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 interest of brevity, portions of any opinion may not have been summarized.)
In the Matter of Raymond A. Reddin, Judge of the Superior Court (D-123-13) (074439) In the Matter of Gerald Keegan, Judge of the Municipal Court (D-124-13) (074440)
Argued September 23, 2014 -- Decided January 21, 2015
RABNER, C.J., writing for a unanimous Court.
In this judicial disciplinary matter, the Court considers two questions: (1) what the appropriate standard should be to measure whether a judge’s personal behavior presents an appearance of impropriety; and (2) whether respondents – two sitting judges – violated that standard by regularly dining in public with a longstanding friend who was under indictment for official misconduct.
This matter came before the Court on a Presentment from the Supreme Court Advisory Committee on Judicial Conduct (ACJC or Committee). The facts are not in dispute.
In 2000, a group of friends began gathering weekly on Thursday evenings for dinner at a local restaurant followed by Mass at a nearby church. The group included Respondent Raymond Reddin, a Judge of the Superior Court in the Passaic vicinage since 2003, who was assigned to the Criminal Division; Respondent Gerald Keegan, a part-time Municipal Court Judge for the City of Paterson since 2004; Anthony Ardis, now the former Director of Management Services and Clerk to the Board of the Passaic Valley Sewerage Commission (PVSC); and others. Judge Reddin has been close friends with Ardis for fifty years; Judge Keegan and Ardis have been friends since about 1985. In February 2011, Ardis was arrested and charged with official misconduct, based on allegations that he used his public position to have subordinates perform home improvement projects for his friends and family using public resources. In June 2011, a State Grand Jury indicted Ardis, charging him with official misconduct, conspiracy, and theft by unlawful taking. Respondents knew that Ardis was under indictment for criminal offenses pending in Passaic County, and, at the same time, their group continued to meet weekly for dinner and Mass. Neither Judge considered whether their attendance raised any ethical concerns.
On Thursday, September 13, 2012, Judge Reddin, Judge Keegan, Ardis, and several others met for their weekly dinner at a restaurant in Passaic County. They dined outside on the patio in front of the restaurant. The same evening, a local Republican organization hosted a dinner at the restaurant and one of the guests (the grievant) recognized Judge Reddin and Ardis. The grievant later learned that Respondent Keegan, also seen dining with Ardis, was a Municipal Court Judge. The grievant knew that Ardis was under indictment and, days later, relayed his concerns via email to the Lieutenant Governor. The matter was referred to the Division of Criminal Justice, which, after interviewing the grievant, referred the matter to the ACJC for investigation. Although Respondents continued to dine with Ardis until the spring of 2013, they voluntarily stopped doing so as soon as they learned about the grievance from the ACJC. Both Respondents fully cooperated with the Committee’s investigation.
On September 17, 2013, the ACJC issued a formal complaint against each Respondent, accusing both of creating “an appearance of impropriety that had the potential to weaken public confidence in the integrity and impartiality of the Judiciary,” in violation of Canons 1 and 2A of the Code of Judicial Conduct, and of “demean[ing] the judicial office,” contrary to Canon 5A(2). Respondents filed answers and admitted the essential facts alleged. The ACJC conducted formal hearings on March 25, 2014, and, on June 11, 2014, issued a Presentment finding no improper motive on the part of either Judge. However, relying on In re Blackman, 124 N.J. 547, 552 (1991), the ACJC concluded that Respondents violated Canons 1, 2A, and 5A(2) of the Code of Judicial Conduct. Based on several mitigating factors – including the Judges’ unblemished judicial careers and their voluntary decision to stop attending the dinners – the ACJC recommended the least severe measure of public discipline, a public admonition.
The Court entered an order to show cause, pursuant to Rule 2:15-17(b)(2), and both Judges appeared and presented arguments to the Court.
1 HELD: The Court revises the standard to assess whether a judge’s personal behavior creates an appearance of impropriety, and adds an element of objective reasonableness to the test. The Court adopts the following new standard: “Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?” Applying that standard, the Court finds by clear and convincing evidence that respondents violated Canons 1, 2A, and 5A(2) of the Code of Judicial Conduct, but imposes no sanctions in light of the Court’s revision of the applicable standard.
1. Canon 1 of the Code of Judicial Conduct highlights the “bedrock principle” that “a judge should uphold the integrity and independence of the Judiciary.” DeNike v. Cupo, 196 N.J. 502, 514 (2008). The Canon requires judges to maintain, enforce, and “personally observe high standards of conduct.” Code of Judicial Conduct, Canon 1. Canon 2 directs judges to “avoid impropriety and the appearance of impropriety in all activities.” The Canon adds that judges “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Code of Judicial Conduct, Canon 2A. That obligation extends to judges’ private lives. Canon 5 instructs judges to conduct their extra-judicial activities in a way that “minimize[s] the risk of conflict with judicial obligations” and does not “demean the judicial office.” Code of Judicial Conduct, Canons 5, 5A(2). (pp. 9-10).
