Matter of Russo., 242 N.J. 179 (2020). As Chief Justice Rabner recounted in his opinion for a unanimous Supreme Court yesterday, Judge John F. Russo, Jr., has been an attorney since 1997. After clerking in the Superior Court, he entered private practice. He then served as an Administrative Law Judge for six years before being appointed to the Superior Court in December 2015. In January and April 2016, he received the training that new Family Part judges all receive, as well as training related to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq.
Nonetheless, in May 2016, at a hearing on an application for a final restraining order, Judge Russo conducted himself in such a way as to have violated multiple Canons of the Code of Judicial Conduct. The plaintiff on that application testified that the defendant “force[d] himself on [her] to have sex with him,” and that they ultimately had sex “against [her] will.” The judge then interrogated plaintiff about whether she had tried to “close her legs,” “call the police,” “block [her] body parts,” or take certain other actions “to stop somebody from having intercourse with [her].”
Echoing the findings of the Advisory Committee on Judicial Conduct (“ACJC”), the Supreme Court found the judge’s questioning “wholly unwarranted, discourteous and inappropriate.” It was also irrelevant, since the plaintiff’s testimony, “if believed, established an act of sexual assault at that time.” Chief Justice Rabner observed that sexual assault, a predicate act that supports a final restraining order, “turns on the alleged aggressor’s use of physical force, not the victim’s state of mind or resistance.”
The judge’s questioning, which the Court also said “shamed the alleged victim by intolerably suggesting that she was to blame,” led to his decision to deny a final restraining order. He stated that he had asked whether the plaintiff had tried to close her legs, “use her hands” against the defendant, or tried to leave, but that she did not offer answers that the judge “could understand.”
After the original ACJC decision, the Supreme Court set up a special panel, consisting of Judges Messano, Mendez, and Mizdol, to take testimony. In his defense before that panel, the judge claimed that his questioning did not seek to humiliate the plaintiff, but to help a “demoralized” witness get “re-engaged.” The Court found that that explanation “did not square with the record.” The transcript and the audio recording of the trial made clear that the plaintiff had testified directly and “without struggling to do so.”
The judge compounded his wrongdoing during the hearing by making remarks to his staff after the hearing that minimized the sexual assault issues raised. He referred to “the sex stuff” as ‘fun and games,” and patted himself on the back for being ‘the master of on the record being able to talk about sex acts with a straight face.” Those comments, Chief Justice Rabner said, were inconsistent with the “dignified, solemn, and respectful” atmosphere that a court should maintain. Humor is not forbidden, but only if “appropriate” and “tasteful.” The judge’s comments here were neither.
Again, the judge tried to justify himself before the ACJC and the three-judge panel. He claimed that his remarks were intended to instruct his law clerk about what judges do in domestic violence cases. Agreeing with those bodies, the Supreme Court found that the judge’s remarks were “not an instructive lesson of any sort.” Chief Justice Rabner said that the judge’s attempt to maintain the contrary, “offered long after he had time to reflect on his behavior and which he stands by today, undermines his credibility.”
There were three other charges against Judge Russo, two of which he admitted. All of them were found to have entailed violations of a number of provisions of the Code of Judicial Conduct.
Citing (among other cases) In re Yaccarino, 101 N.J. 342 (1985), discussed here, Chief Justice Rabner emphasized that “[t]he system of judicial is not designed to punish judges,” but to “preserve public confidence in the integrity and the independence of the judiciary.” Judge Russo’s “overall behavior reflects a lack of probity and fitness to serve as a judge,” Chief Justice Rabner said, and neither a “reasonable victim” nor “any objective, informed member of the public” could have confidence in the court system if Judge Russo were to continue to preside over domestic violence matters or any other type of case.
Though judges face tough decisions, and errors in decisionmaking do not call for discipline, “[t]he series of ethical failures that Respondent committed are not errors of law, innocent missteps, or isolated words taken out of context. Viewed as a whole, they are flagrant and serious acts of misconduct.”
The “close your legs” incident in particular, “the most serious of the violations, reveals a fundamental misunderstanding of the nature and seriousness of domestic violence and sexual assault matters, disrespectful treatment of an alleged victim, and an inability to maintain decorum in a court of law.” Judge Russo’s “explanations under oath about what occurred also reveal a lack of candor on multiple occasions, which factor[ed] into [the Court’s] judgment in this matter.”
The Court concluded by finding “beyond a reasonable doubt that there is good cause for removal in this case.” Accordingly, Judge Russo was thus removed from his office. An Order so directing was attached to the Court’s opinion.