                                        SYLLABUS

This syllabus is not part of the Court’s opinion. 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
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                In the Matter of John F. Russo, Jr. (D-100-18) (082636)

Argued April 30, 2020 -- Decided May 26, 2020

RABNER, C.J., writing for the Court.

      This disciplinary matter involves repeated and serious acts of misconduct by a
Judge of the Superior Court, Respondent John F. Russo, Jr. A complaint issued by the
Advisory Committee on Judicial Conduct (ACJC) alleged four counts of misconduct.

        Before the ACJC, Respondent stipulated to the allegations in Counts III and IV.
As was his right, he contested the first two counts before the ACJC. The ACJC found
clear and convincing evidence that Respondent violated the Code of Judicial Conduct as
to all four matters. Respondent accepted the ACJC’s findings for purposes of a hearing
before the Court to determine what discipline should be imposed. After the hearing on
July 9, 2019, the Court concluded, because of the seriousness of the ethical violations,
that it was appropriate to consider the full range of potential discipline. The Court
therefore initiated formal removal proceedings and designated a three-judge panel to
conduct a hearing, take evidence, and report their findings. The panel unanimously
concluded beyond a reasonable doubt that Respondent violated the Code in all four
matters and should be removed from office.

HELD: Based on its review of the extensive record, the Court finds beyond a reasonable
doubt that there is cause for removal. Because of Respondent’s multiple, serious acts of
misconduct -- in particular, his inappropriate behavior in a matter involving an alleged
victim of domestic violence -- the Court orders his removal from office.

1. Count I involves Respondent’s conduct during and after a hearing for a final
restraining order. The plaintiff, an unrepresented litigant, alleged that the defendant
threatened her life, sexually assaulted her, and made inappropriate comments to their
five-year-old daughter. On the first day of the hearing, the plaintiff testified that
defendant “force[d] himself on [her] to have sex with him.” She described that alleged
attack as well as other events of alleged domestic violence. During cross-examination,
defense counsel at one point asked the plaintiff if she had ever worked as an exotic
dancer, which she admitted. Soon after, Respondent took over the questioning and asked
the plaintiff at length about her efforts to stop the alleged assault, including whether she
had tried to “[b]lock [her] body parts,” “[c]lose [her] legs,” “[c]all the police,” or “leave.”
                                              1
        No witness, alleged victim, or litigant should be treated that way in a court of law.
As the ACJC found, the questions were “wholly unwarranted, discourteous and
inappropriate.” The questions also shamed the alleged victim by intolerably suggesting
she was to blame. Respondent claimed he was trying to help a “demoralized” witness on
cross-examination and “get her re-engaged in the hearing.” That explanation does not
square with the record. Beyond that, Respondent’s coarse questions about how the
plaintiff responded during the alleged assault were not relevant. Sexual assault turns on
the alleged aggressor’s use of physical force, not the victim’s state of mind or resistance.

        Respondent’s comments to his court staff and law clerk after the hearing ended are
just as problematic. He asked if they had “hear[d] the sex stuff” and said, “You think it’s
all fun and games out here.” Respondent also said, “I am the master of on the record
being able to talk about sex acts with a straight face.”

       Judges set the tone for a courtroom. Especially when it comes to sensitive matters
like domestic violence and sexual assault, that tone must be dignified, solemn, and
respectful, not demeaning or sophomoric. Respondent failed in that regard. Respondent
said his remarks about “fun and games” were part of an effort to give guidance to his law
clerk about the complexity of domestic violence cases. But the exchange that
Respondent initiated was not an instructive lesson of any sort.

       Count I alleges that Respondent violated Canon 1, Rule 1.1; Canon 2, Rule 2.1;
and Canon 3, Rule 3.5 of the Code. The evidence demonstrates beyond a reasonable
doubt that Respondent violated all three cardinal principles. (pp. 5-13)

2. Count II relates to a personal guardianship matter involving Respondent, his ex-wife,
and their son. It asserts that Respondent asked the Family Division Manager in the
Ocean Vicinage (the Manager) to contact her counterpart in another vicinage and request
that the hearing in the upcoming guardianship trial be rescheduled to accommodate
Respondent. Respondent and the Manager provided different accounts in their
testimony. The Court explains how the documentary evidence, phone records, and
circumstances of the guardianship matter support the Manager’s testimony. The Court
agrees with the ACJC’s and the panel’s findings that the Manager’s account was more
credible. Like any other litigant, Respondent should have worked through his attorney to
request that his personal matter be rescheduled, not a high-level court employee who
worked in the same courthouse where he served as a judge. Count II alleges that
Respondent violated Canon 1, Rule 1.1, and Canon 2, Rules 2.1 and 2.3(A) of the Code.
The evidence demonstrates beyond a reasonable doubt that Respondent violated those
precepts. (pp. 14-17)

