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In re Samay

January 12, 2001

IN THE MATTER OF WOLF A. SAMAY, JUDGE OF THE MUNICIPAL COURT OF PASSAIC


The opinion of the court was delivered by: Per Curiam.

Argued November 8, 2000

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

This is a judicial-disciplinary case. The proceedings commenced with the filing of a complaint and an amended complaint with the Advisory Committee on Judicial Conduct (ACJC or Committee) against respondent, Wolf A. Samay, a Judge of the Municipal Court of the City of Passaic, for cause involving his judicial conduct. The gravamen of the complaint was that respondent had violated several Canons of the Code of Judicial Conduct and the Court's Disciplinary Rules.

The ACJC issued a presentment in which it found the allegations in the amended complaint had been established by clear and convincing evidence and that respondent violated Canons 1, 2A, 2B, 3A(1), and 3C(1) of the Code of Judicial Conduct, and Rule 2:15-8(a)(1) and Rule 2:15-8(a)(6). The presentment concluded that respondent "is not fit to continue to serve as a judge in the State of New Jersey" and recommended "that proceedings be instituted to remove him from judicial office in accordance with Rule 2:14-1 and N.J.S.A. 2B:2A-1 to -11."

This Court issued and filed a formal Complaint and Order to Show Cause why respondent should not be removed from office. The Chief Justice, pursuant to N.J.S.A. 2B:2A-7, appointed a hearing panel, consisting of one Appellate Division judge and two Law Division judges, "to conduct a hearing, take evidence, and report findings" with respect to the complaint. The hearing panel concluded that respondent violated Canons 1, 2A, 2B, 3A(1), and 3C(1) of the Code of Judicial Conduct, and Rules 2:15-8(a)(1) and (a)(6). It unanimously recommended removal.

I.

First, we articulate a few principles that inform and guide us in the performance of our responsibility. Matters of judicial discipline brought before this Court on the presentment of the ACJC receive a de novo review of the record. Where a form of discipline short of removal is to be imposed, we apply a clear and convincing burden of proof. In re Collester, 126 N.J. 468, 476 (1992). 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 truth of the precise facts in issue.'" In re Boardwalk Regency Corp., 180 N.J. Super. 324, 339 (App. Div. 1981) (alteration in original) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960)), modified, 90 N.J. 361 (1982), appeal dismissed sub nom, Perlman v. Attorney Gen., 459 U.S. 1081, 103 S. Ct. 562, 74 L. Ed. 2d 927 (1982); see In re Purrazzella, 134 N.J. 228, 240 (1993); Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 101(b)(1)(2000). The clear and convincing standard may be satisfied by uncorroborated testimonial evidence. In re Seaman, 133 N.J. 67, 84 (1993).

On the other hand, where removal of a Superior Court or municipal court judge is urged "for misconduct in office, willful neglect of duty, or other conduct evidencing unfitness for judicial office," N.J.S.A. 2B:2A-2, the reason for removal must be established beyond a reasonable doubt. N.J.S.A. 2B:2A-9; In re Coruzzi, 95 N.J. 557, 569 (1984). Reasonable doubt is defined as "an honest and reasonable uncertainty in [one's mind] about the guilt of the [accused] after [one has] given full and impartial consideration to all of the evidence. A reasonable doubt may arise from the evidence itself or from a lack of evidence. It is a doubt that a reasonable person hearing the same evidence would have." State v. Medina, 147 N.J. 43, 61 (1996). The reasonable doubt standard also may be satisfied by uncorroborated testimonial evidence.

In judicial disciplinary proceedings, the effect of judicial misconduct on other persons is not an essential element of an alleged violation of a Canon of the Code of Judicial Conduct or the Court's Disciplinary Rules. The effect upon other persons, however, may be a relevant factor in assessing the gravity of the misconduct and the appropriate discipline. In re Connor, 124 N.J. 18, 26-27 (1991).

II.

Respondent was admitted to practice law in New Jersey in 1980 and has no prior disciplinary history. He became a Judge of the Municipal Court of the City of Passaic effective December 1, 1993, and has been reappointed to two successive three-year terms. He was a full-time judge by virtue of a local ordinance enacted pursuant to N.J.S.A. 2B:12-4a.

We are satisfied from our independent review of the record that the evidence demonstrates beyond a reasonable doubt that respondent engaged in a course of conduct evidencing unfitness for judicial office by abusing his authority as a judge. We conclude that respondent engaged in judicial misconduct spanning a period of approximately eighteen months that violated N.J.S.A. 2B:2A-2, the Code of Judicial Conduct, and the Court's Disciplinary Rules. He should therefore be removed from his judicial office.

A.

The first matter that we address arises out of a debt respondent owed to a privately owned and operated school, the Collegiate School in the City of Passaic, which his sons, Patrick and William, attended. Respondent shared a close relationship with the school for approximately twenty years and eventually became a member of its Board of Trustees.

Because of an illness and lack of insurance coverage prior to becoming a municipal court judge, respondent became delinquent in his payment of tuition and fees to the Collegiate School. As part of an agreement to conclude litigation over that indebtedness, respondent executed a promissory note for the balance owed to the school and agreed to liquidate that balance through installment payments; the last installment became due on May 1, 1998. Believing that respondent was delinquent in his payments, on July 3, 1996, John Lazor, Jr., President of the Board of Trustees of the Collegiate School, wrote to respondent and his wife "in reference to [their] financial obligation to [the] Collegiate School." Reference was made to respondent's failure to make a payment under the agreement and to a "new" indebtedness. Lazor requested that "the matter be attended to immediately" and indicated that he would "seek legal [counsel]" if he did not hear from respondent and his wife "in the next few days."

Respondent's July 7, 1996 reply to that letter reads as follows:

WOLF SAMAY

[ ] PASSAIC AVENUE

PASSAIC, NEW JERSEY 07055

July 7, 1996

John Lazor, Jr., ...


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