In the Matter of Louis M.J. Dileo, a Former Judge of the Municipal Court (072095)

• Court: Supreme Court of New Jersey
• Decided: January 27, 2014
• Docket: D-66-12
• Status: Published

Opinion

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 Louis M.J. DiLeo (D-66-12) (072095)

Argued April 30, 2013 -- Decided January 27, 2014 . PER CURIAM

This judicial disciplinary matter came before the Court on a Presentment from the Supreme Court Advisory Committee on Judicial Conduct (Committee). The Committee reviewed the matter under Rule 2:15-8(a) and concluded that respondent, former Municipal Court Judge Louis M.J. DiLeo (Judge DiLeo or respondent), 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), and Canon 3A(1) (a judge should be faithful to the law and maintain professional competence in it). The Committee recommended that respondent be reprimanded. The Court issued an Order to Show Cause why respondent should not be publicly disciplined.

On October 4, 2009, Anthony Kirkland and Wendell Kirkland (the defendants, Kirkland defendants, or Anthony and Wendell) were arrested in Linden. The defendants were charged with unlawful taking of five lug nuts, attempted theft by unlawful taking of a tire, possession of burglary tools, and possession of fifty grams or less of marijuana. The charges were downgraded to disorderly persons offenses and referred to the Linden Municipal Court where respondent was a part-time municipal court judge. Judge DiLeo arraigned the defendants on April 12, 2010. The defendants indicated that they wished to proceed with private counsel. Judge DiLeo gave the defendants until May 3, 2010, to retain counsel, and told them that by electing to retain private counsel they had waived their right to the appointment of a public defender.

On the conference date of May 3, each defendant appeared pro se. Although Anthony’s statement was reported as inaudible on the transcript, Wendell clearly asked to have a public defender appointed. Judge DiLeo told the defendants that they had previously “waived the public defender” and scheduled the matter for trial on May 12. Judge DiLeo conducted the trial in the absence of both defense counsel and the municipal prosecutor. Judge DiLeo conducted direct examination of the arresting officer, permitted each Kirkland brother to cross-examine the officer, and then permitted the defendants an opportunity to present witnesses in their defense. Although both defendants had witnesses they wished to present, none were present in the courtroom that evening. Respondent then advised the Kirkland defendants of their Fifth Amendment right against self-incrimination and provided each an opportunity to testify in his own defense. Afterward, the arresting officer was invited to and did cross-examine each defendant. Judge DiLeo also questioned Anthony at length about his conduct on the evening of his arrest and then questioned the arresting officer again about the events of the evening.

At the conclusion of the trial, which lasted less than one hour, Judge DiLeo stated that he had “heard all the testimony” and that “[i]t does not sound credible, either of the tales that were told by Wendell Kirkland and Anthony Kirkland.” Judge DiLeo found the defendants guilty of all charges and pronounced sentences that included jail, consecutive probationary terms, fines, and costs. Anthony and Wendell were immediately taken into custody. The defendants appealed. The Law Division appointed counsel for each. Judge Scott Moynihan presided over a de novo Law Division proceeding, at which the State informed the court that it “agree[d] that the procedures used in municipal court violated the defendants’ due process rights.” The State further requested that the convictions be “vacated and the matter remanded, perhaps to a different municipal court.” On March 4, 2011, Judge Moynihan held that the municipal trial violated the defendants’ constitutional rights and that both the trial and the sentencing of the defendants were improper. The court concluded that Judge DiLeo had “transformed the role of the court from a neutral and detached magistrate and evoked the specter of the backwater ‘judge, jury and executioner’ figure that has never had any place in American jurisprudence.” The court found the defendants not guilty on the possession of marijuana charge and remanded the remaining charges to the Elizabeth Municipal Court for a new trial.

1 On February 3, 2011, Michael P. Rubas, Esq., who had represented Wendell in the de novo appeal before the Law Division, filed a complaint with the Advisory Committee regarding Judge DiLeo’s handling of the defendants’ trial. The Mayor of Linden also filed a grievance. The Committee conducted an investigation and questioned Judge DiLeo via letter dated April 15, 2011. In a response, Judge DiLeo addressed the complaints by emphasizing generally the enormity of the municipal court’s docket at the time. He explained that he was not attempting to prosecute the case, but rather was trying to move the court’s calendar along.

On December 12, 2012, the Committee conducted a formal hearing and on January 16, 2013, issued the Presentment that is before this Court. The Committee noted that the case presented an “issue of first impression in New Jersey, namely under what circumstances may a judge’s legal error constitute grounds for a finding of judicial misconduct.” Quoting In re Benoit, 487 A. 2d 1158, 1163 (Me. 1985), the Committee adopted an objective standard: whether a “ ‘reasonably prudent and competent judge’ considers the conduct ‘obviously and seriously wrong in all circumstances.’ ” Applying that standard, the Committee concluded that Judge DiLeo “abdicated his judicial function and assumed the role of the prosecutor” and “complete[ly] contravened … the court rules and established case law,” warranting that he be reprimanded.

On January 30, 2013, Judge DiLeo filed with this Court a motion to dismiss and/or to modify the Presentment. On March 11, 2013, the Court issued an Order to Show Cause requiring the judge “to show cause why public discipline, less than removal, but including permanent disqualification, should not be imposed.”

HELD: The undisputed facts clearly and convincingly demonstrate that former Judge Louis M.J. DiLeo committed egregious legal errors in conducting the proceedings involving Anthony Kirkland and Wendell Kirkland. Judge DiLeo’s conduct violated Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. Respondent is reprimanded.

1. Every judge is duty bound to abide by and enforce the standards in the Code of Judicial Conduct. There are two determinations to be made in connection with the imposition of judicial discipline: (1) has a violation of the Code been proven by clear and convincing evidence, and (2) does that violation amount to unethical behavior warranting discipline. Generally, discipline is warranted “ ‘when conduct is marked with moral turpitude and thus reveals a shortage in integrity and character.’ ” Id. at 102. The Court also has acknowledged that a single violation of the Code that was “willful” or “typical of the judge’s work” may constitute judicial misconduct. (pp. 19-21)

2. Legal error has provided the foundational basis in this state for charging judges with violations of Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. A case-by-case approach has been used when analyzing charges of legal error to discern judicial misconduct under these canons. Where willful abuse of judicial power or inability to follow the law has been found, demonstrating judicial misconduct in the extreme, the Court has not hesitated to impose the harshest of sanctions and has removed a sitting jurist on the basis of incompetence and unfitness for judicial office. The overriding concern is the capacity of judicial behavior, objectively viewed, to undermine public confidence in the integrity and impartiality of the judicial process. (pp. 22-27)

3. The appropriate standard – most consistent with Rule 2:15-8(a), the Code, and the Court’s general approach to judicial discipline – is the objective “reasonably prudent and competent judge” standard of Benoit with a “plus,” as a majority of jurisdictions require. To be subject to judicial discipline under the Code, there must be clear and convincing proof of objective legal error under the test described in Benoit, that the error must be “made contrary to clear and determined law about which there is no confusion or question as to its interpretation,” and that the error must be “egregious, made in bad faith, or made as part of a pattern or practice of legal error.” This standard protects judicial independence and preserves public confidence in the judiciary. (pp. 27-35)

4. The undisputed facts clearly and convincingly demonstrate that Judge DiLeo committed egregious legal errors in his conduct of the proceedings involving the Kirkland defendants. Respondent’s manner of conducting this trial deprived the defendants of their fundamental due process rights and eliminated all indicia of impartiality by the judge -- and fact-finder -- in this bench trial. The egregiousness of these errors had the clear capacity to undermine public confidence in the dignity, integrity, and impartiality of the judicial system of this state. Judge DiLeo violated Canons 1, 2A, and 3A(1) of the Code of Judicial Conduct. He committed legal errors of the degree and kind that call into question judicial competence and cast a pall over the judiciary as a whole, and that constitute conduct prejudicial to the administration of justice that brings the judicial office into disrepute. R. 2:15-8. (pp. 36-42)

2 Former Municipal Court Judge Louis M.J. DiLeo is REPRIMANDED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in the Court’s opinion.

