(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued December 10, 1996 -- Decided January 24, 1997
PER CURIAM
This matter was referred to the Advisory Committee on Judicial Conduct (ACJC or Committee)
both as a disciplinary matter and for the adjudication of allegations of sexual harassment pursuant the
Supreme Court's Procedures on Handling Sexual Harassment Complaints Against Judges.
Three employees of the New Brunswick Municipal Court filed complaints of sexual harassment by
Presiding Municipal Court Judge Terrill M. Brenner. The matter was initially referred to the Administrative
Director of the Courts, who undertook an investigation in accordance with the Sexual Harassment Complaint
Procedures. After interviewing Judge Brenner, the three complainants and numerous employees of the New
Brunswick Municipal Court, the assigned investigator concluded that Judge Brenner had committed acts of
sexual harassment against all three complainants. Thereafter, the matter was referred to the ACJC both as a
disciplinary matter and as an administrative matter, to resolve the question of sexual harassment in
accordance with the Procedures.
A formal complaint was served on Judge Brenner, who filed an Answer generally denying the
allegations but admitting that he had put his arm around one of the complainants and had kissed her. The
Committee held a formal hearing after which it issued its report.
In the Sharon Roberts matter, the Committee found that Ms. Roberts, as part of her regular duties,
had visited the Judge's private law office for the purpose of delivering his municipal court paycheck to him.
Ms. Roberts had asked Judge Brenner's secretary if she could see the Judge and was allowed to enter his
office. After Judge Brenner answered a telephone call, he walked to the front of his desk and put his arm
around Ms. Roberts. She, in turn, put both her arms around Judge Brenner and “snuggled up.” When he
then kissed her on the cheek, she reciprocated with encouragement of his advances. They kissed. During
this encounter, both Judge Brenner's secretary and his wife were in the outer office. The secretary testified
that Roberts seemed cheerful upon her departure.
The Committee determined that Judge Brenner's advance in his office was not unwelcome. It,
therefore, concluded that his conduct did not constitute sexual harassment. However, the Committee found
that Judge Brenner had engaged in improper conduct and violated Canons 1 and 2 of the Code of Judicial
Conduct, in that his conduct was prejudicial to the administration of justice and brought the judicial office
into disrepute. The Committee concluded that Judge Brenner should be privately reprimanded for his
conduct.
In the Sandra and Marlena Papatto matter, the Committee rejected as incredible the complainants'
claims that Judge Brenner had, on numerous occasions, made improper remarks to them, touched them
against their will, and frequently attempted to cause them to engage in unwelcome kissing. In rejecting their
claims, the Committee found that the overwhelming evidence and testimony of other municipal court
employees sharply contradicted that of the Papattos and sustained Judge Brenner's position that he never
made sexual advances to them. The Committee further noted that there was evidence of hostility within this
municipal court, with the Papattos being aligned with a faction hostile to Judge Brenner.
HELD: Judge Brenner's conduct in engaging in an embrace and kissing Ms. Roberts violated Canons 1 and
2 of the code of Judicial Conduct, warranting the imposition of a private reprimand; the claims of sexual
harassment filed by the Papattos have not been established by clear and convincing evidence.
1. Because a judge must avoid all impropriety and appearance of impropriety and must expect to be the
subject of constant public scrutiny, he or she must accept restrictions on personal conduct that might be
viewed as burdensome by the ordinary citizen. (p.7)
2. By hugging and kissing Roberts, a subordinate employee, even if those advances were not unwelcome,
Judge Brenner engaged in conduct that embarrassed himself and his judicial office and provided for Ms.
Roberts and the Papattos a factual predicate for their complaints of sexual harassment. (p. 7)
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI,
STEIN and COLEMAN join in the Court's opinion.
SUPREME COURT OF NEW JERSEY
D-
101 September Term 1996
IN THE MATTER OF
TERRILL M. BRENNER,
Judge of the New Brunswick
Municipal Court.
Submitted December 10, 1996 -- Decided January 24, 1997
On a report from the Advisory Committee on
Judicial Conduct.
