Matter of Collester

599 A.2d 1275, 126 N.J. 468, 1992 N.J. LEXIS 8

• Court: Supreme Court of New Jersey
• Decided: January 10, 1992
• Status: Published

Opinions

PER CURIAM.

This case involves judicial misconduct. The matter was initially presented to the Advisory Committee on Judicial Conduct (Gommittee or ACJC) on a formal complaint against the respondent, Donald G. Collester, Judge of the Superior Court. The complaint charged that respondent had violated several Canons of the Code of Judicial Conduct as well as Rules of Court. The misconduct involved respondent’s operation of his automobile on April 28, 1991, resulting in charges for violating N.J.S.A. 39:4-50, operating a automobile while intoxicated, N.J.S.A. 39:4-98, driving in excess of the speed limit, and N.J.S.A. 39:4-86, improperly passing another vehicle. Respondent filed an answer admitting the factual allegations of the complaint.

The Committee held a formal hearing on the charges, in which it considered respondent’s convictions for the motor vehicle offenses, in addition to other testimonial and documentary evidence. It then filed a presentment with this Court containing its findings and conclusions and recommended discipline. Respondent voluntarily waived oral argument in the matter and agreed to abide by this Court’s decision, including appropriate discipline.

I

The essential facts are not in dispute. The Committee determined that the evidence clearly and convincingly demonstrated the following:

On the night of Saturday, April 27, 1991, respondent drank heavily at a social occasion. He continued to drink into the early morning hours and fell asleep at home in his chair. The following morning, he awoke and proceeded to drive to the Sussex County Court House in Newton to obtain a file in a case that he was scheduled to try the following day. His plan was to bring, the file home and look it over that Sunday night.

As respondent was driving in a northerly direction on State Highway 206 in Andover Township at approximately 9:55 a.m. on Sunday, April 28, he was observed by an officer of the New Jersey State Police who was operating a patrol car in a southerly direction on that highway. The trooper clocked respondent’s vehicle on radar as traveling at 65 miles per hour in a 50 m.p.h. zone. The trooper performed a U-turn and began to pursue respondent’s vehicle as it proceeded north on Highway 206. During the pursuit, the trooper observed respondent passing another vehicle in a no-passing zone. The trooper then accelerated and conducted a speedometer pace of respondent’s vehicle and measured respondent’s speed at 78 miles per hour. The trooper turned on his overhead lights and then activated his siren. At that point, respondent pulled over to the right shoulder and stopped so suddenly that the trooper had to drive in front of him and then back up to him on the shoulder.

When the trooper asked respondent for his driving credentials, respondent told the trooper that he was a Superior Court Judge and that he was on his way to the court house on an emergency. Respondent repeated this statement as the trooper was administering field sobriety tests on the shoulder of the road. Respondent cooperated in performing those tests, and the trooper concluded from the results of the tests that respondent was under the influence of alcohol. The trooper told respondent that he was under arrest and that he had to be handcuffed. Although respondent initially pulled away as the trooper reached for his wrist to handcuff him, he then submitted to being handcuffed. The trooper transported respondent to the Sussex Station of the New Jersey State Police, where breathalyzer tests were administered and respondent’s blood alcohol content was measured at .16% and .17%.

Respondent was charged with driving while under the influence of alcohol in violation of N.J.S.A. 39:4-50, speeding in violation of N.J.S.A. 39:4-98, and improper passing in violation of N.J.S.A. 39:4-86. On May 30,1991, he appeared in the Andover Township Municipal Court and entered pleas of guilty to the charges of driving while under the influence and speeding (into which the charge of improper passing was merged). The municipal court ordered respondent to pay a fine of $80 on the speeding charge, and on the DWI conviction sentenced respondent to a fine of $500, to perform thirty days of community service, to forfeit his driving privileges for two years, and to serve forty-eight hours of confinement. The court found that the requirement of confinement had been satisfied by respondent’s stay at an inpatient rehabilitation program from April 28 to May 26, 1991. The court also ordered that respondent satisfy the requirements of the Intoxicated Driver Resource Center, assessing a payment of $100 to the Drunk Driving Enforcement Fund, ordered payment of $30 to the Violent Crimes Compensation Board, and assessed an ATS surcharge of $2.00 and court costs of $50. Respondent paid the fines and other charges, and he subsequently performed thirty days of community service working as a gardener at a home for the elderly.