3 SUPREME COURT OF NEW JERSEY D-66 September Term 2012 072095

IN THE MATTER OF

LOUIS M.J. DILEO

A FORMER JUDGE OF

THE MUNICIPAL COURT

Argued April 30, 2013 – Decided January 27, 2014

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.

Tracie H. Gelbstein, Designated Presenter, argued the cause on behalf of the Advisory Committee on Judicial Conduct.

Anthony B. Vignuolo argued the cause for respondent (Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, attorneys.

PER CURIAM

The Advisory Committee on Judicial Conduct (Committee)

issued a Presentment against Louis M.J. DiLeo, a former

municipal court judge in Linden, charging him with judicial

misconduct under the Code of Judicial Conduct (the Code) and

Rule 2:15-8(a). The Committee recommended that the judge be

reprimanded for legal errors of an egregious nature committed

1 when presiding over the municipal trial of Anthony Kirkland and

Wendell Kirkland (the defendants, Kirkland brothers, or Anthony

and Wendell) on disorderly persons offenses. The trial errors

that lie at the heart of this matter were reversed on appeal by

the Law Division, which found that Judge DiLeo deprived the

defendants of their right to representation by counsel,

conducted the trial without the municipal prosecutor, required

the arresting officer to represent the State by questioning the

defendants, and himself acted as the prosecutor by personally

questioning witnesses.

Although legal error is not typically grounds for

discipline, legal error that is egregious, made in bad faith, or

part of a pattern or practice of legal error has the capacity to

detrimentally affect public confidence in the judicial process.

Indeed, either a pattern of incompetent or willful legal error

or a sufficiently egregious instance of such error can undermine

public confidence in the judiciary. The overriding concern when

considering alleged judicial misconduct of any form is the

capacity of the judicial conduct, objectively viewed, to

undermine public confidence in the integrity, impartiality, and

independence of the judicial system. That concern must drive

the determination of whether legal error rises to the level of

misconduct under the Code and requires the imposition of

discipline.

2 This matter presents the opportunity for this Court to

address the standard by which legal error in a judge’s

performance must be assessed to determine if the error

constitutes judicial misconduct subject to discipline.

I.

A.

The Committee’s Presentment reviewed the facts and the

procedural history of the underlying proceeding that

precipitated the charges against Judge DiLeo. These facts were

not contested and find their support in the record of the

municipal court proceedings in issue.

On October 4, 2009, the Kirkland brothers and a third

defendant were arrested in Linden. The Kirkland brothers were

charged in summonses with unlawful taking of five lug nuts,

attempted theft by unlawful taking of a tire to which the lug

nuts were attached, possession of burglary tools (e.g., a

hydraulic floor jack and a lug wrench), and possession of fifty

grams or less of marijuana, which was found in a vehicle that

the three defendants used to travel to the location of the

incident that led to their arrest. After reviewing the charges,

the Union County Prosecutor’s Office downgraded the indictable

offenses to disorderly persons offenses and referred them to the

Linden Municipal Court on February 4, 2010. At that time, Judge

3 DiLeo was a part-time Linden municipal court judge, having held

that position for approximately seven years.

Judge DiLeo arraigned the defendants on April 12, 2010. At

the arraignment, after advising the defendants of the charges

against them and of the possible consequences each faced if

convicted, Judge DiLeo reviewed with the defendants their

rights, including their right to an attorney and to the

appointment of a public defender if they were indigent. Anthony

and Wendell indicated that they wished to proceed with an

attorney and that they wished to retain private counsel.1 Judge

DiLeo gave the defendants until May 3, 2010, to retain counsel

and told them that by electing to retain private counsel they

had waived their right to the appointment of a public defender.

On the conference date of May 3 when the defendants were to

provide written proof of having secured counsel, each defendant

appeared pro se. Although Anthony’s response was reported as

inaudible on the transcript, Wendell clearly asked to have a

public defender appointed. Instead, Judge DiLeo told the

defendants that they had “waived the public defender” when they

previously requested to be represented through private counsel.

Wendell immediately asked, “A private attorney now?” to which

Judge DiLeo told him “You had a private – you had the chance

1 The third defendant, Jesus Gonzalez, took public defender representation and pled guilty prior to the Kirkland brothers’ trial. 4 from April 12th to get a private attorney sir. I’m going to

schedule this case up for Tuesday May 11th.” Judge DiLeo in

fact scheduled the matter for trial on May 12, exactly one month

after arraigning the defendants on the disorderly persons

charges. He presided over the trial, which began at 9:13 p.m.

and concluded at 10:05 p.m.

Having determined that the Kirkland defendants had “waived

the public defender,” Judge DiLeo conducted the trial in the

absence of defense counsel. In addition, he permitted the trial

to proceed that evening in the absence of the municipal

prosecutor. The record contains no indication that the judge

made any effort to attempt to locate the municipal prosecutor

prior to proceeding with the trial. As a consequence, the only

individuals to participate in the trial were Judge DiLeo, the

arresting police officer, and the Kirkland defendants. Judge

DiLeo conducted direct examination of the arresting officer and

then permitted each Kirkland brother to cross-examine the

officer. At the conclusion of the officer’s testimony, Judge

DiLeo asked the officer if he had any “other witnesses” to

“produce” or evidence to present, to which the officer

responded, “[T]here’s no evidence here.” The judge asked the

officer if he intended to “rest” his case to which the officer

responded, “Yes.”

5 Judge DiLeo then permitted the defendants an opportunity to

present witnesses in their defense. Although both defendants

had witnesses they wished to present, none were present in the

courtroom that evening. We note that Jesus Gonzalez, the third

defendant involved in the incident underlying the charges and an

important witness for the defendants, had been present in the

courtroom earlier that evening.

With no witnesses available for the defense, the judge

advised the Kirkland defendants of their Fifth Amendment right

against self-incrimination and provided each an opportunity to

testify in his own defense. Afterward, the arresting officer

was invited to and did cross-examine each defendant. At the

conclusion of the arresting officer’s cross-examination, Judge

DiLeo also questioned Anthony Kirkland at length about his

conduct on the evening of his arrest and then questioned the

arresting officer again about the events of the evening.

