(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).
This is a judicial disciplinary matter, which came before the Court on a presentment from its Advisory Committee on Judicial Conduct (ACJC). The ACJC found that Superior Court Judge Randolph Subryan had violated Canon 1 (requiring a judge to conduct himself according to high standards of conduct so that the integrity and independence of the judiciary may be preserved) and Canon 2A (requiring a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary) of the Code of Judicial Conduct, as well as Rule 2:15-8(a)(6)(engaging in conduct that is prejudicial to the administration of justice that brings the judicial office into disrepute). The ACJC recommended that the Court censure Judge Subryan for his actions.
The Court issued an Order to Show Cause why Judge Subryan should not be publicly disciplined.
Judge Subryan hired J.B. to be his law clerk for a one-year term commencing in September 2002. By J.B.'s own account, she and the judge worked well together. She viewed him as a mentor to her and to other law clerks. Lighthearted bantering and affectionate behaviors were common in his chambers, including kisses on the cheek, hugs, touching on shoulders, and the like. Such conduct was tolerated and accepted, if not encouraged. At times, the banter was gender-related or had sexual implications.
More than one person heard the judge say that a woman attorney who tried cases in his courtroom was "hot" and that he might rule in her favor for that reason. J.B. testified that the judge told her that she would "turn [him] into Judge Seaman" (a judge who was disciplined in 1993 for sexual harassment of his law clerk). The Court found the judge's claim that he did not know who Judge Seaman was to be incredible.
The record also includes substantial testimony about gossip in the courthouse when sexually explicit photographs were offered in evidence during a highly publicized criminal trial before Judge Subryan. No one, including the judge, seemed concerned whether the discussion of the photographs was offensive to anyone who was there. Although jokes and comments about gender and sex are simply not appropriate in a judge's chambers, the record suggests that the people who participated in the banter believed it to be harmless.
The key allegation in the matter is J.B.'s contention that Judge Subryan kissed her against her will. The critical events occurred in the judge's chambers on May 30, 2003. According to testimony before the ACJC, sometime in April 2003 the relationship between J.B. and the judge began to deteriorate. The testimony of J.B. and Judge Subryan in respect of the events of May 30, 2003, must be considered in that context.
Prior to May 30, J.B. had interviewed for a position with a New York law firm. She had been called back for a second interview, which was to be held on Monday, June 2. On May 30, J.B. discussed the matter with the judge. The second discussion occurred around 4:30 p.m. According to J.B., Judge Subryan closed the door when they entered his office. Thus, their entire exchange was out of the hearing of anyone else.
According to J.B., Judge Subryan told her she would need his "blessing" to leave her clerkship early and that she would get a "black mark" in Trenton if she left without his blessing. J.B. asked why that was important as she intended to practice in New York and not New Jersey. The judge told her that the mark would follow her. He asked her what it would be worth to her to avoid having the black mark.
J.B. testified that she jokingly asked the judge if he wanted her to stay forever. He asked her if she wanted to stay forever and then became very serious. After asking again how much the avoidance of the black mark would be worth to her, the judge talked about J.B.'s "boundaries" and approached her, saying "What am I going to do with you?"
J.B. further testified that she became concerned that she might be "trapped" in chambers because it was after normal working hours. When the judge appeared to be ready to hug J.B., she let him. He then pulled her closer, saying "You know, I've never forced anyone" and then kissed her. She then threw her head back, while the judge continued to hold her, asking "Are you sure?" He stepped away from her, looking enraged while repeatedly asking "Are you sure?" J.B. replied that she was sure and left the judge's chambers.
J.B. then met with two other women law clerks and walked with them to the parking area. She was obviously upset and after prodding by the other clerks, told them that the judge had kissed her against her wishes. That evening, J.B. telephoned a former law professor who told her to memorialize what had happened. The email she sent that evening was direct and detailed.
After her job interview on Monday, June 2, J.B. called the vicinage Equal Employment Opportunity (EEO) Officer, who asked her to come in on Tuesday, which she did. The Officer informed J.B. that she had been assigned to another judge and that she was not required to return to work until the following week.
Judge Subryan's version of the events is consistent with J.B.'s in that he states she sought his advice on the upcoming interview and that they had a conversation with the office door closed. As part of the EEO investigation, the judge said J.B. hugged him and kissed him on the cheek before leaving. In describing his previous interactions with J.B., the judge made certain admissions but generally understated or denied prior acts and conversations.
The ACJC found J.B. to be a very credible witness. The Court found that the record supports the Committee's view of J.B. Further, although the judge contended that J.B. fabricated her job interview to have a private meeting with him in his office, the facts in the record have led the Court to conclude that this hypothesis is not credible.
HELD: The Court finds clear and convincing evidence that Judge Randolph M. Subryan made an unwanted advance to his law clerk and that his behavior violated Canons 1 and 2A of the Code of Judicial Conduct and Rule 2:15-8(a)(6). In light of the seriousness of the misconduct, the judge is suspended from his judicial duties, without pay, for two months.
1. The single overriding rationale behind the judicial disciplinary system is the preservation of public confidence in the integrity and the independence of the judiciary. Institutional concerns figure prominently in cases involving judicial discipline. Once there has been a breach of judicial ethics, the Court's goal is not so much to punish the offending judge as to restore and maintain the dignity and honor of the position and to protect the public from future excesses. (pp. 17-18)
2. In determining the appropriate sanction, the Court weighs various factors. Among these are public policy, including the State's commitment to ending gender discrimination and, particularly, sexual harassment. Other relevant considerations include whether the action involves a misuse of judicial authority, is unbecoming and inappropriate for one holding the position of a judge, or has been harmful to others. In mitigation, the Court considers whether the matter represents the first complaint against the judge, the length and quality of the judge's service in office, the judge's personal and profession reputation, his sincere commitment to overcoming the fault, and his remorse and attempts at apology or reparations to the victim. Also, the Court considers whether a judge will engage in similar misconduct in the future, or whether the inappropriate behavior is susceptible to modification. (pp. 18-19)
3. The Court is mindful of Judge Subryan's personal and professional achievements. His judicial record and public service have been exemplary and his life story is an inspiration. Moreover, the record contains numerous letters describing Judge Subryan as a deeply religious and caring person with high moral values, a man who treats litigants fairly and maintains a professional and efficient courtroom. When contrasted with his accomplishments, the judge's behavior in his chambers and during the incident of May 30 appears inexplicable. (p. 19-20)
4. The judge's conduct is unacceptable in any workplace setting and is particularly troubling in the context of the judge-law clerk relationship because of the inequality inherent in that relationship. A clerkship can stand out as a highlight in an attorney's professional life. When a judge abuses his or her authority, the clerk and the Judiciary are harmed. (pp. 20-21)
5. In light of the seriousness of the judge's misconduct, the Court cannot agree with the ACJC's recommendation that a censure is appropriate in this case. Judge Subryan is therefore suspended from his judicial duties for two months, without pay. The Court believes that the suspension underscores the importance to the Judiciary and to the public of a workplace free of gender discrimination and sexual harassment. (pp. 21-22)
Respondent is SUSPENDED from judicial duties, without pay, for two months, effective July 1, 2006, through August 31, 2006.
JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in CHIEF JUSTICE PORITZ's opinion.
The opinion of the court was delivered by: Chief Justice Poritz
On an Order to show cause why respondent should not be ...