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Magill v. Casel

Decided: January 22, 1990.

GLENN MAGILL, PLAINTIFF-APPELLANT,
v.
DR. BERNARD CASEL, DEFENDANT



On appeal from the Superior Court, Law Division, Atlantic County.

Deighan, R.s. Cohen and Brochin. The opinion of the court was delivered by Cohen, R.s., J.A.D.

Cohen

This is a medical malpractice case. When it came on for trial, plaintiff's attorney (the Attorney) moved for the trial judge (the Judge) to recuse himself. The motion was denied. The Attorney sought to make the motion apply to all future cases involving his law firm, but the Judge ruled only on this case. After the trial, which resulted in a plaintiff's verdict, the Attorney filed a notice of appeal.

The Attorney then made a motion in this court to disqualify the Judge in all future cases handled by his firm. Another part of this court directed that the motion first be made to the Judge sought to be disqualified. The motion was not made.

We know about this appeal only what appears in an informal record prepared by the Attorney. It includes partial transcripts in earlier cases handled by the Attorney before the Judge, the argument on the motion to recuse in this case, a complaint previously filed by the Attorney with the Advisory Committee on Judicial Conduct, and the Committee's response. The Attorney's brief contains a Statement of Facts which goes beyond the record and is of course unsworn and uncertified. The Judge's opinion denying the motion to recuse is terse and not factually informative. With reservations, therefore, about the completeness of our information, we proceed.

The Attorney is a partner in a law firm that represents plaintiffs in personal injury actions. The Judge sits in the Law Division in the county where the firm has its offices. In 1986 and 1987, the Attorney had occasions to appear before the

Judge. He says his experiences led him to believe that the Judge was biased against plaintiffs and against the Attorney himself, and that he openly displayed his partiality before juries. In October 1987, the Attorney made a complaint to the Advisory Committee on Judicial Conduct.

After that, according to the Attorney, he and his partners did not find themselves in the Judge's courtroom. No ruling was made on the subject that he was aware of but, apparently with the exception of one pretrial conference, the Judge was not assigned any of the Attorney's firm's matters for over a year.

In August 1988, this case was assigned by the Judge to himself for immediate trial. The Assignment Judge was away at the time. On the record at the call, the Attorney said he had assumed his matters were not to come before the Judge, who replied, "The Rule is no longer continuing." The attorney said that "at some point" he was going to make an application. "Make it right now," replied the Judge. There follows a colloquy between the attorney and the Judge consuming 13 transcript pages, including the Judge's ruling denying the motion. There were no written motion papers, and no other record made. Counsel for defendant Casel did not participate.

The Judge prepared and signed an order denying the motion. It referred to his orally stated reasons and said they included the Judge's belief that "the actions of the attorney are designed to judge shop and because the judge has firmly concluded he is above bias or prejudice to the attorney or his client."

The condition of the record before us makes the case unreviewable. Ordinarily, we would tax the moving party with deficiencies in his application below or in the record he presents to us. Here, however, the oral motion to recuse could not have been prepared in advance. The resulting record is a fragmentary one, and perhaps one-sided. It contains accounts of courtroom events in ...


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