At the conclusion of this trial, Judge DiLeo stated that he

had “heard all the testimony” and that “[i]t does not sound

credible, either of the tales that were told by Wendell Kirkland

and Anthony Kirkland.” He explained that he had “observed their

demeanor throughout the testimony” and concluded that “I don’t –

I don’t find their testimony convincing and I don’t find it

believable.” Much of the judge’s reasoning for finding the

defendants’ testimony incredible was based on information that

6 the judge had elicited from the defendants through his

questioning.

After finding the defendants guilty of all charges, Judge

DiLeo sentenced Wendell to 180 days in county jail, “day for

day,” three consecutive one-year probationary terms, and fines

totaling $2700 exclusive of penalties and costs. Judge DiLeo

sentenced Anthony to two “day for day” consecutive 180 day jail

terms and three consecutive one-year probationary terms. The

judge also imposed the maximum fines permitted for each offense,

totaling $3100 exclusive of penalties and costs.

Anthony and Wendell Kirkland were taken into custody

immediately and served 124 days for the disorderly persons

offenses.

The defendants appealed their convictions to the Law

Division of the Superior Court. The Law Division determined the

defendants to be indigent and appointed counsel for each.

Judge Scott Moynihan presided over a de novo Law Division

proceeding, at which the State informed the court that it

“agree[d] that the procedures used in municipal court violated

the defendants’ due process rights.” The State further

requested that the convictions be “vacated and the matter

remanded, perhaps to a different municipal court.” On March 4,

2011, the court held that the municipal trial conducted by Judge

DiLeo had violated the defendants’ constitutional rights. The

7 court concluded that both the trial and the sentencing of the

defendants were improper.

In respect of the trial, the court found that the

defendants had not knowingly and voluntarily waived their Sixth

Amendment constitutional right to counsel and, moreover, that

Judge DiLeo had not engaged “in the colloquy required before a

defendant is allowed to represent himself.” The court also

found that the defendants’ due process rights were violated when

Judge DiLeo questioned the arresting officer and Anthony,

pointedly cross-examining the witnesses and using the testimony

elicited from Anthony to find him incredible when fashioning his

findings. According to the court, Judge DiLeo improperly acted

as the prosecutor for the municipality. The court added that it

was improper to allow the arresting officer to cross-examine the

defendants, noting that no authority permits a “non-attorney to

participate in a trial as the State’s sole representative,

especially when no attorney is present and engaged in the

proceedings.” The court concluded that Judge DiLeo’s actions

had removed all impartiality and neutrality from the

proceedings, stating that the judge had “transformed the role of

the court from a neutral and detached magistrate and evoked the

specter of the backwater ‘judge, jury and executioner’ figure

that has never had any place in American jurisprudence.”

8 With regard to the defendants’ sentencing, the court found

several errors. It determined that Judge DiLeo did not set

forth on the record his findings on aggravating and mitigating

factors as required, that he improperly imposed consecutive

sentences without providing the basis for such action, that he

improperly imposed periods of parole ineligibility in a case

where the sanction was not authorized by law, that he improperly

imposed a jail term in excess of ninety days as a condition of

probation in violation of law, and that he failed to consider

the defendants’ eligibility for release on parole when

sentencing as required by N.J.S.A. 2C:44-1(c)(2). The court

further noted that Judge DiLeo imposed maximum fines without

ascertaining the defendants’ ability to pay, failed to permit

Anthony to allocute before sentencing in violation of Rule

7:9-1(a), and failed to advise the defendants of their right to

appeal.

The court then found the defendants not guilty on the

possession of marijuana charge and remanded the remaining

charges to the Elizabeth Municipal Court for a new trial. On

remand, the defendants each pled guilty to a downgraded charge

of breach of the peace, an ordinance violation.

B.

On February 3, 2011, Michael P. Rubas, Esq., who had

represented Wendell in the de novo appeal before the Law

9 Division, filed a complaint with the Committee regarding Judge

DiLeo’s handling of the defendants’ trial. Richard Gerbounka,

the Mayor of Linden, also filed a grievance with the Committee

on the same subject.

In New Jersey, judges are subject to discipline as provided

by Court Rules and the Code of Judicial Conduct. The Committee

is tasked by this Court with reviewing all allegations of:

(1) misconduct in office, (2) willful failure to perform judicial duties, (3) incompetence, . . . . or (6) conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

[R. 2:15-8(a).]

Based on its investigation, the Committee can take a number of

actions. It may determine that, even though the judicial

conduct does not merit public discipline, the conduct

nevertheless may constitute

conduct of the type set forth in Rule 2:15- 8(a) or other conduct that would reflect unfavorably on the judicial office if it were to become habitual or more substantial in character, [and therefore the Committee may]

(1) communicate to the judge its private censure, reprimand, admonition, caution, or guidance concerning the conduct in question.

[R. 2:15-10(c).]

10 The Committee may also

determine[] after a formal hearing that the charges against the judge have been proved by clear and convincing evidence and that a recommendation should be made to the Supreme Court for public reprimand, censure, suspension, or removal.

[R. 2:15-15(a).]

In this matter, the Committee conducted an investigation in

which it considered the proceedings conducted by Judge DiLeo and

the appeal to the Law Division.2 The Committee also considered

the following material. The Committee questioned Judge DiLeo

initially via a letter dated April 15, 2011. In a response

dated August 11, 2011, Judge DiLeo addressed the complaints

filed by Rubas and Gerbounka by emphasizing generally the

enormity of the municipal court’s docket at the time. He

asserted that the Linden Municipal Court’s docket was

overwhelming and that the number of court sessions was

insufficient to allow him to address all the cases on his

docket. He explained that the docket issue had been rectified

since the trial involving the Kirkland brothers due to an

increase in the number of sessions and by the passage of a

resolution that allowed for additional judges, prosecutors, and

public defenders.

2 We rely largely on the Presentment in summarizing this disciplinary matter’s history before the Committee.

11 In respect of the specific trial of the Kirkland brothers,

Judge DiLeo stated that he believed that the defendants had

waived their right to a public defender and that the defendants’

request on May 3, 2010, for counsel was a stall tactic. Judge

DiLeo added that the defendants’ case was an “old case” and that

he believed further delay would have raised speedy-trial

concerns. Thus, he explained that he was not attempting to

prosecute the case, but rather, was trying to move the court’s

calendar along.

Judge DiLeo acknowledged the Law Division’s de novo

decision in that matter, adding that he would ensure the errors

found by the Law Division would not recur. He also stated his

belief that the grievance filed by Mr. Rubas constituted an

attempt to gain an advantage in an anticipated civil suit

against him by the Kirkland brothers; however, he denied having

any bias against the defendants and asserted that when he was

conducting the defendants’ trial he had been concerned about

increased theft in Linden.

On October 24, 2011, the Committee issued a formal

complaint against the judge. The complaint alleged that Judge

DiLeo violated Canons 1, 2A, and 3A(1) of the Code of Judicial

Conduct by denying the Kirkland brothers due process and their

constitutional right to counsel and by committing multiple

procedural errors during sentencing.

12 C.

On December 12, 2012, the Committee conducted a formal

hearing on the complaint issued against Judge DiLeo. Judge

DiLeo was the only witness in the proceeding.

Judge DiLeo attacked the accuracy of the Law Division

judge’s decision, although he stated that he had not read it.

