On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FM-14-576-98.
Judges Petrella, Newman, and Braithwaite.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 20, 2001
Plaintiffs Richard S. Panitch and G.R. Wholesalers, Inc. (GRW)*fn1 appeal on leave granted from the denial of their motion to recuse the trial judge. Plaintiffs argue that the Family Part Judge, who presided over pretrial motions and case management proceedings in the contested matrimonial litigation between Panitch and his wife, Lisa M. Panitch, made improper remarks and took certain actions that are indicative of bias and prejudgment of certain issues, thereby warranting recusal. Specifically, plaintiffs allege that several comments made by the judge violated the Code of Judicial Conduct.
After hearing argument, the judge denied the recusal motion. The judge stated that he was not prejudiced in the case and that anything he said was a "blast of frustration" directed toward the fact that Richard Panitch, who is a lawyer with a large law firm in this State, was continually delaying the discovery process by failing to cooperate with the court-appointed mediator and accountant, who was to appraise motel property owned by Richard Panitch. Lisa Panitch requested the judge to make a determination as to the source and use of the income from the motel for the purpose of calculating alimony.
R. 1:12-2 provides "[a]ny party, on motion made to the judge before trial or argument and stating the reasons therefor, may seek that judge's disqualification." A motion for recusal may be granted for any "reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so." R. 1:12-1(f). Such a motion must "be made before trial or argument." N.J.S.A. 2A:15-50; Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div.), certif. denied, 77 N.J. 468 (1978). The disposition of the motion is, at least in the first instance, entrusted to the "sound discretion" of the trial judge whose recusal is sought. Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990); Bonnet, supra (155 N.J. Super. at 330).
It is improper for a judge to withdraw from a case upon a mere suggestion that he is disqualified "unless the alleged cause of recusal is known by him to exist or is shown to be true in fact." Hundred East Credit Corp. v. Eric Schuster, 212 N.J. Super. 350, 358 (App. Div.), certif. denied, 107 N.J. 60 (1986). The challenged judge who hears the motion should clearly set forth the "objective and subjective bases for the ultimate decision." Magill, supra (238 N.J. Super. at 65). In construing the analogous federal statute on judicial disqualification, Justice Kennedy stated in a concurring opinion that "[i]f through obduracy, honest mistake, or simple inability to attain self knowledge the judge fails to acknowledge a disqualifying predisposition or circumstance, an appellate court must order recusal no matter what the source." Liteky v. U.S., 510 U.S. 540, 563, 114 S. Ct. 1147, 1161, 127 L. Ed. 2d 474, 495-496 (1994) (Kennedy, J., concurring). "Litigants ought not have to face a judge where there is reasonable question of impartiality..." Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993).
It is unnecessary to prove actual prejudice on the part of the court, but rather "the mere appearance of bias may require disqualification.... However, before the court may be disqualified on the ground of an appearance of bias, the belief that the proceedings were unfair must be objectively reasonable." State v. Marshall, 148 N.J. 89, 279, cert. denied, 522 U.S. 850 (1997).
Plaintiffs argue that the Family Part Judge's actions violated Canons 2A and 3A(3) of the Judicial Code of Conduct and ...