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N.J. Supreme Court Chief Justice Stuart Rabner. Photo by Kevin Sanders for the New Jersey Globe

Rabner: Judicial discipline system not designed to punish judges

Cardinale says judiciary playing defense

By Nikita Biryukov, July 17 2019 6:36 pm

New Jersey Supreme Court Chief Justice Stuart Rabner said “the system of judicial discipline is not designed to punish judges.”

“Its overriding purpose is to preserve ‘public confidence in the integrity and the independence of the judiciary.’” Rabner said in a statement released alongside filings beginning removal proceedings against Judge John Russo. “The system provides a fair and structured process when it is necessary to consider discipline or removal of a judge for serious breaches of ethical obligations. Fortunately, those instances are rare.”

Russo has faced fire for months over comments he made during a hearing in which a sexual assault victim was seeking a restraining order against her alleged attacker.

Russo asked the woman if she attempted to close her legs to fend off the attacker.

Observers, including State Sen. Vin Gopal (D-Long Branch) and the New Jersey branch of the National Organization for Women, unsatisfied with the three-month suspension the Advisory Committee on Judicial Conduct recommended for Russo have called for the Judge’s removal or resignation.

Despite the justice’s comments, State Sen. Gerald Cardinale (R-Demarest), a longtime member of the Senate Judiciary Committee, said he believes the judiciary is playing defense following backlash over its handling of Russo and three other judges.

He said the judiciary would not have acted absent outside pressure.

“That’s my opinion, I have no inside information,” Cardinale said. “But I think that there are judges who say and do things like that all the time, and it’s not exactly what he said. But what he said reflects an attitude that’s wrong.”

Judge James Troiano, who refused to try as an adult a 16-year-old boy accused of raping 16-year-old girl and sending a videotape of the assault to his friends as an adult over worries that that doing so would imperil the alleged rapist’s future, has requested an end to his service as a judge.

Judge Marcia Silva refused to try a 16-year-old boy accused of sexually assaulting a 12-year-old girl as an adult, ruling that the victim suffered no emotional, mental or physical harm past the loss of her virginity.

A group of Monmouth County legislators has filed a complaint against Silva, and a growing number of legislators are voicing support for her removal.

In New Jersey, judges are rarely removed from the bench by the judiciary. Ethics complaints against judges in the state are not uncommon, but many end with a reprimand or short term suspension.

Cardinale said he believes there’s a reason for that

“I’ve been on the judiciary committee for a while. We actually had Chief Justice [Deborah] Poritz came before us in a closed meeting … She took the position that when we were considering reappointment of judges, no matter how bad they were, no matter how badly they have scored in the various ratings that they are given,” Cardinale said.

“… She said they must be reappointed because they have given up their practice, they have taken on this role, and we had approved them, and it’s then then our fault if we approve people who were bad. We’re not infallible, and we should be able to correct our mistakes.”

Rabner’s statements did little to defend the judges, but it warned against rash action.

“Like everyone else, judges may sometimes make mistakes while reasonably carrying out their duties in good faith. That, too, is not a basis for discipline,” Rabner said. “In our system, arguments about possible legal errors are instead challenged and reviewed on appeal. In the rare case when a judge’s conduct calls for ethical review and potential discipline, the process requires a careful examination of the full record in context, not a rush to judgment.”

Cardinale never mentioned haste, but he left little question about who he thought the judiciary’s priorities should be.

“We should take the position that the judiciary exists to serve the public not serve lawyers who have become judges and are looking for a pension,” Cardinale said.

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