Judge DiLeo also asserted that the then municipal prosecutor had

developed a practice of leaving court without the judge’s

knowledge and permission and, thus, the prosecutor would waive

his opportunity to be present and place the burden on the

arresting officer to proceed with the matter. Judge DiLeo again

pointed to the age of the case and the need to move his calendar

forward as justifying his decision to proceed without a

prosecutor present. He also argued that the Law Division judge

had not received transcripts of all proceedings when conducting

his de novo review; specifically Judge DiLeo asserted that the

Law Division did not receive transcripts of the defendants’

appearances prior to the trial date. As a result, he claimed

that the Law Division judge was misled about the defendants’

waiver of counsel, leading to the incorrect conclusion that

Judge DiLeo had not advised the Kirkland brothers of their right

to counsel.

Judge DiLeo maintained that he attempted to be fair to both

sides, which was why he permitted the arresting officer to

13 cross-examine the defendants and why he questioned both the

officer and the defendants. Judge DiLeo surmised that the State

did not review the entire record before recommending the matter

be vacated and remanded. Finally, he conceded that his use of

the word “consecutive” when sentencing the defendants was a

mistake, but one of exhaustion that should have been caught and

corrected by his staff.

D.

On January 16, 2013, the Committee issued the Presentment

that is before this Court. The Committee concluded in the

Presentment that, “with the exception of [Judge DiLeo’s]

procedural errors when sentencing the Kirkland defendants, these

violations have been proved by clear and convincing evidence

and, consequently, [Judge DiLeo] is subject to discipline.”

The Committee noted that the case presented an “issue of

first impression in New Jersey, namely under what circumstances

may a judge’s legal error constitute grounds for a finding of

judicial misconduct.” The Committee added that, generally,

legal error is not grounds for judicial misconduct, and that

neither case law nor our Canons have “delineated a standard by

which to determine when reversible legal error constitutes

misconduct under Canon 3A(1) specifically or Canons 1 and 2A

generally.” The Committee looked to case law outside of New

Jersey and, quoting In re Benoit, 487 A.2d 1158, 1163 (Me.

14 1985), adopted an objective standard: whether a “‘reasonably

prudent and competent judge’ considers the conduct ‘obviously

and seriously wrong in all circumstances.’” Citing In re Quirk,

705 So. 2d 172, 178 (La. 1997), the Committee added that an

egregious legal error is an “exception to the general rule that

legal error is not subject to judicial discipline,” and that

“[error] involving the denial of basic fundamental rights[] may

constitute judicial misconduct.”

Applying that standard, the Committee concluded that Judge

DiLeo “abdicated his judicial function and assumed the role of

the prosecutor” and “complete[ly] contravened . . . the court

rules and established case law.” Moreover, it found that the

conduct constituted a “perversion of justice for which judicial

discipline is required.” Thus, “a reasonably prudent and

competent judge would consider [Judge DiLeo’s] conduct in the

Kirkland matter obviously and seriously wrong in all

circumstances,” and Judge DiLeo’s conduct was in violation of

the Code of Judicial Conduct. Specifically, Judge DiLeo’s

conduct was criticized because he did not conduct the matter in

a manner that would maintain public confidence in the judiciary.

As examples, the Committee concluded that he became an advocate

for the State, which denied the defendants due process, and he

deprived the defendants of their constitutional right to counsel

absent a knowing and voluntary waiver of that right. According

15 to the Committee, Judge DiLeo essentially forced the defendants

to proceed on a pro se basis, failing to ensure that the process

by which the defendants ended up without representation was

fair. The Committee also stated that a backlogged court docket

is not “justification for . . . absolute disregard of

appropriate procedures and the fundamental rights of defendants,

especially when, as here, the defendants faced a consequence of

magnitude.”

In determining the proper discipline to be imposed, the

Committee balanced aggravating and mitigating factors. It found

four aggravating factors: (1) the extent to which the

misconduct demonstrates a lack of judgment and integrity; (2) a

serious undermining of the public confidence and integrity in

the judicial process and system; (3) harm inflicted on

defendants (time spent in jail after denial of rights); and (4)

harm to the judicial process generally. The Committee noted

these were the first misconduct complaints filed against Judge

DiLeo, but the incident included “several breaches of proper

conduct,” “was significant,” and was “deserving of discipline.”

As a single mitigating factor, the Committee found that Judge

DiLeo had taken steps necessary to ensure that the conduct would

not be repeated. The Committee recommended that Judge DiLeo be

reprimanded as the proper measure of discipline.

16 On January 30, 2013, Judge DiLeo filed with this Court a

motion to dismiss and/or to modify the Presentment. He argues

that the Committee erred in recommending that he be subjected to

discipline because this was a matter of first impression and the

Committee should not have applied retroactively a new standard

for judicial misconduct to him. On March 11, 2013, we issued an

Order to Show Cause requiring the judge “to show cause why

public discipline, less than removal, but including permanent

disqualification, should not be imposed.”

II.

In his argument to this Court, Judge DiLeo maintains that

the reasonably prudent judge standard adopted by the Committee

is unworkable because every procedural or constitutional error

reversed on appeal may expose judges to claims of judicial

misconduct. He argues that trial judges should be free to make

independent decisions without fear of discipline. He maintains

that the standard developed by the Committee may improperly

elevate “obvious” or “serious” legal errors to misconduct that

would be subject to disciplinary sanction.

Judge DiLeo urges instead that we adopt a standard similar

to one adopted by California in Oberholzer v. Commission on

Judicial Performance, 975 P.2d 663, 680 (Cal. 1999), which would

“require[] a finding of bad faith, bias, abuse of authority[,]

17 and intentional disregard of the law.” Applying that standard

in this matter, Judge DiLeo argues that nothing in the record

suggests that his conduct was motivated by bad faith or bias,

and that his conduct was not an abuse of authority.

Accordingly, he contends that his legal errors should not be

elevated to judicial misconduct.

Furthermore, Judge DiLeo argues that the standard adopted

by the Committee should not apply retroactively. Essentially,

he contends that the Committee issued a new rule of law and

that, were this Court to accept the standard recommended by the

Committee, he should not be disciplined because he had no prior

guidance that legally erroneous conduct was subject to sanction.

The Committee urges this Court to adopt the reasonably

prudent and competent judge standard as the most apt in judicial

discipline involving the review of charges of serious legal

error by a judge. It argues that the provisions of the Code of

Judicial Conduct should be broadly construed and applied, with

judicial performance considered from the perspective of a

reasonably prudent and competent judge. The Committee asserts

that Judge DiLeo’s errors were egregious violations of Canons 1,

2A, and 3A(1) for which public discipline is crucial in order to

restore honor, integrity, and public confidence in the

judiciary.

18 The Committee also maintains that, because Judge DiLeo’s

misconduct is rooted in Canons 1, 2A, and 3A(1), its

pronouncement of a standard for discipline is not a new rule of

law. Thus, the Committee argues that disciplining Judge DiLeo

under well-established standards is fair and proper, and that

this Court fairly can apply the reasonably competent and prudent

judge standard in this case.

III.

Every judge is duty bound to abide by and enforce the

standards in the Code of Judicial Conduct. See R. 1:18. The

Code “is a general statement of standards and goals, admirably

serving the purpose of providing guidance to judges in all

matters precisely because of the generality of its provisions.”

