BLACK ROBE DISEASE
By Alan Peyrouton, Esq.
Recently, after driving in the rain for forty-five minutes across three counties and merging on and off four different highways, I finally arrive within walking distance of municipal court. I look at my watch and I'm fifteen minutes early. Court doesn't start until 6 p.m. Now the challenge is to find parking. I check my coin cup to make sure I have enough quarters. I ignore my anxious client's calls to my cell phone. I park, grab the file, straighten my tie and run up the stairs of the municipal court.
The same guards who see me week in and week out wave me in to court. I see my client in the back pew. He's irritated and annoyed. I don't blame him. After all, this is our fourth appearance on a simple assault, N.J.S. 2C:12-1(a), and the alleged victim has never come to court.
I comfort him. “Mr. Doe, don't worry, I'm going to make a motion to dismiss for lack of prosecution.” He leans over and whispers, “That would be great. I can't keep missing work like this.”
I meet with the prosecutor and he calls out the victim's name. Silence...Okay, we're halfway home.
Almost two hours later, a court officer shouts, “All rise!” It's 7:30 p.m and court was scheduled for 6:00. “Patience”, I tell myself, “in a few minutes this case will be dismissed.”
The judge, a real-estate attorney with a longstanding friendship to the local mayor, announces, “Number 29, John Doe.”
That's my case! I tap my client and escort him up to the bench. I enter my appearance as the judge glosses over the file.
“Your honor, this is our fourth appearance and the alleged victim is not here. At this time, I'd like to make an application to dismiss for lack of prosecution.” After making my request for a routine motion, I start to write a notation in the file when I hear, “Motion denied.”
Did I hear correctly? What is the basis? Courteously, I advocate, “Your honor, this is our fourth appearance, the alleged victim has been noticed every time, and has failed to appear. In the interest of judicial economy, can the court reconsider the motion?”
“No. Under New Jersey state law, this court cannot dismiss unless the matter is scheduled for trial. Do you want to speak again with the prosecutor?”
Now, my heart is racing. I've never heard of such a rule. In fact, under 7:8-5, “A complaint may be dismissed by the court for good cause at any time on its own motion, on the motion of the State, county or municipality or on defendant's motion.”
I have cases before this judge every week. On this night, the courtroom is packed. My client is eager to be done with this and after waiting for nearly two hours, I'd like to be done as well.
So it's a game-time decision and I'm not sure how to handle it. I appear before this judge quite often and I don't want to be blacklisted. For the same reason, I'm aware of how often he makes up the law and abuses his power. Earlier this year he assessed a non-existent fine to one of my clients. He has also berated and ridiculed men for having long hair and earrings. One summer, he ordered a twenty-year-old boy to go home, change his clothes and return within the hour. It is his policy not to allow anyone entrance into his courtroom if they're wearing shorts and sandals despite the fact that it's over 100 degrees outside.
The visceral part of me wanted to tell him that he did not deserve the robe he was wearing. Judicial robe syndrome is prevalent in New Jersey. It's particularly prevalent at the municipal level where mediocre attorneys with strong political connections are appointed to a bench. Once that robe goes on, they transform into “superior beings”.
Irrespective of the fact that they know virtually nothing about Title 2C or Title 39, they're appointed and that robe serves as permission to play God for a few hours each week. I witnessed one judge pontificate about the extensive powers he is possessed with and when my client rolled his eyes, the judge slapped him with a $200 fine for contempt.
Another municipal court judge chews gum incessantly. When anyone appears before her and she catches him chewing gum, she rips him a new attitude. She often strolls in to court, aloof, and on average, an hour late. Then she'll go in to chambers and play with her iPhone for another half hour while the court room is full of people waiting. Once she takes the bench, she pounds her gavel and demands silence. She makes up the law too, but what is an attorney supposed to do in these situations?
All over the state, attorneys face similar situations. Judges are human and are allowed to make mistakes. What if their mistakes are egregious? In In re Dileo, 2014, the Supreme Court wrote: “Although legal error is not typically grounds for discipline for judicial misconduct under Code of Judicial Conduct, legal error that is egregious, made in bad faith, or part of pattern or practice of legal error has capacity to detrimentally affect public confidence in judicial process; indeed, either pattern of incompetent or willful legal error or sufficiently egregious instance of such error can undermine public confidence in judiciary.”
Back to my inquiry...what is an attorney supposed to do? Well, let's take a look at the options:
1. You can file an interlocutory appeal under Rule 3:24. Of course that requires additional expense for your client including filings fees, transcript costs, preparation of a brief, and oral argument.
2. You can ask the judge to reconsider his ruling based upon the Rules of Court, established case law, statutory law, NJAC provisions or United States Supreme Court precedent....each one of which will prove a waste of time.
3. You can complain to your local presiding judge, a path that you can only take sparingly and in the rarest of circumstances lest you be labeled a pest.
4. You can file a complaint with the ACJC, a procedure that will take months or years and often will require your public testimony.
5. You can go the political route and speak out against the judge and his reappointment during a public session of the municipal government.
6. You can write an anonymous letter to the assignment judge with copies to the Chief Justice and the Acting Administrative Director of the Courts. Actually, if they read your letter, they will refer it to the presiding judge for municipal courts. Do you think the municipal court judge will be able to figure out the complaint came from you?
7. Here's an idea that will fail every time due to judicial immunity: You can file suit against the judge and municipality for violating your client's civil rights.
These options already exist but I have a few new ideas.
Let's create a random audit program in which plain clothes lawyers are appointed to observe certain courts. Retail stores save billions of dollars each year by hiring “loss prevention” employees. In essence, these employees secretly pose as shoppers and wander the isles looking for shoplifters. New Jersey's Administrative Office of the Courts should create a “judicial abuse prevention” team. Its officers would wander throughout our almost 900 municipal courts observing the abuse described above. Or what if the team randomly listens to the court recordings?
Let me be clear about one thing. Among the members of the municipal court judiciary are a large number of excellent jurists. They include legal scholars as well as polite, kind and courteous people who seek to do individual justice in every case, while treating everyone with kindness, consideration, fairness and respect. Simply put, they are angels. We accept adverse rulings from these judges because both you and your client understand that the judge gave fair and objective consideration to your arguments. You had your day in court and you lost, fair and square.
What every person in New Jersey should detest is the arrogant, ignorant judge whose intoxication with judicial power renders him an unreasonable, nasty tyrant. These people undermine the public's confidence in the judiciary. The people of New Jersey deserve better.
If every disease has a cure, so does black robe disease. We have to be proactive and follow the advice of the signs we see everywhere from the Port Authority, “If you see something unusual, speak up.”
Oh, and what happened to the judge who denied my motion to dismiss? I showed him a copy of the rule and he shrugged and with a fake smile said, “It still doesn't apply here. Let's bring you back (a fifth time) in two weeks.”
Editor's note: Author Alan Peyrouton practices criminal defense, municipal court defense, and immigration law from his office in Union City.