3. Respondent stipulated that his conduct in Count III violated the Code. The matter
relates to a hearing Respondent presided over in which the defendant, whom Respondent
announced in court he had known since high school, had been arrested for failure to pay a
                                              2
child support arrearage. Respondent reduced the defendant’s purge amount from $10,000
to $300 based solely on uncorroborated financial information supplied by the defendant,
raising doubts about Respondent’s impartiality. Count III asserts Respondent violated
Canon 1, Rule 1.1, and Canon 2, Rule 2.1, and Canon 3, Rule 3.17(B) of the Code, as
well as New Jersey Court Rule 1:12-1(g). The uncontested evidence demonstrates
beyond a reasonable doubt that he did. (pp. 18-19)

4. Respondent also stipulated that his behavior outlined in Count IV violated the Code.
During a nine-minute ex parte phone conversation in front of a crowded courtroom,
Respondent threatened the defendant mother in a paternity case with financial penalties
and a loss of credibility with the court when she said she was scared to disclose her
address. He also said, “he’s going to find you, ma’am. We’re all going to find you.” As
the panel correctly observed, Respondent’s disturbing comments and questions were
insensitive, threatening, and discourteous, and they reflected poorly on his temperament.
Count IV alleges Respondent violated Canon 3, Rule 3.8 of the Code. Once again, the
undisputed evidence demonstrates beyond a reasonable doubt that he did. (pp. 19-20)

5. The system of judicial discipline is not designed to punish judges. Its overriding
purpose is to preserve public confidence in the integrity and the independence of the
Judiciary. (pp. 21-22)

6. Viewed together, Respondent’s multiple acts of misconduct have lasting
consequences. His pattern of misconduct and unethical behavior not only undermined
the integrity of different court proceedings but also impaired his integrity and the
Judiciary’s. His overall behavior reflects a lack of probity and fitness to serve as a judge.
And his conduct breached the public’s trust. The vast majority of the more than 400
judges who serve on the Superior Court abide by the highest of ethical standards. In
carrying out their responsibilities, they must uphold the law. Occasionally, judges are
required to make difficult decisions that may be unpopular. They have no reason to fear
that discipline will be imposed in such instances. Judicial independence, which is central
to a constitutional democracy, rests on those core values. Judges may also make mistakes
while reasonably carrying out their duties in good faith. That is not a basis for discipline
either. Potential legal errors are properly challenged and reviewed on appeal instead.
The series of ethical failures that Respondent committed are not errors of law, innocent
missteps, or isolated words taken out of context. Viewed as a whole, they are flagrant
and serious acts of misconduct. Respondent’s explanations under oath about what
occurred also reveal a lack of candor on multiple occasions, which factors into the
Court’s judgment in this matter. (pp. 22-25)

       The Court directs that Respondent be removed from office.

JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.
                                             3
          SUPREME COURT OF NEW JERSEY
               D-100 September Term 2018
                            082636


                        In the Matter of

                     John F. Russo, Jr.,

               a Judge of the Superior Court

                 of the State of New Jersey

      On a Complaint for Removal from Judicial Office
     Pursuant to Rule 2:14 and N.J.S.A. 2B:2A-1 to -11,
       and an Order to Show Cause Why Respondent
            Should Not be Removed from Office
                  or Otherwise Disciplined

          Argued                        Decided
       April 30, 2020                 May 26, 2020


   David W. Burns, Deputy Attorney General, argued the
   cause on behalf of the Office of the Attorney General
   (Gurbir S. Grewal, Attorney General, attorney).
   David W. Burns on the briefs.

   Respondent, through counsel, submitted a letter
   waiving appearance at oral argument and relying on
   the record. (The Corrigan Law Firm and Reisman,
   Carolla, Gran, Zuba, attorneys). David F. Corrigan
   and Amelia Carolla on the briefs.


CHIEF JUSTICE RABNER delivered the opinion of the Court.




                               1
      This disciplinary matter involves repeated and serious acts of

misconduct by a Judge of the Superior Court, Respondent John F. Russo, Jr. A

complaint issued by the Advisory Committee on Judicial Conduct (ACJC)

alleged four counts of misconduct. After it conducted a hearing, the ACJC

found clear and convincing evidence to support all the charges. A panel of

three Judges designated by the Court then conducted a separate, additional

hearing and concluded that the evidence supported a finding beyond a

reasonable doubt that Respondent violated the Canons of the Code of Judicial

Conduct and the Rules cited in all four counts. The panel recommended that

Respondent be removed from office.

      Based on our review of the extensive record, we find beyond a

reasonable doubt that there is cause for Respondent’s removal. See N.J.S.A.

