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State v. Clark

June 21, 2007


On appeal from the Superior Court, Appellate Division, whose opinion is reported at 381 N.J. Super. 41 (2005).


(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).

The issue in this appeal is whether the confidentiality rules governing investigations by the Supreme Court's Advisory Committee on Judicial Conduct must yield to a State's subpoena in connection with the trial of an indicted municipal court judge.

In March 2003, Joseph M. Clark was serving as a municipal court judge in the City of Englewood. The State alleges that then Judge Clark acted in concert with Police Chief David Bowman and Police Detective Emma Jackson to issue a fictitious warrant that improperly enabled an inmate to attend a funeral mass, burial, and after-burial reception for his father. The warrant transferred the inmate from the Bergen County jail to the custody of the Englewood police under the guise that the inmate would be appearing in the Englewood municipal court. Court was not, however, in session on the day of the transfer, and the inmate attended the funeral and related activities while unguarded. Criminal and ethical investigations followed.

As part of the judicial ethics investigation, John A. Tonelli, chief investigator for the Advisory Committee on Judicial Conduct (ACJC), interviewed Clark, Bowman, and Jackson. In respect of the criminal investigation, Scott Donlan of the New Jersey Division of Criminal Justice went to a State Grand Jury and obtained indictments of Clark, Bowman, and Jackson for third-degree tampering with public records or information and fourth-degree falsifying or tampering with records.

Based on the State's indictment, Clark was suspended from his judicial office by the Supreme Court. The ACJC's investigation ceased pending the outcome of the criminal proceedings. Thereafter, Clark retired from his judicial position.

In preparation of the criminal trial, the State served Tonelli with a subpoena seeking his testimony in respect of the interviews he conducted with Clark, Bowman, and Jackson. Tonelli and the ACJC moved to quash the subpoena, relying on the confidentiality provisions contained in Supreme Court Rule 2:15-20. The trial court granted the motion, but after granting the State's motion for leave to appeal, the Appellate Division reversed.

The Supreme Court granted a motion for leave to appeal filed by Tonelli and the ACJC. It also continued a stay of the subpoena's effect pending the disposition of the appeal.

HELD: The chief investigator of the Court's Advisory Committee on Judicial Conduct must comply with a subpoena ad testificandum in respect of the criminal trial at issue in the within matter. Compliance with a subpoena after an indictment has issued and a trial is poised to commence will not harm the ACJC's investigatory flexibility or risk unfairness to the judge involved. More importantly, the interests of respect for, and public confidence in, the Judiciary require public disclosure in this instance.

1. In implementing the Court's constitutional and statutory authority over the ethical conduct of judges, it has created the ACJC by Court Rule. Although judges are required to cooperate with the Committee, if an investigation does not result in the issuance of a formal complaint, the proceedings remain confidential. (pp. 4-6)

2. To be excused from providing testimony under subpoena, it is necessary to identify some clearly defined interest that would be advanced by an exemption. In this instance, the Court must look beyond the literal language of its Rule to determine whether there is a clear interest to be advanced in excusing the ACJC's chief investigator from testifying at a criminal trial in the public domain. (pp. 7-9)

3. The Court has to examine closely whether the interests that favor maintenance of confidentiality of ACJC investigations have any bearing in the unique circumstances presented by this case. The ACJC contends that the potential disclosure of confidential material would have a chilling effect on its investigations, thus depriving it of the flexibility necessary to fulfill its responsibilities. It is not apparent to the Court that the ACJC's ability to perform its investigations depends on the shielding of its investigator from testifying under subpoena in a criminal trial that concerns the same subject matter as the judicial disciplinary investigation. (pp. 9-11)

4. Confidentiality during the ACJC's investigatory process serves to protect judges from unfair allegations that may never lead to formal disciplinary charges. Such protections prevent untested accusations from affecting a judge's career without the judge having had the opportunity to meet them fairly. The concern about prevention of injuries to a judge's reputation dissipates once a grand jury has handed up an indictment. (pp. 12-13)

6. Judicial independence and public confidence are two additional, and important, goals advanced by our current system of judicial discipline. The Court cannot compromise, in the slightest, the integrity of the judicial process. Judicial misconduct brings judicial office into disrepute and prejudices the administration of justice. It also undermines respect for, and public confidence in, the Judiciary. Where there is a need for confidentiality, the Court is convinced that public understanding will follow. It asks too much of the public to insist on confidentiality when a compelling need for it no longer exists. In light of this matter's present posture, the ACJC's need for flexibility has evaporated. Further, the ACJC's asserted ...

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