2. For many years, New Jersey’s Code of Judicial Conduct has examined judges’ behavior by asking whether there is “a fair possibility that some portion of the public might [be] concerned” about the conduct in question. In re Blackman, 124 N.J. 547, 552 (1991). Under that standard, it has not mattered whether the concern was reasonable. Blackman, supra, 124 N.J. at 552-53 (judge had “a duty to foresee that his actions might be open to criticism by the press or members of the public,” whether or not the public’s interpretation was reasonable, or misinterpreted the judge’s motives). In this matter, the ACJC followed that rule and relevant case law from this Court to measure Respondents’ behavior. (pp. 10-12)
3. A majority of states, the District of Columbia, and the federal courts, follow a different course. As part of their analysis, they consider whether the public’s perception of impropriety is objectively reasonable. Recent case law in our State on the subject of recusal has also invoked a more objective measure to evaluate possible conflicts of interest. In DeNike, supra, the Court considered whether “a reasonable, fully informed person [would] have doubts about the judge’s impartiality.” 196 N.J. at 517. The DeNike standard is not a perfect fit to assess a jurist’s personal conduct off the bench for a simple reason: it is impractical to expect that members of the public who briefly observe a judge’s behavior in public could be fully informed about the underlying facts. However, a standard that does not consider notions of “reasonableness,” can invite different problems. Ethical principles meant to guide judges cannot depend on unreasonable judgments reached by a few, even if such inferences are possible. (pp. 13-18)
4. To address those concerns, as well as the weight of authority from other jurisdictions, the Court modifies the Blackman standard and adds an element of objective reasonableness, adopting the following standard: “Would an individual who observes the judge’s personal conduct have a reasonable basis to doubt the judge’s integrity and impartiality?” That approach appropriately protects the reputation of the Judiciary and, by extension, the public. It also is fairer to judges, who can better anticipate the meaning of the more familiar test. In addition, a standard that focuses on reasonable concerns will help prevent frivolous complaints against judges and protect the integrity of the disciplinary process. In the end, an objective test will both benefit the public, whom judges serve in administering our system of justice, and sustain confidence in the Judiciary. (pp. 19-20)
5. Applying the objective standard here, respondents violated Canons 1, 2A, and 5A(2) of the Code of Judicial Conduct. By socializing in public with a defendant who awaited trial on criminal charges, in the very courthouse in which one of the Respondents served as a criminal judge, both Judges in this matter reasonably called into question their impartiality and weakened the public’s confidence in the judicial system. That said, each Judge has an unblemished record and neither engaged in actual impropriety. Because the Court now revises the standard to assess a judge’s personal behavior, the Court declines to impose sanctions in this case. In an effort to offer guidance for the future, the Court emphasizes that going forward, the circumstances presented would result in the imposition of discipline under the new standard. (pp. 20-24)
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and JUDGE CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
2 SUPREME COURT OF NEW JERSEY D-123 September Term 2013 074439 D-124 September Term 2013 074440
IN THE MATTER OF
RAYMOND A. REDDIN,
A Judge of the Superior Court
_________________________________
GERALD KEEGAN
A Judge of the Municipal Court
Argued September 23, 2014 – Decided January 21, 2015
On an Order to show cause why respondents should not be publicly disciplined through the imposition of an appropriate sanction that does not include removal from judicial office.
Tracie H. Gelbstein, Disciplinary Counsel, argued the cause on behalf of the Advisory Committee on Judicial Conduct.
Raymond B. Reddin argued the cause for respondent Raymond A. Reddin (Reddin Masri, attorneys).
Clark L. Cornwell, III, argued the cause for respondent Gerald S. Keegan.
CHIEF JUSTICE RABNER delivered the opinion of the Court.
1 This disciplinary case raises two questions: (1) what the
appropriate standard should be to measure whether a judge’s
personal behavior presents an appearance of impropriety; and,
(2) whether Respondents -- two sitting judges -- violated that
standard by regularly dining in public with a longstanding
friend who was under indictment for official misconduct.
To the public, judges embody the court system. As a
result, their conduct -- both on and off the bench -- can
promote as well as erode confidence in the Judiciary. For that
reason, the ethical principles that guide judges’ behavior
extend not only to the performance of their official duties but
also to their personal lives.
For many years, New Jersey’s Code of Judicial Conduct has
examined judges’ behavior by asking whether there is “a fair
possibility that some portion of the public might [be]
concerned” about the conduct in question. In re Blackman, 124
N.J. 547, 552 (1991). Under that standard, it has not mattered
whether the concern was reasonable. Ibid.