2B:2A-9. Because of Respondent’s multiple, serious acts of misconduct -- in

particular, his inappropriate behavior in a matter involving an alleged victim of

domestic violence -- we order his removal from office.

                                       I.

      In recounting the facts and history of this matter, we draw liberally from

the ACJC’s 45-page Presentment filed on March 13, 2019, and the panel’s 69-

page ruling filed on January 28, 2020. Both documents are comprehensive and

thorough.

                                       2
      The charges and findings relate to four discrete instances of misconduct.

Count I, the most serious matter, concerns Respondent’s conduct at a hearing

on an application for a final restraining order. The misconduct charged relates

to his questioning of an alleged victim of domestic violence who testified that

she had been sexually assaulted, as well as his comments to staff members in

open court after the hearing. Count II addresses a personal guardianship

matter in which Respondent allegedly asked a Judiciary employee to contact

her counterpart in another vicinage and request that a hearing be rescheduled

to accommodate Respondent. Count III asserts Respondent created the

appearance of a conflict of interest when he presided over a matter in the

Family Division in which he knew both parties since high school. Count IV

relates to Respondent’s ex parte communication with an unrepresented litigant.

      Before the ACJC, Respondent stipulated to the allegations in Counts III

and IV. As was his right, he contested the first two counts before the ACJC.

The ACJC found clear and convincing evidence that Respondent violated the

Code of Judicial Conduct as to all four matters. A majority of the ACJC

recommended that Respondent be suspended without pay for three months;

four members recommended a six-month suspension.

      Respondent accepted the ACJC’s findings for purposes of a hearing

before this Court to determine what discipline should be imposed. After the

                                       3
hearing on July 9, 2019, the Court concluded, because of the seriousness of the

ethical violations, that it was appropriate to consider the full range of potential

discipline up to and including removal from office. The Court therefore

initiated formal removal proceedings, consistent with N.J.S.A. 2B:2A-1 to -11

and Rule 2:14, and directed the Clerk of the Court to file a complaint for

removal and issue an order to show cause why Respondent should not be

removed from office. See N.J.S.A. 2B:2A-3; R. 2:14-1, -2.

      Pursuant to N.J.S.A. 2B:2A-7, the Court also designated the Honorable

Carmen Messano, P.J.A.D. and Presiding Judge for Administration of the

Appellate Division, and the Honorable Julio L. Mendez and Bonnie J. Mizdol,

Assignment Judges of the Superior Court, to conduct a hearing, take evidence,

and report their findings.

      The panel heard testimony from Respondent and the Family Division

Manager in the Ocean Vicinage, received documentary evidence, and reviewed

audio files of three court proceedings. Following the hearing, the panel

unanimously concluded beyond a reasonable doubt that Respondent violated

the Code in all four matters and should be removed from office.

      We scheduled and held oral argument before the Court on April 30,

2020. We declined Respondent’s request to postpone argument until in-person




                                         4
proceedings could resume after the COVID-19 pandemic. 1 Through counsel,

Respondent notified the Court that he would rely on the record and that neither

he nor his counsel would appear for the hearing scheduled for April 30, 2020.

                                       II.

      We address the four counts of the complaint in turn. As to each, the

presenter must demonstrate proof beyond a reasonable doubt, the heightened

standard that applies in removal proceedings. See N.J.S.A. 2B:2A-9. We

devote more attention to Count I because it raises the most significant

concerns.

                                       A.

      Count I involves Respondent’s conduct during and after a hearing for a

final restraining order (FRO) in the matter of M.R. v. D.H.

      On March 28, 2016, an unrepresented litigant, the plaintiff, obtained a

temporary restraining order (TRO) against the father of her five-year-old

daughter. She alleged that the defendant threatened her life, sexually assaulted




1
  On March 26, 2020, the Court granted Respondent’s first request for an
adjournment and rescheduled the matter for the end of April. As the new date
approached, Respondent requested an additional adjournment until such time
as he could appear in person before the Court. By late April, when the request
was denied, the Judiciary had transitioned to virtual court proceedings in all
areas and had successfully completed more than 12,000 remote court events
with 80,000 participants.
                                        5
her, and made inappropriate comments to their child. The hearing on an

application for an FRO took place over several days in May and June 2016.

      On the first day of the hearing, the plaintiff testified that on March 24,

2016, the defendant “force[d] himself on [her] to have sex with him.” She

described how he grabbed at her clothes and pulled her pants down. Although

she told him to stop and get off of her, the two “had sex, but it was against

[her] will.” The panel noted that

            the plaintiff then described other events of alleged
            domestic violence, including the defendant disabling
            her garage door, breaking her vehicle’s windshield,
            threatening to call child protective services to have her
            daughter removed, and threatening to burn her house
            down. She read Respondent a text message allegedly
            sent to her by the defendant after the issuance of the
            TRO.

