NJ judge must recuse if they have cases with defense attorney State v. Terence McCabe

NJ judge must recuse if they have cases with defense attorney

State v. Terence McCabe

  (A-88-08)

Decided January 25, 2010

RABNER, C.J., writing for a unanimous Court.

The issue in this appeal is whether a part-time municipal court judge must recuse himself when the judge and the defense attorney are adversaries in an unrelated, pending probate case that has been dormant for two years.

In 2008, defendant Terence McCabe was charged with failure to turn over a controlled dangerous substance, a disorderly persons offense. The matter was referred to the municipal court in Morris Township. McCabe hired Alan S. Albin, Esquire, to represent him. After the first court appearance, Albin realized that he and the municipal judge, the Honorable Robert J. Nish, J.M.C., were opposing counsel in an open, unrelated probate case that was pending in the Superior Court. Judge Nish, in his capacity as a private attorney, represented a claimant against an estate who challenged the validity of a will. Albin represented the executrix of the estate, who was defending the will. The probate case had earlier been dismissed for failure to respond to discovery requests. The complaint was reinstated on August 18, 2006, on an application by attorney Nish, after his client provided answers to interrogatories. The order entered that day was the last activity in the probate case.

In September 2008, McCabe filed a motion to recuse Judge Nish. He argued that recusal was necessary to avoid an actual or potential conflict of interest and an appearance of impropriety. At oral argument, Albin stressed that although the probate matter had been inactive for two years, it was still a pending, active case. Judge Nish denied the motion, finding that the dormant probate case caused no prejudice to McCabe and did not create an apparent conflict of interest. Judge Nish gave McCabe time to seek leave to appeal his decision.

In November 2008, the Superior Court denied McCabe's motion for leave to file an interlocutory appeal without hearing oral argument. In a statement of reasons, the court cited to Rule 1:12-1(f) and concluded: "That counsel for the defendant and the judge represented adverse parties in a Probate matter without more is not the basis for a reasonable belief that a `fair and unbiased hearing and judgment' would not occur."

Albin then filed a motion to dismiss the probate case for lack of prosecution. The unopposed motion was granted, and the case was dismissed without prejudice on December 4, 2008. In the municipal court matter, McCabe next sought leave to file an interlocutory appeal with the Appellate Division. The motion was denied in January 2009. The Supreme Court granted McCabe's motion for leave to appeal and ordered a stay of the municipal court proceedings pending the outcome of this appeal. 198 N.J. 471 (2009).

HELD: Part-time municipal court judges must recuse themselves whenever the judge and a lawyer for a party are adversaries in some other open, unresolved matter.

1. There are 528 municipal courts throughout the State. Presiding over those courts are 318 part-time and 22 full-time judges. In contrast to full-time judges, part-time municipal court judges can engage in the private practice of law, subject to certain restrictions. Municipal courts consider violations of traffic laws, violations of ordinances, disorderly persons offenses, and various other proceedings. For the 2008-09 court year, the municipal court system handled approximately 6.3 million cases. For millions of New Jerseyans each year, municipal court judges are the face of the Judiciary. Ensuring both conflict-free, fair hearings and the appearance of impartiality in municipal courts is vital to our system of justice.  

2. As the Court stated in DeNike v. Cupo, 196 N.J. 502 (2008), Canon 1 of the Code of Judicial Conduct articulates the bedrock principle that "an independent and honorable judiciary is indispensable to justice in our society." Pursuant to Canon 2, judges must avoid all impropriety and appearance of impropriety. They must avoid acting in a biased way or in a manner that may be perceived as partial. To demand any less would invite questions about the impartiality of the justice system and threaten the integrity of our judicial process.  

3. Two additional rules address disqualification. Canon 3(C)(1) provides that a judge "should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Rule 1:12-1(f) instructs judges not to sit in a matter when there is any "reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." Thus, it is not necessary to prove actual prejudice. The mere appearance of bias may require disqualification. In DeNike, those principles guided the Court to the following standard for recusal: "Would a reasonable, fully informed person have doubts about the judge's impartiality?" ( )

4. As an initial matter, this case is not moot. The after-the-fact dismissal of the probate case cannot cure an appearance problem that might have existed at the time the recusal motion was heard.  

