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In the Matter of

August 1, 2011

IN THE MATTER OF STEVEN P. PERSKIE, A FORMER JUDGE OF THE SUPERIOR COURT


Per curiam.

SYLLABUS

(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).

In the Matter of Steven P. Perskie, a Former Judge of the Superior Court (D-75-10) (067680)

Argued June 14, 2011 -- Decided August 1, 2011

PER CURIAM

This judicial disciplinary matter came before the Court on a presentment from the Supreme Court Advisory Committee on Judicial Conduct (Advisory Committee). The Advisory Committee concluded that respondent, former Superior Court Judge Steven P. Perskie, who retired from the judiciary in 2010, violated several Canons of the Code of Judicial Conduct: Canon 1 ( a judge should observe high standards of conduct so the integrity and independence of the judiciary may be preserved), Canon 2A ( a judge should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), Canon 2B (a judge should not lend the prestige of office to advance a private interest), and Canon 3C(1) (a judge should disqualify himself in a matter if the judge's impartiality might reasonably be questioned), and R. 1:12-1 (f) of the New Jersey Court Rules (a judge should disqualify himself if a party might reasonably believe the judge could not be fair or unbiased in the proceedings). The Advisory Committee recommended that respondent be censured. The Court issued an Order to Show Cause why respondent should not be publicly disciplined.

The disciplinary proceedings against respondent began with the filing of grievances with the Advisory Committee in July 2008 by Alan P. Rosenfielde, a party to a civil action captioned Kaye v. Rosenfielde, over which respondent presided between February 2005 and October 2006. The litigation was a business dispute involving issues that arose from Rosenfielde's employment with and eventual termination from a business based in Atlantic City. Rosenfielde contended that his termination was due to his recommendation that his employer end its business relationship with an insurance broker named Frank Siracusa, whom Rosenfielde alleged had engaged in improper and questionable business practices. Siracusa was a central witness to Rosenfielde's counterclaim. Respondent had a longstanding business, social, political, and personal relationship with Siracusa, but informed the parties to the Kaye litigation several times that notwithstanding his relationship with Siracusa, he was not uncomfortable presiding over the case and evaluating Siracusa's credibility if Siracusa were to appear as a witness.

In October 2006, respondent denied a motion by Rosenfielde that he recuse himself from the case because of his relationship with Siracusa, but respondent did recuse himself on his own motion for different reasons, citing his "inappropriate reaction" to Rosenfielde's counsel at a previous hearing and his "significant concerns" regarding how the case had been handled.

Following a hearing on the formal complaint it filed against respondent, the Advisory Committee concluded that by failing to disqualify himself from presiding over the litigation on the grounds of his relationship with Siracusa and Siracusa's significance to the litigation, respondent violated Canons 1, 2A, and 3C (1) of the Code of Judicial Conduct and R. 1:12-1 (f). Before the Court, respondent admitted these violations, which formed the basis of Count I of the Advisory Committee's three-count formal complaint.

Respondent also admitted the conduct alleged in Count III of the complaint and acknowledged that, as found by the Advisory Committee, it constituted violations of Canons 1, 2A and 2B. According to Count III of the complaint and to the presentment, after respondent recused himself from the Kaye litigation and the case was assigned to a different judge for trial, respondent appeared twice in the back of the courtroom during the trial, remaining there for approximately one hour each time. Respondent also admitted that he spoke with the attorney for plaintiff Kaye on the second of the visits to the courtroom. This conduct violated Canons 1, 2A and 2B.

Count II of the formal complaint charged respondent with a lack of candor in his testimony before the New Jersey State Senate's Judiciary Committee in October 2008 in connection with his reappointment as a Superior Court Judge. The testimony at issue involved respondent's alleged conflict of interest in presiding over the Kaye litigation.

In response to questioning on that subject at the reappointment hearing, respondent testified that he had continued to preside over the Kaye matter only because he had been told that Siracusa would not a party or a witness. He told the Senate Committee that had that not been so, he "should not be in the case." This testimony conflicted with the record in the Kaye case regarding his position on recusal and his discussions with the parties about Siracusa's role. The Advisory Committee rejected respondent's assertion that his inconsistent testimony to the Senate Committee simply was due to his faulty recollection of the events that had occurred two years previously in the Kaye matter. The Advisory Committee concluded in its presentment that respondent was not forthcoming with the members of the Senate Judiciary Committee and that his conduct violated Canons 1 and 2A. Before the Court, respondent contested the findings and conclusions of the Advisory Committee in respect of Count III.

HELD: By clear and convincing evidence, former Judge Steven P. Perskie's conduct as charged in Counts I and III of the formal complaint violated Canons 1, 2A, 2B, and 3C(1) of the Code of Judicial Conduct and R. 1:12-1(f). There is not clear and convincing evidence that respondent deliberately misled the Senate Judiciary Committee as charged in Count II. Respondent is censured.