      During cross-examination, defense counsel at one point asked the

plaintiff if she had ever worked as an exotic dancer, which she admitted.

Counsel then asked if she had received “many unwanted advances from men

that were overly sexual during [her] time as a dancer.” Soon after, Respondent

took over the questioning and asked the plaintiff at length about her efforts to

stop the alleged assault:

            RESPONDENT: Do you know how to stop somebody
            from having intercourse with you?

            PLAINTIFF: Yes.

                                        6
RESPONDENT: How would you do that?

PLAINTIFF: I’d probably physically harm them
somehow.

RESPONDENT: Short of physically harming them?

PLAINTIFF: Tell them no.

RESPONDENT: Tell them no. What else?

PLAINTIFF: To stop.

RESPONDENT: To stop. What else?

PLAINTIFF: And to run away or try to get away.

RESPONDENT: Run away, get away. Anything else?

PLAINTIFF: I -- that’s all I know.

RESPONDENT: Block your body parts?

PLAINTIFF: Yeah.

RESPONDENT: Close your legs? Call the police?
Did you do any of those things?

PLAINTIFF: I didn’t call the police ’til later when --

RESPONDENT: I understand that. I mean, right then
and there to stop, did you do any --

PLAINTIFF: I told him to stop.

RESPONDENT: -- did you do those things?

PLAINTIFF: I told him to stop and --

                           7
            RESPONDENT: Did you try to leave?

            PLAINTIFF: -- I was trying to block him.

            RESPONDENT: Block him, meaning?

            PLAINTIFF: Like I was trying to like, you know, like
            push him off me.

            RESPONDENT: Okay. Did you try to leave?

            PLAINTIFF: Yeah.

            RESPONDENT: Did he stop you from leaving?

            PLAINTIFF: Yeah.

            RESPONDENT: And how did he do that?

            PLAINTIFF: He was like holding me like -- there was
            like a chair and he was like holding me like, you know,
            like he was like forceful, like I really couldn’t do
            anything.

            RESPONDENT: You answered my questions.               I’m
            going to let [defense counsel] continue.

      No witness, alleged victim, or litigant should be treated that way in a

court of law. As the ACJC found, the questions were “wholly unwarranted,

discourteous and inappropriate,” and were irrelevant to decide whether the

court should issue an FRO under the Prevention of Domestic Violence Act

(PDVA), N.J.S.A. 2C:25-17 to -35. The panel similarly observed that

“Respondent’s questions displayed impatience, discourtesy, and a lack of



                                       8
understanding of applicable law.” The questions also shamed the alleged

victim by intolerably suggesting that she was to blame.

      When asked to explain his conduct before the panel, Respondent said he

“was not trying to humiliate her”; he instead claimed he was trying to help a

“demoralized” witness on cross-examination and “get her re-engaged in the

hearing.” He added, “I was really struggling to find out is this a case where

there really is something going on and a witness who’s just not capable of

expressing it or is there something else going on.”

      Respondent’s explanation does not square with the record. The plaintiff

plainly testified that defendant forced her to have sexual intercourse against

her will. She also described other acts of alleged domestic violence. And she

did so without needing any assistance from the trial judge to express herself.

The audio recording of her testimony further undermines Respondent’s

explanation. It reveals that the plaintiff responded directly to questions on

both direct- and cross-examination without struggling to do so.

      Beyond that, Respondent’s coarse questions about how the plaintiff

responded during the alleged assault were not relevant. Her testimony, if

believed, established an act of sexual assault at the time. See N.J.S.A. 2C:14-

2(c)(1) (2016) (“An actor is guilty of sexual assault if he commits an act of

sexual penetration with another person” when, among other circumstances,

                                        9
“[t]he actor uses physical force or coercion, but the victim does not sustain

severe personal injury.”). 2 That offense turns on the alleged aggressor’s use of

physical force, not the victim’s state of mind or resistance. State in Interest of

M.T.S., 129 N.J. 422, 444 (1992). 3 If established, sexual assault serves as a

predicate act of domestic violence under the PDVA and provides a basis for an

FRO. See N.J.S.A. 2C:25-19(a)(7), -28, -29.

      Respondent ultimately dismissed the TRO and declined to enter an FRO.

He credited the defendant’s testimony and found that the plaintiff was not

credible. Among other reasons, he referred back to his questions during cross-

examination:

            When I asked her if she tried to do anything to stop the
            sexual assault, she didn’t have an answer. I asked if she
            tried to leave. I didn’t get a good answer in response to
            that question. I asked her if she tried to close her legs.
            And for the record, I believe her testimony was they had
            intercourse. And I asked if she tried to use her hands
            to stop the defendant from sexually assaulting her.
            Again[,] I did not get an answer that I could understand.


