(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 that came before the Court on a presentment from its Advisory Committee on Judicial Conduct (Advisory Committee). The Advisory Committee concluded that Judge Mathesius violated several Canons of the Code of Judicial Conduct: Canon 1 (failed to personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved), Canon 2A (failed to respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), Canon 3A(3) (failed to be patient, dignified, and courteous to jurors with whom the judge deals in an official capacity), Canon 3A(6) (failed to accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to the law) and Canon 3A(10) (failed to refrain from criticizing jurors for their verdict); and R. 2:15-8(a)(6) (engaged in conduct prejudicial to the administration of justice that brings the judicial office into disrepute). The Advisory Committee recommended that Judge Mathesius be suspended for a period of six months, but that only three months of that suspension be without pay. The Court issued an Order to Show Cause why Judge Mathesius should not be publicly disciplined.
The Court addresses the facts pertaining to the charges in the Advisory Committee's formal complaint. In Count One, Judge Mathesius admitted that he made a series of inappropriate comments in the presence of or directly to the jury in State v. McDaniels. After the jury acquitted the defendant and was polled, Judge Mathesius addressed the defendant to the effect that his acquittal was not consistent with the evidence and that the defendant should "get on [his] hands and knees tonight and thank God that this jury didn't see the forest for the trees." He next excused the jurors, but nonetheless ordered them to remain in the jury room. He entered the jury room and expressed his frustration with the verdict and asked the jury "what the hell" they were thinking.
In respect of Count Two, Judge Mathesius admitted to entering the jury room while the jury was deliberating in State v. Byrd and Dean, unaccompanied by either counsel or a court reporter, to ask whether the jurors wished to continue deliberating or to go home and return in the morning. When counsel for one of the defendants objected, a colloquy ensued, during which Judge Mathesius later acknowledged he "did not . behave in what we can describe as a patient[,] dignified[,] and courteous fashion[.]" He later made post-verdict comments to the jury wherein he commended the jury on its verdict.
In respect of Count Three, Judge Mathesius stipulated that he criticized fellow judges following the Appellate Division's reversal of State v. Fletcher, a trial over which he presided. At a dinner held by the Mercer County Bar Association on September 14, 2005, Judge Mathesius, without identifying himself, approached the law clerk of the author of the opinion and told the law clerk to deliver a message to her judge that the judge was "inexperienced and not competent." On September 26, 2005, he took matters a step further and wrote to the Appellate Division Judge, stating that the Judge was uninformed and impractical and that the Appellate Division's opinion "indulge[d] in fictive and romantic imagination." Upon reflection, Judge Mathesius admitted that in his comments to the law clerk, he was "lash[ing] out against the judge[.]" Judge Mathesius concluded that his letter "was improper in every respect."
Count Four concerns a pattern of improper conduct that consists of seven discrete events. The first arose in respect of a public "thank you" letter to the editors of two local newspapers that Judge Mathesius wrote while still a municipal judge. In the second instance, while imposing a sentence on a defendant who shot another, Judge Mathesius engaged in personal observations concerning the wisdom of owning firearms. At a status conference in State v. Anderson, he took umbrage with the defendant's attire that day, which he thought was more appropriate for the basketball court and at a later proceeding, when the defendant rejected the plea agreement and insisted on proceeding to trial, Judge Mathesius exploded and berated the defendant. In State v. Harris, Judge Mathesius made statements described as "outrageous, sarcastic, and pejorative" about the State's death penalty system and the Court's capital jurisprudence, including "gratuitous personal attacks against current and former members of the Court." The fifth, sixth and seventh instances of misconduct concern the behavior discussed in Counts One, Two and Three.
HELD: By clear and convincing evidence, Judge Mathesius's conduct violated Canons 1, 2A, 3A(3), 3A(6) and 3A(10) of the Code of Judicial Conduct and R. 2:15-8(a)(6), and Judge Mathesius is suspended from his judicial duties without pay for a period of thirty days.
