State v. McCabe

• Decision Date: 25 January 2010
• Docket Number: A-88 September Term 2008
• Citation: 987 A.2d 567,201 N.J. 34
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Terence McCABE, Defendant-Appellant.
• Court: New Jersey Supreme Court

987 A.2d 567

201 N.J. 34

STATE of New Jersey, Plaintiff-Respondent, v. Terence McCABE, Defendant-Appellant.

A-88 September Term 2008

Supreme Court of New Jersey.

Argued October 26, 2009.

Decided January 25, 2010.

Alan S. Albin, argued the cause for appellant.

Erin Smith Wisloff, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, Attorney).

Chief Justice RABNER delivered the opinion of the Court.

In this case, we revisit the issue of recusal in the context of part-time municipal court judges who are permitted to practice law subject to certain restrictions. We are asked to decide whether a municipal court judge must recuse himself when the judge and the defense attorney are adversaries in an unrelated, pending probate case that has been dormant for two years.

The question raises concerns about public confidence in the integrity and impartiality of our system of justice, which we recently addressed in DeNike v. Cupo, 196 N.J. 502, 958 A.2d 446 (2008). Because judges must avoid not only actual conflicts but also the appearance of impropriety to promote the public's trust, we hold that part-time municipal court judges must recuse themselves whenever the judge and a lawyer for a party are adversaries in another open, unresolved case.

I.

The facts are not in dispute. On August 22, 2008, in Morris Township, defendant Terence McCabe received citations for driving while intoxicated, N.J.S.A. 39:4-50, refusal to submit to a blood-alcohol test, N.J.S.A. 39:4-50.4a, and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). The Morris County Prosecutor's Office later downgraded the possession charge to failure to turn over a controlled dangerous substance to law enforcement, N.J.S.A. 2C:35-10(c) — a disorderly persons offense — and referred the matter back to the municipal court in Morris Township.

Defendant hired Alan S. Albin, Esquire, to represent him. After the first municipal court appearance in the case, Albin realized that he and the municipal judge, the Honorable Robert J. Nish, J.M.C., were opposing counsel in an unrelated probate case: In re Estate of James H. Pearson, Docket No. MRS-P1653-2004. The case was open and unresolved in the Superior Court, Morris Vicinage, in 2008. Judge Nish, in his capacity as a private attorney, represented James Corey Pearson, a claimant against the estate who challenged the validity of the decedent's will. Albin represented the executrix of the estate, who was defending the will.

The probate case had earlier been dismissed for failure to respond to discovery requests. The complaint was reinstated on August 18, 2006, on an application by attorney Nish, after his client provided answers to interrogatories. The order entered that day was the last activity in the probate case.

On September 23, 2008, McCabe filed a motion to recuse Judge Nish. McCabe argued that recusal was necessary to avoid an actual or potential conflict of interest and an appearance of impropriety. The municipal prosecutor opposed the motion.

At oral argument on October 7, 2008, Albin stressed that although the probate matter had been inactive for two years, it was still a pending case. In response, Judge Nish asked what prejudice the dormant probate case caused McCabe. This awkward exchange followed:

MR. ALBIN: Your Honor, are you going to dismiss that case, your client — I mean, just for the record? Is that your intention? This is why the recusal motion is necessary, because you're still representing that — I mean, this is still an active case.

THE COURT: I have — I have read all of the cases in the — cited in the court rules related to — related to judges' recusals for apparent conflicts of interest. And there are none that are similar to these facts and there's no demonstrative showing of any prejudice to your client.

. . . .

THE COURT: And I don't find that there's any basis per se that there's any prejudice to Mr. McCabe because you were an adversary in a case that there's been no activity for two years.

MR. ALBIN: But it's still a live case.

THE COURT: So I will deny your application. You can — you can proceed to — I'll give you an opportunity to appeal that decision if you would like to.

McCabe sought leave before the Superior Court to appeal Judge Nish's interlocutory order. On November 21, 2008, the Superior Court denied the motion without hearing oral argument. In a statement of reasons, the court cited to Rule 1:12-1(f) and concluded that

the facts of the instant case do not lead this Court to believe that a fair and unbiased judgment may not result in this case. That counsel for the defendant and the judge represented adverse parties in a Probate matter without more is not the basis for a reasonable belief that a "fair and unbiased hearing and judgment" would not occur.