In re Alvino, 100 N.J. 92, 102 (1985). While judges are

expected to adhere to the Code, every breach “does not mean,

however, that judicial misconduct has occurred, or that

discipline . . . is appropriate.” Id. at 96.

We have recognized that there are two determinations to be

made in connection with the imposition of judicial discipline:

(1) has a violation of the Code been proven by clear and

convincing evidence, see R. 2:15-15(a); In re Perskie, 207 N.J.

275, 289 (2011); and (2) does that violation amount to unethical

behavior warranting discipline, see In re Thomson, 100 N.J. 108,

19 118 (1985); Alvino, supra, 100 N.J. at 102-03. The salutary

aspect to that approach has been shown in past decisions where

we have recognized that a judge’s behavior violated a Canon’s

standard but that it did not warrant a determination that

judicial misconduct had occurred, or that discipline was

appropriate. See, e.g., Thomson, supra, 100 N.J. at 110;

Alvino, supra, 100 N.J. at 97.

It was never intended that each and every failure to conform to the standards of the Code would lead to judicial discipline. Some shortcomings were undoubtedly contemplated as inevitable, and, assuming good motives, they were not thought to provide cause for either criticism or discipline. . . . There is a difference between achieving high standards and perfection. The former may fall short of the latter, but it is no cause for discipline.

[Alvino, supra, 100 N.J. at 96-97.]

On the other hand, there are other “standards, goals, and

requirements of the Code whose violation, no matter how

atypical, and no matter how ‘minor,’ will call not only for

discipline, but for the harshest discipline.” Id. at 97.

Dishonesty is in the latter category, but by no means is there a

definitive list. Ibid.

Generally, discipline is warranted “‘when conduct is marked

with moral turpitude and thus reveals a shortage in integrity

and character.’” Id. at 102 (quoting In re Mattera, 34 N.J.

20 259, 270 (1961)); accord In re Mathesius, 188 N.J. 496, 524

(2006). We also have acknowledged that a single violation of

the Code that was “willful” or “typical of the judge’s work” may

constitute judicial misconduct. See Alvino, supra, 100 N.J. at

97 n.2. That said, a case-by-case approach has been a hallmark

of the judicial discipline system in view of the general nature

of the Code and its standards, taking into account that “‘[t]he

single overriding rationale behind our system of judicial

discipline is the preservation of public confidence in the

integrity and the independence of the judiciary.’” In re

Subryan, 187 N.J. 139, 153 (2006) (quoting In re Seaman, 133

N.J. 67, 96-97 (1993)).

In sum, the judicial disciplinary system operates for the

primary purpose of restoring and maintaining public confidence

in our system of delivering justice, in recognition of the

importance of the public’s respect for the men and women who

daily dispense justice in their courtrooms. As we have stated

in the past when considering alleged breaches of the Code of

Judicial Conduct, “once the Court decides that there has been a

breach of judicial ethics, its goal is not so much to punish the

offending judge as to restore and maintain the dignity and honor

of the position and to protect the public from future excesses.”

Ibid. (internal quotation marks omitted).

21 B.

Three Canons of the Code are relevant in this matter. Each

addresses a judge’s conduct and its relationship, in all

respects, to the maintenance of public confidence in the

dignity, impartiality, integrity, and independence of the

judiciary:

[Canon] 1. A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

[Canon] 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

. . . .

[Canon] 3. A Judge Should Perform the Duties of Judicial Office Impartially and Diligently

The judicial duties of a judge take precedence over all other activities. Judicial duties include all duties of the office prescribed by law. In the

22 performance of these duties, the following standards apply:

A. Adjudicative Responsibilities.

(1) A judge should be faithful to the law and maintain a professional competence in it. A judge should be unswayed by partisan interest, public clamor, or fear of criticism.

[Pressler & Verniero, Current N.J. Court Rules, Appendix to Part I at 481-82 (2013).]

Those Canons were cited in the Presentment against Judge DiLeo

based on the legal error identified by the Law Division in its

de novo review of the Kirkland brothers’ convictions and by the

Committee when it reviewed the judge’s handling of the

proceedings involving the Kirkland brothers.

Legal error has provided the foundational basis in this

state for charging judges with violations of Canons 1, 2A, and

3A(1) of the Code before. A case-by-case approach has been used

when analyzing charges of legal error to discern judicial

misconduct under the above-cited Canons. In two cases, a

violation of the Code was found to have occurred, but the Court

concluded that, because the erroneous legal conduct was either

an aberration due to unique circumstances or constituted a

technical deviation from the Code’s requirements, it did not

amount to unethical conduct warranting discipline. See Thomson,

supra, 100 N.J. at 118 (finding judge’s incorrect judicial

action with respect to agitated and uncontrollable defendant

23 serious but attributable to extraordinarily unique

circumstances); Alvino, supra, 100 N.J. at 96-101 (holding that

inadvertent and atypical delay in disposing of two matters

warranted administrative correction, not judicial discipline

and, separately, that it would be unjust to discipline judge for

his longstanding but erroneous administrative reporting of

“reserved” cases that never before had been corrected). In both

cases, the Court found that the judge was not willful, but

rather, had acted in good faith when committing the error in

judicial performance. See Thomson, supra, 100 N.J. at 118;

Alvino, supra, 100 N.J. at 101.

On the other hand, where willful abuse of judicial power or

inability to follow the law has been found, demonstrating

judicial misconduct in the extreme, this Court has not hesitated

to impose the harshest of sanctions and has removed a sitting

jurist on the basis of incompetence and unfitness for judicial

office. See In re Yengo, 72 N.J. 425, 451 (1977) (removing

judge from office based on multiple instances of abuse of

judicial process constituting misconduct and unfitness).

Other than the case-by-case approach used by this Court in

those few cases in the past, the Committee noted in its

Presentment a lack of a pronounced standard to guide its review

of charges of judicial misconduct based on legal error.

Acknowledging that judicial independence provides “the very

24 foundation of our legal system and is recognized in Canon 1,”

the Committee nevertheless correctly perceived that a standard

was necessary, citing Quirk, supra, 705 So. 2d at 178, and

McBryde v. Committee to Review Circuit Council Conduct, 264 F.3d

52, 65 (D.C. Cir. 2001), for the accepted principle that

judicial independence is not intended to shield “from discipline

those judges whose disregard for the law in their legal rulings

detrimentally affects the public’s regard of the judiciary.”

