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

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.
A.
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.
B.
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.
A.
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.
20259, 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.
A.
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).
B.
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
proceedings involving the Kirkland brothers.
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
IN THE MATTER OF
LOUIS M. J. DiLEO,
A FORMER JUDGE OF
THE MUNICIPAL COURT
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
2