June 20, 2013
DEBORAH CARR, Plaintiff-Respondent/ Cross-Appellant,
HARRY J. CARR, Defendant/Third Party Plaintiff-Appellant/ Cross-Respondent,
RICHARD QUICK, SANDRA QUICK, HIS WIFE, JOHN RODDY, LISA RODDY, HIS WIFE, AND RUDOLPH POLAKOVIC AND HELEN POLAKOVIC, HIS WIFE, Third-Party Defendants-Fourth-Party Plaintiffs,
DEBORAH CARR AND HARRY J. CARR, Fourth-Party Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 4, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-937-06.
Harry J. Carr, appellant/cross-respondent, argued the cause pro se.
James P. Yudes argued the cause for respondent/cross-appellant (James P. Yudes, P.C., attorneys; Mr. Yudes and Karen T. Willitts, on the brief).
Before Judges Yannotti and Harris.
In this post-divorce-judgment matter, defendant Harry J. Carr appeals from the Family Part's orders of (1) February 28, 2012 (enforcing the June 29, 2011 final judgment of divorce and a January 3, 2012 post-judgment order); (2) May 8, 2012 (denying reconsideration); and (3) August 8, 2012 (denying the motion judge's disqualification, a stay, and attorneys' fees). Without addressing the substance of any of the orders except the motion judge's failure to recuse herself, we reverse the denial of recusal, vacate all other provisions of the orders, and remand the matters for consideration anew by another judge.
We glean the following facts from the record of the several post-judgment motions. Plaintiff Deborah Carr commenced the present litigation in April 2006, seeking to dissolve the parties' almost-eighteen-year marriage. In June 2006, Mr. Carr filed an answer, counterclaim, and third-party complaint. The third-party action implicated material issues concerning equitable distribution. It sought remedies against Mrs. Carr's parents, sisters, and brothers-in-law relating to the ownership of real estate in Bernardsville occupied by the third-party defendants.
In order to defend the third-party action that sought to evict them from their separate dwellings, Mrs. Carr's family members jointly hired counsel, initially Timothy McKeown of Norris, McLaughlin & Marcus,  and then, in April 2007, Mark Sobel of Greenbaum Rowe Smith & Davis LLP (Greenbaum Rowe). Mr. Carr was represented by Bruce Nagel in connection with the issues raised in the third-party action.
In the course of the hotly contested litigation, third-party defendants' finances became exhausted. To enable her family members to continue to defend (and advance) their positions, Mrs. Carr lent them money for legal fees, which ultimately were paid to Greenbaum Rowe. At no time was Mrs. Carr herself represented by Sobel or Greenbaum Rowe, and none of the legal fees were directly remitted to that firm by her. When Mrs. Carr filed for divorce, she was represented by James P. Yudes. Yudes continued as her attorney throughout the Family Part proceedings and represents her in this appeal.
A Family Part judge commenced the trial on October 26, 2009. On April 8, 2010 —— the thirty-eighth trial day —— a settlement was reached with the third-party defendants. After placing the settlement terms on the record, all disputes among the parties and third-party defendants ended. However, countless unresolved issues remained between Mr. and Mrs. Carr, which caused the trial to continue for an additional seventeen days. In that span, Sobel did not participate.
The testimonial phase of the trial ended on May 26, 2010. Thirteen months later, on June 29, 2011, the trial judge —— who by then had been re-assigned to the Criminal Part —— issued a forty-nine page written opinion and entered a final judgment of divorce. Cross-appeals from that judgment were filed in July 2011, and remain pending today.
On September 16, 2012, we ordered a ninety-day limited remand for the Family Part to resolve certain identified issues. The trial judge conducted the remand proceedings and issued an order resolving the issues on remand on January 3, 2012. On February 24, 2012, the same judge denied Mr. Carr's motion for a stay of certain aspects of the January 3 order.
