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In re Boggia

July 27, 2010

IN THE MATTER OF PHILIP N. BOGGIA JUDGE OF THE MUNICIPAL COURT


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.

SYLLABUS BY THE COURT

(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 before the Court is whether to impose discipline on a part-time municipal court judge whose law partner made political contributions from the firm's joint business account.

Respondent, Philip Boggia, admitted to the practice of law in 1978, became a partner in the law firm Durkin & Boggia (the "Firm") in 1981. The Firm operates as a general partnership; respondent and Martin Durkin are the Firm's sole partners. Since January 30, 2004, respondent has served as a part-time municipal court judge for the Borough of Moonachie.

On December 10, 2007, a member of the public filed a complaint with the Advisory Committee on Judicial Conduct (ACJC), alleging that respondent had made political contributions. Attached to the complaint were records of the Edgewater Democratic Campaign Fund, which reported three contributions from "Durkin & Boggia," from June 2004 to July 2005, totaling $1,600. The complaint also included records from the Election Law Enforcement Commission listing a $600 contribution by "Philip N. Boggia" to the Bergen County Democratic Organization in January 2005. On January 5, 2009, based on the information provided in the citizen complaint, the ACJC filed a formal complaint against respondent, alleging that he violated Canon 7A (4) of the Code of Judicial Conduct, as well as Rules 2:15-8(a) (5) and (6) of the New Jersey Court Rules. The ACJC complaint referenced two $500 contributions by the firm to Edgewater Democratic Campaign Fund, on May 26, 2004 and September 29, 2004, and a third $500 contribution to the Bergen County Democratic Organization on January 12, 2005, all signed by Martin Durkin. (The record discloses that the third check was actually in the amount of $600.) Although not mentioned in the formal complaint, the parties stipulated to the admission of a $600 contribution to the Edgewater Democratic Campaign Fund on May 18, 2005. The checks were all drawn on the "ATTORNEY BUSINESS ACCOUNT" for "DURKIN & BOGGIA." That information appears on the upper-left portion of each check.

The ACJC conducted a formal hearing on March 26, 2009. Respondent testified that he was unaware of the contribution checks signed by his partner until he learned of them from the ACJC. Although he had made political contributions as an attorney and knew of the Firm's practice of doing so before January 30, 2004, respondent testified that as a judge he understood he "was no longer allowed to be involved in politics" and "not allowed to make political contributions." Respondent testified that when he became a judge, he gave oral instructions to his law partner and office staff to stop making political donations from the Firm's joint business account.

Respondent's partner submitted a certification in which he stated that the contributions, due to his own inadvertence, were mistakenly drawn on the Firm's checking account. Respondent testified that after he learned of the four checks, he reminded his partner not to make any more contributions out of the Firm's account. Respondent answered affirmatively when asked if he appreciated the appearance created when Firm checks were paid to political organizations. Respondent was unable to state whether the political contributions were attributable to his partner's draw or treated as an expense of the law partnership. If they were considered an office expense, then respondent in effect funded a portion of the contributions because he was the only other partner in the Firm.

After the hearing, the ACJC issued a Presentment and found by clear and convincing evidence that respondent violated Canon 7A (4) of the Code of Judicial Conduct and Rules 2:15-8 (a) (5) and (6). According to the ACJC, respondent cannot avoid responsibility for the contributions at issue by indicating that he was unaware of them. The ACJC recommended that respondent be publicly admonished, finding that there was an undeniable appearance that respondent shared responsibility for the political contributions, which is strictly prohibited under the Code of Judicial Conduct and binding case law. The ACJC rejected respondent's argument that he was being held vicariously liable for his partner's actions.

On June 1, 2009, the Court issued 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 office. In its argument before the Court, the ACJC presenter reiterates the principles and findings of the Presentment, contending that part-time municipal court judges are absolutely barred from political involvement, either in appearance or reality, and that the Firm's political contributions raised questions about respondent's susceptibility to political influence. Respondent concedes that he is barred from engaging in political activity as a judge but contends that, under the case law, the prohibition requires some purposeful, knowing, or reckless conduct on his part. He argues that he is being held vicariously liable for his partner's acts and submits that a strict liability standard would effectively ban part-time municipal judges from employment at firms that make political contributions. In that context, he also alludes to First Amendment concerns. In the alternative, respondent recommends that the court rules be modified to ban firms that employ part-time judges from making political contributions only in the county where a part-time municipal judge sits. The Court asked the Conference of Presiding Judges -- Municipal Courts (Conference) and the New Jersey State Bar Association (NJSBA) to participate as amici curiae. The Conference maintains that respondent should not be disciplined because his actions were not marked by moral turpitude and, therefore, his conduct did not violate the Code of Judicial Conduct. The Conference also argues that the ACJC's strict approach would make it difficult for any firm to employ a part-time municipal court judge. The NJSBA argues in favor of a strict, bright-line rule barring both actual and apparent political participation by judges.

HELD: In light of the unique facts presented, Philip Boggia did not violate Canon 7A (4) of the Code of Judicial Conduct. The ban on making political contributions from a law firm's business account must apply not only to part-time municipal judges but to the law firm and the lawyers with whom they practice. The matter is referred to the Professional Rules Responsibility Committee and the Advisory Committee on Extra-judicial Activities to develop appropriate rules to implement this decision.