5. The Court reviews de novo whether the proper legal standard was applied to the motion for disqualification. In this case, the municipal court judge mistakenly focused on whether McCabe had suffered any prejudice. The Superior Court addressed Rule 1:12-1(f), but did not speak to the possible appearance of impropriety.  

6. There is no evidence of bias, unfairness, or animosity between the municipal judge and defense counsel in this case. The core problem relates to the probate case, which was still pending when the McCabe matter reached Judge Nish's courtroom. Although there had been no activity in that case for two years, Judge Nish and Mr. Albin were still adversaries in an open matter -- they were not former adversaries in a prior matter. Allowing a judge to oversee a case in which the defendant's attorney is also the judge's adversary in another pending matter is to invite reasonable doubts about the judge's partiality. That, in turn, raises reasonable questions in the minds of litigants and the public about the fairness of the proceedings and the overall integrity of the process. For those reasons, disqualification is required in this case.  

7. To offer guidance to municipal judges and litigants and to help ensure the confidence of the public in the judicial system, the Court adopts a bright-line rule: Part-time municipal court judges must recuse themselves whenever the judge and a lawyer for a party are adversaries in some other open, unresolved matter.  

8. When the lawyer and judge were former adversaries in a closed case, that fact alone will not compel recusal. In those situations, judges should evaluate the factors in Rule 1:12-1 and other relevant considerations, including any history of animosity between counsel and how recently they were adversaries.  

Chief Justice Rabner wrote for the court:

“Judges are "to act at all times in a manner that promotes public confidence," id. Canon 2(A), and "must avoid all impropriety and appearance of impropriety," id. commentary on Canon 2 (emphasis added). Indeed, as this Court recognized nearly a half century ago, "`justice must satisfy the appearance of justice.'" State v. Deutsch, 34 N.J. 190, 206 (1961) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954)). That standard requires judges to "refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question." Ibid. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial. To demand any less would invite questions about the impartiality of the justice system and thereby "threaten[] the integrity of our judicial process." State v. Tucker, 264 N.J. Super. 549, 554 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).

[DeNike, supra, 196 N.J. at 514-15.]

Two additional rules focus directly on the subject of disqualification. Canon 3(C)(1) of the Code of Judicial Conduct provides that "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Likewise, Rule 1:12-1(f) instructs judges not to sit in any matter "when there is any . . . reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so."2

Our rules, therefore, are designed to address actual conflicts and bias as well as the appearance of impropriety. In evaluating McCabe's recusal motion, the municipal court judge looked for proof of prejudice to McCabe. Yet "it is not necessary to prove actual prejudice on the part of the court[;] . . . the mere appearance of bias may require disqualification. . . . [T]he belief that the proceedings were unfair must be objectively reasonable." State v. Marshall, 148 N.J. 89, 279 (citing R. 1:12-1(f)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997).

In DeNike, supra, those principles guided us to the following standard to evaluate requests for recusal: "Would a reasonable, fully informed person have doubts about the judge's impartiality?" 196 N.J. at 517. That same test, of course, also applies to municipal court judges. See, e.g., State v. McCann, 391 N.J. Super. 542, 554 (App. Div. 2007) (requiring recusal for appearance of impropriety when municipal court judge issued search warrant for residence of defendant he once represented); State v. Perez, 356 N.J. Super. 527, 532 (App. Div. 2003) (requiring recusal when municipal court judge made comments that "reasonable person would take as reflecting bias" against minority group).”

       The Supreme Court also held in McCabe

“When recusal is necessary, the municipal court case can be transferred to another judge in the same or a nearby municipal court. R. 7:8-2(b). Because we focus on conflicts posed by pending matters, that approach should not impose a heavy burden on the Judiciary, as the State suggests. Whatever the burden, though, it must be met, because the cost to the Judiciary's reputation otherwise would be greater.”