Patrick J. Monahan, Jr., Counsel, Designated
Presenter, on behalf of the Advisory
Committee on Judicial Conduct.
Joseph J. Benedict submitted a letter in lieu
of brief on behalf of respondent (Benedict
and Altman, attorneys).
PER CURIAM
This matter was referred to the Advisory Committee on Judicial Conduct (ACJC or Committee) by the late Chief Justice Wilentz both as a disciplinary matter and for the adjudication of allegations of sexual harassment pursuant to paragraph C3(b) of the Supreme Court's Procedures on Handling Sexual Harassment
Complaints Against Judges (Sexual Harassment Complaint
Procedures). The Committee concluded that the Respondent did not
commit acts of sexual harassment but that he did, on one
occasion, violate the Code of Judicial Conduct. The Committee
recommended a private reprimand as the appropriate discipline for
that violation.
In late November or early December 1995, Marlena Papatto, Sandra Papatto, and Sharon Roberts, three employees of the New Brunswick Municipal Court, retained counsel in connection with their complaints of sexual harassment by Respondent, who was and is the presiding judge of that court. By letter of December 13, 1995, to the Assignment Judge of Middlesex County, their attorney lodged a complaint that Respondent had sexually harassed the Papattos since 1986 and had sexually harassed Roberts on November 17, 1995. The Assignment Judge forwarded the letter to the Administrative Director of the Courts, who undertook an investigation in accordance with the Sexual Harassment Complaint Procedures. After interviewing the Respondent, the three complainants, and numerous other personnel of the New Brunswick Municipal Court, as well as certain others who had knowledge of relevant facts, the assigned investigator concluded that Respondent had committed acts of sexual harassment against all three complainants. He recommended that the Administrative Director refer the matter to the Chief Justice with a
recommendation for further referral to the Committee for
appropriate action.
The Administrative Director referred the matter to the Chief
Justice with a recommendation for further referral to the ACJC.
In accordance with paragraph 3C(1) of the Sexual Harassment
Complaint Procedures, the Chief Justice referred the matter to
the ACJC "for investigation, hearing, disposition and/or
recommendations." The Chief Justice formally referred the matter
both as a disciplinary matter, in keeping with the ACJC's
traditional function pursuant to Rule 2:15, and as an
administrative matter, to resolve the question of sexual
harassment in accordance with the Procedures.
A formal complaint was served on Respondent, reciting the
conclusions reached by the Administrative Director and his
investigator. Respondent filed an Answer, generally denying the
allegations but admitting that on November 17, 1995, he had put
his arm around Roberts and had kissed her.
The Committee held a formal hearing over four days, during
which it heard testimony from forty witnesses and received in
evidence fourteen exhibits.
The Committee's Report to this Court made the following
findings:
Respondent is a member of the Bar of the
State of New Jersey and was admitted to the
practice of law in 1949. In 1986, he was
appointed to the position of Judge of the New
Brunswick Municipal Court, and in 1993 he was
named Presiding Judge of that court.
Marlena Papatto and Sandra Papatto are
sisters and have been employed by the New
Brunswick Municipal Court since 1980. Sandra
Papatto is now the Violations Clerk, and
Marlena Papatto is now serving as one of two
Deputy Court Administrators.
Sharon Roberts was first employed by the
New Brunswick Municipal Court in May 1995 in
the position of clerk-cashier, a position
that she continues to hold.
Roberts worked at the cashier's window
and had little official contact with
Respondent. She alleged that shortly after
she was hired, Respondent found occasion to
walk through the area where she worked to pay
her compliments on her job performance, on
her looks, and on her dress, and that when
complimenting her, Respondent stood very
close to her. Respondent admitted having
complimented Roberts but denied that he had
stood very close to her, and the Committee
believes him. He also admitted that he had
once said to her that it looked as though she
were getting taller, the reference being to
the short skirt she was wearing. The
Committee finds that remark to be
inappropriate but relatively minor and
neither a violation of the Code of Judicial
Conduct nor an act of sexual harassment,
especially in the absence of an objection by
Roberts.
