NJ Supreme Court Refuses to Punish Part-Time Municipal Court Judge for His Law Firm's Political Campaign Donations
In In the Matter of Philip N. Boggia, Judge of The Municipal Court, (D-118-08)(July 27, 2010), the Advisory Committee on Judicial Conduct (“ACJC”) found by clear and convincing evidence that Philip N. Boggia, a part-time municipal court judge for the Borough of Moonachie, NJ and a practicing lawyer who is partner in his own law firm, violated Canon 7A(4) of the Code of Judicial Conduct and Rules 2:15-8(a) (5) and (6) of the New Jersey Court Rules because his law firm made political contributions to several local Democratic organizations.
Canon 7A(4) of the NJ Code of Judicial Conduct states that “[A] judge shall not . . . solicit funds for or pay an assessment or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions.” See also R. 117-1(a)(barring judges from holding elected public office or engaging in “partisan political activity”); R. 1:17-2 (barring judges from non-partisan political activity). Further, Canon 2(A) of the Code of Judicial Conduct requires judges “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Under R. 2:15-8(a), the ACJC is directed to review any grievance that alleges a municipal court judge “is guilty of . . . (5) engaging in partisan politics, or (6) conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”
The undisputed facts in this grievance demonstrated that the law firm of Durkin & Boggia made three contributions to the Edgewater Democratic Campaign Fund from June 2004 to July 2005, totaling $1600. The checks were all drawn on the “ATTORNEY BUSINESS ACCOUNT” for “DURKIN & BOGGIA,” as that information appears in the upper-left portion of each check. The twist: while all three checks were drawn on Durkin & Boggia’s “Attorney Business Account,” it was Boggia’s partner Durnkin who signed each check. Further, in January 2005 Boggia made a $600 contribution to the Bergen County Democratic Organization. At the time these political contributions were made, Boggia was simultaneously serving as the Borough of Moonachie’s municipal court judge. At the ACJC hearing, Boggia testified that he was unaware of the contribution checks signed by his partner until he learned of them via the ACJC.
The undisputed facts in this grievance demonstrated that the law firm of Durkin & Boggia made three contributions to the Edgewater Democratic Campaign Fund from June 2004 to July 2005, totaling $1600. The checks were all drawn on the “ATTORNEY BUSINESS ACCOUNT” for “DURKIN & BOGGIA,” as that information appears in the upper-left portion of each check. The twist: while all three checks were drawn on Durkin & Boggia’s “Attorney Business Account,” it was Boggia’s partner Durnkin who signed each check. Further, in January 2005 Boggia made a $600 contribution to the Bergen County Democratic Organization. At the time these political contributions were made, Boggia was simultaneously serving as the Borough of Moonachie’s municipal court judge. At the ACJC hearing, Boggia testified that he was unaware of the contribution checks signed by his partner until he learned of them via the ACJC.
Although Boggia admitted he had made political contributions as an attorney and knew of his firm’s practice of doing so before January 30, 2004, he testified that he understood he “was no longer allowed to be involved in politics” and “not allowed to make political contributions” as a municipal court judge. As a result, he testified that when he became a judge he gave oral instructions to his law partner and office staff to stop making political donations from the firm’s joint business account. The evidence that Boggia submitted to the ACJC included a certification from his law partner in which he stated that the contributions “were drawn on . . . the law firm’s checking account by mistake and it was due to inadvertence on my part.” For his part, Boggia acknowledged to the ACJC that it was not appropriate for his firm to be making political contributions. Boggia also testified that he did not know whether the firm’s political contributions were attributable to his partner’s salary or treated as a law firm expense.
The ACJC found Boggia reprehensible for violating Canon 7A (4) of the Code of Judicial Conduct and Rules 2:155-8(a) (5) and (6) of the New Jersey Court Rules. The ACJC wrote, in part:
The actual issued checks reflect “Durkin & Boggia” as the payor. Respondent is one of only two partners in the Firm, and his last name is featured in the Firm’s name. Under these facts, Respondent cannot avoid responsibility for the contributions at issue by simply indicating that he was not aware of them. Even if Respondent did not possess actual knowledge of the various political donations made, we find that the appearance was created that he, with his law partner, were responsible for the political contributions. The appearance is strictly prohibited under the Code of judicial Conduct as well as binding case law.