1. With the sole purpose of preserving public confidence in the integrity and the independence of the judiciary, the Court reviews de novo the Advisory Committee's findings in respect of Judge Mathesius. The Court finds that the proofs establish by clear and convincing evidence the violations cited in the formal complaint. The Court rejects Judge Mathesius's affirmative defenses, including his claim that his actions were the result of errors in judgment and were not marked with moral turpitude; and that his comments were protected by the First Amendment of the Constitution of the United States. (pp. 28-36)
2. The determination of sanctions in judicial-discipline cases is not so much to punish the offending judge but to restore and maintain the dignity and honor of the position and to protect the public from future excesses. In re Seaman, 133 N.J. 67, 97 (1993). (pp. 36-38)
3. The Advisory Committee found Judge Mathesius is intelligent and, by all accounts, a competent, fair and hardworking jurist. Nevertheless, when frustrated, disappointed or angry, he has acted impulsively and without restraint. Judge Mathesius recognizes that he is prone to such conduct, and he has arranged for professional assistance in that regard. Judge Mathesius concedes that his misconduct is episodic, and happens more frequently than it should. He asserts, however, that this behavior is far from routine. He also notes that although his colleagues did acknowledge that he can be too outspoken, every Judge who has had any significant contact with Judge Mathesius has lauded him in many ways, something that has not escaped the Court's attention. (pp. 38-39)
4. Judge Mathesius presents an almost indecipherable riddle. On one side, the Court is presented the portrait of a long-time public servant who is learned in his craft, willing to assist his colleagues, and generous with his time and knowledge. On the other side, indisputable proof has been presented of repeated and unremorseful instances of petulance, sarcasm, anger, and arrogance; these have no place in the exercise of judicial duties. (pp. 39-40)
5. In less than five years, Judge Mathesius has been before the Advisory Committee four separate times, resulting in two letters of admonition, one informal conference and one presentment. The Court, therefore, must "undertake 'a more searching and expansive inquiry . carefully scrutinize[ing] the substantive offenses that constitute the core of [Judge Mathesius]'s misconduct, the underlying facts, and the surrounding circumstances in determining the nature and extent of the discipline.'" Seaman, 133 N.J. at 98. (p. 40)
6. The Court concludes that Judge Mathesius's misconduct: constitutes the impugn exercise of judicial power that evidences a lack of independence or impartiality; involves a misuse of judicial authority that indicates unfitness; has been repeated; and has been harmful to others. The Court acknowledges Judge Mathesius's otherwise overall good reputation, lengthy public service, and his recognition of the need for corrective assistance, which he sought. The Court concludes that the imposition of a period of suspension is appropriate. A suspension of thirty days without pay is an appropriate level of discipline to allow Judge Mathesius the opportunity to reflect on his position of authority and the manner in which he exercises that position of authority. Earlier, lesser penalties have not deterred him from the improper exercise of his judicial authority. (pp. 41-44)
Judge Mathesius is SUSPENDED from the performance of his judicial duties, without pay, for thirty days, effective December 4, 2006.
JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in JUSTICE RIVERASOTO's opinion. CHIEF JUSTICE PORITZ did not participate.
The opinion of the court was delivered by: Justice Rivera-soto
Argued September 25, 2006
On an Order to show cause why respondent should not be publicly disciplined through the imposition of an appropriate sanction that does not include removal from judicial office.
Based in large measure on stipulated, admitted, or uncontested facts, the Advisory Committee on Judicial Conduct (Advisory Committee) filed a Presentment against Superior Court Judge Wilbur H. Mathesius. Tracking the allegations of the formal complaint originally filed against him, the Presentment found, by clear and convincing evidence, that Judge Mathesius had violated Canons 1, 2A, 3A(3), 3A(6), and 3A(10) of the Code of Judicial Conduct and Rule 2:15-8(a)(6), and recommended that Judge Mathesius be suspended for a period of six months, but that "only three months of his suspension be without pay." Upon receipt of the Presentment, Judge Mathesius was ordered to "show cause before this Court why he should not be publicly disciplined through the imposition of an appropriate sanction that does not include removal from judicial office[.]"
We conclude, as did the Advisory Committee, that Judge Mathesius's conduct, as charged and proved, violated several Canons of the Code of Judicial Conduct. Specifically, we find that, in the instances charged, Judge Mathesius failed to "personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved[,]" in violation of Canon 1; failed to "respect and comply with the law and . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary[,]" in violation of Canon 2A; failed to "be patient, dignified, and courteous to . . . jurors . . . with whom the judge deals in an official capacity," in violation of Canon 3A(3); failed to "accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to law," in violation of Canon 3A(6); failed to refrain from "criticiz[ing] jurors for their verdict," in violation of Canon 3A(10); and engaged in "conduct prejudicial to the administration of justice that brings the judicial office into disrepute[,]" in violation of R. 2:15-8(a)(6).
However, we reject the Advisory Committee's recommendation in respect of the appropriate quantum of discipline to be imposed. Rather, we hold that the appropriate measure of discipline is that Judge Mathesius be suspended from his judicial duties without pay for a period of thirty days.