By this time, the matter had been reassigned to a different judge of the Family Part to resolve post-judgment enforcement motions. That judge ultimately entered the challenged orders of February 28, May 8, and August 8, 2012. After the entry of the first order but before the second order was actually filed, Mr. Carr wrote a letter to the motion judge stating, "I am writing to make you aware of facts, which I believe you may have been unaware of, that I respectfully believe require Your Honor to disqualify yourself from this matter." Citing Canon 3(C)(1)(b) of the Code of Judicial Conduct, Mr. Carr indicated that the motion judge and Sobel had been associated together in the practice of law at Greenbaum Rowe, which Mr. Carr believed required the judge's disqualification because "the judge's impartiality might reasonably be questioned."
The judge responded to Mr. Carr with a letter stating, "I perceive no conflict whatsoever in my presiding over this matter." Accepting Mr. Carr's facts as accurate —— indicating, however, "I have not undertaken verification of same" —— the judge averred that she had "no knowledge" of the case, had left Greenbaum Rowe "in July 2007 to go on the bench, " and "fail[ed] to see how [her] prior relation with Greenbaum Rowe, now terminated almost [five] years ago, can present a conflict." Mr. Carr immediately filed a formal motion seeking, among other things, the disqualification of the motion judge.
After considering the competing positions of the parties, the judge denied Mr. Carr's motion for disqualification. She analyzed the undisputed facts under the twin lenses of Rule 1:12-1(c) (requiring disqualification if the judge "has been attorney of record or counsel in the action") and Rule 1:12-1(f)(requiring disqualification "when there is any other reason which might reasonably preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so").
First, the judge concluded that because the third-party action was separate from the "'divorce' aspect of the litigation, " and "[t]he issues currently before this Court are divorce-related and not in any way related to the settled issues in the third-party litigation, " there was no "representation of a party adverse to defendant in this action" and "no conflict under R[ule] 1:12-1(c)."
Next, the judge analyzed decisional law that involved putative conflicts of interest where judges, who were formerly associated with a law office, administrative agency, or prosecutor's office now appearing before them, were found not disqualified in the absence of specific evidence of bias, prejudice, or impropriety. The judge concluded that her situation was similar and did not mandate disqualification.
Lastly, the judge examined Rule 1:12-1(f)'s "reasonably lead counsel or the parties" language, and concluded,
it is clear that there is no reasonable basis for [Mr. Carr] to make this request [for disqualification] as the firm Greenbaum Rowe was involved solely in the third-party/fourth-party litigation between defendant and plaintiff's family members with this court having no involvement in that litigation and having departed from that law firm weeks after the firm made its appearance.
In denying Mr. Carr's motion, the judge further "question[ed] the timing of [Mr. Carr's] application." Surmising that Mr. Carr's real motivation in moving for disqualification was his dissatisfaction with the judge's rulings, the judge declared, "seeking the [c]ourt's recusal is an improper means of addressing his claims." This appeal followed.
On appeal, Mr. Carr presses the argument that the motion judge violated Canon 3(C)(1)(b) of the Code of Judicial Conduct, which states:
(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
. . . .
(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a witness concerning it[.]
Although he does not couch his argument directly within the orbit of Rule 1:12-1, Canon 3, as adopted by our Supreme Court, itself parenthetically references that Rule of Court. Accordingly, we read all relevant provisions in pari materia. See, e.g. R. 1:14 (providing that "the Code of Judicial Conduct of the American Bar Association, as amended and supplemented by the Supreme Court . . . shall govern the conduct of . . . the judges . . . of all courts of this State"); R. 1:18 ("It shall be the duty of every judge to abide by and to enforce the provisions of . . . the Code of Judicial Conduct. . . .").
We start with established principles. Simply stated, "[o]ur [disqualification] rules . . . are designed to address actual conflicts and bias as well as the appearance of impropriety." State v. McCabe, 201 N.J. 34, 43 (2010). "The mere appearance of bias in a judge —— however difficult, if not impossible, to quantify —— is sufficient to erode respect for the judiciary." In re Advisory Letter No. 7-11 of the Supreme Court Advisory Comm., 213 N.J. 63, 70 (2013).
