On an Order to Show Cause why respondent should not be disciplined.
For suspension -- Justices Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. Wilentz, C.J., and Clifford, J., did not participate.
This is a judicial-disciplinary case. The proceedings commenced with the filing of a complaint with the Advisory Committee on Judicial Conduct (ACJC or Committee) against respondent, Judge Edward J. Seaman, a Judge of the Superior Court in Middlesex County. The complaint was made by B.D., a former law clerk of respondent, charging him with judicial misconduct in violation of several canons of the Code of Judicial Conduct and of the Court's Disciplinary Rules. The gravamen of the complaint was that respondent had abused his authority by mistreating the complainant while she was employed as his law clerk. The mistreatment took the form of various kinds of sexual harassment.
The ACJC issued a presentment in which it found many of the allegations of the complaint to have been established by clear and convincing evidence. The presentment recommended that respondent be publicly censured. Respondent moved for an order dismissing the complaint pursuant to Rule 2:15-13. This Court denied that motion and simultaneously issued an Order to Show Cause why respondent should not be disciplined.
This matter first arose when, in August 1989, respondent's law clerk, B.D., filed a complaint with the Affirmative Action Officer for the Middlesex County Court House. The complaint, denominated an "Affirmative Action Complaint," alleged that during the course of B.D.'s clerkship, respondent had engaged in a pattern of abusive behavior consisting of sexual harassment of complainant.
According to the complaint, respondent repeatedly made remarks of a sexual nature to complainant. The complaint also alleged that respondent had repeatedly touched complainant in an inappropriate manner.
That complaint was eventually referred to the ACJC, which interviewed complainant on October 25, 1989. The interview was reduced to writing. As a result of complainant's interview, the ACJC lodged a formal complaint against respondent charging him with violating the Code of Judicial Conduct. The basis for the charges was the alleged acts of sexual harassment set forth in the Affirmative Action Complaint and further described in the interview. The complaint alleged that by engaging in that course of conduct respondent had violated: Canon 1, "A Judge should uphold the integrity and independence of the judiciary"; Canon 2, "A Judge should avoid impropriety and the appearance of impropriety in all activities"; Canon 2A, "A Judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary"; Canon 3A(3), "A Judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the Judge deals in an official capacity . . ."; and Canon 3A(4), "A Judge should be impartial, and should not discriminate because of race, color, religion, age, sex, sexual orientation, national origin, marital status, socioeconomic status, or handicap." Additionally, the complaint alleged that respondent's actions had violated Rule 2:15-8(a)(6), as "conduct prejudicial to the administration of Justice that brings the judicial office into disrepute."
The ACJC held hearings on March 11 and April 16, 27, and 29, 1992, to investigate the allegations against respondent. Although authorized "to conduct formal hearings with three members in attendance" (R. 2:15-3(b)), no fewer than six of the eight members who participated in the matter were present at any time. At those hearings, the witnesses presented against respondent were complainant; Susan Leib and Robin Pedersen, law clerks of the assignment Judge of Middlesex County; and complainant's mother, C.D. Testifying for the respondent were himself; his wife;
Judge Breitkopf, the assignment Judge; William F. Lamb and Stephen Leary (respectively a prosecutor and a private attorney with whom complainant had interviewed for positions); and Grace Berrue, Nancy Malkiewicz, and Joseph Hixon, members of respondent's office staff.
Applying a "clear-and-convincing" standard to the evidence adduced, the ACJC, as noted, found that respondent had engaged in a great many of the separate incidents of sexual harassment set forth in the complaint and, by that conduct, had violated Canons 1, 2, 2A, 3A(3), and 3A(4) of the Code of Judicial Conduct, as well as Rule 2:15-8(a)(6). The ACJC recommended that respondent receive a public censure. One member of the ACJC, who concurred in the recommendation of a public censure, found that only three incidents of sexual harassment had been established by clear and convincing evidence.
Matters of judicial discipline brought before this Court on the presentment of the ACJC receive a de novo review of the record and are subject to a clear-and-convincing standard of proof. See, e.g., In re Collester, 126 N.J. 468, 476, 599 A.2d 1275 (1992) (applying "clear-and-convincing" standard in assessing evidence in case of judicial discipline). Clear-and-convincing evidence is "that which 'produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established,' evidence 'so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the precise facts in issue.'" In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 339, 434 A.2d 1111 (App.Div.1981), modified, 90 N.J. 361, 447 A.2d 1335 (1982) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162, 165 A.2d 531 (App.Div.1960)); see R. Biunno, Current N.J. Rules of Evidence, comment 6 on Evid.R. 1(4) (1993). In our review of a judicial-disciplinary matter, we must engage in an independent
consideration of the record and determine, as a matter of first impression, the material facts that have been established by clear and convincing evidence. Because the focus of judicial-disciplinary matters is necessarily on the canons of judicial conduct, we inquire into whether the facts as determined demonstrate conduct on the part of the respondent that is incompatible with those canons.