Consideration of the public’s perception of the judiciary

is not new to the judicial discipline process. It lies at the

core of the Code of Judicial Conduct. See Subryan, supra, 187

N.J. at 153 (noting overriding concern about public’s positive

perception of judiciary’s integrity and repute). Canon 3A(1) of

the Code requires a judge to “be faithful to the law and

maintain professional competence in it.” Further, Canon 1

compels a judge to maintain high standards of conduct that

preserve the integrity and independence of the Judiciary, and

Canon 2A, through its Commentary, exhorts a judge to avoid “all

impropriety and appearance of impropriety and [to] expect to be

the subject of constant public scrutiny.” Malperformance of

judicial duties that has the capacity to shake public confidence

in the integrity or impartiality of the judiciary can breach

those Canons and be the subject of discipline. As we instructed

in In re Blackman, 124 N.J. 547, 554 (1991), the “rules

25 governing judicial conduct are broadly construed, in keeping

with their purpose of maintaining public confidence in the

judicial system.” It bears noting that other courts have

disciplined judges for disregard of the law that has a

detrimental effect on public perception of the integrity and

impartiality of the Judiciary. See, e.g., Miss. Comm’n on

Judicial Performance v. Wells, 794 So. 2d 1030 (Miss. 2001)

(reprimanding judge for basing conviction on affidavits alone);

Miss. Comm’n on Judicial Performance v. Byers, 757 So. 2d 961,

973 (Miss. 2000) (reprimanding and fining judge for misconduct

that included sentencing defendant under wrong statute and

failing to correct that error); In re Scott, 386 N.E.2d 218,

220-21 (Mass. 1979) (publicly reprimanding judge and imposing

one-year hiatus for course of conduct that resulted in violation

of constitutional rights).

In sum, although we have repeatedly expressed the view that

mere legal error “normally” does not and should not subject a

judge to charges of judicial misconduct, Thomson, supra, 100

N.J. at 118-19; see also In re Mattera, 34 N.J. 259, 270-71

(1961) (noting that disciplinary power “ordinarily” not for mere

judicial error but reserved for conduct “marked with moral

turpitude” revealing “shortage in integrity and character”), the

overriding concern is the capacity of judicial behavior,

objectively viewed, to undermine public confidence in the

26 judicial system. Judicial conduct, including conduct in the

form of legal error, that has the capacity to undermine public

confidence in the integrity and impartiality of the judicial

process can be the basis for charges of judicial misconduct and

can lead to the imposition of discipline.

With that background in mind, we turn to the question of

the standard to be applied when reviewing legal error that is

alleged to amount to judicial misconduct meriting discipline.

IV.

1.

The Committee found persuasive the approach taken in the

State of Maine, which rejected as unsatisfactory a case-by-case

approach for assessing legal error in the disciplinary context.

The Supreme Judicial Court of Maine in Benoit, supra, adopted

the objective “reasonably prudent and competent judge” standard

for use in judicial disciplinary matters. 487 A.2d at 1162-63.

In rejecting a case-by-case approach, the Maine Court explained

that this approach fails to assure the public that “judges are

being held to a defined and definable level of conduct,” does

not serve to strengthen the internal integrity of the

disciplinary process because it lacks a definite standard by

which to judge misconduct, and “fails to indicate to judges the

particular level of scrutiny that will be applied to their

27 behavior, should it ever be challenged.” Id. at 1163. The

Maine Court noted that

every trial judge will from time to time commit legal errors in decisions later reversed on appeal, but judicial discipline would be in order in almost none of those cases. Something more than a mere error of law is required to constitute misconduct under Canon 3A(1).

[Ibid.]

The standard adopted by the Maine Court reflected that

assessment and provided that a judge should not be sanctioned

for a legal error “that a reasonable judge would not have

considered obviously wrong in the circumstances or . . . [that]

is de minimus.” Ibid.

A similar standard pertains in Oklahoma. See State ex rel.

Edmondson v. Colclazier, 106 P.3d 138, 143 (Okla. Ct. Jud. App.

Div. 2002) (recognizing that “line must be drawn between mere

legal error correctable by appeal and acts which are obviously

and seriously wrong and amount to excessive use of judicial

authority,” and noting further that factors to be considered

include “the availability of appeal, the nature of the judge’s

conduct, the extent of the court’s jurisdiction, the motive of

the judge, the egregiousness of the error, and the frequency of

the offending conduct”).

Our research reveals a number of different approaches taken

in our sister jurisdictions in respect of judicial discipline

28 based on allegations of serious legal error. The Benoit

approach of applying an objective reasonableness test for

judicial conduct is one. We consider also the tests developed

in other jurisdictions.

2.

Several other jurisdictions accept that legal error may

constitute grounds for judicial misconduct but look for “legal

error plus,” with variations abounding as to what has been found

to constitute the “plus” that must accompany the demonstration

of legal error.

At least one state requires that the legal error be willful

or made in bad faith for discipline to be imposed. See In re

Sheffield, 465 So. 2d 350, 358-59 (Ala. 1984) (declining to

discipline judge where improper use of contempt power was not

done in bad faith). Other states employ different variations.

See, e.g., Ark. Judicial Discipline & Disability Comm’n v.

Simes, 381 S.W.3d 764, 770-71 (Ark. 2011) (requiring for

disciplinary purposes that legal error involve fraud, corrupt

motive, or bad faith, and that bad faith be demonstrated by

“knowledge that the act was beyond his lawful judicial power” or

taken in “conscious disregard for the limits of his authority”).

Our research reveals that California and Rhode Island

employ a similar standard for what constitutes the requisite

“plus.” Compare Oberholzer, supra, 975 P.2d at 680-81 (stating

29 that “[m]ere legal error, without more, . . . is insufficient to

support a finding that a judge has violated the Code of Judicial

Ethics and thus should be disciplined”; rather, legal error must

also “clearly and convincingly reflect[] bad faith, bias, abuse

of authority, disregard for fundamental rights, intentional

disregard of the law, or any purpose other than the faithful

discharge of judicial duty”), with In re Comm’n on Judicial

Tenure & Discipline, 916 A.2d 746, 754-55 (R.I. 2007) (applying

test similar to California’s but using the Benoit “reasonable

judge” underlying standard: “errors of law may constitute

ethical misconduct when the error clearly and convincingly

reflects bad faith, bias, abuse of authority, disregard for

fundamental rights, intentional disregard of the law, or any

purpose other than the faithful discharge of judicial duty” and

“in determining whether a judge has engaged in judicial

misconduct, courts [must] apply a reasonableness test[, namely,

whether] a reasonably prudent and competent judge would consider

that conduct obviously and seriously wrong in all the

circumstances” (internal quotation marks and citations

omitted)).

Louisiana, Kentucky, Alaska, and Texas use similar terms to

describe what constitutes the requisite “plus” for their

judicial discipline purposes. See In re Boothe, 110 So. 3d

1002, 1019 (La. 2013) (reaffirming prior decision in Quirk,

30 supra, 705 So. 2d 172, and stating that judge may be disciplined

when the “legal ruling or action [was] made contrary to clear

and determined law about which there is no confusion or question

as to its interpretation and where this legal error was

egregious, made in bad faith, or made as part of a pattern or

practice of legal error” (emphasis added)); Alred v.

Commonwealth, 395 S.W.3d 417, 436 (Ky. 2012) (holding that to

impose sanctions, judge must have “acted in bad faith, engaged

in a pattern of misconduct,” or the errors must have been

egregious -- “the judge’s legal ruling or action [must have

been] made contrary to clear and determined law about which

there is no confusion or question as to its interpretation”

(internal quotation marks omitted)); In re Curda, 49 P.3d 255,

260-61 (Alaska 2002) (holding that “legal error that is neither

willful nor part of a repeated pattern of misconduct is not an

appropriate subject for discipline”); In re Barr, 13 S.W.3d 525,

545 (Tex. 1998) (stating legal error constitutes misconduct when

“a legal ruling or action [is] made contrary to clear and

determined law about which there is no confusion or question as

to its interpretation and where the complained-of legal error is

egregious, made as part of a pattern or practice of legal error,

or made in bad faith” (emphasis added)), reh’g denied, 13 S.W.3d

at 562 (Tex. Rev. Trib. 1999).

