The state Supreme Court has dismissed a complaint that a state senator contacted Essex County’s top judge to help push Paula Dow’s nomination for the bench last year, finding no evidence of judicial or attorney misconduct.
The Supreme Court announced Wednesday that the Advisory Committee on Judicial Conduct concluded that Sen. Kevin O’Toole’s call to Assignment Judge Patricia Costello was “consistent with the past and present practice of the three branches of government in respect of judicial reappointments.”
The court released a redacted version of the ACJC’s report, describing its investigation, and that of the Office of Attorney Ethics, into a grievance lodged last June by Sen. Richard Codey, with fellow Essex Democratic Sens. Nia Gill and Ronald Rice.
ACJC reports usually are confidential, but the court said it was disclosing excerpts from this one “because the matter was previously reported in the press.”
Neither the court nor the redacted ACJC report revealed the nominee, but Codey confirms it was Dow, a former state attorney general and Essex County prosecutor, whom Gill was blocking by an exercise of senatorial courtesy.
O’Toole, a Republican who represents parts of Bergen, Essex, Morris and Passaic counties and an attorney, allegedly tried to exert indirect pressure on Gill to approve Dow’s nomination to the Essex County bench as a condition for the renomination of two Essex County judges whose initial seven-year terms were ending.
Codey, Gill and Rice wrote to Chief Justice Stuart Rabner last June 21 that a state senator had told Costello that the renominations of two Essex judges were in “jeopardy” and neither would be reappointed unless Gill dropped her opposition to Dow’s nomination.
Those judges were not named, but Codey confirms they are Siobhan Teare and Verna Leath. Both were eventually renominated by Christie and won Senate confirmation last May 24.
The letter said, “it is our understanding that Judge Costello called both judges, along with their presiding Judges, into her chambers. Judge Costello then informed the judges that if they were unwilling or unable to convince Senator Gill to ‘sign off’ on the judicial nominee, the Governor would end their judicial careers.”
Codey, Gill and Rice expressed concern that if true, the allegations “have the propensity to undermine the proper administration of justice and compromise judicial independence.” They asked for a “thorough investigation.”
Rabner sent the matter to the ACJC on July 24.
Based on interviews with 15 people, including judges and legislators and their staffs, the ACJC determined that O’Toole telephoned Costello about the reappointments on May 2 and that she subsequently met with Teare and Leath and their presiding judges.
But it found nothing to substantiate the allegations that O’Toole told Costello the reappointments depended on Gill’s actions about another nominee or that he directed her to ask Teare and Leath to communicate with Gill.
Similarly, there was no evidence that Costello told any of the judges at the meeting about the need for Gill to “sign off” on another nominee, the ACJC said.
O’Toole, who is with O’Toole Fernandez Weiner Van Lieu in Verona, says he is not surprised by the outcome.
“I knew that the actions I had taken and that Judge Costello had taken were appropriate.”
He says all senators call and have conversations with assignment judges about possible judges and reappointments, as the ACJC recognized.
O’Toole calls it “despicable that three Democratic senators used the judiciary for political purposes” and an “abuse of office to use a phony investigation to try to sully up a distinguished assignment judge and to … attack me.”
He says the three owe him and Costello a public apology and he will be looking into Senate rules to see whether they should have to pay the investigation costs. He also says he will consult a defamation expert about a possible lawsuit based on not only the letter but public statements about the allegations.
Codey disagrees with O’Toole, saying that legislators contacting judges concerning judicial appointments is “totally inappropriate,” especially because O’Toole and lawyers at his firm appear before judges in Essex County.
“I’ve been in public office a long time, and I never made phone calls to assignment judges about nominations,” says Codey, who has served 38 years in the Legislature and two years as governor.
He asks: “How can you explain Costello convening a meeting of those four judges right after the phone call?”
Costello said through a spokesman that she was grateful that the ACJC found no evidence of misconduct.
“Now that the issue is closed, I am hopeful that the executive and legislative branches will continue to work toward a resolution of the judicial vacancies in Essex. There will be 21 vacancies out of a total of 55 positions as of Sept. 1, 2013,” she added.
Gill said in a statement, “The investigation was undertaken, and I abide by the findings.”
Rice could not be reached for comment.
A notice accompanying the court’s statement said, “The Court will have no further comment.”
Christie spokesman Michael Drewniak says the senators’ complaint “makes no sense” in light of the fact that Gill never signed off on Dow but Christie still reappointed Teare and Leath.
Dow was confirmed as a Superior Court judge last June 28 after Christie withdrew her nomination in Essex and resubmitted it in Burlington County, where she now sits in the Family Part.