By Zach Viglianco
September 19, 2013 was a pretty miserable day for Vince Sicari of South Hackensack New Jersey. Interestingly enough, September 19th may turn out to be a pretty important day for another Vince from South Hackensack, Vince August. The first Vince lost his job after a court order; the other gained the sort of unique story that becomes the beginning of a solid stand-up comedy routine. You see, Vince Sicari was a part-time municipal judge who moonlighted as a comedian. On the 28 or 29 days a month he wasn’t meting out Solomonic justice in a municipal court room in South Hackensack, Sicari could usually be found performing stand-up comedy at clubs in New York and California. Meanwhile, aspiring comedian Vince August, a sometimes performer on the ABC reality show “What Would You Do” and frequent performer at comedy clubs in New York and California was revealed to have a second career as a municipal judg? HEY WAIT A MINUTE.
Yes, if the preceding paragraph didn’t make it clear, the two Vinces are actually just one man, Vincendo August Sicari, the so-called “joking judge.” Sicari, who has been practicing law in New Jersey since 1996, is a beacon of hope for every law student or legal professional who believes they have the talent or skill to do something cool with their life but have been beaten down by reality and are resigned to the fact that they are going to be stuck doing necessary (and sometimes important) but creatively-unfulfilling-and-not-nearly-as-cool-as-entertaining-other-people-with-your-comic-stylings work for the rest of their life. Sicari spent a decade in private practice while maintaining his (ever so crafty, Clark Kent-esque) double identity, while cultivating a fairly successful comedy career. Sicari has been a regular performer at Carolines on Broadway, a well-known New York City comedy club located in Times Square, and obtained a semi-regular gig as a “warm-up comedian”— a sort of opening act for the studio audiences at the Daily Show with John Stewart and other Comedy Central shows.
A newspaper article in 2007 made his dual careers public, but that did not prevent the mayor of South Hackensack from reaching out to Sicari and appointing him a municipal judgeship in 2008. After accepting that appointment, Sicari, of his own accord, brought his comedy career to the attention of the relevant ethical authorities, which issued an advisory opinion requiring Sicari to stop being a comedian while he remained a judge. Sicari appealed, which culminated in the 33 page opinion from the Supreme Court of New Jersey issued on the 19th. In that opinion (read it for yourself athttp://www.judiciary.state.nj.us/opinions/supreme/A2310AdvisoryLetter.pdf) the Supreme Court cited to Canon of the Code of Judicial Conduct, which requires that judges, “avoid impropriety and the appearance of impropriety in all activities” and directs judges to “always guard against the appearance of bias or partiality or the perception of prejudgment of issues likely to come before them . . . and not risk subjecting themselves to improper influence or the appearance of being so subjected.” Official commentary by the authors of the Canons also state that “expressions of bias or prejudice by a judge, even outside the judge’s judicial activities, may cast reasonable doubt on the judge’s capacity to act impartially as a judge.” The New Jersey Supreme Court, noting that some of Sicari’s routines touched on sensitive subjects like race, religion and sex, as well as the fact that some of the characters he portrayed on the ABC reality show (which is designed to see how people will react to awkward situations, like a security guard engaged in racial profiling) were engaged in prejudicial or bigoted behavior, held that the mere potential that an individual appearing before him in court might recognize him as comedian Vince August and doubt his impartiality was enough to prevent Sicari from continuing as both a judge and comedian. The holding acknowledged that there was no evidence that Sicari was anything but professional when acting in his judicial capacity; it also held that Sicari could continue his comedy career as a private attorney, but that judges were held to a higher standard.
Sicari has decided to resign from his judicial position in response to the ruling, a decision he maintains was motivated predominately by economics—he makes significantly more money performing than he would as a part-time judge. But what if Sicari wanted to fight the ruling? Does he have a First Amendment claim?
Maybe. In a 2002 decision, Republican Party of Minnesota v. White, the United States Supreme Court struck down a statute that prohibited judicial candidates or sitting judges engaged in campaigning from speaking about topics that might one day come before those candidates as sitting judges. The State, in offering a defense of the statute, argued that it served two critical governmental interests: preserving the impartiality of the state judiciary, and preserving the appearance of the impartiality of that judiciary. Justice Scalia, writing for the majority, examined several notions of what the State might mean by impartiality. He discussed several conceptions of the term, including “open-mindedness” and “a lack of bias for or against either party to the proceeding.” Characterizing the interest the State was trying to as essentially “[the] guarantee [to] a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party” the majority ultimately held the Minnesota statute to violate the First Amendment.
The analogy between statements uttered in the context of a political campaign and those on stage at a comedy club is certainly not perfect, but the principle underlying the opinion in White is not entirely inapplicable. Justice Scalia’s opinion acknowledges the fact that judges are human beings, human beings with the same sort of thoughts and views and musings about the world that everyone else has. Putting on a black robe does not transform someone into a judicial robot, devoid of the sum of experiences and thoughts they have accumulated over their lifetime. But even more importantly, Scalia’s opinion implicitly acknowledges that even judges with a previously expressed viewpoint on a particular issue (say for instance, gay marriage, as referenced in the opinion) are not necessarily going to hand down a ruling that comports with their personal preference. And if they do issue a ruling that lines up with their personal preference, they are likely doing so because, to use Scalia’s words, “the judge is applying the law (as he sees it) evenhandedly.” The judge isn’t ruling the way he is ruling simply because he wants to, he is ruling the way he is ruling because that is his interpretation of the law. There are limits to this line of reasoning, of course, but the acknowledgement that judges are people and not surrendering to the clichéd notion that judges are, to paraphrase Chief Justice Roberts like umpires , is a refreshing concession to reality. Anyone who has spent a single day in law school knows that a vast majority of cases deal with law that requires interpretation. And it is impossible to engage in interpretation in a vacuum.
I’m not saying that judges shouldn’t be required to recuse themselves in certain situations. I’ve read Caperton v. A.T. Masset Coal (the US Supreme Court case stemming from the Don Blankenship/Brent Benjamin controversy) and I understand that the appearance of impropriety is a problem. I acknowledge the fact that the power of the judicial branch flows largely from the respect afforded to it by the general public. But at the same time, the kind of collusive activity discussed in Caperton feels fundamentally different to me than Vince Sicari’s politically incorrect jokes. Maybe there isn’t a principled distinction that can be made between these sort of activities, and it is better to err on the side of caution. But absent evidence that Sicari actually acted in an unprofessional manner (remember there was none), I don’t see his comedy career inflicting some great harm on the reputation of the judiciary.
Ultimately, I don’t feel too bad for Sicari, given that the publicity is likely to help his career, and at the very least he has the perfect fodder for a new routine. Something along the lines of, “Yeah, so there was a guy who spent 50 years as the only judge in this West Virginia county (if you’re confused about where this is going, Google “Michael Thornsbury or Mingo County Corruption”). And this guy, the judge, I mean, he decided thousands of cases—criminal cases, wrongful death suits, breach of contract you name it. Finally he tries to use his position to wrongly imprison his mistresses husband? and that is when they finally realize how crooked he is. Hear me out: this judge had false charges filed against a guy, so he could put him in prison, to get him out of the way so he could keep sleeping with the guy’s wife? but don’t worry, the New Jersey Supreme Court is keeping the reputation of the legal profession pristine by ensuring that old Vince isn’t doing comedy on Friday nights.” No good? Well, I guess there’s a reason I’m in law school? what do you think I am, some kind of Vince Sicari?
