MUNICIPAL COURTS ARE BARRED FROM ASSISTING
THE POLICE OR PROSECUTORS IN PREPARING THE STATE'S CASE.
A
court should not be "assisting" the Police or Prosecutor to prosecute
people or helping the State prepare its cases.
A municipal "prosecutor, like the
[municipal] judge, must be impartial." State v. Storm 141 N.J. 245,
254 (1995). Because of the requirement of impartiality, the municipal judge is
prohibited from practicing criminal law. R. 1:15-1.
The roles of the judge, prosecutor and
defense attorney are distinct. The attorneys are advocates for the respective
sides, while the judge is to be the neutral adjudicator. State v. Avena
281 N.J. Super. 327, 336 (App. Div. 1995). The judge must remain impartial and
detached and may not "take sides". State v. Santiago, 267 N.J.
Super. 432, 437 (Law Div. 1993). The trial judge possesses a broad discretion
as to his or her participation in the trial, but simultaneously must also
maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25
(1964).
Preparation
of the State's case is clearly a prosecutorial function
Preparation of the State's case is
clearly a prosecutorial function and is a responsibility that cannot be shifted
to others. Any attempt by the prosecutor
to place this function upon the clerk, who is an impartial judicial officer, is
improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056
(Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal
prosecutor's role in connection with discovery, and added:
There is further reason for requiring
the prosecutor to be responsible. In our
court system, the prosecutor, contrary to an ordinary advocate, has a duty to
see that justice is done. State v. D'Ippolito, 19
N.J. 450, 549-550 [117 A.2d 592] (1955).
He is not to prosecute, for example, when the evidence does not support
the State's charges. Consequently, the
prosecutor has an obligation to defendants as well as the State and the
public. Our discovery rules implicate
that obligation, an obligation which can be discharged by no one else. [216 N.J.
Super. at 555, 524 A.2d 474]
As set forth in State v Prickett;
240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who
selects the State's witnesses, requests postponements for the State, complies
with discovery rules, requests dismissal if the State cannot make out a case,
and does all else necessary to prepare and present the State's cases in the
municipal court. See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on
the Improvement of Municipal Courts (1985)".
“We have the problem of a part-time
municipal prosecutor responsible for preparing cases for trial who abandons a
prosecutorial function to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court clerk may
issue a subpoena, but makes no provision for service by the court clerk nor
does it give the clerk the authority to excuse any witness absent instructions
from the municipal court judge. The
municipal court clerk should not become involved in the preparation of the
State's case.” See N.J. Municipal Court Clerks' Manual, §2.3, pp. 69-70 (A.O.C. 1985) which states:
"The municipal prosecutor has the
responsibility for determining what witnesses he wants and of preparing his own
subpoenas. However, if the municipal
prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett
240 NJ Super at 145. However, the court
should not ever act as the prosecutor's assistant. The court must be neutral. Courts are never permitted to handle
discovery requests ever. That would be a violation of a defendant's right to an
impartial court.
Because the State is the municipal prosecutor's client, a failure to
discharge the obligations of his office is a violation of a prosecutor's
professional responsibility to represent the client diligently. When a prosecutor has available relevant
evidence bearing on a prosecution, and the prosecutor's failure to present that
evidence in the course of trial results in acquittal, that prosecutor has not
diligently discharged his or her duty to prepare and present the State's
case.
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.
The
court staff also cannot assist the Prosecutor. It is the appearance of
impropriety for the Court to handle discovery.
Canon 3. A Judge Should Perform the
Duties of Judicial Office Impartially and
Diligently
Court
staff also must be impartial. They cannot be impartial to help the police or
prosecutor
The Supreme Court’s unanimous decision of In the Matter of ADVISORY LETTER NO.
7–11 OF the SUPREME COURT ADVISORY COMMITTEE ON EXTRAJUDICIAL ACTIVITIES, regarding
Judge Boyd of Perth Amboy, Decided
March 6, 2013, reaffirms Judges must be impartial and avoid appearance of
favoring one side.
Justice
ALBIN delivered the opinion of the Court on
March 6, 2013.
