Defendant New Jersey Association of Realtor Boards (hereinafter "Realtors") moves for an order disqualifying the Chancery Division judge in Vicinage 2 "and other judges of the State of New Jersey similarly situated from hearing this cause, pursuant to R. 1:12-2 and the general inherent equitable powers of the court, on the ground of the existence of bias and prejudice precluding a fair hearing and judgment or on the ground that defendants and the general public might reasonably believe that there exists such bias and prejudice; and appointing an impartial panel of lay arbitrators to hear and decide this cause."
Defendant, on oral argument, defined "similarly situated" to embrace all trial and appellate judges, including the Chief Justice and Associate Justices of the Supreme Court of New
Jersey and the Chief Justice of the United States and the Associate Justices of the Supreme Court of the United States.
The Supreme Court in State v. Bander , 56 N.J. 196 (1970), said:
This opinion is not to be understood to mean that what defendant here did, does not constitute the practice of law or that such conduct by one not a member of the Bar of this State is authorized or condoned by this Court. The question of whether defendant's acts amounted to the unauthorized practice of law was partially explored at the oral argument of the matter sub judice. It developed that the problem has so many ramifications that it could not be intelligently considered on the present record. As to that issue it is suggested that an answer might be obtained in a separate suit for an injunction against the type of acts undertaken by defendant or for a declaratory judgment. In this manner a complete and detailed record could be made disclosing, inter alia , the extent, length of existence, effect and result of the performance of similar acts by real estate brokers generally and the public need for such service. The Court could then give a valued and intelligent reply to such an inquiry. [At 202; emphasis supplied]
On August 20, 1971 plaintiff New Jersey State Bar Association (hereinafter "Bar") filed a class action against Realtors demanding injunctive relief from acts of defendants alleged to constitute the practice of law, preparing or executing legal instruments or arguments, advising third persons on legal questions, and declaring what services, conduct or practices constitute the practice of law. Plaintiff further requests the promulgation of court rules to prevent what is alleged to be the unlawful practice of law by realtors. An answer was filed and shortly thereafter came this motion.
Although there are many cases which consider the disqualification of individual judges for prejudice or bias, the relief here sought by defendants is without precedent, with possibly one exception. In Alamo Title Co. v. San Antonio Bar Ass'n , 360 S.W. 2d 814 (Tex. Civ. App. 1962), a local bar association sought to enjoin a title insurance company from preparing certain legal instruments in real estate transactions. There the attack was directed at the trial judge. The court said:
It is insisted the trial judge was disqualified because of membership in the State Bar of Texas, a party to the suit. The contention is overruled. Art. 5, Sec. 7 Texas Constitution, Vernon's Ann St.; Art. 320a-1, Sec. 3, Vernon's Ann. Tex. St.; Hidalgo County Water Improvement Dist. No. 2 v. Blalock , 157 Tex. 206, 301 S.W. 2d 593, 597. To sustain it would be to hold no State tribunal could exist in this case. Equity will not suffer a wrong to be without a remedy. [At 817]
Within the scope of the present disqualification motion are appellate judges at all levels, state and federal. Defendants suggest a "tribunal" of lay arbitrators, from whose decision there could be no appeal to any other forum.
In this controversy there is an encounter between two professions. In the final analysis the resolution must be based solely on consideration of the public need and interest rather than the parochial interests of either party. With this as the polestar, on this motion there is no necessity to review the history of the conflict between the two groups. This may be relevant when the matter is ultimately considered on the merits somewhere by a judge or other duly appointed adjudicators. The motion only requires a determination of disqualification of all judges and the propriety of appointing a lay board in substitution.
To ask a trial court to order the disqualification of the Chief Justice of the United States and the Chief Justice of New Jersey truly boggles the mind. The judicial oath taken by this court does not permit it to shrink in fear ...