The purpose of our judicial disqualification provisions "is to maintain public confidence in the integrity of the judicial process, which in turn depends on a belief in the impersonality of judicial decision making." Even a "righteous judgment" will not find acceptance in the public's mind unless the judge's impartiality and fairness are above suspicion. "In other words, judges must avoid acting in . . . a manner that may be perceived as partial, " otherwise the integrity of the judicial process will be cast in doubt[.]
[Id. at 75 (citations omitted).]
include the bedrock principle articulated in Canon 1 of the Code of Judicial Conduct that "[a]n independent and honorable judiciary is indispensable to justice our society." To that end, judges are required to maintain, enforce, and observe "high standards of conduct so that the integrity and independence of the judiciary may be preserved." Ibid.
Judges are "to act at all times in a manner that promotes public confidence, " id. Canon 2(A), and "must avoid all impropriety and appearance of impropriety, " id. commentary on Canon 2 (emphasis added). Indeed, as this Court recognized nearly a half century ago, "'justice must satisfy the appearance of justice.'" State v. Deutsch, 34 N.J. 190, 206 (1961) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11, 16 (1954)). That standard requires judges to "refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question." Ibid. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial. To demand any less would invite questions about the impartiality of the justice system and thereby "threaten[ ] the integrity of our judicial process." State v. Tucker, 264 N.J.Super. 549, 554 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).
[DeNike v. Cupo, 196 N.J. 502, 514-15 (2008).]
In Rivers v. Cox-Rivers, 346 N.J.Super. 418 (App. Div. 2002), we addressed an analogous situation to the one presently before us. There, the Family Part judge who presided over post-divorce-judgment proceedings had, when he was a practitioner with the law firm now representing the ex-husband, appeared one time thirteen years earlier for the ex-husband during a legal separation between the parties. Applying "a bright line rule, " we held that
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.
[Id. at 421.]
We did not base our decision on the Code of Judicial Conduct. Instead, we found the plain meaning of Rule 1:12-1(c) and -1(f)sufficient to require disqualification even for the judge-while-a-lawyer's one-time, innocuous, thirteen-year-old representation that merely "help[ed] discharge his law firm's obligation to represent a client on a motion." Rivers, supra, 346 N.J.Super. at 423.
We recognize that unlike the judge in Rivers, the motion judge here never made a court appearance on behalf of a client, and therefore she correctly ruled that there was no violation of Rule 1:12-1(c). However, Rule 1:12-1(g) —— like Canon 3(C)(1), which mandates disqualification when a "judge's impartiality might reasonably be questioned" —— applies to situations that cannot be tidily catalogued. See State v. Tucker, 264 N.J.Super. 549, 554 (App. Div. 1993) ("The situations in which a judge should grant a motion for recusal are varied . . . ."), certif. denied, 135 N.J. 468 (1994). Thus, "[n]either Canon 3C nor Rule 1:12-1 recite an exclusive list of circumstances which disqualify a judge and require recusal from a matter." State v. Kettles, 345 N.J.Super. 466, 470 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002).
The guidance provided by Canon 3(C)(1)(b) relates to situations involving former law firm associations of a judge. Here, during the last three months of the motion judge's private practice in 2007, she was employed side-by-side with the lawyer who represented Mrs. Carr's sisters, brothers-in-law, and parents in the very same litigation that she was being called upon in 2012, to resolve post-judgment disputes.
To ensure its broad prophylactic purpose, we read Canon 3(C)(1)(b)'s "concerning the matter" language expansively, and conclude that the settled third-party action (in which Sobel was involved until 2010) was clearly the same matter as that presented to the motion judge in 2012. The third-party dispute, albeit resolved and moribund by 2012, was no less part of the matter than was the judge-while-a-lawyer's thirteen-year-old appearance in Rivers, which warranted disqualification.
Given the jurisprudential linkages between the third-party issues and equitable distribution, the familial ties between Sobel's clients and Mrs. Carr, and the financial connections engendered by Mrs. Carr's underwriting some of her relatives' legal expenses that were owed to Sobel, we are satisfied that these factual dynamics might create "reasonable questions in the minds of litigants and the public about the fairness of the proceedings and the overall integrity of the process." See McCabe, supra, 201 N.J. at 46.
