed her mother an article concerning the incident contained in a school newspaper. Mrs. Yaccarino in turn showed it to respondent on the evening of March 16, 1981. Respondent immediately called the Stockton State College Police

and spoke with Detective Sergeant Lentz. Respondent identified himself as a Superior Court Judge and demanded to know the statute that authorized the detention of the dog. He also told Lentz that he was a holder of silver and gold P.B.A. cards and had helped write the rules and laws governing campus police. Finally, respondent asked that the Chief of the Campus Police call him, and Lentz said he would have him call the next day.

Respondent then called Frank Muzzi, Chief of the Monmouth College Campus Police Department and a longtime friend. Muzzi said he knew the Chief of the Stockton State Campus Police and that he would call him and ask him to contact respondent. Muzzi then called the Stockton State College Campus Police Station. After receiving this call, Sergeant Lentz called Chief Long of the Stockton State Campus Police, who then called Muzzi. Chief Long agreed to call respondent the next day. Muzzi then called respondent and confirmed that Chief Long would call the next day. Nevertheless, that evening respondent called Monmouth County Prosecutor Alexander D. Lehrer, but did not reach him. Later that evening the prosecutor returned respondent's call, and respondent asked him to contact Richard J. Williams, Atlantic County Prosecutor, to have Williams investigate Cynthia Yaccarino's arrest. Lehrer did speak with Williams the next day and told Williams of respondent's allegations of police misconduct.

The next day, March 17, 1981, Frank Licitra, Chief of Detectives of the Monmouth County Prosecutor's Office, returned respondent's call of the night before. Licitra agreed to call Chief Long to find out what had happened. Licitra did call Long and asked him to call respondent. Licitra then confirmed to respondent that Long would call.

At approximately 3:30 p.m. on the same day, Chief Long called respondent at his chambers in Freehold. Respondent was on the bench but later returned the call. Respondent identified himself as a Superior Court Judge. Respondent said that ...

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