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State ex rel. M.P.

Superior Court of New Jersey, Appellate Division

June 19, 2017


          Argued May 9, 2017

         On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FJ-12-1625-16.

          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).

          Before Judges Messano, Espinosa and Grall.


          A MESSANO, P.J.A.D.

         The 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).[1] M.P. appeared with counsel before a Family Part judge in Middlesex County for a preliminary hearing and subsequent detention hearing.

         Several 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.

         The 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.

         The 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.

         Defense 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."

         The 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.

         In a 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 of impropriety."

         The 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.

         The 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 restrictions."

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 ...

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