We must state, prefatorily, that the inquiry before the Court is not whether respondent's behavior constituted sexual harassment as such. Although undoubtedly all forms of behavior that cross the legal threshold of sexual harassment would constitute judicial misconduct, many forms of offensive interpersonal behavior that would violate the Code of Judicial Conduct would not meet the legal definition of sexual harassment. Nevertheless, we cannot overstress that although we must address the ultimate issue of whether judicial conduct violates the canons, the charges of misconduct against respondent equate with sexual harassment. That form of conduct is personally offensive, highly invasive, psychologically hurtful, and often deeply embarrassing to the victim. For that reason, we have chosen to maintain complainant's anonymity by referring only to her initials, despite the fact that the charges against respondent have become public and complainant's privacy has been shattered. Charges of judicial misconduct are ordinarily made public when found in a presentment of the ACJC. The ACJC followed conventional practice and used complainant's full name in its presentment. In the future, we direct that judicial-disciplinary cases involving abuse of the judicial office through sexual harassment, or other activities that humiliate or degrade those with whom a Judge comes into contact, should preserve the anonymity of the alleged victim. The purpose behind that practice is to protect the victim's privacy and encourage reporting of such offenses.
Many of the facts forming the general background to the events that are the subject of the complaint are not controverted or materially disputed. The record reveals that complainant first met respondent in March 1988, when she applied for a position as respondent's law clerk for the 1988-1989 term. Complainant was hired by respondent and began working in September of 1988.
Complainant's duties included reading and evaluating pre-trial motions, doing whatever legal research was required, and writing recommendations to respondent on the cases that came before him. Complainant worked in a room with about a dozen other clerks. The room was several yards from the office suite in which respondent worked. In the course of her work, however, complainant frequently visited respondent's chambers and met with him in his office. Complainant testified at the hearing below that she saw respondent "a couple of times throughout the morning, maybe a couple of times throughout the afternoon" in the course of her working day, although as respondent described his schedule, the frequency with which he saw complainant would have been much lower.
Assisting respondent, in addition to complainant, were several other court personnel. Those persons included Grace Berrue, respondent's secretary; Joseph Hixon, a court aide for respondent; and Nancy Malkiewicz, a court clerk by designation and respondent's administrative assistant in handling settlement conferences.
Complainant claimed that respondent's misconduct took place shortly after the commencement of her clerkship in September 1988 and persisted through June 1989. At the hearing below, however, complainant and respondent gave sharply conflicting accounts of the evidence relating to respondent's alleged abusive conduct.
Complainant testified that respondent, in October 1988, began directing various remarks of a sexual nature at her. Those remarks, according to complainant, continued throughout her
clerkship. For example, complainant claimed that respondent had a conversation with complainant, sometime in the spring of 1989, in which he expressed the wish that a pen complainant was holding were actually respondent's penis. Respondent, according to complainant, boasted of his sexual prowess, asked her to repeat a vulgar sexual remark to him, and assured complainant that, were they to have sexual relations on his desk, he would be sure to avoid a crack on the desk that might scratch her. Complainant stated that although she had disregarded those sorts of comments by respondent, he continued to subject her to such remarks.
In addition to her claims of verbal harassment, complainant testified to improper physical contact by respondent.
Two of those episodes, unlike most of the other incidents to which complainant testified, were witnessed by third parties. In the first incident, complainant was speaking with Susan Leib and Robin Pedersen when respondent came into the room and reached under complainant's mid-calf length skirt, apparently touching complainant's knee. When complainant recoiled, respondent left the room. In the second incident, complainant was conversing with Pedersen when respondent entered the room, stood behind her, lifted complainant's skirt, and examined the back of her knees.
Both Leib and Pedersen testified to the first incident. For the second, only Pedersen was present, but she testified in detail as to respondent's behavior.
Complainant also testified that on other occasions respondent had initiated unwanted sexual contact with complainant. For example, in one of those episodes complainant alleged that respondent grabbed complainant's hand and attempted to place it on his crotch. Complainant pulled away before her hand made contact with respondent's body. In another episode, in the fall of 1988, complainant averred that respondent told her that if she wanted a favorable job recommendation from him she would have to sit next to him on his office sofa.
Several witnesses for complainant offered testimony about some of the incidents as related to them by B.D. They also testified about her general behavior, attitude, and demeanor during her clerkship while these incidents of sexual harassment were occurring. Complainant herself stated that respondent's behavior had embarrassed and troubled her. Complainant's mother, C.D., testified that although complainant seemed quite happy for about the first month of her clerkship, in October 1988 complainant underwent a marked personality change. C.D. noted of complainant that "[s]he became very quiet, stayed in her room a lot. Cried a lot." That change continued throughout the year. C.D. also testified that complainant had told her of respondent's salacious remarks about the pen, about his sexual prowess, and about respondent's attempt to place complainant's hand on his crotch. Complainant related those incidents to her mother during the fall of 1988, roughly contemporaneous with the events of which she complained.
