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Matter of Brenner

January 24, 1997

IN THE MATTER OF TERRILL M. BRENNER, JUDGE OF THE NEW BRUNSWICK MUNICIPAL COURT.


On a report from the Advisory Committee on Judicial Conduct.

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

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In the Matter of Terrill M. Brenner, Judge of the Municipal Court (D-101-96)

Argued December 10, 1996 -- Decided January 24, 1997

PER CURIAM

This matter was referred to the Advisory Committee on Judicial Conduct (ACJC or Committee) both as a disciplinary matter and for the adjudication of allegations of sexual harassment pursuant the Supreme Court's Procedures on Handling Sexual Harassment Complaints Against Judges.

Three employees of the New Brunswick Municipal Court filed complaints of sexual harassment by Presiding Municipal Court Judge Terrill M. Brenner. The matter was initially referred to the Administrative Director of the Courts, who undertook an investigation in accordance with the Sexual Harassment Complaint Procedures. After interviewing Judge Brenner, the three complainants and numerous employees of the New Brunswick Municipal Court, the assigned investigator concluded that Judge Brenner had committed acts of sexual harassment against all three complainants. Thereafter, the matter was referred to the ACJC both as a disciplinary matter and as an administrative matter, to resolve the question of sexual harassment in accordance with the Procedures.

A formal complaint was served on Judge Brenner, who filed an Answer generally denying the allegations but admitting that he had put his arm around one of the complainants and had kissed her. The Committee held a formal hearing after which it issued its report.

In the Sharon Roberts matter, the Committee found that Ms. Roberts, as part of her regular duties, had visited the Judge's private law office for the purpose of delivering his municipal court paycheck to him. Ms. Roberts had asked Judge Brenner's secretary if she could see the Judge and was allowed to enter his office. After Judge Brenner answered a telephone call, he walked to the front of his desk and put his arm around Ms. Roberts. She, in turn, put both her arms around Judge Brenner and "snuggled up." When he then kissed her on the cheek, she reciprocated with encouragement of his advances. They kissed. During this encounter, both Judge Brenner's secretary and his wife were in the outer office. The secretary testified that Roberts seemed cheerful upon her departure.

The Committee determined that Judge Brenner's advance in his office was not unwelcome. It, therefore, concluded that his conduct did not constitute sexual harassment. However, the Committee found that Judge Brenner had engaged in improper conduct and violated Canons 1 and 2 of the Code of Judicial Conduct, in that his conduct was prejudicial to the administration of Justice and brought the judicial office into disrepute. The Committee concluded that Judge Brenner should be privately reprimanded for his conduct.

In the Sandra and Marlena Papatto matter, the Committee rejected as incredible the complainants' claims that Judge Brenner had, on numerous occasions, made improper remarks to them, touched them against their will, and frequently attempted to cause them to engage in unwelcome kissing. In rejecting their claims, the Committee found that the overwhelming evidence and testimony of other municipal court employees sharply contradicted that of the Papattos and sustained Judge Brenner's position that he never made sexual advances to them. The Committee further noted that there was evidence of hostility within this municipal court, with the Papattos being aligned with a faction hostile to Judge Brenner.

HELD: Judge Brenner's conduct in engaging in an embrace and kissing Ms. Roberts violated Canons 1 and 2 of the code of Judicial Conduct, warranting the imposition of a private reprimand; the claims of sexual harassment filed by the Papattos have not been established by clear and convincing evidence.

1. Because a Judge must avoid all impropriety and appearance of impropriety and must expect to be the subject of constant public scrutiny, he or she must accept restrictions on personal conduct that might be viewed as burdensome by the ordinary citizen. (p.7)

2. By hugging and kissing Roberts, a subordinate employee, even if those advances were not unwelcome, Judge Brenner engaged in conduct that embarrassed himself and his judicial office and provided for Ms. Roberts and the Papattos a factual predicate for their complaints of sexual harassment. (p. 7)

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in the Court's opinion.

PER CURIAM

This matter was referred to the Advisory Committee on Judicial Conduct (ACJC or Committee) by the late Chief Justice Wilentz both as a disciplinary matter and for the adjudication of allegations of sexual harassment pursuant to paragraph C3(b) of the Supreme Court's Procedures on Handling Sexual Harassment Complaints Against Judges (Sexual Harassment Complaint Procedures). The Committee concluded that the Respondent did not commit acts of sexual harassment but that he did, on one occasion, ...


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