On a presentment by the Advisory Committee on Judicial Conduct.
For suspension without pay -- Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi, and Stein. Concurring in part; Dissenting in part -- Justice Pollock. Pollock, J., Concurring in part and Dissenting in part.
This case involves judicial misconduct. The matter was initially presented to the Advisory Committee on Judicial Conduct (Committee or ACJC) on a formal complaint against the respondent, Donald G. Collester, Judge of the Superior Court. The complaint charged that respondent had violated several Canons of the Code of Judicial Conduct as well as Rules of Court. The misconduct involved respondent's operation of his automobile on April 28, 1991, resulting in charges for violating N.J.S.A. 39:4-50, operating a automobile while intoxicated, N.J.S.A. 39:4-98, driving in excess of the speed limit, and N.J.S.A. 39:4-86, improperly passing another vehicle. Respondent filed an answer admitting the factual allegations of the complaint.
The Committee held a formal hearing on the charges, in which it considered respondent's convictions for the motor vehicle offenses, in addition to other testimonial and documentary
evidence. It then filed a presentment with this Court containing its findings and Conclusions and recommended discipline. Respondent voluntarily waived oral argument in the matter and agreed to abide by this Court's decision, including appropriate discipline.
The essential facts are not in dispute. The Committee determined that the evidence clearly and convincingly demonstrated the following:
On the night of Saturday, April 27, 1991, respondent drank heavily at a social occasion. He continued to drink into the early morning hours and fell asleep at home in his chair. The following morning, he awoke and proceeded to drive to the Sussex County Court House in Newton to obtain a file in a case that he was scheduled to try the following day. His plan was to bring the file home and look it over that Sunday night.
As respondent was driving in a northerly direction on State Highway 206 in Andover Township at approximately 9:55 a.m. on Sunday, April 28, he was observed by an officer of the New Jersey State Police who was operating a patrol car in a southerly direction on that highway. The trooper clocked respondent's vehicle on radar as traveling at 65 miles per hour in a 50 m.p.h. zone. The trooper performed a U-turn and began to pursue respondent's vehicle as it proceeded north on Highway 206. During the pursuit, the trooper observed respondent passing another vehicle in a no-passing zone. The trooper then accelerated and conducted a speedometer pace of respondent's vehicle and measured respondent's speed at 78 miles per hour. The trooper turned on his overhead lights and then activated his siren. At that point, respondent pulled over to the right shoulder and stopped so suddenly that the trooper had to drive in front of him and then back up to him on the shoulder.
When the trooper asked respondent for his driving credentials, respondent told the trooper that he was a Superior Court Judge and that he was on his way to the court house on an emergency. Respondent repeated this statement as the trooper was administering field sobriety tests on the shoulder of the road. Respondent cooperated in performing those tests, and the trooper concluded from the results of the tests that respondent was under the influence of alcohol. The trooper told respondent that he was under arrest and that he had to be handcuffed. Although respondent initially pulled away as the trooper reached for his wrist to handcuff him, he then submitted to being handcuffed. The trooper transported respondent to the Sussex Station of the New Jersey State Police, where breathalyzer tests were administered and respondent's blood alcohol content was measured at .16% and .17%.
Respondent was charged with driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50, speeding in violation
of N.J.S.A. 39:4-98, and improper passing in violation of N.J.S.A. 39:4-86. On May 30, 1991, he appeared in the Andover Township Municipal Court and entered pleas of guilty to the charges of driving while under the influence and speeding (into which the charge of improper passing was merged). The municipal court ordered respondent to pay a fine of $80 on the speeding charge, and on the DWI conviction sentenced respondent to a fine of $500, to perform thirty days of community service, to forfeit his driving privileges for two years, and to serve forty-eight hours of confinement. The court found that the requirement of confinement had been satisfied by respondent's stay at an inpatient rehabilitation program from April 28 to May 26, 1991. The court also ordered that respondent satisfy the requirements of the Intoxicated Driver Resource Center, assessing a payment of $100 to the Drunk Driving Enforcement Fund, ordered payment of $30 to the Violent Crimes Compensation Board, and assessed an ATS surcharge of $2.00 and court costs of $50. Respondent paid the fines and other charges, and he subsequently performed thirty days of community service working as a gardener at a home for the elderly.
The Committee concluded that respondent had violated several Canons of the Code of Judicial Conduct, namely, Canon 1, which requires a Judge to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved; Canon 2A, which requires a Judge to respect and comply with the law and to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary; and Canon 2B, which prohibits a Judge from using the prestige of his or her office to advance private interests. The Committee further found that respondent had engaged in conduct prejudicial to the administration of Justice that brought the judicial office into disrepute, in violation of Rule 2:15-8(a)(6). It recommended that respondent be censured and that he be disqualified from presiding over any cases involving substance abuse until his Assignment Judge is satisfied
that his rehabilitation is secure. The Committee also recommended that respondent be required to continue his active participation in rehabilitative programs and that his progress in such programs be monitored by the Assignment Judge.
In attorney and judicial disciplinary cases, the Court gives conclusive effect to the respondent's convictions of statutory crimes and offenses. R. 1:20-6(c)(1). E.g., In re Conway, 107 N.J. 168, 526 A.2d 658 (1987); In re Coruzzi, 98 N.J. 77, 484 A.2d 667 (1984). In this case, respondent's conviction established his violations of the motor-vehicle laws. We are impelled to accept those convictions as determinative of respondent's guilt of the underlying offenses. In re Connor, 124 N.J. 18, 589 A.2d 1347 (1991). As determined by the Committee, the convictions establish by clear and convincing evidence respondent's misconduct in violation of Canons 1, 2A, and 2B, and Rule 2:15-8(a)(6).
Although in disciplinary proceedings a conviction is dispositive in establishing the occurrence of unethical conduct, the assessment of discipline entails a more searching and expansive inquiry. We thus carefully scrutinize the substantive offenses that constitute the core of respondent's misconduct, the underlying facts, and the surrounding circumstances in determining the nature and extent of discipline. In re Connor, supra, 124 N.J. at 22, 589 A.2d 1347; In re Pleva, 106 N.J. 637, 525 A.2d 1104 (1987); In re Coruzzi, supra.
With respect of drunk driving, we said in Connor: "We do not view offenses arising from the driving of an automobile while intoxicated with benign indulgence. They are serious and deeply affect the safety and welfare of the public. E.g., State v. Schreiber, 122 N.J. 579, 585 A.2d 945 (1991); State v. Hamm, 121 N.J. 109, 577 A.2d 1259 (1990); State v. Downie, 117 N.J. 450, 569 A.2d 242 (1990); State v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987). They are not victimless offenses."
124 N.J. at 21, 589 A.2d at 1349. We firmly endorse the governmental commitment to the eradication of drunk driving as one of the ...