NJ’s most despised judges: Here’s how they could get rid of them
The legislative leaders who control the state Senate and Assembly have joined the growing chorus of lawmakers calling for the removal of two Family Court judges whose comments about the sexual assaults of two young girls sparked outrage.
Assembly Speaker Craig Coughlin, D-Middlesex, noted that “the conduct and comments by both Judge Marcia Silva and Judge James Troiano are alarming and indefensible, and hold no place in the court of law.” Senate President Steve Sweeney, D-Gloucester, said the judges “have shown an egregious absence of clear judgment.”
Both Sweeney and Coughlin declined to be interviewed about whether they will move forward with impeachment proceedings to force the judges out, so it’s unclear whether they intend to do so.
But there's another way.
Legal experts say the state's Constitution empowers the state Supreme Court to boot appointed judges off the bench.
Troiano, in trying to block prosecutors from trying a 16-year-old boy as an adult for raping a drunk girl, had questioned whether the attack really was rape because there was no weapon used and the boy attended an excellent school. Silva, in her attempt to stop prosecutors from upgrading charges, wondered how serious the sex assault of a 12-year-old girl really was “beyond losing her virginity.”
Both judges were overturned on appeal in decisions that found that the judges had not followed the law and had made inappropriate judgements. Both have declined to comment to the press.
New Jersey 101.5's reports on the cases, which led to coverage in the New York Times and elsewhere, sparked public outrage about the judges' treatment of the victims. On Thursday morning, demonstrators gathered outside the Superior Court in Freehold Borough to call for the removal of the judges and for training of jurists on matters of sexual violence.
Rutgers-Camden law professor Bob Williams noted on Thursday that the state Constitution “specifically empowers the New Jersey Supreme Court to remove Superior Court judges from office."
He said while the state’s high court has this power, an administrative process has been set up where “normally there are hearings and recommendations from a committee about these possibilities of removing judges from office.”
Williams said that “our Supreme Court is considered one of the most powerful Supreme Courts in the United States, and the court does have overall administrative power over the judiciary, so it’s possible the court could take an extreme step like that. But I think it’s quite unlikely.”
He said that the court's Advisory Committee on Judicial Conduct would normally consider situations that involve disciplinary actions and failures of competence, then report their findings to the Supreme Court with recommendations. But the court doesn’t always follow those recommendations.
Not everyone agrees that the judges should be removed.
John Azzarello, president of the Association of Criminal Defense Lawyers of New Jersey, said the group "believes the call by certain legislators to oust these judges based upon their decisions poses a real and significant threat to the independence of the judiciary."
Azzarello said the legal system worked as intended in these cases because the prosecutors successfully appealed the decisions, which will allow them to try the juveniles in adult court.
"All New Jersey residents including public officials as well as advocacy groups must be free to disagree with, criticize judges and even condemn judges' decisions," Azzarello said in a statement issued on behalf of his organization. "The First Amendment is a testament to this right. So too must judges be free to apply the law to the facts as they find them without fear of retribution. This is especially true when they are threatened with removal from the bench by members of a co-equal branch of the government."
Numerous lawmakers have asked the committee to investigate Troiano and Silva, including all four Democratic state senators in Middlesex County. But the county's sole Republican lawmaker has not.
Last week, state Sen. Sam Thompson told New Jersey 101.5 that while he found Silva's statements "strange" and "stupid," he suggested that calling for investigations of judges over their opinions could set a bad precedent.
The Supreme Court in the meantime is hearing a disciplinary case involving a third judge, who the committee determined should be suspended for three months for telling a rape survivor that she could close her legs to prevent rape. A lawyer for Judge John Russo Jr. told the Supreme Court on Tuesday that he was sorry, had "learned his lesson" and that he "will not do this again."
Rutgers–Newark law professor Ron Chen said if a judge makes a mistake in a ruling and is overturned by an appellate panel, which is what happened with the two Family Court judges in question, that is not considered grounds for removal. However, he said, “there are situations where a judge shows they are incompetent or biased or having engaged in some outside act of impropriety, and then the Advisory Committee on Judicial Conduct acts."
Chen added it would be “somewhat unlikely or very unlikely” for the Supreme Court to take action against the Family Court judges without first having the Advisory Committee on Judicial Conduct review what happened and make recommendations to the high court.
Williams noted while the comments by the judges seem egregious, “we don’t really know much about the broader performance of these two judges, and I think any disciplinary process, even to the extreme remedy of removing them from office, would include a broader consideration of their track record on the court.”
He said when looking at this issue through the lens of judicial independence, “one might worry that a single instance of admittedly improper conduct by a judge, if it occurs in the context of an otherwise good record, might not justify removal from office, regardless of what the public or legislators think.”
Troiano is already retired but has been serving on recall to help fill vacancies on the bench. Silva was appointed to her seven-year term in 2014.
There's also another way Troiano and Silva could leave the bench. They could resign.
You can contact reporter David Matthau at David.Matthau@townsquaremedia.com