The Committee concluded that respondent had violated several Canons of the Code of Judicial Conduct, namely, Canon 1, which requires a judge to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved; Canon 2A, which requires a judge to respect and comply with the law and to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary; and Canon 2B, which prohibits a judge from using the prestige of his or her office to advance private interests. The Committee further found that respondent had engaged in conduct prejudicial to the administration of justice that brought the judicial office into disrepute, in violation of Rule 2:15-8(a)(6). It recommended that respondent be censured and that he be disqualified from presiding over any cases involving substance abuse until his Assignment Judge is satisfied that his rehabilitation is secure. The Committee also recommended that respondent be required to continue his active participation in rehabilitative programs and that his progress in such programs be monitored by the Assignment Judge.

II

In attorney and judicial disciplinary cases, the Court gives conclusive effect to the respondent’s convictions of statutory crimes and offenses. R. 1:20-6(c)(1). E.g., In re Conway, 107 N.J. 168, 526 A.2d 658 (1987); In re Coruzzi, 98 N.J. 77, 484 A.2d 667 (1984). In this case, respondent’s conviction established his violations of the motor-vehicle laws. We are impelled to accept those convictions as determinative of respondent’s guilt of the underlying offenses. In re Connor, 124 N.J. 18, 589 A.2d 1347 (1991). As determined by the Committee, the convictions establish by clear and convincing evidence respondent’s misconduct in violation of Canons 1, 2A, and 2B, and Rule 2:15-8(a)(6).

Although in disciplinary proceedings a conviction is dis-positive in establishing the occurrence of unethical conduct, the assessment of discipline entails a more searching and expansive inquiry. We thus carefully scrutinize the substantive offenses that constitute the core of respondent’s misconduct, the underlying facts, and the surrounding circumstances in determining the nature and extent of discipline. In re Connor, supra, 124 N.J. at 22, 589 A.2d 1347; In re Pleva, 106 N.J. 637, 525 A.2d 1104 (1987); In re Coruzzi, supra.

With respect of drunk driving, we said in Connor: “We do not view offenses arising from the driving of an automobile while intoxicated with benign indulgence. They are serious and deeply affect the safety and welfare of the public. E.g., State v. Schreiber, 122 N.J. 579, 585 A.2d 945 (1991); State v. Hamm, 121 N.J. 109, 577 A.2d 1259 (1990); State v. Downie, 117 N.J. 450, 569 A.2d 242 (1990); State v. Tischio, 107 N.J. 504, 527 A.2d 388 (1987). They are not victimless offenses.” 124 N.J. at 21, 589 A.2d at 1349. We firmly endorse the governmental commitment to the eradication of drunk driving as one of the judiciary’s own highest priorities.

Respondent is a repeat DWI offender. His DWI conviction in this matter is his second. On October 17,1987, respondent was charged with driving while intoxicated, and he subsequently entered a plea of guilty to that charge and was duly sentenced. As a result, a formal complaint was filed with the ACJC, charging respondent with judicial misconduct. Respondent assured the Committee that what had occurred was an isolated incident, that he did not have a chronic problem of alcohol abuse, and that there would be no repetition of that conduct. The Committee issued a private reprimand.

Respondent admits that he is, and has been, an alcoholic. This condition has caused respondent to become a repeat drunk driving offender. Even though acutely mindful of respondent’s alcoholism, the Committee, nevertheless, stressed, “it is respondent’s conduct that must be considered, and its effect on the public’s perception of the integrity of the judiciary. That conduct violated the law and brought his judicial office into disrepute.” We agree that the focus for appropriate discipline must be primarily fixed on respondent’s conduct. Sympathy for one in the grip of alcoholism cannot negate the serious consequences of ensuing misconduct. Hence, we cannot view respondent with the same lenity that may have been appropriate in his first disciplinary case.

Without doubt the most egregious aspect of respondent’s ethical dereliction is the fact that he has repeated the offense of drunk driving. However, in addition to that circumstance, there were other aggravating circumstances surrounding his motor vehicle infractions. Respondent, on his arrest, immediately informed the arresting officer that he was a Judge of the Superior Court. He also stated that he was responding to an emergency at the court house. That statement was false. There was no emergency. Although respondent was, in fact, proceeding to the court house, it was to obtain a file to review that night in preparation for the next day’s trial. Moreover, he repeated that false statement to the arresting trooper. He thus seemingly attempted to divert, if not obstruct, justice. Further, as observed by the Committee, “respondent’s several references to his judicial status gave the impression that he was entitled to some special preference.” He thus clearly used the prestige and weight of his judicial office to try to gain some personal advantage.

