May 9, 2017
appeal from the Superior Court of New Jersey, Chancery
Division, Family Part, Middlesex County, Docket No.
Patrick C. O'Hara, Jr., argued the cause for appellant
M.P. (Del Vacchio O'Hara, P.C., attorneys; Mr.
O'Hara, on the brief).
Christopher L.C. Kuberiet, First Assistant Prosecutor, argued
the cause for respondent State of New Jersey (Andrew C.
Carey, Middlesex County Prosecutor, attorney; Mr. Kuberiet,
on the brief).
Judges Messano, Espinosa and Grall.
State of New Jersey charged juvenile M.P. with conduct which,
if committed by an adult, would constitute second-degree
aggravated assault, N.J.S.A. 2C:12-1(b), and fourth-degree
unlawful possession of a weapon, N.J.S.A.
2C:39-5(d). M.P. appeared with counsel before a Family
Part judge in Middlesex County for a preliminary hearing and
subsequent detention hearing.
days later, a probation officer requested the prosecutor
provide a copy of the police report because the matter was
being transferred to another vicinage. Apparently, without
notice to M.P.'s counsel or any further notice to the
prosecutor, the Presiding Judge of the Family Part (PJ) filed
an order transferring the matter to Somerset County.
State moved to vacate the order. The prosecutor's
certification asserted that court staff provided only "a
cryptic reference to employee conflict." The prosecutor
noted there had been no contact with the victim of the
alleged assault before the transfer, in violation of the
Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -38.
The prosecutor also referenced prior juvenile matters
involving M.P. for which venue was not transferred, and
stated, on "information and belief, " M.P. objected
to the transfer.
parties appeared before the PJ for oral argument on the
State's motion. The prosecutor argued the State received
no explanation for the transfer of venue, which was not
authorized by statute or Court Rule. He stated the sole
authority for the transfer was N.J. Administrative Office of
the Courts, Judiciary Employee Policy #5-15,
"Reporting Involvement in Litigation, "
(effective June 1, 2016) (the Policy). He further contended
the Policy permitted only the Assignment Judge (AJ) to
transfer venue. The prosecutor cited extensively to two of
our unpublished opinions and argued the transfer created
hardships for law enforcement and the alleged victim.
counsel, who had represented M.P. since 2012, also noted her
objection to the transfer of venue. Counsel explained that
the juvenile's mother became "frantic" upon
hearing of the transfer, noting she and her son lived in
Middlesex County, she had a two-week old child and she could
not "go back and forth to Somerset County." Counsel
further stated that the mother's child support matter was
initially transferred to Somerset County, but that order was
revoked after M.P.'s mother objected. Defense counsel
requested the judge hold a hearing to determine "if
there is some way we can shield the [court] person from any
involvement with [M.P.'s] case."
judge stated "that any lack of . . . communication"
regarding the transfer order was "not a matter of
design." She cited Rule 1:33-6(d) as providing
authority for a PJ to enter the transfer order. The judge
explained that she followed the Policy after receiving the
confidential report of an employee, and noted the Policy
"insure[s] the continued integrity of the judiciary in
avoiding any actual [or] potential . . . appearance of
partiality or conflict of interest." The judge reserved
decision and subsequently filed the July 29, 2016 order
denying the State's motion.
written statement of reasons accompanying the order, the
judge explained a judiciary employee in the vicinage's
Trial Court Services Division submitted a confidential
"Personal or Family Member Involvement in Litigation
form" to the Trial Court Administrator (TCA). Citing
various provisions of the Policy, which we discuss in greater
detail below, the judge stated she and the TCA determined a
transfer of venue was necessary "to avoid any appearance
judge explained the judiciary employee had access to the
Family Automated Case Tracking System (FACTS), which
permitted him or her to view information, including
information that was confidential pursuant to N.J.S.A.
2A:4A-60. The judge explained:
The Judiciary employee's function is to assist court
users by providing information and assistance with court
processes, handling court user complaints and inquiries, and
providing information from court files, as appropriate. In
that regard, consideration of preventative measures to ensure
insulation or isolation of this employee would substantially
impact the employee's functionality. Specifically, the
employee's need to regularly access FACTS to perform
his/her job prohibits restriction of FACTS access as a means
to insulate the individual. Additionally, consideration of
relocating the employee to an area removed from the Middlesex
Family Courthouse, wherein a substantial segment of the
public seeks access to the employee's services, would
significantly hinder the access to and delivery of services
by the Judiciary to the public.
judge distinguished one of the unpublished decisions cited by
the prosecutor, noting it was a criminal case and
"distinguishable from a juvenile delinquency case in
that it does not implicate statutory confidentiality
Lastly, the judge explained
procedural safeguards ordinarily attendant to adversarial
proceedings are not employed in the area of administrative
transfers as it is the Court that is vested with the
authority and responsibility to maintain a high degree of
integrity and to avoid any actual, potential or appearance of