2
  The Legislature has since revised the statute. L. 2019, c. 474, § 1 (eff. Jan.
21, 2020). It now provides that “[a]n actor is guilty of sexual assault if the
actor commits an act of sexual penetration . . . using coercion or without the
victim’s affirmative and freely-given permission, but the victim does not
sustain severe personal injury.” N.J.S.A. 2C:14-2(c)(1).
3
  Respondent testified before the ACJC -- more than two years after the FRO
hearing -- that he was “still . . . somewhat torn as to how far do you go” when
questioning a witness about the details of an alleged sexual assault.
                                         10
      Respondent’s comments after the hearing ended are just as problematic.

When the parties left the courtroom, Respondent spoke about the case with his

court staff and law clerk. The back-up CourtSmart recording system captured

the following exchange:

            RESPONDENT: What do you think of that? Did you
            hear the sex stuff?

            ....

            UNIDENTIFIED SPEAKER (U/I): Please don’t make
            me re-live.

            RESPONDENT: You think it’s all fun and games out
            here.

            U/I: Please don’t make me re-live everything I heard.

Respondent later confirmed that “we [are] off the record” and continued:

            RESPONDENT: Well, then, as an exotic dancer, one
            would think you would know how to fend off unwanted
            sexual --

            U/I: I do remember that, I do.

            RESPONDENT: I’m like all right, all right, stop.

Respondent returned to the subject after he and staff discussed other matters,

including a staff member’s neat handwriting:

            RESPONDENT: What I lack in handwriting skills, I
            am the master of on the record being able to talk about
            sex acts with a straight face.
                                       11
            U/I: Without laughing?

            RESPONDENT: Yup.

      Judges set the tone for a courtroom. Especially when it comes to

sensitive matters like domestic violence and sexual assault, that tone must be

dignified, solemn, and respectful, not demeaning or sophomoric. Respondent

failed in that regard. We do not suggest that levity has no place in a

courtroom. At appropriate times, and in a tasteful way, judges sometimes

inject humor to lighten a proceeding. Respondent’s comments, though, were

neither appropriate nor tasteful.

      In his testimony before the ACJC, Respondent was asked why he made

some of the above comments. He said his remarks about “fun and games”

were part of an effort to give guidance to his law clerk about the complexity of

domestic violence cases. He offered a similar explanation to the panel, adding

that he had encouraged his law clerk to watch the trial; he claimed the

comments in question followed up on their earlier conversation, “referring to

what [he] had said about the uglier parts of what we do as judges, especially in

these types of cases.”

      Like the ACJC and the panel, we do not accept that explanation. The

exchange that Respondent initiated was not an instructive lesson of any sort.


                                       12
If anything, Respondent’s account of events, offered long after he had time to

reflect on his behavior and which he stands by today, undermines his

credibility.

      Count I alleges that Respondent violated the following sections of the

Code: Canon 1, Rule 1.1; Canon 2, Rule 2.1; and Canon 3, Rule 3.5. For ease

of reference, the text for each of the Rules cited throughout this opinion

appears in the footnote below. 4 The evidence demonstrates beyond a

reasonable doubt that Respondent violated all three cardinal principles.



4
  Canon 1, Rule 1.1: “A judge shall participate in establishing, maintaining
and enforcing, and shall personally observe, high standards of conduct so that
the integrity, impartiality and independence of the judiciary is preserved.”

Canon 2, Rule 2.1: “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.”

Canon 2, Rule 2.3: “A judge shall not lend the prestige of judicial office to
advance the personal . . . interests of the judge . . . .”

Canon 3, Rule 3.5: “A judge shall be patient, dignified, and courteous to
litigants, jurors, witnesses, lawyers and others with whom the judge deals in an
official capacity . . . .”

Canon 3, Rule 3.8: “[A] judge shall not initiate or consider [unauthorized] ex
parte . . . communications concerning a pending . . . proceeding.”)

Canon 3, Rule 3.17(B): “Judges shall disqualify themselves in proceedings in
which their impartiality or the appearance of their impartiality might
reasonably be questioned . . . .”

                                       13
                                       B.

      Count II relates to a personal guardianship matter involving Respondent,

his ex-wife, and their son. It asserts that Respondent asked the Family

Division Manager in the Ocean Vicinage (the Manager) to contact her

counterpart in another vicinage and request that the hearing in the upcoming

guardianship trial be rescheduled to accommodate Respondent.

      Respondent and the Manager provided different accounts in their

testimony, particularly about a critical conversation between them on March

10, 2017. Respondent denies the core allegation. He insists he never asked

the Manager to intercede for personal reasons or try to arrange for the hearing

to be conducted on consecutive trial days.