Roberts testified that on one occasion, she was leaning over the desk of another court employee and speaking to that employee when she felt someone touch her on the buttocks. She claimed that she turned around and saw Respondent, who was the only person
in the area behind her, as he began to walk
away. The employee on whose desk Roberts was
allegedly leaning, and who would have been
best situated to observe any such touching,
denied at the hearing that she had seen
anything of the sort described by Roberts.
The Committee finds that employee to be
truthful, and it concludes that Roberts'
allegation in this regard has not been
demonstrated by the requisite burden of
proof.
On Friday, November 17, 1995, Roberts
had the assignment of depositing court funds
in the bank, escorted by a police officer,
and then delivering municipal paychecks to
Respondent and the other judge of the New
Brunswick Municipal Court at their private
law offices. The versions of what occurred
at Respondent's law office vary sharply.
Roberts testified that when she entered
Respondent's outer office, he was at the far
end of the room, talking to a secretary who
was operating a typewriter. According to
Roberts, when she announced her presence,
Respondent looked up, said she was just the
person he wanted to see, and asked her to
wait for a minute. He finished his business
with the secretary, came over to Roberts and
took his check from her, and then asked
Roberts to step into his private office.
Roberts did as requested, and Respondent
asked her to wait for a moment while he took
a telephone call. When he finished the brief
call, he came out from behind his desk,
approached Roberts, and told her what an
excellent job she had been doing at the
court.
According to Roberts, Respondent then put his arms around her waist and drew her close to him, pressing himself against her leg as he did so. She claimed that he began to kiss her passionately, asking her at one point if she used "non-smear lipstick." Eventually, Roberts informed Respondent that the patrol car was waiting for her, and that she had to leave.
Roberts told him to call her at work to "talk about this."
Roberts testified that she was nervous and frightened when she
departed, and that no one was in the outer office when she left.
Respondent's testimony differed substantially from that of
Roberts. He stated that he was sitting in his private office and
overheard Roberts ask someone in the outer office if she could
see him. He testified that as Roberts entered his office, he
heard the phone ring in the outer office. Respondent's wife, who
worked as a secretary in the office, buzzed him on the intercom
to inform him that there was a call. Respondent took the call
and spoke to the caller for a minute or two. He got up from his
desk and walked to the front of the desk where Roberts was
standing. Respondent acknowledges that he put his arm around
Roberts, and that she put both her arms around him and "snuggled
up." He then asked Roberts if she was wearing smear-proof
lipstick. He testified that when he kissed her on the cheek she
reciprocated with encouragement of his advances. They kissed.
The Committee's findings continue:
Mary Stoia, a paralegal and legal
secretary for Respondent, testified that she
was in the outer office when Roberts arrived
on November 17, 1995. She corroborated
Respondent's version of how Roberts came to
enter his private office. Contrary to
Roberts' testimony that the outer office was
empty when she left, Stoia testified that she
was in the outer office, along with
Respondent's wife, when Roberts left.
According to Stoia, the three of them said
goodbye to one another and Roberts seemed
cheerful.
The Committee believes Stoia, finding
her truthful, and it accepts Respondent's
version of events in his inner office.
The Committee thus determined that Respondent's advance in
his office on November 17, 1995 was not unwelcome. Because it
was not unwelcome, the Committee determined that Respondent's
conduct did not constitute sexual harassment. See Meritor
Savings Bank v. Vinson,
477 U.S. 57, 65,
106 S. Ct. 2399, 2404-05,
91 L. Ed.2d 49, 55 (1986); Carrero v. New York City Housing
Auth.,
668 F. Supp. 196, 201 (S.D.N.Y. 1987). The Committee
found, however, that Respondent engaged in improper conduct by a
judge and that Respondent violated Canons 1 and 2 of the Code of
Judicial Conduct, in that his conduct was prejudicial to the
administration of justice and brought the judicial office into
disrepute. R. 2:15-8(a)(6).