Albin then filed a motion to dismiss the probate case for lack of prosecution. The unopposed motion was granted, and the case was dismissed with prejudice on December 4, 2008. In the municipal court matter, McCabe next sought leave to file an interlocutory appeal with the Appellate Division. The motion was denied on January 7, 2009. We granted McCabe's motion for leave to appeal and ordered a stay of the municipal court proceedings pending the outcome of this appeal. 198 N.J. 471, 968 A.2d 1188 (2009). We now reverse.

II.

McCabe argues that the Superior Court applied the wrong standard of review on appeal and should have conducted a de novo review; that it misconstrued the facts by characterizing the probate case in the past tense even though it was still open; and that it applied an incorrect legal standard by ignoring DeNike, supra, 196 N.J. at 517, 958 A.2d 446. McCabe contends that any reasonable, fully informed person would have reason to doubt Judge Nish's partiality in light of his role in the probate case.

The State counters that the case is moot; that the Superior Court properly reviewed the matter for abuse of discretion; and that recusal is not warranted under either Rule 1:12-1 or DeNike because there is no evidence of animosity between the parties arising from their roles in the dated probate case and nothing to suggest Judge Nish would not be fair and impartial to McCabe. The State also notes that the dynamic of the municipal court must be considered; municipal court judges handle a heavy volume of cases and thus naturally encounter former adversaries at some point in their judicial service. To require recusal on the facts of the case, the State submits, would invite forum shopping and impose an undue burden on the judicial system.

III.

New Jersey's municipal court judges have vast and important responsibilities that affect the lives of millions of residents each year. Today, according to the Administrative Office of the Courts (AOC), there are 528 municipal courts throughout the State. Most municipalities have their own municipal court; some neighboring towns combine resources and either share facilities, while preserving their individual identities, or establish a "joint municipal court" to serve multiple municipalities. N.J.S.A. 2B:12-1. The actual number of courts, therefore, fluctuates whenever municipalities choose to share services.

Presiding over the courts are 318 part-time and 22 full-time municipal court judges, according to the AOC. Municipal court judges within a single municipality are appointed by the mayor or governing body. N.J.S.A. 2B:12-4(b). The Governor appoints judges for joint municipal courts. Ibid.

Full-time judges must devote all of their efforts to judicial duties and may not practice law. R. 1:15-1(a). In contrast, part-time municipal court judges can — and often do — engage in the private practice of law, but they may not practice criminal law, cannot represent the municipality (or any of its agencies) served by the court, and cannot practice before the municipal governing body or its agencies. R. 1:15-1(b).

Municipal courts have jurisdiction over cases that arise within the municipality or joint area they serve. N.J.S.A. 2B:12-16. Their jurisdiction extends to the following noteworthy areas: violations of motor vehicle and traffic laws; violations of county or municipal ordinances; disorderly persons offenses, petty disorderly persons offenses, and other non-indictable offenses not reserved to the Superior Court; violations of fish and game laws and laws regulating boating; and other proceedings designated by statute. N.J.S.A. 2B:12-17. Municipal courts can also adjudicate certain fourth-degree offenses and offenses for which the maximum sentence does not exceed one year if the defendant waives indictment and trial by jury and the county prosecutor consents. N.J.S.A. 2B:12-18.

Not surprisingly, millions of people come into contact with the municipal court system every year. For the 2008-09 court year, the municipal court system handled approximately 6.3 million cases.¹ New Jersey Judiciary, Municipal Court Statistics July 2008-June 2009 2 (2009) available at http://www.judiciary.state.nj.us/ quant/munc0906.pdf. By comparison, about 1.1 million cases were addressed at the trial level of the Superior Court. New Jersey Judiciary, Superior Court Caseload Reference Guide 2005-2009 3 (2009), available at http://www.judiciary.state.nj.us/ quant/fiveyear.pdf.

In a State with a population of about 8.7 million, see U.S. Census Bureau, State & County QuickFacts — New Jersey, http:// quickfacts.census.gov/qfd/states/34000.html (last visited Jan. 12, 2010), those statistics are revealing: for millions of New Jerseyans each year, their only experience with the court system occurs at the municipal court level. Their impressions of the justice system are based primarily on their interactions with the municipal courts. See In re Mattera, 34 N.J. 259, 275, 168 A.2d 38 (1961). For those citizens, municipal court judges are the face of the Judiciary. As a result, ensuring both conflict-free, fair hearings...