Clawans v. Waugh

• Decision Date: 07 December 1950
• Citation: 10 N.J.Super. 605,77 A.2d 519
• Parties: CLAWANS v. WAUGH.
• Court: New Jersey District Court

Page 605

10 N.J.Super. 605

77 A.2d 519

CLAWANS v. WAUGH.

District Court, Essex County, New Jersey.

Dec. 7, 1950.

George R. Sommer, Newark, for Miss Lillian Clawans.

Everett M. Scherer, Newark, amicus curiae.

Before Judges JOHN J. FRANCIS, JOSEPH G. LYONS and WALTER H. CONKLIN, sitting as triors pursuant to statute.

PER CURIAM.

Miss Lillian Clawans, a member of the Bar of this State, filed an affidavit on the basis of which she seeks disqualification of Judge Alexander P. Waugh, Presiding Judge of the Essex County District Court. Following this action, by virtue of R.S. 2:26--194, N.J.S.A., Judge Waugh appointed the members of this special tribunal as triers of the challenge. We then appointed an Amicus curiae to appear in the proceeding, who, upon notice, moved to dismiss the challenge as being insufficient in fact and in law under the statute. At the conclusion of the argument counsel for the challenge indicated his agreement that the matters contained in the affidavit did not present a cause for recusation within the statute. Because of the general interest which has been exhibited in the action we have concluded to file this memorandum expressing our views on the subject.

The statute of New Jersey dealing with the disqualification of a judge sets forth four grounds which accomplish that result. They are:

1. Relation in the third degree to any of the parties to the action;

2. Where the judge has been attorney of record or counsel for a party to such action;

3. Where he has given his opinion upon a matter in question in such action; and

4. Where he is interested in the event of such action. R.S. 2:26--193, N.J.S.A.

The first and last of these causes are taken from the common law. The blood relationship exclusion is plain and needs no explanation. The 'interest' referred to means a pecuniary interest and that alone.

In In re Hague, 103 N.J.Eq. 505, 143 A. 836, 838 (Ch. 1928--Chancellor Walker) the opinion quotes with approval the following statement in County Commissioners of Charles Co. v. Wilmer, 131 Md. 175, 101 A. 686 (Ct. of App. 1917):

"The contention made by the appellant is that the disqualification is caused by a sentimental, as well as by a pecuniary interest' * * *: 'The constitutions or statutes of most, if not all of the different states, contain a general provision to the effect that a judge shall not act as such in a cause in which he is interested; but the overwhelming weight of authority in construing the meaning that is to be attached to the provision is, that to bring about a disqualification, the interest must be a pecuniary or a personal right or privilege in some way dependent upon the result of the case as contradistinguished from every bias, partiality or prejudice which the judge may entertain with reference to the case."

The affidavit filed here does not seek the disqualification of Judge Waugh in a particular case. It seeks his general disqualification as a judge in all future cases in which Miss Lillian Clawans appears as attorney for a party, and the basic ground urged is that the is so biased and prejudiced against her that no client represented by her would receive a fair trial.

In support of the demand for recusation four specific cases are referred to which resulted adversely to Miss Clawans' clients after trial before him. In these cases she claims her clients should have been successful. She further refers to a question put to her by him during one of the trials as to whether or not she had read Supreme Court Rule 3:80 which, upon reading, she found dealt with contempt proceedings.

It is plain from this general outline of the affidavit that the challenge is not within the purview of the statute (R.S. 2:26--193, 194, N.J.S.A.).

Even assuming that a judge has an antipathy toward a particular attorney, as was said in 536 Broad Street v. Valco Mortgage Co., 135 N.J.Eq. 581, 39 A.2d 700, 701 (Ch. 1944), affirmed on opinion below, 136 N.J.Eq. 513, 42 A.2d 704 (E. & A. 1945): 'It has been repeatedly stated that prejudice growing out of business, political or social relations is not sufficient to disqualify a judge.' Also In re Hague, supra; State v. Weinberger, 38 F.2d 298 (D.C.N.J. 1930).

Fundamentally the reason for the establishment of this doctrine is that a judge is conscience-bound under his oath of office to do impartial justice between Parties to litigation before him. Therefore 'Not only is a judge not required to withdraw from the hearing of a case upon the mere suggestion that he is disqualified to sit, but it is improper for him to do so, unless the alleged cause of recusation is known by him to exist, or is shown by proof to be true in fact.' State v. De Maio, 70 N.J.L. 220, 58 A. 173 (E. & A. 1904).

In In re Hague, supra, Chancellor Walker referred with approval to McEwen v. Occidental Life Ins. Co., 172 Cal. 6, 155 P. 86 (Sup.Ct.1916), holding that 'erroneous rulings against a litigant, even when numerous and continuous, form no ground for a charge of bias or prejudice, especially when they are subject to review.'

The fact that a judge has expressed irritation with an attorney during a trial, or has indicated a dislike for him or his manner of conducting trials, or has said that the attorney should be held in contempt would not justify a challenge to his capacity to sit in judgment on the attorney's cases, nor would such fact justify a judge in disqualifying himself from the performance of his sworn duty to administer justice in the actions within the jurisdiction of his court.

There are very few cases in our own state dealing with this subject. Reference to some in other jurisdictions illustrative of the principle just set forth may be helpful.

In Hutchinson v. Manchester Street Railway Co., 73 N.H. 271, 60 A. 1011, 1013 (Sup.Ct. N.H. 1905) a challenge was interposed for alleged prejudice against the defendant's attorney. It was alleged that following the trial of another cause the judge informed the attorney that if he intended to try other cases along the lines adopted in the one just completed he must expect no concessions from the court. So it was asserted that 'defendant is led to fear and believe that it will not be able to have a judicial trial at this time.'

The court overruled the challenge because: (1) it merely expressed the opinion of the party that he could not get a fair trial before the challenged judge; (2) the statement attributed to the judge is not indicative of prejudice or hostility toward the Defendant, and (3) 'at most the remark relates to relations between the judge and counsel, which is no cause for challenge even of a juror.'

Speaking of the common law doctrine of disqualification, the court said: 'At common law, interest in the cause was the only ground which disqualified the judge. * * * For the law will not suppose a possibility of bias or favor in a judge who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.'

In Ex parte N.K. Fairbank Co., 194 F. 978 (D.C.Ala. N.D. 1912) the defendant company by its attorneys complained to the circuit court...