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N.J. Supreme Court May Go Light on Judge Whose Law Firm Made Political Contributions
New Jersey Law Journal
September 17, 2009
The New Jersey Supreme Court at a hearing on Tuesday appeared sympathetic to a municipal court judge who faces ethics sanctions because his law partner made political contributions without his knowledge or consent. Philip Boggia's partner donated $2,200, using the firm's business account, after his January 2004 appointment as Moonachie, N.J.'s part-time judge, despite Boggia having told the partner and firm employees at that time that such contributions would no longer be allowed.
The Advisory Committee on Judicial Conduct has nonetheless recommended an admonition, not on a theory of vicarious liability or on the law of partnership but rather on the "undeniable appearance" that Boggia shared responsibility for the contributions, which is all that is needed to violate the Code of Judicial Conduct's prohibition of political contributions by judges, Canon 7A(4).
The issue, says the ACJC, is not whether Boggia knew about the contributions but rather how the public would perceive them, given the fact that the state's judiciary is nonpartisan. The contributions are a matter of public record and the public has no way of knowing whether Boggia was involved in making them, the ACJC says.
The presentment, In the Matter of Philip Boggia, D-118, also charges violations of rules against judges engaging in partisan politics, R. 2:15-8(a)(5), and against conduct prejudicial to the administration of justice that brings the judicial office into disrepute, R. 2:15-8(a)(6).
Martin Durkin, Boggia's partner at Ridgefield Park, N.J's Durkin & Boggia, used the firm's account to issue four campaign contributions between May 27, 2004, and May 18, 2005. Two $500 checks and one $600 check were made out to the Edgewater Democratic Campaign Fund and another $600 check to the Bergen County Democratic Organization.
Durkin signed the checks and said in a certification that Boggia was unaware of them. Boggia says he first learned of the contributions in the ACJC's formal complaint, issued last Jan. 5.
At Tuesday's hearing, ACJC Counsel Candace Moody said the committee decided on discipline because Boggia's name is on the check by virtue of his being a name partner, thereby creating the public-perception problem.
Chief Justice Stuart Rabner asked how the practice could be stopped without punishing someone who took positive steps to halt contributions from being made.
"The committee didn't consider that," Moody replied. "This is a two-person firm with a joint business account. The fact that Respondent did not know of the contributions doesn't matter."
Justice Roberto Rivera-Soto asked, "What else could the judge have done?"
"The committee would like to have seen a little more monitoring," Moody replied.
"The Court can't rule based on what a committee might like," Rivera-Soto said. "We have to deal with the real world."
Boggia "didn't create the appearance" of impropriety, said Justice Virginia Long. "He is not responsible for it."
"There was no mens rea on the part of the municipal court judge," Justice Barry Albin added.
Moody disagreed. "In this case, there was a strong appearance," she said, adding that there was no evidence that Boggia sought to have the contributions returned.
Boggia's attorney, Robert Ramsey, said the court will have to decide whether lawyers can be held vicariously liable for their partners' actions -- a decision that will have an enormous impact on firms large and small.
"This is an extremely important case because there are many part-time judges who work for large firms that make contributions," said Ramsey, of Trenton, N.J's Donini & Ramsey. In some firms, especially large ones, part-time judges may have no say on how money is spent, he pointed out.
The justices pressed Ramsey on what should be done to insure the practice is stopped. For example, they asked, should a firm have a separate political-contribution accounts that does not mention the names of judges at the firm?
"I don't want to present policy alternatives. I'm here to represent my client," Ramsey said," though he added that firms want the recipients of their donations to know they come from the firm.
Rivera-Soto took Ramsey through the elements of Canon 7A(4) and the two rules Boggia is charged with violating. Ramsey said Boggia did not commit an offense against any of the elements.
Should there have been more follow up? Rabner asked.
"I work in a two-partner firm," Ramsey said, adding that neither he nor his partner make a daily review of the firm's books. "We trust each other and the firm just moves on."
If Boggia is disciplined, the court would hold for the first time that judges are vicariously liable for the actions of their partners, Ramsey said.
"That's something you'll have to decide," he said. "Your decision will guide these judges."