Most state courts, as well as the federal judiciary, follow
a different course. As part of their analysis, they consider
whether the public’s perception of impropriety is objectively
reasonable. Because we believe that approach is fair, offers
better guidance to judges, and will protect both the public and
the reputation of the Judiciary, we adopt the following standard
2 to assess whether a judge’s personal behavior creates an
appearance of impropriety: “Would an individual who observes
the judge’s personal conduct have a reasonable basis to doubt
the judge’s integrity and impartiality?”
Applying that standard to the facts here, we conclude that
Respondents violated Canons 1, 2A, and 5A(2) of the Code of
Judicial Conduct. By socializing in public with a defendant who
awaited trial on criminal charges, in the very courthouse in
which one of the Respondents served as a criminal judge, both
Judges in this matter reasonably called into question their
impartiality and weakened the public’s confidence in the
judicial system. That said, we recognize that each Judge has an
unblemished record and that neither engaged in any actual
impropriety. Because we now revise the standard to assess a
judge’s personal behavior, we decline to impose any sanctions in
this case.
I.
The facts are not in dispute. In or about 2000, a group of
friends began gathering weekly on Thursday evenings. They
routinely met for dinner at a local restaurant and attended Mass
together afterward at a nearby church. The group included
Respondent Raymond Reddin, a Judge of the Superior Court in the
Passaic vicinage since 2003, who was assigned to the Criminal
Division at all relevant times; Respondent Gerald Keegan, a
3 part-time Municipal Court Judge for the City of Paterson since
2004; Anthony Ardis; and others. Judge Reddin and Ardis have
been close friends for fifty years; Judge Keegan and Ardis have
been friends since about 1985.
Ardis is the former Director of Management Services and
Clerk to the Board of the Passaic Valley Sewerage Commission
(PVSC). On February 1, 2011, he was arrested and charged with
official misconduct. He allegedly used his public position to
have subordinates perform home improvement projects -- while on
agency time and with agency tools and equipment -- at the homes
of a relative and friend. A State Grand Jury indicted Ardis on
June 29, 2011, and charged him with official misconduct,
conspiracy, and theft by unlawful taking of PVSC property.
Various media outlets reported on Ardis’s arrest and indictment,
and some reports included his photograph.
Judge Reddin and Judge Keegan both knew that Ardis was
under indictment for criminal offenses pending in Passaic
County. At the same time, the group to which they belonged
continued to meet on Thursday evenings. (Judge Keegan did not
attend for a period of time for health reasons.) Neither Judge
considered whether their attendance raised any ethical concerns.
On Thursday, September 13, 2012, Judge Reddin, Judge
Keegan, and Ardis, along with several others, had dinner at a
restaurant they often frequented in Woodland Park, in Passaic
4 County. The group sat at their preferred place -- a table on
the outside patio in front of the restaurant.
The same evening, a local Republican organization hosted a
dinner upstairs at the restaurant. One of the guests at that
event (the grievant) spotted and recognized Judge Reddin and
Ardis dining together with others. The grievant later learned
that another one of the diners he saw was Respondent Keegan, a
Municipal Court Judge.
The grievant knew that Ardis was under indictment and, days
later, relayed his concerns to the Lieutenant Governor. In an
email, the grievant explained that he observed Respondents,
Ardis, and others at the restaurant and added,
[w]hat gives me cause for concern is the fact that Ardis is awaiting trial in Passaic County Superior Court relating to an indictment alleging official misconduct. I was also told by an employee at the restaurant that these men meet there “all the time.”
It seems inappropriate for a Superior Court Judge to be meeting with an individual under indictment and awaiting trial in the jurisdiction in which he is a sitting judge.
The matter was referred to the Division of Criminal
Justice. After the Division interviewed the grievant, it
referred the matter to the Advisory Committee on Judicial
Conduct (ACJC or Committee).
The ACJC, in turn, investigated the complaint. Although
Respondents continued to dine with Ardis and the group until the
5 spring of 2013, they voluntarily stopped doing so as soon as
they learned about the grievance from the ACJC. Both
Respondents fully cooperated with the investigation.
On September 17, 2013, the ACJC issued a formal complaint
against each Respondent. The complaint recounted the above
facts and accused both Judges of creating “an appearance of
impropriety that had the potential to weaken public confidence
in the integrity and impartiality of the Judiciary,” in
violation of Canons 1 and 2A of the Code of Judicial Conduct,
and of “demean[ing] the judicial office,” contrary to Canon
5A(2).
Judge Reddin and Judge Keegan each filed answers and
admitted the essential facts alleged. But they both requested
that the ACJC find that their conduct had not violated the Code
of Judicial Conduct. Each Respondent and the Presenter also
entered into a detailed stipulation of facts.
The ACJC conducted separate formal hearings on March 25,
2014. The stipulations as well as transcripts of interviews of
both Judges, the restaurant’s owner, and two staff members at
the restaurant were admitted in evidence.
