SE Texas Record

Sunday, December 15, 2019

Legally Speaking: Moonlighting Judges

By John G. Browning | Jan 3, 2011

It's no secret that judicial salaries are low compared to what judges could command as attorneys working in the private sector.

Some judges supplement their incomes with occasional gigs writing or teaching in law schools. But for most jurists, the ethical restrictions and rules against continuing to maintain a private law practice mean that their government paycheck is the only one they'll be drawing.

A number of states go beyond that, demanding that their judges refrain from being paid for or even taking part in outside activities that might "detract from the dignity of the judicial office or interfere with the performance of judicial duties," however unrelated these activities might be to the legal system.

New Jersey has some of the toughest prohibitions against judges having outside sources of income. South Hackensack Municipal Judge Vincenzo Sicari is finding this out.

For years, the 41-year-old jurist has had a sideline performing as a stand-up comic under the name "Vince August." In early 2010, the New Jersey Supreme Court's Committee on Extrajudicial Activities quashed that extra job, citing the fact that audience members might recognize him as a judge and that some of his more "off color or inappropriate" comedy material could imply a bias that might carry over to his work on the bench. Judge Sicari has appealed to the state supreme court.

For Kenneth Del Vecchio, on the other hand, the fight wasn't worth it. The 41-year-old lawyer and former municipal prosecutor became a part-time municipal judge in January 2010. It was a three-day-per-month, $25,000-a-year gig presiding over relatively minor matters like bail applications and driving offenses.

But for years, Mr. Del Vecchio's passion has been in filmmaking. He writes, produces, directs, and even acts in relatively low budget (under $1 million) films, many of which are politically charged (a 2009 effort, "O.B.A.M. Nude," is an anti-Obama satire about a man who achieves the presidency with the help of the Devil).

In May, a state judicial panel ruled that Del Vecchio's judicial post and film career created an ethical conflict. Rather than appeal the decision, Del Vecchio opted to quit his job as a municipal judge and continue his moviemaking. He's produced a dozen movies so far, and he is also the founder and creative force behind the annual Hoboken International Film Festival.

New York has had similarly broad prohibitions against judges taking outside employment. In June, New York's Advisory Committee on Judicial Ethics issued an opinion concluding that judges could be compensated for "occasional" outside artistic activities.

The Committee said it's fine for a judge to "pursue his/her artistic or other creative endeavors as a hobby and may seek compensation for such endeavors on an occasional basis," that include things like "part-time employment as a solo musician ... for a fee, for family, friends, neighbors and others who are unlikely to appear in the judge's court," or selling art.

That's music to the ears of Acting New York Supreme Court Justice Matthew D'Emic. The 57-year-old jurist plays a mean bass guitar, a talent that kept him busy playing in bands while attending Fordham University and Brooklyn Law School, and helped him pay for both.

But the demands of a busy law practice limited D'Emic to only occasional playing. In 1996, he was appointed by then-Gov. George Pataki to a position on Brooklyn's Supreme Court, where he presides over domestic violence and mental health cases.

Soon after the June Advisory Committee ruling, though, D'Emic experienced a familiar pull back to the stage. After an impromptu jam session at the graduation party for a former bandmate's son, D'Emic's trio reunited and has played a couple of unpaid gigs, including one at the judge's alma mater, Brooklyn Law School.

Although playing everything from the Beatles and Chuck Berry to the Eagles can bring in some extra money, Judge D'Emic is realistic about the demands of his day job, and says he plays "less for the money, more for the fun."

Some judges, though, do want a chance to boost their income by moonlighting. In October, acknowledging the fact that state judges in New York haven't had a pay raise in 12 years (N.Y. judges make $136,700 annually), Chief Administrative Judge Ann Pfau loosened the restrictions on outside employment.

While cautioning that "core principles affecting outside employment still apply," and that procedures will continue to be in place to protect the public's confidence in the judiciary, Judge Pfau said that the Office of Court Administration would now review judges' proposals for outside employment.

Even with relaxed rules governing a judge's extracurricular activities, don't expect to pull up to a drive-through window anytime soon and tell your friendly neighborhood judge "supersize that, your honor."

Throughout the U.S., states continue to keep a watchful eye on any outside activities by judges. In December, a South Carolina judicial ethics panel ruled that a recently-elected probate judge (who happens to be a licensed funeral director) can't continue to work weekends at a funeral home, reasoning that it could involve "frequent transactions with persons likely to come before the court on which the judge serves."

In Massachusetts, the State Commission on Judicial Conduct has filed misconduct charges against Judge Michael Livingstone for allegedly continuing to operate a real estate business.

Judges unsure of the ethical gray areas that may be presented by their avocations usually check first with their state's governing body. Like New York, Wisconsin and Massachusetts permit judges to sell artwork. In Illinois, one judge was granted permission to play violin at a wedding, while another was allowed to work as a professional stage actor in a play. In Ohio, Arizona, and Massachusetts, judges have been allowed to go from refereeing courtroom disputes to acting as football, soccer, and softball referees.

Judges are asked to sacrifice a great deal (particularly financially) when they don the black robes and assume the mantle of public service. And while no one wants to see a judge moonlighting in a way that impacts the dignity of the office or erodes the public's trust in his or her impartiality, I see nothing wrong with a jurist occasionally scratching that creative itch.

Without it, we wouldn't be treated to the occasional rock and blues stylings of Dallas District Court Judge Marty Lowy and his band "Blue Collar Crime" (which has helped raise money for worthy causes like indigent legal defense) or the writings of Houston U.S. District Judge Vanessa Gilmore (who just came out with her self-published book, You Can't Make This Stuff Up: Tales From a Judicial Diva).

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New York Supreme Court