Judges and Official Misconduct (Part 3)

The State next turns to Canons One and Two of the Code for support. Canon One provides, “An independent and honorable judiciary is indispensable to justice. A judge therefore shall uphold and should promote the independence, integrity and impartiality of the judiciary.” Canon Two states, “[a] judge should avoid impropriety and the appearance of impropriety in all activities.” The Rules associated with Canon One require a judge to “personally observe high standards of conduct” and “respect and comply with the law.”

It is the duty of every judge “to abide by and enforce” the Code. In dicta, we recognized that the Code “specifically deals with the duties of judicial office and could readily be used as a basis for describing the duties inherent in that office.” However, the Court characterized an earlier version of the Code as “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.” “While judges are expected to adhere to the Code, every breach ‘does not mean that judicial misconduct has occurred, or that discipline is appropriate.'” It surely follows that not every breach of the Code subjects a judge to criminal prosecution. In the absence of any reported New Jersey case holding the Code‘s “general statements” of ethical conduct are a declaration of inherent judicial duties, we consider some decisions from our sister states.

In People v. La Carrubba, the defendant judge was charged with refraining from performing a duty inherent in her office by improperly dismissing a friend’s traffic ticket. 389 N.E.2d 799, 801 (N.Y. 1979). In interpreting a provision identical to N.J.S.A. 2C:30-2B, reversing the defendant’s conviction and dismissing the indictment, the court said, “the Code of Judicial Conduct and the Penal Law serve discrete, if in some respects complimentary, purposes.” Id. at 802. Recognizing the penal code clearly defined acts or omissions that violated the law, the court said:

Couched in the subjunctive mood, the code is a compilation of ethical objectives and exhortations for the violation of which recourse has traditionally been had to disciplinary rather than criminal proceedings. If in any instance the conduct proscribed by the canons also independently constitutes a criminal offense under the Penal Law (e.g., bribe receiving, [New York] Penal Law, § 200.12) then, of course, the sanctions of the Criminal Law are available and the coexistence of ethical impropriety would stand as no barrier to criminal prosecution. Taken alone, however, instances of ethical impropriety, although unquestionably to be condemned, provide no predicate for the imposition of criminal penalties.

There is a certain ring of truth to this logic. If prosecutors are going to use codes of conduct as bases for criminal prosecutions, it would discourage the compilation of conduct codes. This is a result that courts should seek to avoid.