Yaccarino, Matter of

• Decision Date: 27 December 1985
• Citation: 101 N.J. 342,502 A.2d 3
• Parties: In the Matter of Thomas L. YACCARINO, Judge of the Superior Court of the State of New Jersey.
• Court: New Jersey Supreme Court

Page 342

101 N.J. 342

502 A.2d 3

In the Matter of Thomas L. YACCARINO, Judge of the Superior

Court of the State of New Jersey.

Supreme Court of New Jersey.

Argued Oct. 9, 1984.

Decided Dec. 27, 1985.

Eugene J. Sullivan, Asst. Atty. Gen., and J. Michael Nolan, Jr., Sp. Counsel, Morristown, for the State of N.J. (Irwin I. Kimmelman, Atty. Gen., and J. Michael Nolan, Jr., Morristown, attorneys; Eugene J. Sullivan, of counsel; J. Michael Nolan, Jr., Morristown, and Robert T. Lawless, Deputy Atty. Gen., on briefs).

Michael D. Schottland, West Long Branch, Robert J. Del Tufo, Newark, John R. Ford, Red Bank, Joseph N. Dempsey, West Long Branch, and Robert F. Novins, Toms River, for respondent (Michael D. Schottland, Charles J. Uliano, Joseph N. Dempsey, John R. Ford, Robert F. Novins, and Robert J. Del Tufo, attorneys; Michael D. Schottland, Charles J. Uliano, Joseph N. Dempsey, John R. Ford, Joel N. Kreizman, Robert F. Novins, Robert J. Del Tufo, Newark, Carmine A. Iannaccone, Newark, Frank Verdi, and Beth Novins, Toms River, on briefs).

Edward G. D'Alessandro, Florham Park, for amici curaie Montego Bay, Inc., and Green Parrot, Inc. (D'Alessandro, Sussman, Jacovino & Mahoney, Florham Park, attorneys; Edward G. D'Alessandro, Florham Park, of counsel; Brian E. Mahoney, Florham Park, on brief).

PER CURIAM.

This is a judicial removal proceeding brought under N.J.S.A. 2A:1B-1 to -11, against Judge Thomas L. Yaccarino of the Superior Court of New Jersey (respondent). The proceedings were initiated by a complaint authorized by this Court in February 1984 following two presentments of the Advisory Committee on Judicial Conduct (ACJC). The subject matter of the complaint and underlying presentments concern conduct of respondent dating back to 1979. Respondent was charged with professional ethical misconduct in violation of N.J.S.A. 2A:1B-2, Rule 2:15-8(a), and Canons 1, 2A, 2B, 3A(3), 3A(4), 3C, 5C(1), and 5C(7) of the Code of Judicial Conduct. The Court designated a three-judge panel pursuant to N.J.S.A. 2A:1B-7 to conduct a hearing, take evidence, and to report its findings to the Court.

Respondent filed an answer in which he denied the allegations against him. In addition, he asserted several defenses, seeking both the dismissal of the entire proceedings on constitutional, statutory, and procedural grounds and the dismissal of particular charges on grounds relating specially to these charges.

The special panel denied respondent's several motions based on his affirmative defenses and proceeded with hearings, which were held from March through May 1984. The panel rendered its report dated July 3, 1984. It found generally that the evidence showed a "pattern of misconduct" that warranted respondent's removal from the bench. Accordingly, on July 12, 1984, this Court issued an order to show cause why respondent should not be removed.

I.

We deal first with a threshold contention made by respondent that the report of the special panel was not authorized by the statute governing judicial removal or any appropriate Rule and should be struck as ultra vires. Respondent argues that the panel is statutorily empowered only "to take evidence," N.J.S.A. 2A:1B-7, that is, to compile the evidence and summarize it. It is claimed that the panel exceeded its authority by making factual determinations and recommending disciplinary sanctions.

We reject this contention. In Matter of Coruzzi, 95 N.J. 557, 472 A.2d 546 (1984), this Court recognized that the Judicial Removal Act was passed to implement removal procedures as authorized generally under the Constitution. N.J.Const. of 1947, art. 6, § 6, para. 4. We stated that the Act "left much to the Supreme Court's discretion," citing N.J.S.A. 2A:1B-8.

The interests involved are so great that the Legislature required that the matter be heard directly by the Supreme Court or through its designated three-judge panel. [95 N.J. at 570, 472 A.2d 546.]

The Constitution and enabling statute confer a broad authority upon this Court. N.J.S.A. 2A:1B-8 provides that "[e]xcept as otherwise provided in this act, proceedings shall be governed by rules of the Supreme Court." Clearly the Act contemplated authority in this Court to effectuate fully the power to be exercised in the area of judicial discipline. The Court has done so in this case by specific order. There is nothing inconsistent with the purpose or provisions of the Act in the Court acting by directive to constitute a three-judge panel and authorizing it, as an aspect of its hearing function, not only to receive evidence but also to make findings of fact and recommendations as to appropriate discipline.

