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State v. Clark

October 21, 2005


On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. SGJ-04-10.

The opinion of the court was delivered by: Wefing, P.J.A.D.



Argued on October 12, 2005

Decided October 12, 2005

Before Judges Wefing, Fuentes and Graves.

Respondents Joseph Clark, Emma Jackson and David Bowman did not participate in this appeal.

On October 12, 2005, we entered an emergent order granting the State's motion for leave to appeal and reversing the trial court's order quashing a certain subpoena. We noted within that order that an opinion would follow in due course. This opinion sets forth the basis for our disposition.

Defendant Clark is the former municipal court judge in Englewood, while defendant Bowman is the Chief of the Englewood Police Department, and defendant Jackson is a sergeant in that department. In September 2004, a State Grand Jury indicted these defendants for tampering with public records or information, N.J.S.A. 2C:28-7a(2), a crime of the third degree, and falsifying or tampering with records, N.J.S.A. 2C:21-4a, a crime of the fourth degree. The indictment alleges that the three defendants acted improperly in March 2003 to arrange the issuance of a fictitious warrant for the arrest of Lloyd Fields, then an inmate at the Bergen County Jail, to permit his attendance at funeral services for his father, in derogation of the governing statute and regulations. N.J.S.A. 30:4-8.1, -8.2; N.J.A.C. 10A:18-7.1 to -7.9.

The alleged actions of these defendants triggered both a criminal investigation and, in light of defendant Clark's status, an investigation by the Advisory Committee on Judicial Conduct ("ACJC"). According to the record before us, the ACJC suspended its investigation once the grand jury returned its indictment. We are informed that upon return of that indictment, defendant Clark retired from his position as municipal court judge and defendants Bowman and Jackson were suspended from their positions with the Englewood Police Department. Defendant Clark's retirement did not divest the ACJC of its authority to investigate this incident. R. 2:15-23.

Defendants' trial was scheduled to commence during the last week of September 2005. On September 6, 2005, the State of New Jersey served an "on call" subpoena upon John A. Tonnelli, Chief Investigator of the ACJC, to testify concerning statements defendants were alleged to have provided to the ACJC during the course of its investigation. The ACJC moved to quash this subpoena, contending the materials were confidential under R. 2:15-20. Defendants did not join in the motion to quash. Their unanimous position before the trial court was simply that the matter should be resolved prior to opening statements and that if the motion were denied and the statements produced, a brief adjournment might be required to permit counsel to review the statements and become familiar with them. After hearing argument, the trial court granted the ACJC's motion and issued an order quashing the subpoena. The State's emergent application followed.

The ACJC is a committee appointed by the Supreme Court, consisting of nine members; at least two members must be retired Judges or Justices of the Superior or Supreme Court, three must be members of the bar and no more than four shall be members of the public who may not hold a public office of any sort. R. 2:15-2. The ACJC is charged with the responsibility of investigating allegations that a judge, whether of the Superior, Surrogate's, Tax or Municipal Court is guilty of improper conduct. R. 2:15-8. As our Supreme Court has recognized, it is "absolutely essential that the public have confidence" in the integrity of our system of judicial discipline. In re Alvino, 100 N.J. 92, 107 (1985).

[T]he greatest assurance of public confidence is the status, the prestige, and the composition of the ACJC . . . . Those appointed [to the ACJC] have traditionally been of such quality as to remove all doubt concerning their absolute independence and integrity. [Id. at 106.]

To fulfill its investigative responsibilities, the ACJC may take statements under oath, inspect books and records, issue subpoenas ...

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