On June 11, 2014, the ACJC issued a Presentment. It found
no improper motive on the part of either Judge. The Presentment
concluded, however, that Judge Reddin’s and Judge Keegan’s
6 continued association with Mr. Ardis following his arrest and indictment created more than a “fair possibility” that some portion of the public might conclude that Respondents tacitly endorsed Mr. Ardis’s innocence, disagreed with the criminal justice system that indicted him, or worse, assisted Mr. Ardis with his criminal court matter.
[(Citing Blackman, supra, 124 N.J. at 552).]
The ACJC accordingly found that both Judges violated Canons
1, 2A, and 5A(2) of the Code of Judicial Conduct. In addition,
the Committee found a number of mitigating factors -- including
the Judges’ unblemished judicial careers and their voluntary
decision to stop attending the dinners -- and recommended the
least severe measure of public discipline, a public admonition.
We issued an order to show cause, pursuant to Rule 2:15-
17(b)(2), and both Judges appeared and presented arguments to
the Court.
II.
Judge Reddin argues that the Blackman standard is flawed.
He contends that the current test to determine whether an
appearance of impropriety exists is “too subjective, overbroad,
and vague,” and therefore “fails to provide guidance to Judges.”
He also maintains that his weekly tradition of having dinner and
going to church with a lifelong friend did not create an
appearance of impropriety. He acknowledges, however, that an
uninformed or unreasonable person might misinterpret his
7 behavior and erroneously conclude it was improper. He also
requests that the Court not impose any discipline.
Judge Keegan similarly challenges the current standard to
assess an appearance of impropriety. He argues that the
existing test fails to provide “objective guidance” and notice
to judges. He also claims it presents a risk that discipline
will be based on unreasonable inferences drawn by unreasonable
people. In place of the current standard, Judge Keegan
maintains that a “reasonable person” test, like the one in
DeNike v. Cupo, 196 N.J. 502, 517 (2008), should apply. Judge
Keegan also submits that he did not violate the Code of Judicial
Conduct and that no discipline should be imposed.
The designated Presenter supports the ACJC’s finding that
Judge Reddin and Judge Keegan violated the applicable canons of
the Code of Judicial Conduct. The Presenter contends that the
Judges’ behavior -- dining publicly with an individual after his
widely publicized arrest and indictment -- created an
inappropriate public impression that undermined confidence in
the Judiciary and demeaned the judicial office.
The Presenter relies on the current standard to evaluate an
appearance of impropriety and argues that Respondents had “a
duty to foresee” that their conduct might lead to public
criticism. (Quoting Blackman, supra, 124 N.J. at 553).
8 III.
A.
We begin with certain familiar concepts from the Code of
Judicial Conduct. Canon 1 highlights the “bedrock principle”
that “a judge should uphold the integrity and independence of
the Judiciary.” DeNike, supra, 196 N.J. at 514; Code of
Judicial Conduct, Canon 1. To achieve that aim, the Canon
requires judges to maintain, enforce, and “personally observe
high standards of conduct.” Code of Judicial Conduct, Canon 1.
Canon 2 directs judges to “avoid impropriety and the
appearance of impropriety in all activities.” The Canon adds
that judges “should act at all times in a manner that promotes
public confidence in the integrity and impartiality of the
judiciary.” Code of Judicial Conduct, Canon 2A.
That obligation extends to judges’ private lives. As the
commentary to Canon 2 notes, judges “must expect to be the
subject of constant public scrutiny. A judge must therefore
accept restrictions on personal conduct that might be viewed as
burdensome by the ordinary citizen.” Code of Judicial Conduct,
Canon 2 cmt. In short, because judges are in the public eye,
“everything [they] do can reflect on their judicial office” and
9 has the potential to erode public confidence. Blackman, supra,
124 N.J. at 551.
Canon 5 instructs judges to conduct their extra-judicial
activities in a way that “minimize[s] the risk of conflict with
judicial obligations” and does not “demean the judicial office.”
Code of Judicial Conduct, Canons 5, 5A(2). At the same time,
the commentary recognizes that a “[c]omplete separation of a
judge from extra-judicial activities is neither possible nor
wise; a judge should not become isolated from the community in
which the judge lives.” Id., Canon 5A cmt.
B.
The ACJC followed relevant case law from this Court to
measure Respondents’ behavior: The Committee considered whether
the Judges’ conduct “engenders ‘a fair possibility that some
portion of the public might become concerned’ about the judge’s
integrity and impartiality.” (Quoting Blackman, supra, 124 N.J.
at 552 (internal citation omitted)).
That principle was first articulated by Chief Justice
Wilentz when the Court publicly reprimanded two judges who
attended a governor’s inaugural ball. Chief Justice Wilentz,
Statement by Court on Reprimands, 125 N.J.L.J. 243 (Feb. 1,
1990) (Wilentz). The event was expected to generate substantial
net proceeds that would benefit a state political party. Ibid.