“*1
The figure of justice blindfolded, holding a scale equally balanced, is a
common feature atop many courthouses. That symbol carries a simple message—all
stand before the law as equals, and justice will be administered fairly and
impartially. If the public is to keep faith in the ideals represented by that
symbol, then it must have complete confidence in the integrity of the judges
who administer our system of justice. That confidence will come only when
judges are above reproach and suspicion in the eyes of those who appear in
their courtrooms. Appearances matter when justice is dispensed, and therefore
public perception that a judge might be partial to one party over
another—whether true or not—cannot be reconciled with the ideal of blind
justice.
This case involves a long-serving and
respected chief municipal court judge whose son has become a member of the
police force in the same municipality where he presides. The issue is whether
the judge may hear cases involving police officers who serve in the same police
department as his son. We hold that, consistent with the canons of the Code of Judicial Conduct and our case
law, he may not. That is so because a fully informed and reasonable person,
particularly a litigant, could question the judge's ability to be impartial in
issuing rulings on matters concerning his son's law enforcement colleagues. We
therefore conclude that he may not hear cases involving police department
officers and employees who serve with his son in the same municipality where he
presides as a judge, nor may he act as the chief judge supervising other judges
who hear such cases.” In the Matter
of ADVISORY LETTER NO. 7–11 OF the SUPREME COURT ADVISORY COMMITTEE ON
EXTRAJUDICIAL ACTIVITIES
The Supreme Court in ADVISORY LETTER NO. 7–11 also held:
“[2] 
Each year, the only experience that millions
of New Jersey residents and non-residents will have with our judicial system
will be in our municipal courts. State
v. McCabe, 201 N.J.
34, 42, 987 A.2d 567 (2010)
(citing In re Mattera, 34 N.J. 259, 275, 168 A.2d 38 (1961)). Because for most
members of the public, municipal court “is the court of first and last resort,”
In re Samay, 166 N.J. 25,
43–44, 764 A.2d 398 (2001),
“municipal court judges are the face of the Judiciary,” McCabe, supra, 201 N.J. at 42,
987 A.2d 567. The
public will pass judgment on our entire justice system based primarily on their
impressions of the judges who preside in our municipal courts. See ibid. Certainly, the public will
lose faith in our justice system if it believes that judges are hearing cases
despite conflicting interests that strain their ability to be impartial. The
mere appearance of bias in a judge—however difficult, if not impossible, to
quantify—is sufficient to erode respect for the judiciary. See DeNike v. Cupo, 196 N.J. 502, 514, 958 A.2d 446
(2008). To that end, judges must “ ‘refrain ... from sitting
in any causes where their objectivity and impartiality may fairly be brought
into question.’ “ Ibid. (quoting State v. Deutsch, 34 N.J. 190,
206, 168 A.2d 12 (1961)).
Each year, the only experience that millions
of New Jersey residents and non-residents will have with our judicial system
will be in our municipal courts. State
v. McCabe, 201 N.J.
34, 42, 987 A.2d 567 (2010)
(citing In re Mattera, 34 N.J. 259, 275, 168 A.2d 38 (1961)). Because for most
members of the public, municipal court “is the court of first and last resort,”
In re Samay, 166 N.J. 25,
43–44, 764 A.2d 398 (2001),
“municipal court judges are the face of the Judiciary,” McCabe, supra, 201 N.J. at 42,
987 A.2d 567. The
public will pass judgment on our entire justice system based primarily on their
impressions of the judges who preside in our municipal courts. See ibid. Certainly, the public will
lose faith in our justice system if it believes that judges are hearing cases
despite conflicting interests that strain their ability to be impartial. The
mere appearance of bias in a judge—however difficult, if not impossible, to
quantify—is sufficient to erode respect for the judiciary. See DeNike v. Cupo, 196 N.J. 502, 514, 958 A.2d 446
(2008). To that end, judges must “ ‘refrain ... from sitting
in any causes where their objectivity and impartiality may fairly be brought
into question.’ “ Ibid. (quoting State v. Deutsch, 34 N.J. 190,
206, 168 A.2d 12 (1961)).
*4 [3] 
Therefore, “ensuring both conflict-free, fair
hearings and the appearance of impartiality in municipal court is vital” to
maintaining public confidence in our system of justice. McCabe, supra, 201 N.J. at 42,
987 A.2d 567. To
accomplish that goal, we have in place exacting standards of judicial conduct
to which we now turn.