1. Because of the serious consequences that flow from the determination that a judge has violated the Code of Judicial Conduct, the standard of proof by which the Court evaluates the evidence in its de novo review of the record is "clear and convincing," which requires greater certainty to find a violation than does the "preponderance of the evidence" standard. (pp. 20-22)

2. Respondent admitted that his Senate Judiciary Committee testimony presented inaccurate information. The Court finds the following facts and circumstances relevant to the issue of respondent's intent to mislead: more than two years had passed from the time respondent dealt with the recusal issue in Kaye and the Senate hearing; respondent did not prepare for the Senate hearing by reviewing pertinent portions of the Kaye record; respondent was not provided with copies of relevant Kaye transcripts and with Rosenfielde's grievance until several days after he testified; respondent remembered that he had recused himself on his own motion because of problematic dealings with Rosenfielde's counsel and problems with how the case was being handled, not because of Siracusa's role in the case, and that Siracusa never was called as a witness; respondent received a copy of the ten-page letter Rosenfielde wrote to the Senate Committee shortly before the hearing, but it was filled with allegations of corruption against respondent, other members of the judiciary, politicians, persons connected to the Kaye litigation , and others and respondent trusted his own memory of the events at issue rather than Rosenfielde's version of the facts; and respondent had an unblemished record as a member of the New Jersey bar for more than forty years and a distinguished record of service in all three branches of State government. (pp. 22-24)

3. As difficult and exceedingly close a decision as it is to make, on the record before the Court, it cannot be said that it has been clearly and convincingly established that respondent deliberately misled the Senate Judiciary Committee as was charged in Count II of the formal complaint and found in the presentment. Much of the difficulty in the decision is attributable to respondent, who was extremely lax in his preparation for his reappointment hearing and who failed to alert the Senate Committee to the errors in his testimony once he realized them. (pp. 24-25)

4. The Court, based on its findings in respect of Counts I and III of the formal complaint and presentment, independently determines that respondent, by clear and convincing evidence, violated Canons 1, 2A, 2B, and 3C (1) of the Code of Judicial Conduct and R. 1:12-1(f) of the New Jersey Court Rules. A censure is the appropriate quantum of discipline for these violations. (p. 25)

Former Superior Court Judge Steven P. Perskie is CENSURED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN and HOENS, and JUDGE WEFING, temporarily assigned, join in the Court's opinion. JUSTICES LONG and RIVERA-SOTO did not participate.

Argued June 14, 2011

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.

This matter involves a now-retired Judge of the Superior Court, whose behavior was challenged by a litigant appearing before him in a contentious case. Based on his actions both in the courtroom and before the Senate Judiciary Committee, the Advisory Committee on Judicial Conduct (ACJC) found violations of the Code of Judicial Conduct and recommended that respondent be censured.

Because respondent has accepted responsibility for two of the three ethical violations substantiated by the ACJC, we review the facts underlying those claims, as found in the Presentment, and thereafter direct our focused attention on the grave allegation that respondent exhibited a lack of candor when testifying before the Senate Judiciary Committee.

Based on our exacting review of this record, we find that the ACJC has not met its burden to show by clear and convincing evidence that respondent deliberately misled the Senate Judiciary Committee in his testimony. We therefore adopt the Presentment of the ACJC in respect of the other two violations, and impose censure in accordance with this opinion.

I.

A.

Respondent Steven P. Perskie was admitted to the Bar of the State of New Jersey in 1969. At all times relevant to the instant proceeding, respondent was a New Jersey Superior Court Judge, serving in both the Civil and Chancery Divisions of the Atlantic Vicinage. Respondent ultimately retired from the judiciary on February 1, 2010.

On July 23, 2008, Alan P. Rosefielde, a litigant in Kaye v. Rosefielde, Docket No. ATL-C-000017-05, filed a complaint against respondent with the ACJC. As stated in the Presentment, the complaint related to respondent's management of the Kaye case, and specifically alleged

(1) that Respondent inappropriately failed to recuse himself from presiding over Kaye despite a conflict of interest with an individual named Frank Siracusa, a witness in the case; and (2) that Respondent inappropriately appeared in the back of another judge's courtroom while Kaye was being tried despite being recused from the case at that point in time.

Following respondent's October 2008 appearance before the New Jersey Senate Judiciary Committee in connection with his reappointment as a Superior Court Judge, Rosefielde's complaint was amended to include an allegation that respondent had deliberately misled the Committee when asked about his conduct in the Kaye case. In response to these allegations, the ACJC conducted an extensive investigation of respondent's challenged behavior.

The ACJC filed a formal complaint against respondent on September 9, 2009, charging violations of Canons 1, 2A, 2B, and 3C(1) of the Code of Judicial Conduct and Rule 1:12-1(f) of the New Jersey Court Rules. Following a hearing, the ACJC issued its Presentment, which concluded that all three counts of the complaint were substantiated by clear and convincing evidence.