As the Chief Justice explained, when it comes to judicial
10 conduct, “appearances count as much as the facts” and judges
“must make many sacrifices, sometimes most substantial, in order
to maintain the public’s confidence in the judiciary.” Ibid.
Under the circumstances, the Court concluded, the judges “knew
or should have known that this was a political function or that
it would appear to the public to be such,” and that “their
attendance had the strong potential of creating an appearance of
judges’ involvement in politics.” Ibid.
Under the standard the Court announced, “[i]t does not
matter” whether an individual’s “interpretation” of a judge’s
conduct “was reasonable or whether it might have been at odds
with [a judge’s] true motives.” Blackman, supra, 124 N.J. at
552-53; see also Wilentz, supra, 125 N.J.L.J. 243 (“The issue is
not whether a reasonable person would probably conclude the
judge had become vulnerable to political influence.”). The
Court focused, instead, on “whether there is a fair possibility
that some portion of the public might become concerned” by the
judges’ conduct. Wilentz, supra, 125 N.J.L.J. 243.
The Court applied the same standard in Blackman to a judge
who attended a widely publicized picnic with about 150 to 200
guests. Blackman, supra, 124 N.J. at 550. The party was hosted
by a close friend of the judge who had recently been convicted
of federal racketeering charges and was scheduled to report to
prison in a matter of days. Id. at 549-50. The Court accepted
11 the judge’s explanation that he had no improper motive. Id. at
552. The thrust of the decision addressed his conduct and the
appearance it created:
When a judge chooses to attend a party hosted by a convicted criminal, . . . [s]uch conduct could be perceived as evidencing sympathy for the convicted individual or disagreement with the criminal justice system that brought about the conviction. At worst, such conduct may raise questions concerning the judge’s allegiance to the judicial system. Those impressions could generate legitimate concern about the judge’s attitude toward judicial responsibilities, weakening confidence in the judge and the judiciary.
[Id. at 551.]
Whether or not the public’s interpretation was reasonable, or
misinterpreted the judge’s motives, the Court opined that the
judge had “a duty to foresee that his actions might be open to
criticism by the press or members of the public.” Id. at 552-
53. Because the Court found that the judge “conveyed the wrong
image of the judiciary,” the Court publicly reprimanded him.
Id. at 553.
The parties also cite In re Rodriguez, 196 N.J. 450 (2008),
in which the Court publicly admonished a municipal court judge
for appearing at a mayor’s house on the day that authorities had
arrested the mayor for taking a bribe. See In re Rodriguez,
ACJC No. 2008-001 (July 30, 2008) (slip op. at 2), available at
http://www.judiciary.state.nj.us/pressrel/
12 Rodriguez_Presentment.pdf. A local newspaper published an
article along with a photograph of the judge and two political
figures standing outside the home. Id. at 2, 4.
The ACJC relied heavily on Blackman and recommended that
the judge be publicly admonished. Id. at 6-8. The respondent
accepted the recommendation and waived his right to appear
before the Court. As a result, the Court simply adopted the
agreed-upon recommendation and entered an order. Rodriguez,
supra, 196 N.J. at 450. The Court did not issue an opinion.
C.
Other jurisdictions apply a different test to determine
when a judge’s conduct creates an appearance of impropriety. A
majority of states, the District of Columbia, and the federal
courts all consider whether reasonable minds would perceive that
a judge has violated the judicial canons of ethics.
Canon 2 of New Jersey’s Code of Judicial Conduct tracks the
language from the 1972 version of the American Bar Association’s
(ABA) Model Code of Judicial Conduct. The 1972 model rule did
not propose a standard to assess the appearance of impropriety.
See ABA Model Code of Judicial Conduct, Canon 2 cmt. (1972).
In 1990, the ABA revised the model code and updated Canon
2. The commentary to the new version included an objective
standard: “The test for appearance of impropriety is whether
the conduct would create in reasonable minds a perception that
13 the judge’s ability to carry out judicial responsibilities with
integrity, impartiality and competence is impaired.” ABA Model
Code of Judicial Conduct, Canon 2A cmt (1990) (emphasis added).
New Jersey did not adopt this change.1
The following decade, the ABA again reviewed the model code
and made additional revisions. In 2007, it restructured and
slightly modified Canon 2, which now appears as Model Rule 1.2 –
- titled “Promoting Confidence in the Judiciary.” The model
rule, which remains in place today, states that “[a] judge shall
act at all times in a manner that promotes public confidence in
the independence, integrity, and impartiality of the judiciary,
and shall avoid impropriety and the appearance of impropriety.”
