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Racetrack Supermarket, LLC v. Mayor and Township Council of Cherry Hill

Superior Court of New Jersey, Law Division, Camden

June 13, 2019

RACETRACK SUPERMARKET, LLC and MICHAEL P. MAIORE, Plaintiffs,
v.
THE MAYOR AND TOWNSHIP COUNCIL OF CHERRY HILL, and THE CHERRY HILL TOWNSHIP PLANNING BOARD, Defendants.

          Decided: November 14, 2018

          Stuart A. Platt (Platt & Riso, PC) and Edward T. Kole (Wilentz, Goldman and Spitzer, PA), attorneys for plaintiffs.

          Mark P. Asselta, attorney for defendant Mayor of Cherry Hill (Brown and Connery, LLP).

          Robert M. Wright, attorney for defendant Township Council of Cherry Hill.

          James W. Burns, attorney for defendant Cherry Hill Township Planning Board (Dembo, Brown and Burns).

          BOOTH, J.S.C.

         Before the court is plaintiffs' motion for recusal of the assigned trial judge under Rule 1:12-1(g) and the Code of Judicial Conduct. Plaintiffs assert that a reasonable, fully-informed person would have doubts about the judge's impartiality due to personal bias against plaintiffs' counsel as well as against a principal member of plaintiff, Racetrack Supermarket, LLC.

         I. Background

         In this action, plaintiffs, a limited liability company maintaining its principal offices in Cherry Hill, New Jersey and an individual living and residing in Cherry Hill, New Jersey, seek an order invalidating and setting aside the adoption of Ordinance 2016-13 by Cherry Hill Township as arbitrary, capricious, unreasonable and contrary to law. Plaintiffs' eight-count complaint alleges the adoption of the aforementioned ordinance constitutes spot zoning insofar as it was adopted for the purpose of promoting the application to construct a Costco warehouse retail center rather than the public good. Plaintiffs further allege that defendant, The Cherry Hill Township Planning Board, failed to make an adequate finding that the ordinance is consistent with the Cherry Hill Township Master Plan, that the ordinance is not substantially consistent with the Master Plan, and that the General Development Plan required amendment prior to adoption of Ordinance 2016-13.

         In September 2018, plaintiffs' counsel received notification from the Superior Court scheduling the matter for trial and assigning this judge as the trial judge. The motion for recusal then followed.

         II. Plaintiffs' Allegations

         Plaintiffs have moved for recusal of the assigned trial judge alleging a longstanding history of personal animosity between plaintiffs' counsel, Stuart A. Platt of Platt & Riso, PC, and the trial judge ". . . for the greater part of the last ten (10) years." Additionally, plaintiffs allege that, prior to his appointment and confirmation as a member of the New Jersey Judiciary, as chairperson of his county's political party, the trial judge "was in a position to fund and direct a political campaign" against the son of the principal of plaintiff Racetrack Supermarket, LLC.

         In support of their motion, plaintiffs submit a certification of plaintiffs' counsel where he indicates he is a resident of Voorhees, New Jersey since 1991 and a life-long Democrat, supporting and actively participating in local Democratic campaigns for election and re-election, as well as having served as an officer of the Voorhees Democratic Club and had been elected to and served as a member of the Voorhees Township Democratic County Committee.

         Plaintiffs' counsel certifies that, prior to becoming a member of the judiciary, the trial judge was actively involved in Voorhees and Camden County Republican politics, running unsuccessfully as a Republican candidate for Voorhees Township Committee, the local governing body, in 2008 and 2012, and serving as a member of Voorhees Township Republican County Committee, where he served as its chairperson from 2011 until his confirmation as judge in January 2017. Plaintiffs' counsel certifies that he actively supported the Democratic candidates who ran in 2008 and 2012 against the trial judge. In the 2012 election, the trial judge ran against the sister of Eric Riso, the other named partner in plaintiffs' counsel's firm, and was defeated.

         Plaintiffs' counsel's certification indicated that the Democratic candidates made serious allegations against the judge as to his character and fitness for elected office in both the 2008 and 2012 campaigns and that, following the 2008 campaign, plaintiffs' counsel was told under condition of anonymity that the trial judge held him personally responsible for the campaign ads and materials that attacked him, and that the judge was considering suing plaintiffs' counsel and others because of the campaign materials. Aside from indicating the source for this information regarding the alleged statement by the trial judge was anonymous, no specifics were provided such as substance of the conversations, dates, or locations where the conversations allegedly took place.

         Plaintiffs' counsel next certifies that an expert witness used by the trial judge during his time as a practicing attorney also served as a construction code official in Winslow Township, New Jersey during part of the time plaintiffs' counsel served as solicitor for the township and that, during his dealings with this individual, it was relayed on several occasions to plaintiffs' counsel the personal animus that the judge allegedly held against plaintiffs' counsel because of the aforementioned campaign materials from the 2008 campaign. Plaintiffs' motion was accompanied by no certification or affidavit from the former expert witness, nor were any specifics provided such as substance of the conversations, dates, or locations where the conversations allegedly took place.

         At oral argument on the motion for recusal, plaintiffs' counsel amended the date of the aforementioned statements allegedly made by the judge according to the anonymous person and the former expert witness, to an earlier election campaign taking place in 2004, not the 2008 campaign.

         Lastly in regard to the alleged personal animus with plaintiffs' counsel, the certification relates that plaintiffs' counsel was appointed to the State of New Jersey Commission on Holocaust Education in December 2009 for a term through 2011 by then-Governor Jon S. Corzine. In 2013, plaintiffs' counsel indicates he reapplied to then-Governor Chris Christie's Office of Appointments to once again become a member of the Holocaust Education Commission and that, during the course of his application, he made inquiries with "certain people" and was told "on condition of anonymity and confidentiality" that the trial judge, then the chairperson ...


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