The Committee believed that under the circumstances more severe discipline than a reprimand is required. The majority of the Committee concluded that a censure should be imposed. The Committee opined that because of surrounding circumstances the respondent’s misconduct in the Connor matter was arguably more serious than respondent’s conduct in the present matter. However, it believed that because respondent’s misconduct here involved a second DWI offense, that circumstance constituted an aggravating factor of similar gravity, and therefore respondent's misconduct warranted the same level of discipline, namely, a censure.

Some members of the Committee believed that stricter discipline, suspension, was called for. The majority, however, resisted recommending the imposition of greater discipline. It felt that more severe discipline was not warranted because (1) respondent’s conduct did not cause harm to others- and did not affect the performance of his judicial duties, (2) there is no credible evidence that respondent ever performed judicial duties while under the influence of alcohol, and (3) respondent has an excellent reputation as an industrious, capable jurist. The Committee noted particularly respondent’s realization of his alcohol problem:

Respondent was shaken by the incident, in his own words, he was "totally, utterly, completely shocked and devastated.” His arrest brought home to him for the first time the fact that he needed help. Consequently, even before leaving the state police barracks, he called an attorney whom he knew to be a recovering alcoholic and sought his help. That person immediately made arrangements for respondent to enter an inpatient rehabilitation program, and later that same day, drove complainant to the rehabilitation facility. Respondent remained there as an inpatient from April 28 to May 26, 1991. He then entered a continuing care program, on an outpatient basis at another facility. In addition, he began to and continues to attend daily meetings of Alcoholics Anonymous.

We fully recognize the relevance of those mitigating circumstances — respondent’s sincere confrontation with his alcoholism and commitment to rehabilitation, his remorse, and his exemplary personal and professional reputation. But they do not warrant the measure of discipline recommended by the Committee.

We noted in Connor other judicial disciplinary cases, including this respondent’s earlier case, in which a private or public reprimand was deemed appropriate discipline for misconduct involving drunk driving. In most of those cases, the respondents had no prior record of drunk driving or other professional misconduct, they enjoyed professional and judicial reputations of excellence, and most importantly, they were sincerely committed to overcoming the disease of alcoholism and achieving recovery. 124 N.J. at 27, 589 A.2d 1347. While noting those factors, we ordered that the respondent be censured to reflect the more egregious nature of the underlying misconduct attributable to the circumstances surrounding his infractions. Ibid. We characterized censure as a harsher sanction than a reprimand, one that stands in order of severity between a reprimand and formal suspension from judicial office. Id. at 27-28, 589 A.2d 1347. We declined under the circumstances to impose more severe discipline.

In this case we cannot equate respondent’s situation to that of the respondent in Connor. The salient distinguishing factor is that respondent’s breach involves a second violation of the laws proscribing drunk driving. We accept the fact that the root of defendant’s misconduct is alcoholism, a dreadful and ruinous disease. See, e.g., Clowes v. Terminix Intern., Inc., 109 N.J. 575, 594, 538 A.2d 794 (1988). We in no way consider this disability and its treatment as a “vice.” Post at 477, 599 (Pollock, J., concurring in part and dissenting in part). We do not fault alcoholics for failing to cure their condition. But an individual’s failure to confront and neutralize the effects of such a condition, when evidenced in part by repeat offenses, in a judge comes perilously close to demonstrating unfitness to hold judicial office.

We are not prepared to conclude that because respondent is an alcoholic whose condition has led him to a second drunk driving offense, he is unfit to be a judge. Indeed he has apparently succeeded in walling off his alcoholism from the actual performance of his regular judicial duties, reflected in his reputation for judicial excellence. More importantly, he is now aggressively confronting and combatting his alcoholism.

Nevertheless, respondent’s misconduct must seriously shake public confidence in the judiciary, and, unless bolstered by a prompt and appropriate disciplinary response, that confidence is bound further to weaken and erode. That response must be in the nature of a suspension from office. Although such discipline obviously will hurt the respondent personally and professionally, it will also wound the judiciary, which can ill-afford the loss, even temporarily, of an effective and worthy judge. Unfortunately, we cannot withhold proper discipline because the judiciary will also suffer.

Ill

The evidence clearly and convincingly demonstrates that respondent engaged in serious ethical infractions, involving most particularly, his commission of a second offense for driving while intoxicated. We conclude that respondent’s misconduct violates Canons 1, 2A and 2B of the Code of Judicial Conduct and Rule 2:15-8(a)(6).

Accordingly, we determine that respondent shall be suspended from the performance of his judicial duties for a period of two months and shall forfeit his salary during that period. We further impose additional sanctions: respondent shall be required to continue to participate actively in rehabilitative programs, and shall be disqualified from presiding over any cases involving drunk driving until his rehabilitation becomes secure.

So ordered.