In the Matter of Perskie, D-75 September Term; Supreme Court; per curiam opinion; decided August 1, 2011. On an order to show cause why respondent should not be publicly disciplined through the imposition of an appropriate sanction that does not include removal from judicial office. DDS No. 48-1-3133 [30 pp.]

Alan Rosefielde, a litigant in Kaye v. Rosefielde, filed a complaint against respondent Judge Steven Perskie, now retired, with the Advisory Committee on Judicial Conduct alleging that (1) respondent inappropriately failed to recuse himself from presiding over Kaye despite a conflict of interest with Frank Siracusa, a witness in the case; and (2) after his recusal, respondent twice inappropriately appeared in the back of the courtroom where Kaye was being tried before another judge. After respondent’s appearance before the New Jersey Senate Judiciary Committee in connection with his reappointment, Rosefielde amended his complaint to include an allegation that respondent had deliberately misled the committee when asked about his conduct in the Kaye case.

The ACJC filed a formal complaint against respondent charging violations of Canons 1 (respondent should observe high standards of conduct to preserve integrity and independence of judiciary), 2A (respondent should conduct himself so as to promote public confidence in integrity and impartiality of judiciary), 2B (respondent should not lend prestige of his office to advance private interest), and 3C(1) (respondent should disqualify himself where impartiality might reasonably be questioned) of the Code of Judicial Conduct and Rule 1:12-1(f) of the New Jersey Court Rules, which requires a judge to disqualify himself where a party might reasonably believe that he could not be fair or unbiased in the proceedings. The ACJC recommended that respondent be censured.

Respondent has accepted responsibility for Counts I and III. However, he contests Count II.

Held: By clear and convincing evidence, the ACJC has shown that respondent’s conduct as charged in Counts I and III of the formal complaint violated Canons 1, 2A, 2B and 3C(1) and Rule 1:12-1(f). However, there is no clear and convincing evidence that he deliberately misled the Senate Judiciary Committee as charged in Count II. Respondent is censured.

The Court says Count I addresses respondent’s failure to initially disqualify himself from presiding over Kaye, a business dispute arising from Rosefielde’s employment with the Flagship Resorts Development Corporation. Rosefielde maintained that his termination was a result of his recommendation that Flagship end its business relationship with an insurance broker, Frank Siracusa, because of alleged improper and questionable business practices.

The ACJC concluded that objective, reasonable and fully informed observers would have sincere doubts about respondent’s impartiality based on Siracusa’s role in Kaye and the nature and extent of respondent’s relationship with him. It found that Siracusa was a central witness in Kaye and that his testimony would present credibility issues for respondent; that for more than 35 years, respondent has purchased insurance from Siracusa and continues to do so; Siracusa contributed to respondent’s campaign for public office and served as his campaign treasurer; they worked together in bringing legalized gambling to Atlantic City; and over a three- to five-year period, they regularly played bridge together. Moreover, respondent eventually conceded a conflict with Siracusa.

Count III addressed respondent’s post-recusal appearances in the courtroom where Kaye was being tried and his speaking with one of Kaye’s attorneys during the second appearance. The ACJC found, and respondent concedes, that by appearing in the courtroom, he created the unacceptable appearance that he still had an interest in the case and that he supported the plaintiffs. The ACJC found that respondent allowed the integrity and independence of the judiciary to be called into question and, consequently, violated Canons 1, 2A and 2B.

The Court holds that respondent’s conduct as set forth in Counts I and III violated Canons 1, 2A and 2B, and 3C(1) of the Code of Judicial Conduct and Rule 1:12-1(f)’s standards for judicial behavior regarding the handling of a recusal issue.

The Court then considers Count II regarding respondent’s appearance before the Senate Judiciary Committee. After reviewing respondent’s committee testimony and the record in Kaye, the Court says that they are in sharp contrast to each other.

On at least four separate occasions, respondent advised the parties in Kaye that notwithstanding his association with Siracusa, he was not uncomfortable continuing with the case and judging Siracusa’s credibility if he were presented as a witness. However, respondent told the committee he only continued to preside over Kaye because he had been told Siracusa would not be a party or a witness. Had that not been so, respondent admitted to the committee that he “should not be in the case.”

Respondent acknowledges the inconsistency. At the ACJC hearing, he insisted that his testimony before the committee was based on his faulty recollection of events that had taken place two years before, and that he was not attempting to mislead the committee. The ACJC concluded that he was not forthcoming with the committee and that such conduct violated Canons 1 and 2A of the Code of Judicial Conduct.

The Court notes that allegations of judicial misconduct must be proved by clear and convincing evidence. Here, the evidence does not clearly and convincingly establish that respondent deliberately misled the committee.

The Court notes that more than two years had elapsed from the time respondent spoke in the Kaye case. The transcripts were not made available to him until several days after his testimony before the committee. He had only his own recollection of the Kaye proceedings. Although he had Rosefielde’s letter, to him, Rosefielde was hardly the harbinger of truth. Also to be considered is respondent’s heretofore unblemished record as a 40-year member of the Bar and his distinguished service in all three branches of the government.

Calling the case extremely close, and saying respondent was extremely lax in his preparation for his reappointment hearing even after he had been alerted to the Rosefielde complaint, the Court concludes that it has not been clearly and convincingly established that respondent deliberately misled the committee.

For violating Canons 1, 2A and 2B, and 3C(1) and Rule 1:12-1(f) as charged in Counts I and III, respondent is censured.

Chief Justice Rabner and Justice LaVecchia, Albin and Hoens and Judge Wefing, temporarily assigned, join in the Court’s opinion. Justices Long and Rivera-Soto did not participate.

— By Judith Nallin

For the Advisory Committee on Judicial Conduct — Candace Moody, Disciplinary Counsel. For respondent — Frank L. Corrado (Barry, Corrado, Grassi & Gibson).