      The Manager testified that Respondent called her on her personal cell

phone on March 10, 2017, three days before the then-scheduled trial date. The

Manager recounted that Respondent asked her to call her counterpart to try to

get the schedule changed and arrange for consecutive hearing days in the


R. 1:12-1(g): “The judge of any court shall be disqualified . . . when there is
any . . . reason which might preclude a fair and unbiased hearing and
judgment, or which might reasonably lead counsel or the parties to believe so.”

      We quote from the revised Code of Judicial Conduct, which took effect
on September 1, 2016. Respondent’s conduct in Counts I, III, and IV predates
the revisions to the Code. The changes did not substantively alter Canons 1, 2,
and 3, which apply here, and Respondent has not contested the applicability of
the revised Code to this matter.
                                     14
upcoming trial. The Manager understood the request was to accommodate

Respondent’s personal schedule but that she was to refer only to his court

calendar. According to the Manager, Respondent added words to this effect:

“This conversation never happened.” The Manager did not make the call.

      The Manager’s testimony was corroborated by contemporaneous

handwritten notes she made during the conversation. The notes contained

details about a guardianship matter pending in another vicinage and included a

reference to “consecutive hearing days.” Cell phone records also reveal that

Respondent called the Manager’s cell phone on March 10 and left a voicemail.

Minutes later, the two had a conversation that lasted ten minutes. While

preparing for her testimony, the Manager found several additional documents

that were introduced for the first time before the panel: a page of handwritten

notes and two emails, which corroborated the timeline she had relayed to the

ACJC and the panel.

      Respondent at first told ACJC investigators that he spoke with the

Manager about the guardianship matter on one occasion. After checking his

cell phone records, he acknowledged in his testimony before the ACJC that he

called the Manager three times in March -- March 10, 13, and 16 -- and once in

December 2016.




                                      15
      He claimed that on March 10, he called to remind the Manager that he

had to leave work at a particular time that day -- not to seek a scheduling

change for the trial. (That call lasted ten minutes.) Respondent testified that

he called the Manager on March 16 to relay that the guardianship trial had

been adjourned until March 23. At the time, he knew the case “was going to

settle.” He testified that it was not until the March 16 call that he raised the

idea of the Manager speaking with her counterpart because he was concerned

about the number of litigants scheduled to appear on his court calendar on

March 23. Respondent recalled that the Manager told him he should “take care

of [his] family.” (According to phone records, the March 16 call lasted three

minutes.)

      Respondent also claimed that the Manager’s handwritten notes -- with

the notation “consecutive hearing days” -- related to an earlier conversation in

December, not the March 10 call. Before the panel, he testified the prior

conversation related to security concerns.

      In addition to the documentary evidence and phone records, the

circumstances of the guardianship matter support the Manager’s testimony.

Settlement discussions shortly after March 10 would have mooted any need to

ask for consecutive hearing days later in time.




                                        16
      The ACJC found the

            collective circumstances lend significant weight to [the
            Manager’s] testimony concerning the contemporaneous
            nature of her handwritten notes and the substance of her
            telephone conversation with Respondent on March 10,
            2017. Given the length of that discussion, the
            proximity of Respondent’s guardianship trial to that
            discussion, the lack of any reference to settlement
            discussions prior to March 13, 2017 that would indicate
            a trial was unnecessary, and [the Manager’s] consistent
            testimony about these matters, we find her recounting
            of these events more persuasive than Respondent’s.

After reviewing the record at length, the panel likewise concluded, “[h]aving

had the opportunity to hear and observe two witnesses [who] provided vastly

divergent testimony, the panel concludes beyond a reasonable doubt that [the

Manager’s] testimony is more credible and worthy of belief.”

      We agree with the ACJC’s and the panel’s findings. Respondent should

not have asked the Family Division Manager in the Ocean Vicinage to try to

reschedule a court hearing date in a personal matter. Like any other litigant,

Respondent should have worked through his attorney, not a high-level court

employee who worked in the same courthouse where he served as a judge.

      Count II alleges that Respondent violated Canon 1, Rule 1.1, and Canon

2, Rules 2.1 and 2.3(A) of the Code. The evidence demonstrates beyond a

reasonable doubt that Respondent violated those precepts.



                                       17
                                        C.

      Respondent stipulated that his conduct in Count III violated the Code.

The matter relates to a hearing Respondent presided over in Carbonetto v.

Carbonetto. In that case, another judge had ordered the defendant’s arrest if he

failed to pay $10,000 in spousal support, out of an arrearage of $144,914.40,

by November 13, 2015. The defendant made no payments. He was arrested

on March 9, 2016 and brought before Respondent.