ABA Model Code of Judicial Conduct, R. 1.2 (2014). Commentary
to the rule contains the following standard, which differs only
modestly from the 1990 comment: “The test for appearance of
impropriety is whether the conduct would create in reasonable
minds a perception that the judge violated this Code or engaged
in other conduct that reflects adversely on the judge’s honesty,
impartiality, temperament, or fitness to serve as a judge.” ABA
Model Code of Judicial Conduct, R. 1.2 cmt. 5 (2007).
1 In December 2014, a committee that reviewed our existing Code of Judicial Conduct and considered the current ABA model rules referred its final recommendations to the Court. 14 A majority of states -- thirty-nine in all -- and the
District of Columbia have adopted the language and relevant
commentary of the 1990 or 2007 ABA model rule, or rely on a
similar objective standard. See Alaska Code of Judicial
Conduct, Canon 2A cmt. (2014); Ariz. Code of Judicial Conduct,
R. 1.2 cmt. 5 (2014); Ark. Code of Judicial Conduct, R. 1.2 cmt.
5 (2014); Cal. Code of Judicial Ethics, Canon 2A cmt. (2014);
Colo. Code of Judicial Conduct, Canon 1, R. 1.2 cmt. 5 (2014);
Conn. Code of Judicial Conduct, Canon 1, R. 1.2 (2014); D.C.
Code of Judicial Conduct, R. 1.2 cmt. 5 (2014); Del. Code of
Judicial Conduct, R. 1.2(A) (2014); Fla. Code of Judicial
Conduct, Canon 2A cmt. (2014); Ga. Code of Judicial Conduct,
Canon 2A cmt. (2014); Idaho Code of Judicial Conduct, Canon 2A
cmt. (2013); Ind. Code of Judicial Conduct, R. 1.2 cmt. 5
(2014); Iowa Code of Judicial Conduct, R. 51:1.2 cmt. 5 (2014);
Kan. Code of Judicial Conduct, Canon 1, R. 1.2 cmt. 5 (2014);
Ky. Code of Judicial Conduct, Canon 2A cmt. (2014); Md. Code of
Judicial Conduct, Md. R. 16-813, R. 1.2(b), (b)(5) (2014); Mass.
Code of Judicial Conduct, Mass. Sup. Jud. Ct. R. 3:09, Canon 2A
cmt. (2014); Minn. Code of Judicial Conduct, Canon 1, R. 1.2
cmt. 5 (2014); Miss. Code of Judicial Conduct, Canon 2A cmt.
(2014); Mo. Code of Judicial Conduct, Canon 1, R. 2-1.2 cmt. 5
(2014); Mont. Code of Judicial Conduct, R. 1.2 cmt. 5 (2012);
Neb. Code of Judicial Conduct, § 5-301.2 cmt. 5 (2014); Nev.
15 Code of Judicial Conduct, Canon 1, R. 1.2 cmt. 5 (2014); N.H.
Code of Judicial Conduct, Canon 1, R. 1.2 cmt. 5 (2014); N.M.
Code of Judicial Conduct, § 21-102 cmt. 5 (2014); N.D. Code of
Judicial Conduct, R. 1.2 cmt. 5 (2014); Ohio Code of Judicial
Conduct, Canon 1, R. 1.2 cmt. 5 (2014); Okla. Code of Judicial
Conduct, Canon 1, R. 1.2 cmt. 5 (2014); Pa. Code of Judicial
Conduct, R. 1.2 cmt. 5 (2014); R.I. Code of Judicial Conduct,
Art. VI, Canon 2A cmt. (2014); S.C. Code of Judicial Conduct,
Canon 2A, R. 501 cmt. (2013); S.D. Code of Judicial Conduct,
Canon 2A cmt. (2014); Tenn. Code of Judicial Conduct, Tenn. Sup.
Ct. R. 10, Canon 1, R. 1.2 cmt. 5 (2014); Utah Code of Judicial
Conduct, R. 1.2 cmt. 5 (2014); Canons of Judicial Conduct for
the State of Va., Canon 2A, Va. Sup. Ct. R. pt. 6, sec. III cmt.
(2014); Wash. Code of Judicial Conduct, Canon 1.2 cmt. 5 (2014);
W. Va. Code of Judicial Conduct, Canon 2A cmt. (2014); Wis. Code
of Judicial Conduct, Wis. Sup. Ct. R. 60.03 cmt. (2014); Wyo.
