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New Jersey has agreed to pay a $300,000 settlement to avoid a long and potentially embarrassing trial of a sexual harassment suit against Passaic County Judge Randolph Subryan. The settlement obviates the need for former clerk Jennifer Breaton, 40, to prove that Subryan kissed and hugged her and committed other acts of sexual harassment during her 2002-03 judicial clerkship and that her legal career suffered because she complained. The deal saves Subryan, 63, from the cost and scrutiny of a public trial and shields the state from a hit bigger than $300,000. A release signed by lawyers for Breaton, Subryan and the state on Feb. 9 characterized the settlement as an effort to “avoid further expense, inconvenience and delay, dispose of potentially burdensome and protracted litigation, and forever resolve the plaintiff’s claims.” The settlement also clears the way for the state Supreme Court to resume deliberating on whether to discipline Subryan by reprimand, censure or suspension. The Court’s Advisory Committee on Judicial Conduct found Breaton’s complaint credible and recommended censure. The justices heard arguments last February but put the discipline case on hold after Breaton filed the civil suit last May. The $300,000 state payment, due in early April, includes Breaton’s costs and fees to her lawyer, Lisa Manshel of Millburn’s Francis & Manshel. The state isn’t paying Subryan’s private attorney, Justin Walder of Roseland’s Walder, Hayden & Brogan, Judiciary spokeswoman Winnie Comfort says. Breaton alleged that while working for Subryan, he urged her to look at sexually explicit photographs, touched her inappropriately and kissed and hugged her without invitation on May 30, 2003. After Breaton complained, the court arranged a transfer of her clerkship to Judge Christine Miniman, and an investigation of Subryan led to the proposed censure. Discovery in the civil matter never got beyond the request stage before it settled with the guidance of former Burlington County Assignment Judge Harold Wells III, serving on recall in the case, Breaton v. New Jersey, L-2089-05. Breaton, of Bronx, N.Y., has worked for Local 32B of the Service Employees International Union in New York, but she is not admitted as a lawyer in New Jersey or listed among admitted lawyers in the New York Lawyers Diary and Manual. Under a settlement provision covering questions by prospective employers, Passaic County Assignment Judge Robert Passero will prepare a letter stating that Breaton performed her duties in a satisfactory matter. The settlement does not preclude Miniman from responding to inquiries about Breaton’s performance but the judiciary can’t disparage her to any inquirer or even imply about the form or manner of Breaton’s separation from her clerkship. Manshel declined to comment and Walder did not return a call. The payment to Breaton is the largest the state has paid in the four known settlements of sexual harassment complaints against judges. In 1994, the state paid $175,000 of a $190,000 settlement with a law clerk who sued Middlesex County Superior Court Judge Edward Seaman. The Supreme Court suspended Seaman for 60 days, but he resigned instead and is now a busy litigation arbitrator. In 1990, the state paid the entire $220,000 settlement of a sexual harassment claim brought by Administrative Law Judge Elinor Reiner against fellow OAL Judge Ronald Parker. In 1984, the state paid $75,000 of a $95,000 settlement between untenured Camden County Superior Court Judge Richard Hyland and his secretary. The Supreme Court found the charges against Hyland to be unfounded, but the state Senate declined to confirm his appointment to a tenured term. Most of the allegations in the case were aired in Subryan’s prosecution on ethics charges before the ACJC, though Manshel said a year ago that there would have been more evidence in the suit. The ACJC said in a December 2004 presentment that credible evidence supported Breaton’s complaint that in the May 30, 2002, incident Subryan kissed her on the lips and hugged her so tight she couldn’t escape. The committee found some of Subryan’s defense implausible, including an assertion that she hugged and kissed him in return for giving her job advice. Even so, the ACJC rejected allegations that Subryan tolerated an atmosphere of permissiveness in his chambers and the panel recommended a censure, rather than the six-month suspension sought by ethics prosecutor Patrick Monahan Jr. Manshel had hoped that the Supreme Court would affirm the ACJC’s findings. That would enable her to argue in the civil suit for a finding, as a matter of law that harassment had occurred, making damages the only question for the jury. By putting the disciplinary case on hold, the Supreme Court set the stage for a full-scale civil court replay of Breaton’s charges. She was backed in disciplinary proceedings by friends and colleagues who said she mentioned Subryan’s behavior a short time after the alleged incidents — the kind of contemporaneous complaint evidence the ACJC found credible. Breaton also would have been likely to present evidence to support the allegation in the suit that she was shunned in the courthouse after she made the complaints and that the complaints killed her chances of getting a post-clerkship job with lawyers who knew Subryan or the story of what happened to her. The plaintiff’s goal would have been to make the jury agree with sentiments similar to those Monahan expressed in his arguments to the Supreme Court a year ago: “Clerkships are marked by strong dependence and a significant power imbalance. A clerk is uniquely dependent on a judge’s recommendation for future employment in the law.” Walder argued in the Supreme Court that Breaton may have fabricated the incident with Subryan as a way to break her contractual relationship to take a job in New York. He also urged the justices to look askance at two of Breaton’s recollections about contemporaneous events. She claimed that Subryan tried to get her, in chambers, to look at sexually explicit photos from a manslaughter and child abuse trial. But lawyers and court officials in the trial gave statements that suggested the photos never left the bench and were never in chambers, Walder noted. Walder also pointed to alleged holes in Breaton’s statement that she had interviews with a Seaford, N.Y., law firm the Monday after the kissing incident. The Supreme Court has issued no timetable for renewal of deliberations in the disciplinary case. Subryan, who is currently in the criminal court, has recused himself from cases of a sexual nature. He went on the bench in 1993 and in 2000 received tenure, giving him an opportunity to serve until mandatory retirement at age 70 in 2012.

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