Upon the conclusion of the ACJC’s investigation, the NJ Supreme Court issued an Order to Show Cause requiring Boggia to demonstrate why he should not be publicly admonished. Boggia conceded that he is barred from engaging in political activity as a municipal court judge, but argued that under the case law the prohibition requires some purposeful, knowing, or reckless conduct on his part. Instead, he argued that the ACJC’s finding rendered him vicariously liable for his partner’s acts, and that imposing a strict liability standard would effectively ban part-time municipal judges from employment at firms that make political contributions. In addition to raising First Amendment concerns, Boggia recommended that the New Jersey Court Rules be modified to ban firms that employ part-time judges from making political contributions only in the county where the part-time judge hears cases.
The Court remarked that over a 103 year period from 1844 to 1947 the New Jersey Constitution demonstrates a radical shift in promoting the public confidence and independence of the judicial branch of government. Under the 1844 Constitution, “it was not considered unethical for a judge . . . to participate rather directly in the political process, at least to the extent of making campaign speeches and contributions.” In re Gaulkin, 69 N.J. 185, 192 (1973). However, the 1947 Constitution brought in a new era, one that continues today, by ensuring “complete separation of politics from the judiciary.” In re Randolph, 101 N.J. 425, 427 (1986).
In reviewing the ACJC’s decision, the Court noted that “[T]he possibility of political influence is especially great in the municipal courts.” . . . because “[M]unicipal judges are appointed by the major or local governing body for a term of three years.” “…the need to detach municipal court judges from politics remains patent,” the Court remarked.
In reviewing the ACJC’s decision, the Court noted that “[T]he possibility of political influence is especially great in the municipal courts.” . . . because “[M]unicipal judges are appointed by the major or local governing body for a term of three years.” “…the need to detach municipal court judges from politics remains patent,” the Court remarked.
Although the NJ Supreme Court indicated that the “facts present a close case as to whether respondent violated Canon 7A)(4) of the Code of Judicial Conduct, a unanimous Court reversed the ACJC’s ruling by concluding that the facts of this particular case did not meet the clear and convincing evidentiary standard required to sustain a finding that Boggia violated this judicial Canon. The Court recognized that Boggia took some steps to avoid what happened, which ultimately proved ineffective, when upon being appointed as a municipal court judge he verbally informed his partner and staff to stop making political contributions from the law firm. The Court also took note that Boggia’s law partner accepted responsibility for all of the political contributions made by the firm.
Instead of slapping Boggia on the wrist, the Court used this case as an opportunity to provide prospective guidance to part-time municipal court judges and their employers. From now on, both part-time municipal court judges and the lawyers and firms with whom they practice with are banned from making political contributions from a law firm’s business account. In response to Boggia’s claim as to the violation of his partner’s First Amendment rights, the court noted that lawyers in practice with part-time municipal court judges can still make political contributions from personal funds. The Court referred the matter to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial activity to develop appropriate rules to implement this decision.
Had Boggia’s judicial career been marked with other indiscretions, perhaps the NJ Supreme Court would have ruled differently. Here, however, aside from this case Boggia appears to enjoy an impeccable judicial record. The Court’s ruling in this case demonstrates a trend not to punish distinguished members of the judiciary for a single unintentional lapse in judgment, as is reflected by the Court’s prior decision declining to discipline a former Bergen County Chancery Judge whose years of dedicated service were blemished when, contemplating his retirement from the bench, he discussed potential employment with an attorney who was trying a case before him. We previously reported on the outcome of that underlying case in this post: http://newjerseylawreview.blogspot.com/2008_09_01_archive.html
A special thanks to Noah Feit who contributed to this article. Mr. Feit, a summer intern at LoFaro & Reiser, L.L.P., will be matriculating at the University of Pennsylvania as a freshmen in September 2010.
A special thanks to Noah Feit who contributed to this article. Mr. Feit, a summer intern at LoFaro & Reiser, L.L.P., will be matriculating at the University of Pennsylvania as a freshmen in September 2010.
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