The commentary to Canon 2 states that "a judge must avoid
all impropriety and appearance of impropriety and must expect to
be the subject of constant public scrutiny. A judge must
therefore accept restrictions on personal conduct that might be
viewed as burdensome by the ordinary citizen and should do so
freely and willingly.” By hugging and kissing Roberts, a
subordinate employee, even if those advances were not unwelcome,
Respondent engaged in conduct that embarrassed himself and his
judicial office. In addition, his conduct provided for Roberts
and the Papattos a factual predicate for their complaints of
sexual harassment. The Committee concluded that Respondent
should be privately reprimanded.
The Committee's findings concerning Sandra and Marlena
Papatto include the following:
Sandra and Marlena Papatto are twin sisters who have been employed by the New Brunswick Municipal Court in various capacities since 1980. They both alleged that Respondent made improper remarks to them, touched them against their will and over their objections, and frequently attempted to [cause them to engage in unwelcome kissing]. According to them, they were afraid to enter Respondent's chambers alone and frequently asked other employees to accompany them when they had to be in chambers. They also alleged that they had made complaints over the years to a variety of officials in the court and to their coworkers.
Two witnesses, a municipal prosecutor in
New Brunswick and the former presiding judge,
provided meager corroboration of one aspect
of the Papattos' testimony. The municipal
prosecutor testified that he had not seen
improper conduct by Respondent but that
Marlena Papatto had told him a few years ago
that she was not going to go into
Respondent's chambers alone because of an
incident in which Respondent tried to hug her
or touch her.
The former presiding judge testified that each of the
Papattos had told him several times during his tenure as
presiding judge that Respondent had made unwanted sexual advances
toward them. He denied that either of the Papattos had asked him
to take any sort of action against Respondent.
The overwhelming evidence of all other employees, past and
present, sharply contradicted that of the Papattos and sustained
Respondent's position that he never made sexual advances to the
Papattos. There was also evidence of hostility within this
municipal court, with the Papattos being aligned with a faction
hostile to Respondent. The Committee found the long delay by the
Papattos in bringing their complaint a matter of concern.
Having observed the Papattos and heard their testimony, the
Committee did not find them to be credible witnesses. It
rejected their allegations of sexual harassment as without merit.
Based on our own comprehensive review of the record, we
concur with and adopt the findings of the Committee.
As did the Committee, we find the testimony of the
complainants lacking in credibility. Based on the totality of
the record, we cannot conclude that the claims of sexual
harassment have been established by clear and convincing
evidence.
We also adopt the Committee's conclusion that Respondent's
conduct with regard to Sharon Roberts on November 17, 1995,
violated Canons 1 and 2 of the Code of Judicial Conduct and that
such conduct warrants a private reprimand. In view of the public
interest in this matter, reflected by media coverage of the
allegations against Respondent, we announce this discipline
publicly.
So Ordered.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, STEIN and COLEMAN join in the Court's opinion.
SUPREME COURT OF NEW JERSEY
D-
101 September Term 1996
IN THE MATTER OF :
TERRILL N. BRENNER, : ORDER
Presiding Judge of the :
New Brunswick :
Municipal Court :
The Advisory Committee on Judicial Conduct having
submitted to the Court a report concluding that JUDGE TERRILL M.
BRENNER, Presiding Judge of the New Brunswick Municipal Court,
violated Canons 1 and 2 of the Code of Judicial Conduct, and that
JUDGE TERRILL M. BRENNER should be privately reprimanded for that
conduct, and the Court having reviewed the record in the matter,
and good cause appearing;
It is ORDERED that JUDGE TERRILL M. BRENNER be and
hereby is privately reprimanded.
WITNESS, the Honorable Deborah T. Poritz, Chief Justice, at
Trenton, this 24th day of January, 1997.
/s/ Gail G. Haney
ACTING CLERK OF THE SUPREME COURT
NO. D-101 SEPTEMBER TERM 1996
Application for
Disposition Private Reprimand
Decided January 24, 1997
Order returnable
Opinion by PER CURIAM