On Tuesday, October 4, 2022, the Supreme Court of New Jersey publicly reprimanded former Superior Court Judge Arthur Bergman for engaging in an ex parte communication.

The judge was charged with violating Canon 1, Rule 1.1, Canon 2, Rule 2.1, and Canon 3, Rule 3.6(C) and Rule 3.8 of the Code of Judicial Conduct, which require:

Judges to observe high standards of conduct so that the integrity and independence of the judiciary may be preserved.

Judges to avoid impropriety and the appearance of impropriety and to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Judges, in the performance of judicial duties, to refrain from using words or conduct which manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice or harassment on the bases specified in Rule 3.6 (A).

Judges to prohibit from initiating ex parte communications concerning a pending or impending proceeding.

In the three-count formal complaint, dated October 19, 2020, the Advisory Committee on Judicial Conduct alleged that Bergman, while presiding over a civil case, engaged in an ex parte communication.

According to the committee, Judge Bergman was hearing a dispute between brothers Michael Hennessey and John Hennessey over two trusts established by their parents for the benefit of the five Hennessy siblings. A dispute erupted between the brothers over ownership of their parents’ former home.

In August 2016, John indicated that he accepted the home as his in-kind trustee distribution and allow his daughter, Thiel Hennessy Dragon, to act as its caretaker. In November 2016, Michael claimed his brother had no right to the home as an in-kind distribution from the trust. In May 2018, Judge Bergman ordered John to sell the home to the highest bidder, which turned out to be Michael.

John sought to be reimbursed for more than $110,000 for the home improvements. John filed certifications to document those repair costs, including one from Ben Oskierko, owner of a landscaping company.

To confirm those payments were made for the benefit of the trust and not John Hennessy and his daughter, Bergman called Oskierko and left a voicemail, identifying himself as “Judge Bergman,” according to the committee. The judge also instructed his law clerk to research Dragon’s marital status and see whether she owned her own “marital home” while living in the Millstone home.

In July 2019, Judge Bergman ruled against John Hennessey’s motions for the reimbursement of expenditures.

In his September 11, 2019 Supplemental Statement of Reasons, Judge Bergman stated:

“The reason the Court sought to contact Mr. Oskierko directly was due to the suspicious nature of his invoices submitted by Trustee and his daughter. One concern the Court had is that there might be no actual person signing the documents who performed the services, nor an actual firm, as the invoices appeared without any address or phone number in the record as submitted by the Trustee and his daughter. Moreover, as the Court indicated in its July 22 opinion, one of the invoices appears to be altered. Rather than rely on the Trustee to produce a witness, I considered it my duty to determine the availability of the witness, and then I would advise counsel that I would set a plenary hearing on whatever dates would be convenient to the witness.”

In its order, the Supreme Court accepted the committee’s recommendation to dismiss the charges in Count I – which alleged that Bergman provided a pretextual justification for calling a third-party witness on the phone – and Count III – which pertained to Bergman’s online research into Dragon – but found that the record supports by clear and convincing evidence the charges in Count II of the Formal Complaint that an impermissible ex parte communication had taken place when Judge Bergman left a voicemail for Oskierko.

The order reads:

“It is ORDERED that the charges in Count I and Count III of the Formal Complaint be and hereby are dismissed; and it is further

ORDERED that the findings as to Count II and the disciplinary recommendation of the Advisory Committee on Judicial Conduct are adopted and Arthur Bergman, a Judge of the Superior Court, is hereby publicly reprimanded.”

Judge Bergman has reached the mandatory retirement of age 70 since the initiation of this matter, but retired judges may still be disciplined.

Bergman has served in Superior Court since 2006. He earned his law degree from the College of William & Mary.

A copy of the original filing can be found here.