The motion judge's reliance upon Hill, Sheeran, and Ferren was misplaced. Sheeran is entirely distinguishable, as it involved a claim that a recently-appointed administrative law judge, who had been a hearing officer in the Department of Insurance prior to the establishment of the Office of Administrative Law, who was disqualified from hearing an unfair practices action brought against an insurance company by the Department. Id. at 241-42. There was no evidence that the 114 charges leveled against the company by the Department's had been under consideration at a time when the administrative law judge was a hearing examiner with the Department. Furthermore, the administrative law judge's prior status as a hearing officer, and the expertise she developed there, could not, without some evidence of departmental domination, create a reasonable belief in the potential for prejudgment or bias. Id. at 244.
In the present case, during the motion judge's tenure at Greenbaum Rowe, she served not as a hearing officer whose role was to resolve disputes, but rather as an advocate shepherding the interests of the law firm's clients. Even though she may not have actually been assigned to represent the third-party defendants, a perception of allegiance to their cause is wholly reasonable and entirely unlike the absence of allegiance of the hearing officer-cum-administrative law judge in Sheeran.
In Ferren, also plainly distinguishable, we rejected the argument that the summary judgment motion judge was disqualified from ruling in a case where Sea Isle City was a defendant in a personal injury case stemming from a 1984 accident, where the judge's former law partner had represented Sea Isle City in wholly unrelated matters from 1973 to 1977. Id. at 527. Because "[n]o act or advice of the trial judge or his former firm is even remotely involved in the issue of [the] case, " Rule 1:12-1 was not violated. Ibid. That circumstance is not present here.
We disagree that the third-party action is separable from the remainder of the litigation for purposes of Canon 3(C)(1)(b). Even though there have been no post-judgment applications made to the Family Part relating to the third-party settlement, the equitable distribution ramifications of that settlement remain under appeal. The connectivity of the issues is fortified by the nature of Mrs. Carr's close family relationships. The proverbial man or woman on the street would have little difficulty in thinking that the motion judge might favor the interests of Mrs. Carr. Of course, we make no such direct finding, because there is none to be made from this record. However, it is the public perception that counts. See In re Advisory Letter No. 7-11, supra, 213 N.J. at 77 ("The issue is not whether [the judge] can faithfully maintain impartiality in cases involving . . . police officers who serve with his son. The workings of his mind cannot be put on display. That is why public perception matters. Judges must appear to be impartial, for in a democracy the standing of our system of justice depends on the people's confidence in the judicial process.").
Hill's facts are similar to the present case. Nevertheless, it remains fully distinguishable by dint of the commentary to Canon 3(C)(1)(b). In Hill, we held that the trial judge, who was formerly an assistant prosecutor for four months, was not disqualified from presiding at the criminal trial of a defendant whose file had been pending in the prosecutor's office during the judge's employment, because the judge as an assistant prosecutor, had no knowledge of the matter. Id. at 374-75. We appreciate that this factual backdrop aligns with the present case, but lawyers representing the government, such as prosecutors, are not automatically "associated" with other lawyers in that agency. Commentary to Canon 3(C)(1)(b). Thus, because this case arises from the motion judge's service in the private sector, Hill is inapposite.
Six decades ago, we noted that "[n]ext in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge." State v. Muraski, 6 N.J.Super. 36, 38 (App. Div. 1949). That principle remains alive and well in this State. For the motion judge to have sat in judgment in the present case, in view of the aforementioned circumstances, was an unnecessary act on her part; this is not a case in which post-judgment disputes would have gone unresolved for want of a different judge. Even the brief 2007 overlap, when the judge was preparing to enter public service, was enough to trigger a disqualifying interest under Canon 3(C)(1)(b) and Rule 1:12-1(g). The failure of the motion judge to recuse was a mistaken exercise of discretion.
In light of our disposition and the reasons undergirding it, we express no views concerning the substantive issues raised before the Family Part or in the pending appeal of the final judgment. The orders of February 28, May 8, and August 8, 2012, are vacated and the matter is remanded for consideration anew of all issues by another judge.
Reversed and remanded for further proceedings in conformance with this opinion. We do not retain jurisdiction.