1. The 1947 Constitution ensured the complete separation of politics from the judiciary and, since then, the Court has upheld that principle. This separation ensures that the judicial branch operates independently of political influence and, consequently, maintains public confidence in the integrity and impartiality of our system of justice. The possibility of political influence is especially great in the municipal courts as judges are appointed by the mayor or local governing body for a three-year term. The rule separating politics and judges is a necessary standard for how individuals must conduct themselves if they are privileged to become part of the Judiciary. (pp. 8-10)

2. Under Canon 7A (4) of the Code of Judicial Conduct, a judge shall not solicit funds for or pay an assessment or make a contribution to a political organization or candidate, or buy tickets for political party dinners or other functions. In addition, the Code of Judicial Conduct requires that all judges avoid all impropriety and appearance of impropriety. Under Rule 2:15-8 (a), the ACJC is directed to review any grievance that alleges a municipal court judge "is guilty of. (5) engaging in partisan politics, or (6) conduct prejudicial to the administration of justice that brings the judicial office into disrepute." The rules governing judicial conduct are construed broadly, consistent with the purpose of maintaining public confidence in the judicial system. (pp. 10-11)

3. Here, multiple political contributions were drawn on the business account of "Durkin and Boggia;" the Firm's name appears in capital letters on the checks as the payor; and respondent is a named partner of the firm, whose last name appears on the checks. In addition, public records of the political contributions attribute them to "Durkin & Boggia," and to respondent himself in one mistaken instance. Further, respondent could not say whether the contributions were treated as part of his partner's draw or as an expense of the law partnership that he would have funded. Those facts present a close case as to whether respondent violated Canon 7A (4) of the Code of Judicial Conduct. As noted by the ACJC, the circumstances create an undeniable appearance that respondent shared responsibility for the contributions. They also raise questions about his vulnerability to political influence. To avoid the appearance of impropriety, judges and law firms must fashion appropriate measures to avoid what occurred here. Respondent took some steps to try to do so, but those steps were ineffective. In order to sustain a charge against a judge, the allegation must be proven by clear and convincing evidence. Given the nature of the facts in this case, that standard was not met. Further, to the extent that there was a lack of clarity in the law, the Court declines to find a violation of Canon 7A (4) and provides guidance to part-time municipal court judges going forward. (pp. 11-14)

4. In In re Gaulkin, the Court held that spouses of a judge can only contribute to political causes out of private and separate assets or income. Such a strict approach was necessary because marital assets are normally marked by a lack of identifiable interest in either spouse, thus suggesting at least an indirect involvement of the judge. Similarly, political contributions from a law partnership's business account cannot always be readily identified with a single member of a firm and can suggest a judge's direct involvement in politics. Notwithstanding whether a lawyer's name appears on the masthead, or if he or she is a partner, shareholder, director, of counsel, or associate (or holds some comparable status), or if post-event accounting adjustments to income can be made, the appearance of impropriety exists. For that reason, the ban on making political contributions from a law firm's business account must apply not only to part-time municipal judges but to the lawyers with whom they practice law and the firms where they do so. (pp. 14-16)

5. This matter is referred to the Professional Responsibility Rules Committee and the Advisory Committee on Extra-judicial Activity to develop appropriate rules to implement today's decision. Among other things, the Committees should recommend changes to the RPCs to ensure compliance by part-time judges as well as other lawyers in their respective firms so that those attorneys who practice law with part-time municipal court judges are likewise barred from making political contributions from a firm's business account. The Court agrees with the ACJC's First Amendment analysis. First Amendment rights of lawyers who practice with part-time municipal court judges are plainly not being limited because those lawyers may continue to make political contributions from personal funds. (pp. 16-18)

JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in CHIEF JUSTICE RABNER'S opinion.

The opinion of the court was delivered by: Chief Justice Rabner

Argued September 15, 2009

This case involves a part-time municipal court judge whose law partner made political contributions from the firm's joint business account. The Advisory Committee on Judicial Conduct (ACJC) found that the conduct violated Canon 7A(4) of the Code of Judicial Conduct as well as two court rules and recommended that the judge be publicly admonished.

Because the manner in which the contributions were made created an appearance that a judicial officer was involved in politics, we believe that the line separating judges and politics was crossed. That issue raises concerns that can be found at law firms of all sizes. Political contributions made out of a firm's business account by a partner or associate of a municipal court judge, whether at a two-person firm or a far larger one, create an appearance of political involvement that must be avoided. To that end, we now attempt to clarify the principle for part-time judges and lawyers alike, and we refer the matter to two Court committees for the development of appropriate rules.

Among other changes, the Rules of Professional Conduct (RPCs) should be amended to ensure that attorneys who practice law with part-time municipal judges are likewise barred from making political contributions from a firm's business account. Lawyers, though, may continue to make political contributions using their personal funds.

In light of the unique facts before us, which have not previously been considered by this Court, we do not find that Canon 7A(4) was violated and therefore do not impose any discipline in this case. Faced with similar facts in the future, ...


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