      At the outset of the hearing, Respondent acknowledged the defendant by

his first name and noted “for the record [that] I’ve known Al Carbonetto and

his wife since high school. Tina Bizzucci at that point.” Respondent stated he

did not “believe [he] ha[d] a conflict” but “reserve[d] the right to recuse

[himself] because of the nature of [his] relationship” with defendant’s “ex-

wife.” Respondent proceeded to take testimony from the defendant and then

vacated the warrant. As the panel observed,

            [a]ny reasonable, fully informed person would have had
            doubts about Respondent’s impartiality when, after
            announcing in open court that he knew both parties,
            Respondent reduced the defendant’s purge amount
            from $10,000 to $300 based solely on uncorroborated
            financial information supplied by the defendant,
            without contacting probation or the plaintiff and
            without any apparent review of and reflection upon the
            history of the litigation.



                                        18
      Count III asserts Respondent violated Canon 1, Rule 1.1, and Canon 2,

Rule 2.1, and Canon 3, Rule 3.17(B) of the Code, as well as New Jersey Court

Rule 1:12-1(g). The uncontested evidence demonstrates beyond a reasonable

doubt that he did.

                                       D.

      Respondent also stipulated that his behavior outlined in Count IV

violated the Code. The count concerns a complaint in the matter of T.B. v.

C.P. to establish the paternity of a child who resided outside New Jersey. The

violation relates to an ex parte conversation Respondent had with the

defendant/mother in the case.

      The defendant failed to appear in court on May 26, 2016, and

Respondent entered an order that day to facilitate paternity testing for

defendant and her child. The order also relisted the matter for a hearing on

July 6, 2016. On that day, the putative father -- but not the defendant --

appeared before Respondent. At Respondent’s direction, court staff attempted

to call defendant and left a message asking her to call back. Respondent then

adjourned the matter, and plaintiff left the courtroom.

      Minutes later, defendant called Respondent’s chambers, and the call was

routed to the courtroom. In front of a crowded courtroom, Respondent

engaged in a nine-minute exchange with defendant. He asked for her address,

                                       19
which she did not want to disclose. Defendant told Respondent that she “ran

off” because she “was very scared.” When Respondent pressed for her address

to send her a copy of the order, she asked to have it “sent to a lawyer” because

she was “just scared to disclose [her] address.” Defendant added that she acted

“for the safety of [her] children”; she asserted that plaintiff had molested her

daughter and that she also feared for her son’s safety.

      During the back-and-forth, Respondent threatened to “assess financial

penalties against [defendant] that will make it very difficult . . . to ever get out

from underneath this if [she did] not cooperate”; told defendant “he’s going to

find you, ma’am. We’re all going to find you.”; told defendant that if she did

not cooperate, she would “have no credibility with the [c]ourt in the future if”

she made “the allegation [she was] making today”; and advised her she “really

need[ed] to just comply and fight it out”; among other things.

      As the panel correctly observed, Respondent’s disturbing comments and

questions were insensitive, threatening, and discourteous, and they reflected

poorly on his temperament.

      Count IV alleges Respondent violated Canon 3, Rule 3.8 of the Code.

Once again, the undisputed evidence demonstrates beyond a reasonable doubt

that he did.




                                         20
                                       III.

      The system of judicial discipline is not designed to punish judges. In re

Yaccarino, 101 N.J. 342, 386-87 (1985). Its overriding purpose is to preserve

“public confidence in the integrity and the independence of the judiciary.” In

re Seaman, 133 N.J. 67, 96 (1993).

      The same principles apply to the judicial removal statutes, N.J.S.A.

2B:2A-1 to -11. Under the law, this Court may remove a judge from office

“for misconduct in office, willful neglect of duty, or other conduct evidencing

unfitness for judicial office, or for incompetence.” N.J.S.A. 2B:2A-2. Yet

removal, like other forms of discipline, “‘is not punishment for a crime,’ but

rather serves to vindicate the integrity of the judiciary.” Yaccarino, 101 N.J. at

387 (quoting In re Coruzzi, 95 N.J. 557, 577 (1984)).

      “Public confidence in the judiciary ‘is shaken when a judge commits an

offense [or conduct] that subjects him or her to removal,’” and “removal

proceedings are designed to restore faith.” In re Samay, 166 N.J. 25, 42

(2001) (alteration in original) (quoting Coruzzi, 95 N.J. at 572). Above

everything else, removal hearings are meant to “assure the public that the

judiciary is worthy of its trust.” Coruzzi, 95 N.J. at 577. The “predominant”

concern is “the public interest.” Yaccarino, 101 N.J. at 396; accord In re

Imbriani, 139 N.J. 262, 266 (1995).