Therefore, “ensuring both conflict-free, fair
hearings and the appearance of impartiality in municipal court is vital” to
maintaining public confidence in our system of justice. McCabe, supra, 201 N.J. at 42,
987 A.2d 567. To
accomplish that goal, we have in place exacting standards of judicial conduct
to which we now turn.
C.
[4] 
[5] 
All judges in New Jersey must abide by the Code of Judicial Conduct. R. 1:18.FN3
The Code is comprised of seven canons that provide both broad and specific
standards governing the conduct of judges. Code
of Judicial Conduct, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part 1 at 481 (2013). The
canons set a high bar by which judges must guide themselves. They are not just
aspirational yearnings but enforceable rules, and they certainly “are not mere
platitudes.” In re Seaman, 133 N.J. 67, 95,
627 A.2d 106 (1993).
The overarching objective of the Code of
Judicial Conduct is to maintain public confidence in the integrity of the
judiciary. Id. at 96, 627
A.2d 106. A review of the relevant canons and accompanying
commentary will shed light on their application to this case.
[5] All judges in New Jersey must abide by the Code of Judicial Conduct. R. 1:18.FN3
The Code is comprised of seven canons that provide both broad and specific
standards governing the conduct of judges. Code
of Judicial Conduct, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part 1 at 481 (2013). The
canons set a high bar by which judges must guide themselves. They are not just
aspirational yearnings but enforceable rules, and they certainly “are not mere
platitudes.” In re Seaman, 133 N.J. 67, 95,
627 A.2d 106 (1993).
The overarching objective of the Code of
Judicial Conduct is to maintain public confidence in the integrity of the
judiciary. Id. at 96, 627
A.2d 106. A review of the relevant canons and accompanying
commentary will shed light on their application to this case.
Canon 1, in part, proclaims that a judge “should personally
observe [ ] high standards of conduct so that the integrity and independence of
the judiciary may be preserved.” This canon recognizes that judges are the
personification of the judicial system and that public respect for that system
depends on how jurists comport themselves on and off the bench.
Correspondingly, Canon 2 exhorts judges to avoid “the
Appearance of Impropriety in All Activities.” Canon 2 provides that a judge
“should act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary,” Canon 2(A), and “should not allow
family, social, political, or other relationships to influence judicial conduct
or judgment,” Canon 2(B). The commentary to Canon 2 emphasizes that judges must
be sensitive to public perception. Thus, a judge must avoid even the
“appearance of impropriety and must expect to be the subject of constant public
scrutiny.” Code of Judicial Conduct,
supra, comment on Canon 2. Additionally, judges must “accept restrictions
on personal conduct that might be viewed as burdensome by the ordinary citizen
and should do so freely and willingly.” Ibid.
Canon
3(C) counsels judges on when recusal is appropriate. Canon 3(C)(1) instructs
that “[a] judge should disqualify himself or herself in a proceeding in which
the judge's impartiality might reasonably
be questioned.” (Emphasis added).
Justice Albin further wrote:
“[6] 
The final catch-all provision, Rule 1:12–1(g), requires judges to
disqualify themselves “when there is any other reason which might preclude a
fair and unbiased hearing and judgment, or which might reasonably lead counsel
or the parties to believe so.” Rule
1:12–1(g)—like Canon 3(C)(1), which mandates disqualification when a “judge's
impartiality might reasonably be questioned”—is intended to apply to scenarios
that cannot be neatly catalogued. See State v. Tucker, 264 N.J.Super. 549, 554, 625 A.2d 34
(App.Div.1993) (“The situations in which a judge should
grant a motion for recusal are varied ....”), certif. denied, 135 N.J. 468 (1994). Thus, “[n]either Canon 3C nor Rule 1:12–1 recite an exclusive list of
circumstances which disqualify a judge and require recusal from a matter.” State v. Kettles, 345 N.J.Super.
466, 470, 785 A.2d 925 (App.Div.2001),
certif. denied, 171 N.J. 443, 794 A.2d 182 (2002).
The final catch-all provision, Rule 1:12–1(g), requires judges to
disqualify themselves “when there is any other reason which might preclude a
fair and unbiased hearing and judgment, or which might reasonably lead counsel
or the parties to believe so.” Rule
1:12–1(g)—like Canon 3(C)(1), which mandates disqualification when a “judge's
impartiality might reasonably be questioned”—is intended to apply to scenarios
that cannot be neatly catalogued. See State v. Tucker, 264 N.J.Super. 549, 554, 625 A.2d 34
(App.Div.1993) (“The situations in which a judge should
grant a motion for recusal are varied ....”), certif. denied, 135 N.J. 468 (1994). Thus, “[n]either Canon 3C nor Rule 1:12–1 recite an exclusive list of
circumstances which disqualify a judge and require recusal from a matter.” State v. Kettles, 345 N.J.Super.