31 3.

Finally, we note the existence of a third category of

jurisdictions that appear to utilize a case-by-case approach to

determine when a judge’s legal error renders the judge subject

to judicial discipline. See, e.g., In re Stigler, 607 N.W.2d

699, 710 (Iowa 2000) (“[L]egal error becomes serious enough to

warrant discipline when judges deny individuals their basic or

fundamental procedural rights.”); Disciplinary Counsel v.

Squire, 876 N.E.2d 933, 939, 952 (Ohio 2007) (finding procedural

errors and pattern of inappropriate judicial conduct rose to

level requiring sanctions).

When the Committee applied the reasonably prudent and

competent judge standard in this matter, our Court had

recognized that legal error can be grounds for judicial

discipline under the Code but had applied a case-by-case

approach in the few cases that had involved such charges. We

had not articulated a guiding standard for assessing when legal

error constitutes judicial misconduct.

We are benefitted by the Committee’s thoughtful

consideration of the need for a standard and for its sound

recommendation that an objective standard be adopted. As was

noted in Benoit, supra, the public needs to know that “judges

are being held to a defined and definable level of conduct,” and

32 judges must know the “particular level of scrutiny that will be

applied to their behavior, should it ever be challenged.” 487

A.2d at 1163. Of equal importance, an objective standard

enhances the disciplinary system by “strengthen[ing] the

internal integrity of the disciplinary process.” Ibid.

Our review of the subject leads us to conclude that, on

balance, the appropriate standard -- most consistent with our

Rule 2:15-8(a), our Code, and our general approach to judicial

discipline -- is the objective “reasonably prudent and competent

judge” standard of Benoit with a “plus,” as a majority of

jurisdictions require.3 To be subject to judicial discipline

under the Code, we hold that there must be clear and convincing

proof of objective legal error under the test described in

Benoit, that the error must be “made contrary to clear and

determined law about which there is no confusion or question as

to its interpretation,” and that the error must be “egregious,

made in bad faith, or made as part of a pattern or practice of

legal error.” Boothe, supra, 110 So. 3d at 1019. So

characterized, the “plus” requirement will sift through charges

3 The “plus” requirement ensures that not every legal error, even if clear and unmistakable to a competent jurist, constitutes a violation of the Code, which necessarily leads to a determination of whether the judge should be sanctioned. We thus adhere to the approach taken in Alvino, and in a majority of other jurisdictions, and require that a violation of the Code, in the form of legal error, first must be determined to constitute misconduct under Rule 2:15-8(a). 33 of legal error and focus on whether the violation of law that

allegedly transgresses the Code’s expectations of judges

constitutes “incompetence,” “conduct prejudicial to the

administration of justice that brings the judicial office into

disrepute,” or “willful failure to perform judicial duties.”

See R. 2:15-8(a).

Although the examples of egregious conduct, bad faith, or a

pattern of legal error are not intended to be all encompassing,

the standard as articulated should provide sufficient guidance

overall as to the “plus” that must be shown for legal error to

amount to unethical conduct and thus be subject to discipline.

This standard shields from disciplinary action legal error that

is reversible on appeal where the law had not been clear prior

to the judge’s determination or where the judge engaged in a

simple abuse of authority or mistake of law. On the other hand,

if the error in following the law were willful, it could fall

into either the egregious or bad faith categories, particularly

if it impacted fundamental rights clearly and unmistakably known

to every competent jurist such that their violation brings the

judicial process into public disrepute.

We are constrained to recognize that either a pattern of

incompetent or willful legal error or a sufficiently egregious

instance of such legal error has the capacity to undermine

public confidence in the integrity and independence of the

34 judiciary, and can constitute a violation of the Code that

necessitates judicial discipline or removal from office.

Indeed, this Court is empowered to institute removal proceedings

against a sitting judge for, among other reasons, incompetence.

See N.J.S.A. 2B:2A-2, -3; see, e.g., Yengo, supra, 72 N.J. 425.

That said, it should be rare for a judge to be subjected to the

disciplinary process for an erroneous application of law. The

disciplinary process should be reserved for the type of legal

error that, singly, if egregious enough, or in a pattern or

practice of legal error, has the capacity, objectively viewed,

to undermine the public’s perception of and impugn the integrity

and impartiality of the judicial process as a whole.

By acknowledging that egregious or bad faith conduct can be

susceptible to judicial discipline, even if it occurs on a

single occasion, the standard we adopt is aligned with the prior

warning in Alvino, supra, where the Court suggested that a

single violation of the Code that was “willful” or “typical of

the judge’s work” may constitute judicial misconduct. 100 N.J.

at 97 n.2. Thus, as a result of establishing a high bar for

legal error to constitute judicial misconduct, yet one that is

capable of being reached by a sufficiently egregious set of

facts, the standard adopted protects judicial independence and

preserves public confidence in the judiciary. See Subryan,

supra, 187 N.J. at 153.

35 V.

Turning to the application of that standard to the matter

at hand, we first note that Judge DiLeo does not dispute the

uncontested facts on which the Committee relied to conclude that

he engaged in misconduct worthy of public discipline. Those

uncontested facts are largely taken from the municipal court

The undisputed facts clearly and convincingly demonstrate

that Judge DiLeo committed egregious legal errors in his conduct

of the proceedings involving the Kirkland brothers. The

Committee on Judicial Conduct, and the Law Division in its de

novo review of the Kirkland brothers’ convictions, both also

concluded as much. Each expressed that the obvious –- indeed

outrageous -- errors committed by the judge denied the Kirkland

brothers not only their constitutional right to have the

publicly appointed counsel they had requested, but also their

right to due process of law.

In our de novo review of the record as presented, we find

that, contrary to Judge DiLeo’s assertion, neither defendant

“waived” his right to a public defender. The defendants had

expressed a desire to retain private counsel. However, when

they returned before Judge DiLeo on May 3, 2010, as directed,

they did not have private counsel assisting them. Judge DiLeo

never explored the reasons why the defendants did not secure the

36 services of private counsel. The defendants asked on that day

for the appointment of a public defender and were denied that

request on the basis that it had been “waived.” However, our

case law clearly requires a searching inquiry by the court

before the right to counsel can be knowingly and voluntarily

relinquished. See State v. DuBois, 189 N.J. 454, 468 (2007).

As was noted by the Law Division when reviewing these

proceedings, “[t]he fact that [the defendants] tried to secure

private counsel . . . does not amount to a knowing, voluntary

waiver of their right to have a lawyer represent them in a trial

that resulted in county jail sentences for each defendant.”

Objectively viewed, Judge DiLeo egregiously mishandled the

routine and regular task of appointing public defenders to

represent indigent defendants. His conduct forced the

defendants to go to trial pro se, which, as the Law Division

noted, placed the defendants at “an obvious disadvantage.” “The

importance of counsel in an accusatorial system such as ours is

well recognized.” Rodriguez v. Rosenblatt, 58 N.J. 281, 295

(1971) (noting also that “[i]f the matter has any complexities

the untrained defendant is in no position to defend himself and,

even where there are no complexities, his lack of legal

representation may place him at a disadvantage”).

