Former Judge Faces Public Reprimand for Allegedly Conducting Secret Fact-Finding Investigations

Retired New Jersey Superior Court Judge Arthur Bergman is facing public reprimand over his alleged ex parte inquiries into the facts of a family’s trust dispute.

An order to show cause as to why he should not be disciplined with a sanction less than removal from judicial office has been issued by the New Jersey Supreme Court. The order further stated that this matter be set down for oral argument on the presentment and on Bergman’s motion to dismiss on Sept. 28.

In the formal complaint, dated Oct. 19, 2020, the Advisory Committee on Judicial Conduct alleged that Bergman wrongly conducted online research about a potential witness in the case, and then telephoned that person to ask about facts that were in dispute. The complaint alleged violations of Canon 1, Rule 1.1, Canon 2, Rule 2.1, and Canon 3, Rule 3.6(C) and Rule 3.8 of the Code of Judicial Conduct.

According to the complaint, Bergman was hearing a dispute between brothers Michael Hennessey and John Hennessey II over a trust left by their parents for the benefit of the two brothers and their three siblings. A dispute erupted between the brothers over ownership of their parents’ former home, which John sought to receive as his distribution from the trust.

John Hennessey’s daughter, Thiel Hennessey Dragon, was caretaker of the home, according to the complaint. John Hennessey filed a motion seeking reimbursement of $83,922 he spent on repairs on the home and another $28,103 his daughter spent. John Hennessey filed certifications to document those repair costs, including one from Ben Oskierko, owner of a landscaping company.

Bergman, after conducting online research to find contact information for Oskierko, allegedly called him and left a voicemail, identifying himself as “Judge Bergman,” according to the committee. Bergman also allegedly researched Dragon’s marital status and whether she owned her own home, and allegedly instructed his law clerk to research the dates of her marriage and the birth of her child, according to the complaint.

In July 2019, Bergman ruled against John Hennessey’s motions for reimbursement of expenditures that he and his daughter had paid, saying that his daughter’s payment of more than $28,000 for expenses on the house “tends to substantiate, in the [court's] mind, that she was working on the house as her future residence, and was willing to pay for certain personal choices in exchange for the privilege of living in it rent free.”

The lawyer for John Hennessey, after receiving Bergman’s ruling and learning about his ex parte contact with Oskierko, moved for recusal of Bergman. Bergman later stated in a supplemental ruling that he contacted Oskierko due to the “suspicious nature” of the invoices submitted by John Hennessey and his daughter. He said his independent investigations were supported by a theory of judicial notice, as permitted by Rule 201(c) of New Jersey’s Rules of Evidence.

According to the complaint, revelations of that conduct prompted counsel for the trustee in the case to move to recuse Bergman, who denied that request. Bergman’s independent fact-finding efforts concerning details of a case before him compromised the court’s impartiality and created an appearance of bias, the committee said.

The presentment, dated Dec. 13, 2021, included three counts stating that the misconduct took place during Bergman’s processing of the trust case, as well as in his written responses to the ethics committee. Count I stated that Bergman provided a pretextual justification for calling a third-party witness on the phone, creating the appearance he was less than candid with the parties and their counsel. The committee found Count I was not proved by clear and convincing evidence.

Count II alleged an impermissible ex parte communication had taken place when Bergman left a voicemail for Oskierko. Count III pertained to Bergman’s online research into Dragon. The committee found both Count II and Count III were proved by clear and convincing evidence.

The committee said Bergman, by his answers when questioned about telephoning the first witness, “created the appearance that he was being less than candid with the parties and their counsel … thereby impugning his integrity and that of the Judiciary.”

In Bergman’s answer to the complaint on Nov. 9, 2020, he admitted to certain factual allegations and denied others, including that he violated the cited cannons of the Code of Judicial Conduct.

The presentment noted that Bergman failed “to concede any impropriety regarding his use of non-record information to form a basis for his ruling against the Trustee’s motion to aggravate his misconduct.” According to the presentment, Bergman was previously disciplined by private letter in 2017 “for his inappropriate demeanor on the bench while communicating with a pro se litigant in a discourteous manner.”

The committee noted Bergman’s “lengthy period of committed service to the bench” as a mitigating factor and recommended a public reprimand. Bergman has reached the mandatory retirement of age 70 since the initiation of this matter.

“The key fact in the case is that Judge Bergman did not speak to any witness and the 10 second voice message he left is incomprehensible as his speech is severely garbled due to a medical condition,” stated counsel for Bergman, Bruce Nagel of Nagel Rice.

“We are hopeful that the Supreme Court agrees that this charge was not proven by clear and convincing evidence,” said Nagel.