This procedure is fully consistent with the legislative scheme because all functions undertaken by the panel are strictly ancillary to the ultimate disciplinary functions performed by this Court. Because the final determinations of fact are made by this Court after its independent review of the record and, further, the ultimate or final discipline to be imposed rests in the sole judgment of the Court, the findings of fact and recommended discipline of the panel are essentially advisory. Matter of Hardt, 72 N.J. 160, 164-65, 369 A.2d 5 (1977); see also Matter of Yengo, 72 N.J. 425, 429, 371 A.2d 41 (1977) ("This Court * * * reached independent conclusions of its own on the evidence so taken....").

We add that the absence of a formal Rule of Court authorizing generally the constitution of a three-judge panel in judicial disciplinary proceedings in these circumstances does not vitiate the jurisdiction of the panel to conduct these proceedings and issue a report that includes its findings of fact and recommendations. The Court's Rule-making authority may be exercised by the promulgation of formal rules to be included in the published Rules of Court, R. 1:1. It may also be exercised in the form of general directives or specific orders. See, e.g., Matter of Coruzzi, supra, 95 N.J. 557, 472 A.2d 546; Matter of Albano, 75 N.J. 509, 384 A.2d 144 (1978).

Respondent also contends that the judicial-removal proceeding should be dismissed because its conduct violated the right of due process. We conclude that this removal proceeding does not deny respondent's rights under the constitution of the United States and the constitution of New Jersey.

Respondent complains that this Court acts, or has acted, as "an investigator, complainant, prosecutor, grand jury, trial court and appellate court," and that the Court cannot, therefore, be a fair final arbiter in this matter. It is clear that this Court and the Legislature have honored the requirements of both procedural and substantive due process in separating the investigatory, prosecutorial, and adjudicative functions entailed in judicial disciplinary proceedings. Matter of Coruzzi, supra, 95 N.J. at 573, 472 A.2d 546; see Mazza v. Cavicchia, 15 N.J. 498, 105 A.2d 545 (1954). The fact that this Court authorized a complaint to be filed with the ACJC does not cast the Court in the role of an investigator; that the complaint was tried and heard by the ACJC does not cast this Court in the role of a prosecutor. And the additional fact that this Court empaneled a three-judge tribunal to hear these proceedings ancillary to this Court's final independent review does not itself constitute prejudgment or an earlier appellate adjudication by the Court. These proceedings amply observe the appropriate separation of all important functions implicated in disciplinary proceedings. Moreover, it is abundantly clear that the procedures provided in removal proceedings as to notice, opportunity to be heard, and the confrontation of adverse witnesses and evidence, see N.J.S.A. 2A:1B-6; see also R. 2:14-1 and R. 2:14-2, meet all the requirements of procedural due process.

Respondent also claims that the act governing judicial removal, vesting as it does, the power to remove judges in the Supreme Court, is an unconstitutional delegation of authority by the Legislature. Respondent cannot be heard to complain on the basis of the New Jersey Constitution. Article 6, Section 2, Paragraph 3 and Section 6, Paragraph 4 empower this Court to control the disciplinary aspects of the judiciary. The Legislature has implemented this constitutional authority by the enactment of the Judicial Removal Act, and specifically N.J.S.A. 2A:1B-2 and -3. The omissions from the Act of provisions for removal of members of the Supreme Court is not, as suggested by respondent, fatal from a constitutional standpoint. The Constitution itself has furnished other avenues for removal involving these judicial positions. N.J.Const. of 1947, art. 6, § 6, § 6, Paragraph 4.

The Respondent further contends that under the federal constitution judges can be removed by different procedures and substantive standards. See U.S. Const. art. III § 1, Art. II § 4. Clearly, these federal constitutional provisions do not preempt state control of its own judiciary. A state that creates a public office can set standards of conduct for the state officer. See Gruenburg v. Kavanagh, 413 F.Supp. 1132 (E.D.Mich.1976); Sinclair v. Schroeder, 225 Kan. 3, 586 P.2d 683 (1978).

These considerations also address respondent's further claims that the judicial removal statute is unconstitutionally vague. The Act, as supplemented by the Code of Judicial Conduct, establishes a sufficiently definite standard upon which to impose discipline or base a decision of removal. See Matter of Coruzzi, supra, 95 N.J. 557, 472 A.2d 546; Matter of Hardt, supra, 72 N.J. 160, 369 A.2d 5.

Respondent stresses the fact that the Attorney General decided not to present any aspect of these matters to a grand jury. Respondent asserts that the failure by a grand jury to return an indictment for some of these asserted offenses requires a finding by this Court that there is insufficient evidence to warrant removal. We disagree. Conduct that in itself does not constitute a criminal offense may be violative of...