The ACJC found violations of Canon 1 (respondent should observe high standards of conduct to preserve integrity and independence of judiciary), Canon 2A (respondent should conduct himself so as to promote public confidence in integrity and impartiality of judiciary), Canon 2B (respondent should not lend prestige of his office to advance private interest), and Canon 3C(1) (respondent should disqualify himself where impartiality might reasonably be questioned) of the Code of Judicial Conduct. The ACJC also found a violation of Rule 1:12-1(f) of the New Jersey Court Rules, which requires a judge to disqualify himself or herself where a party might reasonably believe that the judge could not be fair or unbiased in the proceedings.

Despite acknowledging respondent's "lengthy and distinguished service to the State of New Jersey both as a judicial officer and a legislator," the ACJC recommended that respondent be censured for the conduct underlying this complaint.

Although respondent has accepted responsibility for Counts I and III of the Formal Complaint, as presented to this Court in the ACJC's Presentment, we include the following portions of the Presentment, covering those Counts, as relevant background to our consideration of the contested Count II.

B.

Count I addresses respondent's failure to disqualify himself from presiding over the Kaye v. Rosefielde case. Respondent presided over the Kaye case from February 2005 to October 2006. In essence, the Kaye litigation was a business dispute involving various issues stemming from Mr. Rosefielde's employment with a time-share business based in Atlantic City, the Flagship Resorts Development Corporation (Flagship), and his eventual termination from Flagship. Mr. Rosefielde maintained that his termination was a result of his recommendation that Flagship end its business relationship with an insurance broker, Frank Siracusa, who according to Rosefielde, allegedly had engaged in improper and questionable business practices. As found in the Presentment, the ACJC concluded that "objective, reasonable and fully informed observers would have sincere doubts about Respondent's impartiality based on Mr. Siracusa's role in the case and the nature and extent of Respondent's relationship with Mr. Siracusa." The ACJC explained its findings and conclusions as to Count I in great detail. We incorporate its explanation herein and set it forth below:

We start with the undisputed evidence that Mr. Siracusa was a central witness to Mr. Rosefielde's counterclaim in Kaye, and that his testimony would present credibility issues for Respondent. Both of Mr. Rosefielde's attorneys corroborated Mr. Siracusa's centrality, and Respondent contested neither Mr. Siracusa's centrality nor the fact that, at some point during the proceedings, he realized he may have to judge Mr. Siracusa's credibility. Further, the record from the underlying case shows that Mr. Fram[, one of Mr. Rosefield's attorneys in the Kaye matter,] brought up Mr. Siracusa on numerous occasions and, at one time, specifically described him as a "pretty important witness." That record also indicates that some of Mr. Siracusa's business practices and their legitimacy, in the context of the legality of Mr. Rosefielde's termination from Flagship, were at issue in the case. We find it irrefutable, therefore, that Mr. Siracusa was to play a key role in Kaye, and that evidence of that centrality was appropriately raised to and known by Respondent.

We next address the issue of Respondent's relationship with Mr. Siracusa to determine if it could cause a reasonable and fully informed observer to question Respondent's ability to remain in the case and be impartial. Although Respondent's relationship with Mr. Siracusa is multi-faceted, we find most disquieting the longstanding and ongoing business relationship between them. Respondent testified that from the 1970s until the present, he has and continues to purchase insurance from Mr. Siracusa's insurance agency, including his automobile and homeowner's insurance. Mr. Siracusa's insurance agency is, of course, the very one at issue in the Kaye case and the exact agency with which Mr. Rosefielde suggested Flagship terminate its business relationship. Put succinctly, Respondent had, at the time, a thirty-five year old business relationship with the very agency whose cessation of business with Flagship was salient to the Kaye litigation. Such circumstances demanded Respondent's recusal. In our view, a reasonable, outside observer might think it impossible for such a relationship to not impact Respondent's official, judicial consideration of the Siracusa business. Such doubts are unacceptable and the exact sentiment the rules on judicial disqualification are designed to prevent. Cf. In re Sciuto, 2003 N.J. Lexis 1132 (2003) (adopting ACJC's Presentment in ACJC 2000-105) (censuring retired judge for presiding over two cases in which he had a conflict of interest due to his ongoing involvement in financial dealings with a party and the party's attorney).

Notwithstanding the foregoing, the details of Respondent's relationship with Mr. Siracusa do not stop there. Mr. Siracusa supported Respondent's efforts to obtain public office in the 1970s and early 1980s, including donating personally to his campaigns, fundraising for him, and acting as his Campaign Treasurer. While we recognize this association is dated, it is, nevertheless, a political association. As the Supreme Court recently took note, the world of politics and the domain of the judiciary should remain fixedly separate. In re Boggia, 203 N.J. 1, 8 (2010) (recognizing the need for an absolute and complete separation of the judiciary from politics "to ensure that the judicial branch operates independently of political influence and, consequently, to maintain public confidence in the integrity and impartiality of our system of justice.") While there certainly has been no suggestion, nor do we suggest, that Respondent engaged in any inappropriate ...


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