"[T]he people of New Jersey, in adopting our present Constitution, reposed in the New Jersey Supreme Court, a non- political entity, exclusive responsibility for the making of rules concerning practice and procedure in the courts thereby created . . . ." In re Gaulkin, 69 N.J. 185, 189 (1976) (citation omitted). As Gaulkin further explains, "[t]he constitutional voice of the people thus vested in the Supreme Court a responsibility to keep the house of the law in order, and this responsibility obviously extended to the conduct of judges as well as attorneys in practice." Ibid. (citations and internal quotation marks omitted).
Complying with the constitutional mandate that "[t]he Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts[,]" N.J. Const. art. VI, § II, ¶ 3, this Court adopted R. 1:14. That Rule provides, in relevant part, that "the Code of Judicial Conduct of the American Bar Association, as amended and supplemented by the Supreme Court and included as an Appendix to Part I of these Rules . . . shall govern the conduct of . . . the judges . . . of all courts in this State." See generally In re Gaulkin, supra, 69 N.J. at 192 ("[T]he American Bar Association Canons of Judicial Ethics . . . were adopted by the first Supreme Court under the new court system by R. 1:7-6 (1948)."); In re Nat'l Broad. Co., 64 N.J. 476, 479 (1974) ("The new Code of Judicial Conduct of the American Bar Association as amended by this Court is, coincidentally, adopted and promulgated this day to become effective immediately. It replaces the existing Canons of Judicial Ethics[.]"); In re Mattera, 34 N.J. 259, 263 (1961) (referencing parallel provisions in earlier Canons of Judicial Ethics and R.R. 1:25); Perazzelli v. Perazzelli, 147 N.J. Super. 53, 60 (Ch. Div. 1976) ("The comment to R. 1:18 states 'that . . . the reference to the Canons of Judicial Ethics should be read as "Code of Judicial Conduct."' Pressler, Current N.J. Court Rules, Comment to R. 1:18.").
In the discharge of that responsibility, and "to assist otherwise in fulfilling the administrative responsibilities of the Court, the Court establishe[d] a committee of this Court to be known as [the] Advisory Committee on Judicial Conduct." R. 2:15-1. See Am. Trial Lawyers Ass'n v. New Jersey Supreme Court, 66 N.J. 258, 264 (1974) ("Nor has the judiciary forgotten to regulate the conduct of its own members, as by our adoption of the Code of Judicial Conduct and our creation of [the] Advisory Committee on Judicial Conduct to aid in its enforcement. R. 2:15-1, et seq."). The Advisory Committee's duties are clearly delineated in our Rules. See R. 2:15-1 to -25 (providing for establishment, staffing, operations, jurisdiction and procedures of Advisory Committee on Judicial Conduct).
Judge Mathesius either stipulated to, admitted or did not contest the operative facts presented in the formal complaint or developed during the formal hearing. We, therefore, address the facts as they pertain to the charges in the formal complaint.
1. Post-Verdict Comments to the Jury in State v. McDaniels
In respect of Count One of the formal complaint, Judge Mathesius admitted that, on February 3, 2005, after the jury had returned a not guilty verdict in the matter styled State v. McDaniels, he made a series of inappropriate comments in the presence of or directly to the jury. Immediately after the jury acquitted the defendant and was polled, Judge Mathesius addressed the defendant as follows:
THE COURT: Mr. McDaniels, I ask you to stand.
You are, sir, a very, very, very lucky man. The evidence was very strong that you were guilty of this offense. I don't know what they [the jurors] were thinking, but they're thinking other than what I was thinking. You have a number of convictions and I'll tell you this: If you find yourself in trouble again, the resolution of the case [will be] other than the windfall you received today, do you understand how lucky you are, Mr. McDaniels? Do you understand that?
THE COURT: But for the fact that something happened with the other defendant and he got scared and didn't testify, that may have changed the jury's verdict. Mr. Williams' testimony was one of the most credible witnesses this Court has ever seen. I'm going to tell you, you have a girlfriend out there, you better look in the mirror tonight when you go home and say I dodged five years in jail by some God unknown occurrence. 12 people listened to the testimony and somehow didn't believe not only the direct testimony, but the circumstantial evidence that you took the gun and shot it in the air, walked in front of Mr. Williams and walked out into the field and buried it or had Kafarr Logan bury it so that may be a change in your life, I hope it is, because if it's involved with gangs and drugs and any of the screwing around with guns or drugs or anything more, you're going to end up with your ass in jail. Do you understand? I don't want that to happen.
Now I want you to look and thank God, get on your hands and knees tonight and thank God that this jury didn't see the forest for the trees. Do you understand what I'm saying to you, sir?
Judge Mathesius next excused the jurors, but nonetheless ordered them to remain in the jury room. Judge Mathesius then entered the jury room admittedly "upset, and frustrated[.]" Three of the jurors in McDaniels testified at the formal hearing. One juror explained that when the judge walked into the [jury] room, he walked in with a stride, like he had a purpose. Like he was there. He still had his robe on, he was there for a -- to tell us. And you could tell that once he started talking, he expressed his -- he expressed his frustration level to the [not guilty] verdict that we had given [the defendant]. . . .