The Law Division catalogued well the disadvantages that the

deprivation of the right to counsel visited on defendants. The

37 court’s description bears repeating: These two pro se

defendants (1) “did not know enough to object to the hearsay

testimony offered by the arresting officer” regarding the on-

scene identifications made by the victims who were brought to

the location where the defendants were arrested; (2) “were not

in a position to explore the viability of a motion to suppress

evidence of a warrantless search or to suppress the

identifications made at the arrest location”; (3) “did not know

to make a motion to dismiss the marijuana charge because a lab

report was never even mentioned much less entered into evidence

[and because] the officer [never] testif[ied] that he had

training and/or experience in the identification of narcotics”;

(4) “did not know how to try to secure the testimony of Jesus

Gonzalez”; and (5) “did not know how to investigate Anthony’s

claim that Gonzalez told the arresting officer that the

marijuana was his.” Those disadvantages were serious as was the

magnitude of their consequences. As we have made abundantly

plain as a basic precept of municipal court practice,

as a matter of simple justice, no indigent defendant should be subjected to a conviction entailing imprisonment in fact or other consequence of magnitude without first having had due and fair opportunity to have counsel assigned without cost.

[Rodriguez, supra, 58 N.J. at 295.]

38 Moreover, it also is abundantly clear that Judge DiLeo’s

manner of conducting this trial deprived the defendants of their

fundamental due process rights. The judge himself took on the

role of prosecutor in this matter by pointedly questioning

witnesses and, ultimately, using evidence that he secured

through his cross-examination of the defendants to convict them.

His conduct eliminated all indicia of impartiality by the judge

-- and fact-finder -- in this bench trial. See Ridgewood v.

Sreel Inv. Corp., 28 N.J. 121, 132 (1958) (stating that “[t]here

is a point at which the judge may cross that fine line that

separates advocacy from impartiality” and noting that

questioning of a witness that crosses this line may cause

“substantial prejudice to the rights of one of the litigants”);

see also State v. Taffaro, 195 N.J. 442, 450-51 (2008)

(cautioning trial courts to use “great restraint in questioning

witnesses,” particularly in jury trials, while noting that

N.J.R.E. 614 and case law allow judges to question witnesses in

order “to clarify their testimony” or “to help elicit facts”

“when a witness is in severe distress”). Moreover, compounding

his injudicious actions in this matter, Judge DiLeo allowed a

non-attorney -- the arresting officer -– to participate as the

State’s sole representative in the trial. See R. 7:8-7(b)

(authorizing municipal prosecutor, municipal attorney, Attorney

General, county prosecutor, county counsel, or, in limited

39 instances, a private attorney, to represent State in municipal

court prosecutions); State v. Hishmeh, 266 N.J. Super. 162, 166

(App. Div. 1993) (disallowing police officer’s questioning of

witness in absence of municipal prosecutor based on prior

version of Rule 7:8-7(b)); see also R. 1:21-1(a) (prohibiting

non-attorneys from practice of law in this state).

So, in effect, the defendants had the judge and the

testifying police officer who had arrested them as their

adversaries in their trial. These errors were “contrary to

clear and determined law about which there is no confusion or

question.” Boothe, supra, 110 So. 3d at 1019. That the

defendants were pro se facilitated this miscarriage of justice,

for we expect that no attorney would have stood silent in the

face of such flagrant and obvious error in the basic delivery of

justice in a courtroom in New Jersey.

In sum, the conscious decisions of Judge DiLeo resulted in

a perversion of the judicial process. This record is replete

with legal error involving fundamental rights and basic court

procedures that any competent jurist would recognize to be

wrong. It cannot be defended or minimized. We specifically

reject, as the Committee did, the judge’s “reliance on a heavy

court docket as justification for his absolute disregard of

appropriate procedures and the fundamental rights of defendants,

especially when, as here, the defendants faced a consequence of

40 magnitude.” A court’s concern about judicial “backlog” never

trumps protection of a defendant’s constitutional rights.

Judge DiLeo conducted this trial on his own terms. He

denied the defendants’ request for counsel, forced them to go to

trial pro se after refusing their request for a public defender,

prosecuted the case with the help of the arresting police

officer, personally cross-examined the defendants, and found the

defendants guilty based on testimony that he himself had

elicited during his cross-examination. Furthermore, at the

conclusion of those proceedings, Judge DiLeo sent these two pro

se defendants to jail where they remained for 124 days for non-

violent disorderly persons offenses. Not only the defendants

but also the judicial system were victims. The judge violated

basic principles and procedures of our judicial system that

people have a right to expect a municipal court to follow when

prosecuting a citizen for a disorderly persons offense.

The legal errors that took place in the municipal court

proceedings conducted by Judge DiLeo were egregious. The

egregiousness of these errors -- indeed, the judicial misconduct

that occurred here -- had the clear capacity to undermine public

confidence in the dignity, integrity, and impartiality of the

judicial system of this state. Judge DiLeo violated the Code of

Judicial Conduct, specifically Canons 1, 2A, and 3A(1). He

committed legal errors of the degree and kind that call into

41 question judicial competence and cast a pall over the judiciary

as a whole, and that constitute conduct prejudicial to the

administration of justice that brings the judicial office into

disrepute. R. 2:15-8. We accept the Committee’s weighing of

aggravating and mitigating factors in this matter and conclude

that a reprimand is the proper quantum of punishment.

Accordingly, for all the reasons expressed herein, we

direct that Judge DiLeo be publicly reprimanded for his

egregious legal error committed when presiding over the trial of

the Kirkland brothers for disorderly persons offenses.

IT IS SO ORDERED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in the Court’s opinion.

42 SUPREME COURT OF NEW JERSEY D-66 September Term 2012 072095

IN THE MATTER OF : O R D E R LOUIS M. J. DiLEO, :

A FORMER JUDGE OF :

THE MUNICIPAL COURT :

This matter having come before the Court on a presentment

of the Advisory Committee on Judicial Conduct, and respondent

having been ordered to show cause why he should not be publicly

disciplined, and good cause appearing;

It is ORDERED that former Judge Louis M.J. DiLeo is hereby

publicly reprimanded.

WITNESS, the Honorable Stuart Rabner, Chief Justice, at

Trenton, this 27th day of January, 2014.

CLERK OF THE SUPREME COURT

1 SUPREME COURT OF NEW JERSEY

NO. D-66 SEPTEMBER TERM 2012 APPLICATION FOR Order to Show Cause Why Respondent Should DISPOSITION Not be Publicly Disciplined

LOUIS M. J. DiLEO,

DECIDED January 27, 2014 OPINION BY Per Curiam CONCURRING OPINION BY DISSENTING OPINION BY

CHECKLIST REPRIMAND CHIEF JUSTICE RABNER X JUSTICE LaVECCHIA X JUSTICE ALBIN X JUSTICE PATTERSON X JUDGE RODRÍGUEZ (t/a) X JUDGE CUFF (t/a) X TOTALS 6