Code of Judicial Conduct, R. 1.2 cmt. 5 (2014).2 The Supreme
2 Eight other states also direct judges to act in a way that avoids all appearances of impropriety, but the states’ respective codes of judicial conduct and their commentaries do not specify what standard applies. See Ala. Canons of Judicial Ethics, Canon 2A (2014); Haw. Code of Judicial Conduct, Canon 1, R. 1.2 (2014); Ill. Code of Judicial Conduct, Canon 2, R. 62 (2014); Me. Code of Judicial Conduct, Canon 2 (2014); Mich. Code of Judicial Conduct, Canon 2 (2014); N.Y. Code of Judicial Conduct, Canon 2 [100.2] (2014); Tex. Code of Judicial Conduct, Canon 2 (2014); Vt. Code of Judicial Conduct, Canon 2 (2014). A number of those states, like New Jersey, appear to follow the 16 Court of Louisiana, through its case law, has also adopted an
objective test to measure whether a judge’s actions create an
appearance of impropriety. See In re Chaisson, 549 So. 2d 259,
263 (La. 1989).
Federal courts similarly use an objective standard. The
text of Canon 2 of the Code of Conduct for United States Judges
is nearly identical to the language in Canon 2 of New Jersey’s
Code of Judicial Conduct. A comment to the federal rule,
though, differs from New Jersey’s longstanding approach. See
Code of Conduct for United States Judges, Canon 2A cmt. (2014).
The comment states that “[a]n appearance of impropriety occurs
when reasonable minds, with knowledge of all the relevant
circumstances disclosed by a reasonable inquiry, would conclude
that the judge’s honesty, integrity, impartiality, temperament,
or fitness to serve as a judge is impaired.” Ibid.
Recent case law in our State on the subject of recusal has
also invoked a more objective measure to evaluate possible
conflicts of interest. In DeNike, supra, the Court considered
1972 version of the ABA model rule, which lacked a standard. ABA Model Code of Judicial Conduct, Canon 2 (1972).
Oregon requires judges to avoid conduct that “reflects adversely on the judge’s character, competence, temperament, or fitness,” but no standard appears in the state’s code. Or. Code of Judicial Conduct, R. 2.1(C) (2014). North Carolina’s code does not have an appearance of impropriety standard. N.C. Code of Judicial Conduct, Canon 2 (2014).
17 whether it was appropriate for a sitting trial judge to engage
in preliminary discussions about employment opportunities at a
lawyer’s firm, while the lawyer was presenting a matter to the
judge which was not yet fully resolved. 196 N.J. at 506. To
evaluate whether the judge should have disqualified himself, the
Court asked, “Would a reasonable, fully informed person have
doubts about the judge’s impartiality?” Id. at 517; see also
State v. McCabe, 201 N.J. 34, 44 (2010) (applying DeNike
standard to municipal court judges).
The DeNike standard is not a perfect fit to assess a
jurist’s personal conduct off the bench for a simple reason: it
is impractical to expect that members of the public who briefly
observe a judge’s behavior in public could be fully informed
about the underlying facts. Unlike a party to a lawsuit, an
observer in a restaurant would not have the benefit of being
familiar with the record. Instead, a passerby who sees a judge
dine in public with a defendant who is awaiting trial would
likely form an opinion with little or no additional information
to provide context.
A standard that does not consider notions of
“reasonableness,” though, can invite different problems. To be
sure, ethical principles that are meant to guide judges cannot
depend on unreasonable judgments reached by a few, even if such
inferences are possible. And discipline should not be imposed
18 on the basis of questionable deductions that one or more members
of the public draw. In any event, appropriate measures of
conduct should provide clear guidance in advance.
D.
To address those concerns, as well as the weight of
authority from other jurisdictions, we modify the Blackman
standard and add an element of objective reasonableness to it.
To assess whether a judge’s personal behavior creates an
appearance of impropriety, we hold that the following standard
should apply: “Would an individual who observes the judge’s
personal conduct have a reasonable basis to doubt the judge’s
integrity and impartiality?”
That approach appropriately protects the reputation of the
Judiciary and, by extension, the public. It still requires that
judges tailor their personal behavior to avoid the appearance of
impropriety. And when there is a reasonable basis to doubt a
judge’s behavior, the questioned conduct would be forbidden and
could subject the jurist to discipline.
An objective standard is also fairer to judges. They can
better anticipate the meaning of the more familiar test. As a
result, judges will be in a better position to conform their
personal conduct to that measure.
In addition, a standard that focuses on reasonable concerns
will help prevent frivolous complaints against judges and
19 protect the integrity of the disciplinary process. In the end,
an objective test will both benefit the public, whom judges
“serve in administering our system of justice,” In re Advisory
Letter No. 7-11, 213 N.J. 63, 78 (2013), and sustain confidence
in the Judiciary.
IV.
We next consider the Judges’ behavior in this case with the
above standard in mind. Both Judges have longstanding
friendships with Ardis. Judge Reddin’s close relationship dates
back more than fifty years; Judge Keegan’s friendship began
nearly three decades ago. The dinner that all three attended at
a local restaurant was part of a weekly gathering with other
friends -- part of a tradition that had been ongoing for more
than a decade. After dinner, the Judges and others attended
Mass together, as they regularly did. There is no suggestion in
the record that either Judge discussed Ardis’s criminal case
that evening or had any involvement with it at any time. Nor is
there any suggestion that the Judges had any improper motive.