466, 470, 785 A.2d 925 (App.Div.2001),
certif. denied, 171 N.J. 443, 794 A.2d 182 (2002).
This Court has also adopted Guidelines for Extrajudicial Activities (1987), available at http://njlegallib.rutgers.edu/misc/
ExtraJudicial_Guidelines_ 1995.pdf (“Guidelines”) to implement the Code of Judicial Conduct. Significantly,
consonant with Canon 3(C)(1) and Rule
1:12–1(g), the Guidelines instruct judges to “always guard against the
appearance of bias or partiality or the perception of prejudgment of issues
likely to come before them.” Guideline II.B.
Judges can find further direction through ethical thickets
by referring to a booklet entitled Annotated
Guidelines for Extrajudicial Activities (Nov.2007), available at http://njlegallib.rutgers.edu/misc/
Extrajudicial_Guidelines_ 2007.pdf. The booklet catalogues a summary of
opinions issued by the Advisory Committee. Many of those opinions carry a clear
theme—judges must avoid any appearance of having a special relationship or an
entangling alliance with law enforcement. See,
e.g., id. at 25, 794 A.2d 182, Opinion 19–88 (“Judges may not attend a
dinner to honor a prosecutor.... Attendance might create an appearance of
favoring law enforcement.”); id. at 4, 794
A.2d 182, Opinion 71–94
(“Superior Court judge may not assist a police department in developing a training
video for their officers ....”); id. at 29–30,
794 A.2d 182, Opinion 24–00
(finding that municipal court judge should not attend retirement dinner for
police chief of same municipality as attendance “undermines the structural
separation of the court from the police that is necessary to preserve the
appearance of [the court's] independence and impartiality”); id. at 6, 794
A.2d 182, Opinion 16–04
(finding that municipal court judge serving as hearing officer for internal
police disciplinary actions in different municipality “could create the
appearance of bias or partiality”).
*6 [7] 
[8] 
It is clear from the canons of the Code of Judicial Conduct, the Court
Rules, and the Guidelines for
Extrajudicial Activities that “ ‘justice must satisfy the appearance of
justice.’ “ Deutsch, supra,
34 N.J. at 206, 168 A.2d 12 (quoting Offutt v. United
States, 348 U.S. 11, 14, 75 S.Ct. 11,
13, 99 L. Ed. 11, 16 (1954)).
The purpose of our judicial disqualification provisions “is to maintain public
confidence in the integrity of the judicial process, which in turn depends on a
belief in the impersonality of
judicial decision making.” United States v.
Nobel, 696 F.2d 231, 235 (3d Cir.1982) (emphasis added), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L. Ed .2d 1348 (1983). Even a “righteous judgment” will
not find acceptance in the public's mind unless the judge's impartiality and
fairness are above suspicion. State v. Muraski, 6 N.J.Super. 36,
38, 69 A.2d 745 (App.Div.1949).
“In other words, judges must avoid acting in ... a manner that may be perceived as partial,” otherwise the
integrity of the judicial process will be cast in doubt. DeNike, supra, 196 N.J. at 514,
958 A.2d 446.
[8] It is clear from the canons of the Code of Judicial Conduct, the Court
Rules, and the Guidelines for
Extrajudicial Activities that “ ‘justice must satisfy the appearance of
justice.’ “ Deutsch, supra,
34 N.J. at 206, 168 A.2d 12 (quoting Offutt v. United
States, 348 U.S. 11, 14, 75 S.Ct. 11,
13, 99 L. Ed. 11, 16 (1954)).
The purpose of our judicial disqualification provisions “is to maintain public
confidence in the integrity of the judicial process, which in turn depends on a
belief in the impersonality of
judicial decision making.” United States v.