                                       21
      Certain aggravating and mitigating factors are pertinent to a removal

inquiry. Seaman, 133 N.J. at 98-100. To assess the gravity of the misconduct,

relevant aggravating factors include “the extent to which the misconduct . . .

demonstrates a lack of integrity and probity,” a “lack of independence or

impartiality,” or a “misuse of judicial authority that indicates unfitness”;

whether the conduct “is unbecoming and inappropriate for one holding the

position of a judge”; and whether it has been repeated or has harmed others.

Id. at 98-99 (citations omitted).

      Mitigating factors include whether “a matter represents the first

complaint against a judge,” “the length and . . . quality of the judge’s tenure in

office,” the judge’s “personal and professional reputation,” “sincere

commitment to overcoming the fault,” and his or her “remorse and attempts at

apology.” Id. at 100. Also relevant is the likelihood that “a judge . . . will

engage in similar misconduct in the future.” Ibid.

                                       IV.

      Respondent has been a lawyer since 1997. He served as a law clerk in

the Superior Court before he began to work in private practice. He had six

years’ experience as an Administrative Law Judge before his appointment to

the Superior Court in December 2015. The following month, he received

formal training for new judges geared toward the Family Division. In January

                                        22
and April 2016, he received training related to the Prevention of Domestic

Violence Act.

        There is no dispute that Respondent should have known better than to

mistreat an alleged victim and foster an atmosphere of disrespect toward her in

court, to ask court staff to intercede on his behalf in connection with a personal

matter, or to foster the appearance of impropriety by not recusing himself and

engaging in an improper ex parte conversation.

        Respondent points to several mitigating factors including an otherwise

clean disciplinary record; a record of public service; and his admirable

devotion to his son. We acknowledge those factors in our analysis. We give

no weight, however, to Respondent’s observation that the ACJC did not

recommend his removal. The appropriate level of discipline in any case of

judicial misconduct is for the Court to determine. Respondent also expresses

remorse yet at the same time, with respect to Counts I and II, he disputes

certain important facts and offers explanations for his conduct that do not ring

true.

        Viewed together, Respondent’s multiple acts of misconduct have lasting

consequences. His pattern of misconduct and unethical behavior not only

undermined the integrity of different court proceedings but also impaired his




                                        23
integrity and the Judiciary’s. His overall behavior reflects a lack of probity

and fitness to serve as a judge. And his conduct breached the public’s trust.

      It is inconceivable that Respondent could sit in judgment in domestic

violence or sexual assault matters in the future. No reasonable victim could

have confidence in a court system were he to preside over those kinds of cases

again. Nor could any objective, informed member of the public. For the same

reasons, public confidence in the integrity and independence of the Judiciary

would be undermined if Respondent were to preside over other types of cases.

Legitimate concerns about integrity, ethics, and public confidence extend to all

areas of the Judiciary.

      As noted earlier, judicial discipline is not designed to punish judges; it is

meant to restore and maintain the dignity of judicial office and to preserve and

promote confidence in the Judiciary’s integrity and independence. In re

Subryan, 187 N.J. 139, 153 (2006); Seaman, 133 N.J. at 96-97. The public’s

interest is our principal concern. Imbriani, 139 N.J. at 266; Yaccarino, 101

N.J. at 396.

      The vast majority of the more than 400 judges who serve on the Superior

Court abide by the highest of ethical standards. In carrying out their

responsibilities, they must uphold the law. Occasionally, judges are required

to make difficult decisions that may be unpopular. They have no reason to

                                        24
fear that discipline will be imposed in such instances. Judicial independence,

which is central to our constitutional democracy, rests on those core values.

      Judges may also make mistakes while reasonably carrying out their

duties in good faith. That is not a basis for discipline either. See Seaman, 133

N.J. at 97. Potential legal errors are properly challenged and reviewed on

appeal instead.

      The series of ethical failures that Respondent committed are not errors of

law, innocent missteps, or isolated words taken out of context. Viewed as a

whole, they are flagrant and serious acts of misconduct. See In re Williams,

169 N.J. 264, 276 (2001). The conduct involved in Count I in particular, the

most serious of the violations, reveals a fundamental misunderstanding of the

nature and seriousness of domestic violence and sexual assault matters,

disrespectful treatment of an alleged victim, and an inability to maintain

decorum in a court of law. Respondent’s explanations under oath about what

occurred also reveal a lack of candor on multiple occasions, which factors into

our judgment in this matter.

                                       V.

      For all of the above reasons, based on the entire record, we find beyond

a reasonable doubt that there is cause for removal in this case. See N.J.S.A.




                                       25
2B:2A-9. In light of Respondent’s serious and repeated acts of misconduct,

we are compelled to direct that Respondent be removed from office.



    JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA,
SOLOMON and TIMPONE join in CHIEF JUSTICE RABNER’s opinion.




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