We note, as well, that both Judges have no prior record of
discipline. To the contrary, their fine reputations as public
servants are untarnished. We also commend their immediate
response to the investigation: They stopped attending the
Thursday night gatherings as soon as they learned that a
20 grievance had been filed. They also fully cooperated in a
forthright manner throughout the investigation.
The gathering, nonetheless, raises some very serious
concerns. Respondents spent an extended period of time
socializing in public with a defendant who faced trial on
serious criminal charges. As the ACJC noted, members of the
public “might conclude that Respondents tacitly endorsed Mr.
Ardis’s innocence, disagreed with the criminal justice system
that indicted him, or worse, assisted Mr. Ardis with his
criminal court matter.” In addition, one of the Respondents
serves and decides disputes in the courthouse where Mr. Ardis’s
charges were to be resolved. That connection to the court
system only fuels a perception of improper conduct.
This case is quite different from Opinion 26-01, on which
Judge Reddin relies. See Annotated Guidelines for Extrajudicial
Activities, Nov. 2007, Opinion 26-01. In that matter, a judge
sought and obtained advance approval from the Advisory Committee
on Extrajudicial Activities to attend a retirement dinner of a
Senator who was a longstanding friend and former law partner of
the judge. The case bears no relationship to the facts here. A
retirement dinner for a friend and former partner who is not the
subject of criminal proceedings is a far cry from weekly, public
dinners with a friend under indictment. Also, as the ACJC
21 noted, Ardis’s “indictment relates directly to the work of the
Judiciary of which Respondents are both members.”
In this case, we find that Respondents’ personal behavior
could cause a reasonable observer to question the Judges’
impartiality. By socializing in public with a defendant who
awaited a criminal trial, Respondents created a reasonable
prospect that a member of the public would call into question
their view of the charges and the criminal process underway.
The situation was aggravated by the fact that one of the
Respondents served in the very courthouse where the criminal
case was to be resolved. We therefore find by clear and
convincing evidence that Canons 1, 2A, and 5A(2) were violated.
See R. 2:15-15(a); In re Seaman, 133 N.J. 67, 74 (1993).
Because we now modify the standard to evaluate a judge’s
personal behavior under the Code of Judicial Conduct, we decline
to impose any sanctions in this case. However, in an effort to
offer guidance for the future, we stress that the circumstances
presented would result in the imposition of discipline, going
forward, under the new standard.
This matter did not arise out of a random encounter in a
public place that led to a brief, courteous exchange. Such
inadvertent contacts may, of course, take place in everyday life
and would not create reasonable cause for concern. The case,
instead, involved a lengthier dinner in public, planned in
22 advance, with a defendant under indictment. Because such events
raise questions about the integrity of judges and the Judiciary
as a whole, they should not take place. As the Court observed
more than a half century ago, “judges must refrain from engaging
in any conduct which may be hurtful to the judicial system,”
State v. Deutsch, 34 N.J. 190, 206 (1961), because “‘justice
must satisfy the appearance of justice,’” ibid. (quoting Offutt
v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed.
11, 16 (1954)).
We do not pass judgment on Ardis’s character in this
decision or on Respondents’ continued friendship with him.
Although judges must accept limits on their personal behavior,
they are not required to shun dear, lifelong friends or family
members who face criminal charges. But planned social
interactions like the one in question here are best held in
private without a group of onlookers. We appeal to judges’ good
common sense and encourage them not to socialize in public in
such instances and thereby highlight for others a longstanding
relationship that may raise reasonable concerns. In that way,
judges can avoid conduct that may convey the wrong image of the
Judiciary and invite criticism. To err on the side of caution,
judges may also seek advance guidance from the Advisory
Committee for Extrajudicial Activities if they have questions.
23 V.
We therefore agree with the ACJC’s conclusion that Canons
1, 2A, and 5A(2) were violated but impose no sanction on
Respondents.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON, and JUDGE CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
24 SUPREME COURT OF NEW JERSEY D-123-13 NO. D-124-13 SEPTEMBER TERM 2013 APPLICATION FOR
Order to Show Cause Why Respondents Should DISPOSITION
Not be Publicly Disciplined
A Judge of the Superior Court ______________________________________ IN THE MATTER OF
GERALD KEEGAN,
DECIDED January 21, 2015 OPINION BY Chief Justice Rabner CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST NO SANCTION CHIEF JUSTICE RABNER X JUSTICE LaVECCHIA X JUSTICE ALBIN X JUSTICE PATTERSON X JUSTICE FERNANDEZ-VINA X JUSTICE SOLOMON X JUDGE CUFF (t/a) X TOTALS 7