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Matter of Fenster

Decided: November 18, 1994.


On an Order to show cause why respondent should not be publicly disciplined.

Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'hern, Garibaldi, and Stein join in the Court's opinion.

Per Curiam

Respondent, Judge Philip A. Fenster, a municipal court Judge, was charged with judicial misconduct. After hearing the matter, the Advisory Committee on Judicial Conduct recommended censure, finding that his conduct required a more severe sanction than public reprimand. We agree, but conclude that a suspension is warranted.

Respondent was charged with improperly permitting the Mayor of Paterson "to make a speech during a court proceeding." On August 9, 1991, respondent presided over a session of the Paterson Municipal Court. He had been a municipal court Judge for seven years. One of the matters scheduled for that session was State v. Martinez Brothers, Ricardo Martinez and Richard Martinez, in which the defendants were charged with multiple housing violations in certain rental properties.

Shortly after the case commenced, the Mayor of the City of Paterson, apparently seated in the audience, interrupted the proceedings and asked if he might approach the bench. Respondent had previously learned that morning, before the proceedings started, that the Mayor was in the courtroom and wanted to speak or testify in that matter. The Committee's opinion fairly describes and explains what then occurred:

Respondent asked defense counsel if he had an objection to the Mayor's speaking "seeing as how your clients sent a letter to the Mayor and, in fact, a tenant sent a letter to the Mayor." Respondent continued to express his own view of the propriety of the Mayor's speaking: "Since everyone has requested the Mayor's intervention, I think it's appropriate that he speak. Do you have any objections?"

Defense counsel asked to confer with his client and as he was doing so, Respondent observed:

Well, I think normally, it would be a valid objection because the Court has to be independent from the Mayor and the City. The Court is neutral between a defendant and the State or the City or the complainant. The Court has to be neutral and there is no reason for a mayor, or any person on City Counsel [sic] to appear. But I think this case is different.

In this case, both sides have written to the mayor requesting his intervention. Both sides. Not only one. It's not like one has said "Politically, I know the Mayor. I want the Mayor to influence the case." Both sides have written to the Mayor about this case and, in fact, have asked the Mayor to intervene.

Defense counsel replied that the Mayor's intervention had not been sought "in the judicial arena," but Respondent went on to say that it was good for people to write to the Mayor because the Mayor appoints the municipal Judge and it helps the Mayor to know how someone is performing in his or her job. Respondent continued, noting that this was a case that was pending and concluding that the Mayor should be able to speak on the case because it had "been requested by both sides."

The individual defendants had not written to the Mayor to intervene in the proceedings but had copied him on a letter addressed to the Chief Justice. This letter dated July 10, 1991, was admitted into evidence before the Committee as Exhibit P-3. It was a long and detailed letter criticizing the Respondent's performance in the case. The Respondent's awareness of the contents of this letter and his initial reaction against the individual defendants at the onset of the proceedings strongly suggest that he was no longer impartial. This became clearer as the matter proceeded and defendants' counsel moved that Respondent recuse himself.

Defense counsel asked if the Mayor would be a fact witness. Respondent noted that the issue before the court was the question of an adjournment, and he stated: "Well, he [the Mayor] can argue as to whether the adjournment would be correct. He can argue about anything. Both sides have asked the Mayor to intervene." Defense counsel persisted in trying to pin the Respondent down to whether the Mayor would be a fact witness or an expert witness. In response, Respondent asked the Mayor if he wanted to testify about whether the case should be adjourned. The Mayor replied that he would be sworn in, and Respondent observed that counsel could object if the Mayor said anything objectionable.

Defense counsel persisted and said: "Judge, but who is calling him? Is he here as a fact witness?" He continued: "Is he here as an expert witness? Is this going to be a political speech? What is this going to be?" Respondent insisted once again that both sides had asked the Mayor to intervene in the case and had sent letters to him. Once again, defense counsel observed that the Mayor's intervention had not been sought in the judicial proceeding. He also said that it would be very unusual to permit the Mayor to participate, and he told Respondent: "We may be treading on dangerous ground here if you let the Mayor talk at will and not being called as an expert witness."

Respondent stated again that both sides had written to the Mayor. Defense counsel replied: "Yes, but that still does not give him the right to come into court and make a political statement. I mean, this is a political speech now." Respondent replied: "Well, it very may well be (sic). But that's what both sides want, interference by a political person. Both sides wrote to the Mayor." Defense counsel replied: "Judge, if both sides wanted to turn this into kindergarten, you wouldn't permit it. Just because both sides wanted to do something inappropriate doesn't mean the Court has to permit it." Respondent agreed but once again said that the Mayor had been asked to intervene. He noted that counsel could object, and he maintained yet again that both sides had written to the Mayor.

Defendant Ricardo Martinez started to speak, and the prosecutor objected. Respondent observed that it was inappropriate for a client to argue, and he said that once the Mayor spoke anyone could answer. Defense counsel then returned once more to the question of who would be calling the Mayor as a witness. Respondent replied: "The court is calling him because everybody requested--" At that point, the municipal prosecutor finally spoke up and noted that views from the Mayor might well be considered to be analogous to a brief by an amicus curiae. He concluded that the Mayor should be permitted to speak, but defense counsel once again said: "Judge, we never requested the Mayor's intervention. I want to put that clearly on the record." Respondent insisted that defense counsel's "client sent a long detailed letter to the Mayor about this case, which I assume you know of because you got a copy of it." Defense counsel replied that that was true but that "we never requested the Mayor's judicial intervention."

Defense counsel returned to the question of who was going to call the Mayor as a witness. Respondent replied that both sides had written to the and that the Mayor had come to court as everyone asked him to do." Defense counsel responded: "Nobody asked him from our side." Respondent insisted that both sides had written to the Mayor telling him that there was a problem with the case. Respondent announced that he would permit the Mayor to speak, and he said that defense could object to anything the mayor said that was inappropriate. When defense counsel said that whatever the Mayor had to say should at least be in the form of questions and answers, Respondent added: "The Mayor is going to intervene. Instead of testifying for the State or for the -" Defense counsel asked if there could be a proffer, and Respondent repeated that the Mayor was going to intervene and that defense counsel could object should the Mayor say anything objectionable. Respondent said that he was going to permit the Mayor to testify "as an amicus curiae, friend of the court, or intervener."

Defense counsel asked who would pose questions to the Mayor during his testimony, and Respondent answered that the Mayor would say whatever he wanted to say. Defense counsel then protested that there should have been a notice of motion to alert him to any participation of an amicus curiae, and Respondent replied: "Well, he's making a motion now and you oppose the motion. Is there anything else you want to say in opposition to the motion?" Defense counsel noted that the motion should have been made in writing so that he would not have been surprised. When Respondent noted that he did not think the defense should be surprised "because you wrote a letter to the Mayor about this case," defense counsel observed that his client had not written directly to the Mayor but had copied the Mayor on correspondence.

After additional colloquy, during which both Respondent and defense counsel repeated points that they had already made several times, and during which defense counsel expressed his view that "this highly irregular procedure will make things very much worse for everybody," the Mayor was sworn as a witness. He then made a statement in which he indicated that ...

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