John J. Francis, Joseph G. Lyons and Walter H. Conklin, sitting as triers pursuant to statute.
[10 NJSuper Page 606] Miss Lillian Clawans, a member of the Bar of this State, filed an affidavit on the basis of which she seeks disqualification of Judge Alexander P. Waugh, Presiding Judge of the Essex County District Court. Following this action, by virtue of R.S. 2:26-194, Judge Waugh appointed the members of this special tribunal as triers of the challenge.
We then appointed an amicus curiae to appear in the proceeding, who, upon notice, moved to dismiss the challenge as being insufficient in fact and in law under the statute. At the conclusion of the argument counsel for the challenge indicated his agreement that the matters contained in the affidavit did not present a cause for recusation within the statute. Because of the general interest which has been exhibited in the action we have concluded to file this memorandum expressing our views on the subject.
The statute of New Jersey dealing with the disqualification of a judge sets forth four grounds which accomplish that result. They are:
1. Relation in the third degree to any of the parties to the action;
2. Where the judge has been attorney of record or counsel for a party to such action;
3. Where he has given his opinion upon a matter in question in such action; and
4. Where he is interested in the event of such action. (R.S. 2:26-193.)
The first and last of these causes are taken from the common law. The blood relationship exclusion is plain and needs no explanation. The "interest" referred to means a pecuniary interest and that alone.
In In re Hague , 103 N.J. Eq. 505 (Ch. 1928, Chancellor Walker), the opinion quotes with approval the following statement in County Commissioners of Charles Co. v. Wilmer , 131 Md. 175; 101 A. 686 (Ct. of App. 1917):
"'The contention made by the appellant is that the disqualification is caused by a sentimental as well as by a pecuniary interest' * * *. 'The constitutions or statutes of most, if not all, of the different states, contain a general provision to the effect that a judge shall not act as such in a cause in which he is interested; but the overwhelming weight of authority in construing the meaning that is to be attached to the provision is, that to bring about a disqualification, the interest must be a pecuniary or a personal right or privilege in some way dependent upon the result of the case as contradistinguished from every bias, partiality or prejudice which the judge may entertain with reference to the case.'"
The affidavit filed here does not seek the disqualification of Judge Waugh in a particular case. It seeks his general disqualification as a judge in all future cases in which Miss Lillian Clawans appears as attorney for a party, and the basic ground urged is that he is so biased and ...