On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-15575-88.
Before Judges Petrella, Kestin and Alley.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 10, 2001
In this post-divorce-judgment matter, defendant, Letitia Cox- Rivers, appeals from the trial court's order of February 23, 2001, after a plenary hearing, allocating the parties' custodial and financial responsibilities for their three college-age children, including arrearages and the maintenance of life insurance coverage. Without addressing the substance of the order, we vacate it and remand the matter for consideration anew by another judge.
After the entry of the February 23 order, defendant moved, returnable March 28, 2001, for a rehearing and recusal of the judge or, alternatively, for vacation or amendment of the order. Defendant filed a certification in support of the motion. Among the reasons advanced for the judge's recusal was the following:
In addition to what I feel was biased treatment during the past few months from [the judge], I recently retrieved an order filed December 3, 1987 in Somerset County during a legal separation between defendant and plaintiff prior to the divorce in this matter wherein [the judge as a practitioner with a law firm then representing the current plaintiff] appeared on November 13, 1987 as counsel for plaintiff (then defendant).
The December 3, 1987 order referred to was attached as an exhibit. It noted the described appearance.
The judge decided the motion on the papers, explaining his reasons in an oral opinion on April 6, 2001. In disposing of the foregoing contention, the judge said:
I certainly didn't recall that. Actually, that was between . . . Edna L. Rivers and Maxie L. Rivers. I'm guessing that was his prior divorce action, unless Edna is also Letitia, which may be saw her most recent papers, I -- I don't believe that she just recently found that out.
I suspect that she did know that for quite some time and chose not to even say anything to me, and so . . . at the very best I think she waived . . . that right to ask for that.
But in any case, I didn't know that I represented him, and there certainly was no bias on my part to Mr. Rivers, and if she doesn't like . . . the decision, she can certainly take an appeal.
We vacate the February 23, 2001 order because of the need to apply a bright-line rule: Except when required by the rule of necessity,*fn1 where a judge has previously represented one of the parties in a matter before him against the other, any judicial action taken is a nullity, whether the conflict comes to light during the proceedings before an order enters or reasonably soon following the conclusion of the matter after an order has been entered. See N.J.S.A. 2A:15-49b; R. 1:12-1(c), (f). That result is required by the need "to maintain public confidence in the integrity of the judicial process, which in turn depends on a belief [by litigants and the general public alike] in the impartiality of judicial decisionmaking." State v. Kettles, ___ N.J. Super. ___, ___ (App. Div. 2001) (slip op. at 5) (quoting United States v. Nobel, 696 F.2d 231, 235 (3d Cir. 1982), cert. denied, 462 U.S. 1118, 103 S. Ct. 3086, 77 L. Ed. 2d 1348 (1983) (alteration in original)). We hold further, as we did in Kettles, that the conflict is non-waivable by the parties, either expressly or implicitly. If a judge is precluded from presiding over a matter in which a former client is involved, especially where the current adversary is the party against whom the prior representation occurred, any action taken by the judge as a result of the proceeding cannot be recognized as valid.
Although the principle on which we rely was applied in Kettles and Nobel in criminal prosecutions, see also State v. Tucker, 264 N.J. Super. 549, 554-55 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994); State v. Horton, 199 N.J. Super. 368, 374-77 (App. Div. 1985); Mustafoski v. State, 867 P.2d 824, 835-36 (Alaska Ct. App. 1994), the public policy imperatives are the same in civil cases. See, e.g., Sharp v. Howard County, 607 A.2d 545, 551 (Md. 1992) ("When a judge has appeared as counsel in an earlier stage of the same adversarial proceeding, there is no question that the judge has advocated the client's cause, and recusal is automatic because of the danger of an appearance of partiality."); Murray v. Murray, 424 N.Y.S.2d 50, 51 (App. Div. 1980) (Where a party had previously consulted the judge as a practitioner about "marital difficulties and child support," but had not retained her, the judge was nevertheless required to disqualify herself from presiding over a divorce case involving the same parties.); Cummings v. Christensen, 439 N.Y.S.2d 825 (Fam. Ct. 1981) (Where the judge had previously been involved as law guardian for the children in a marital custody proceeding, disqualification was required in a subsequent suit involving the same parties. Neither disclosure nor consent could cure the conflict and the required recusal.). To the extent Bonnet v. Stewart, 155 N.J. Super. 326 (App. Div.), certif. denied, 77 N.J. 468 (1978), can be read to stand for a different result, we regard it as distinguishable on its facts. In Bonnet, there was no identity of both parties in the litigation at hand with both parties in the prior proceeding. Here, not only are the parties identical but the underlying subject matter is the same, i.e., ...