A: He asked us what the hell what we were thinking about.
Asked to describe Judge Mathesius's tone while delivering his peroration to the jury, the juror described it as "one of an underlying anger, but also of a frustration level." The juror explained that "he did, in the end, apologize for his behavior[and that h]e expressed that he was more or less venting, and just saying that he was speaking out of frustration, that he was sorry." The juror contrasted Judge Mathesius's behavior in the jury room with what the juror had observed during the court proceedings:
in the courtroom, it was understanding, it was authoritative in the sense that, you know, he was doing his job, in the manner in which he spoke. He clarified everything. When he came into the jury room, it was higher pitched, a little bit of anger in it, but also a frustration level, in which he did comment.
The juror explained that she "did not expect to be spoken to in the manner in which [she] was spoken to[,]" and that "it almost brought you back, like you were being screamed at, as a child, by your parents." Her view of Judge Mathesius's comments was stark: "I don't allow people in my personal life to speak to me like that, I just don't allow it." The other two jurors who testified before the Advisory Committee echoed those sentiments.*fn1 Judge Mathesius did not cross-examine any of the jurors who testified at the formal hearing.
The Advisory Committee concluded that Judge Mathesius's "post-verdict remarks, both those from the bench and those made in the jury room, were not only critical of the jurors for their verdict but were also insulting and denigrating of those who had responded to a call to public service and who had performed that service." The Advisory Committee thus concluded that Judge Mathesius's conduct violated Canons 1, 2A, and 3A(10) of the Code of Judicial Conduct and R. 2:15-8(a)(6).
2. Jury Contact During Deliberations -- State v. Byrd and Dean
In respect of Count Two of the formal complaint, Judge Mathesius admitted that, at approximately 4:00 p.m. on July 22, 2004, while a jury was deliberating in State v. Byrd and Dean and while unaccompanied by either counsel or a court reporter, he "entered the jury room to ask the jurors whether they wished to continue deliberating that day or to go home and return in the morning."*fn2 Judge Mathesius also admitted that he "did not inform the prosecutor or defense counsel before entering the jury room, and neither attorney was present as he spoke to the jurors." When Judge Mathesius returned to the courtroom and explained that he had discharged the jury for the day, counsel for defendant Byrd objected:
MR. SCHNEIDER: Your Honor, I was downstairs on the second floor waiting with Mr. Schroth [counsel for co-defendant Dean], and I was told you were going upstairs to inquire of the jurors whether they wished to stay or go home. And this was done by you off the record, and you came out and told me that they want to go home. I object to that. It's --
THE COURT: All right. You object to that.
MR. SCHNEIDER: I also think the jurors should be brought out and dismissed in the presence of the Court and on the record, and in front of the defendants.
THE COURT: Thank you. You can do that when you're a judge. I'll do it the way I do it when I'm a judge.
After explaining that he would discharge the jury at 4:00 p.m. and that he would take the court reporter with him as he did so, Judge Mathesius did not excuse counsel. Instead, he required that they remain until after the jury was excused. Upon his return to the courtroom, the following colloquy ensued:
THE COURT: I've excused the jury, and they're going to return tomorrow 9:00 a.m. All three of you are as well. I'll see you tomorrow morning at 9:00.
MR. SCHNEIDER: I'd like to make a motion. If there's going to be communication with the jury, I think it should be only in court.
THE COURT: It doesn't sound like a motion. Was there a motion attached to that?
MR. SCHNEIDER: That's the motion. I think all of the communications between the Judge and the jury should be in open court on the record.
THE COURT: Mr. Schneider, I appreciate very much your motion.
The following day, Judge Mathesius explained on the record, outside the presence of the jury, his reasons for communicating with the jury without either counsel or a court reporter present.
In short, he explained that, given the age, condition, and availability of the physical facilities in the courthouse, collecting the lawyers and defendants in the courtroom solely to discharge the jury consumed both unnecessary time and the resources incurred in security and transport concerns. In Judge Mathesius's words, it's my concern, first of all, for the security of all concerned, and secondly, for the convenience of all concerned that non-substantive aspects of the trial, i.e., the excusing of the jurors for the day or the excusing of the jurors for lunch might be more readily accomplished without the intervening 30 to 45 minutes that it generally takes to put the whole show together.
When Judge Mathesius concluded his lengthy explanation, one of the defense counsel requested leave to respond. Judge Mathesius's response was curt: "No. I don't care to hear your ...