Complainant's colleagues, Susan Leib and Robin Pedersen, also testified that complainant had related some of those episodes to them, although not contemporaneously. Both Leib and Pedersen, who witnessed the first skirt incident, suggested that complainant was somewhat bashful and even naive about sexual matters. Complainant was given the moniker "Sister B." because, as one witness explained, complainant was "very straight . . . [and] rather naive and she was very modest and wouldn't use swear words, and if people told off-colored [sic] jokes she didn't understand them, and always kind of saw only the good side to jokes and things like that."
Leib noted that complainant had told her of respondent's "pen" remark, and also testified that complainant had told her of respondent's remark about joining him on his office couch. Pedersen also testified to being told, by complainant, about the pen and couch remarks. Pedersen, however, also recalled complainant telling her about respondent's remark about the scratch on his desk and respondent's request that complainant repeat a "dirty word" to him.
According to the testimony, in June 1989, complainant viewed a film on sexual harassment sponsored by the Affirmative Action Office of the state judiciary. As complainant recounted it, the film precipitated the realization that she had been the victim of respondent's sexual harassment. After speaking about several of the incidents with Susan Leib and Robin Pedersen, complainant requested and received from Judge Breitkopf a transfer from her position with respondent. Judge Breitkopf testified that complainant "made allegations that seemed to [him] to be sufficient that [he] should do something about them," but Judge Breitkopf's testimony does not further specify those allegations. Complainant thereafter brought the matter to the attention of the Affirmative Action Officer assigned to the Middlesex County Court House. According to her testimony, she later typed out a complaint, labeled "Affirmative Action Complaint," which she brought to the attention of Judge Breitkopf.
Respondent, for his part, denied all the allegations against him. However, in addition to making general denials, respondent took issue with several specific allegations of complainant.
With respect to the first "skirt incident" respondent claimed that a paper had fallen to the floor, he had bent down to retrieve it and accidentally startled the complainant. Respondent insisted that he had never touched complainant during the episode. When pressed on why Susan Leib and Robin Pedersen would testify that he had placed his hand under complainant's dress and had touched her knee, respondent claimed that he did not know why, but that Leib and Pedersen might have been biased against him because complainant had told them that respondent was speaking ill of them to other lawyers.
Although respondent's staff claimed that they had never seen respondent improperly touch complainant, Joseph Hixon and Nancy Malkiewicz did recall that respondent had put his arm around complainant's shoulders, and that that was characteristic behavior for respondent. Moreover, Robin Pedersen, when cross-examined on her reaction to the first skirt incident, remarked that "though
extreme," the lifting of complainant's skirt was "not out of character" for respondent. Pedersen further testified that respondent told "dirty jokes to the clerks" and once put his hand on her back. Pedersen commented that although she had not been shocked by respondent's touching her, she had been surprised that he "went that far."
With respect to complainant's overall comportment, respondent and his witnesses depicted complainant as overly sensitive to criticism and responding badly to his legitimate complaints about her work. Respondent's staff did not find complainant to be particularly bashful. Members of the office staff related that for most of the year complainant had said very complimentary things about respondent and had never spoken about allegations of sexual harassment. By the end, however, complainant's attitude had changed; she had become "arrogant" toward respondent and "didn't seem too interested in the job."
Further, respondent claimed that complainant had not expressed any dissatisfaction with her working environment to him. Evaluating complainant's work for the fall of 1988, respondent deemed complainant's work "average." Respondent noted, however, that the quality of complainant's work had deteriorated as the year progressed. Respondent testified that he had spoken several times with complainant about deficiencies in her work and had explained to complainant that the timing of her job interviews in the spring of 1989 had been inappropriate. According to respondent, the deterioration in complainant's work product had been accompanied by a change in complainant's attitude. Respondent testified that complainant began ignoring him when he was present and speaking ill of him to other court personnel.
Respondent also introduced character testimony from his wife and staff. That testimony noted that respondent was a devoted father and husband; a consistent church-goer; one who enjoyed recreational and sports activities; and a competent, conscientious, and hardworking Judge who kept a very regular routine. Although
respondent admitted that he told off-color jokes, he insisted that he never made such remarks in complainant's presence.
Respondent, both on direct examination of his own witnesses and on cross-examination of complainant and some of her witnesses, elicited testimony questioning complainant's general veracity. That testimony concerned three incidents in which complainant was alleged to have been untruthful.
The first incident involved complainant's assertion, to Susan Leib, that she had been a "runner-up" for a Rhodes Scholarship. Evidence from the Rhodes Committee contradicted that assertion. The second involved complainant's stating that she was reluctant to accept a job offer from a law firm because her mother had advised her to have a say in choosing her office and her secretary, and an associate of the firm had advised her that the benefits package was inadequate. Both complainant's mother and the associate denied rendering such advice to complainant. The third episode involved ...