Nobel, 696 F.2d 231, 235 (3d Cir.1982) (emphasis added), cert. denied, 462 U.S. 1118, 103 S.Ct. 3086, 77 L. Ed .2d 1348 (1983). Even a “righteous judgment” will
not find acceptance in the public's mind unless the judge's impartiality and
fairness are above suspicion. State v. Muraski, 6 N.J.Super. 36,
38, 69 A.2d 745 (App.Div.1949).
“In other words, judges must avoid acting in ... a manner that may be perceived as partial,” otherwise the
integrity of the judicial process will be cast in doubt. DeNike, supra, 196 N.J. at 514,
958 A.2d 446.
D. Justice
Albin further wrote in ADVISORY
LETTER NO. 7–11:
[9] 
In summary, disqualification is mandated if a
“judge's impartiality might reasonably be questioned,” Canon 3(C)(1), or if
there is a basis “which might reasonably lead counsel or the parties to
believe” that the judge is unable to render a “fair and unbiased ... judgment,”
R. 1:12–1(g). Thus, judges must “
‘refrain ... from sitting in any causes where their objectivity and
impartiality may fairly be brought into question.’ “ DeNike, supra, 196 N.J. at 514,
958 A.2d 446 (quoting Deutsch, supra, 34 N.J. at 206,
168 A.2d 12). Those
principles have been distilled to a simple question: “Would a reasonable, fully
informed person have doubts about the judge's impartiality?” Id. at 517, 168
A.2d 12.”
In summary, disqualification is mandated if a
“judge's impartiality might reasonably be questioned,” Canon 3(C)(1), or if
there is a basis “which might reasonably lead counsel or the parties to
believe” that the judge is unable to render a “fair and unbiased ... judgment,”
R. 1:12–1(g). Thus, judges must “
‘refrain ... from sitting in any causes where their objectivity and
impartiality may fairly be brought into question.’ “ DeNike, supra, 196 N.J. at 514,
958 A.2d 446 (quoting Deutsch, supra, 34 N.J. at 206,
168 A.2d 12). Those
principles have been distilled to a simple question: “Would a reasonable, fully
informed person have doubts about the judge's impartiality?” Id. at 517, 168
A.2d 12.”
The opinion
concludes:
“Judges must comply
with extremely high standards of conduct, on and off the bench. To be sure, meeting
those standards imposes considerable personal and professional burdens on
members of the judiciary—burdens that may require significant sacrifices by
judges and their families. Those standards are for the benefit of the public
whom we, as judges, serve in administering our system of justice. By requiring
disqualification whenever a fully informed person might reasonably question the
impartiality of a judge, we guarantee that the judicial process will retain its
high, preferred place in our democracy.
Chief
Justice RABNER; Justices LaVECCHIA, HOENS and PATTERSON; and Judges RODRIGUEZ and CUFF (both
temporarily assigned) join in Justice ALBIN's opinion.”
As a former Municipal Court Prosecutor and long
time defense attorney, I have complete respect for the Municipal Court Judge
who was involved in this case. We are not suggesting any unethical act by the
judge. The practice in this county has
been for different Municipal court judges to assist the police and municipal
prosecutor by recommending additional charges. This must stop. We are stating
that the criminal charge and indictment should be dismissed because the police
obtained evidence from a judge improperly.
The NJ Judiciary Municipal Court website
http://www.judiciary.state.nj.us/mcs/index.htm states:
“Mission Statement
We
are an independent branch of government constitutionally entrusted with the
fair and just resolution of disputes in order to preserve the rule of law and
to protect the rights and liberties guaranteed by the Constitution and laws of
the United States and this State.
The Municipal Court’s Statement of Core Values:
Required to accomplish our
mission are four paramount values representing the core of what we stand for as
an organization:
▪
Independence
▪
Integrity
▪
Fairness
▪
Quality Service”
http://www.judiciary.state.nj.us/mission.htm
Fairness is
the building block of all courts. My client also believes it is unfair for a
judge to assist the police or recommend to police additional charges.
The
roles of the judge, prosecutor and defense attorney are distinct. The attorneys
are advocates for the respective sides, while the judge is to be the neutral
adjudicator. State v. Avena 281 N.J. Super. 327, 336 (App. Div. 1995).
The judge must remain impartial and detached and may not "take
sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div.
1993). The trial judge possesses a broad discretion as to his or her
participation in the trial, but simultaneously must also maintain an atmosphere
of impartiality. State v. Ray, 43 N.J. 19, 25 (1964).
