A difficult question often faced by litigants is whether a trial judge is deciding his or her case with a fair and unbiased eye. Should a litigant feel that they are not getting a fair shake, the party can file a motion for recusal of the trial judge. R. 1:12-2 of the New Jersey Rules of Court, however, requires that the motion be made to the actual trial judge whose recusal is sought.
This issue was recently addressed by the Appellate Division in the published opinion of Vic Chandok v. Rekha Chandok. Rekha appealed from the judgment of divorce on various issues, but the Appellate Division only addressed her challenge of the trial court’s Order denying her motion to recuse the trial judge. The original motion was based on Rekha’s assertion that she could not receive a fair and unbiased hearing because of a prior relationship between the trial judge and her attorney where they were partners in a law firm that went under, subsequently followed by contentious litigation between the judge and attorney. Ultimately, the trial judge ruled that Vic’s business and investment interests were exempt from distribution; Rekha was not entitled to alimony; no child support was granted over and above Vic’s maximum obligation pursuant to the Child Support Guidelines; the parties were granted joint legal custody; and Rekha was to pay in excess of $40,000 to a discovery master.
The Appellate Division first detailed the history between the trial judge and Rekha’s attorney, noting, among other things, that the judge placed the attorney on his disqualification list once he was appointed to the bench. The judge subsequently filed a complaint for dissolution of the partnership, accusing the attorney of wrongdoing. The matter, however, ultimately settled. Six years later in 2004, the judge removed the attorney from the recusal list after Rekha’s attorney in another matter did not seek the judge’s recusal and had actually appeared before the judge several times.
Shortly thereafter in 2004, however, Rekha’s attorney in yet another matter sought the judge’s recusal based on their prior litigation. The judge denied that motion, concluding that the attorney had appeared before him previously with "no ill will, bias or prejudice," revealed that the settlement was satisfactory to him, and that the prior relationship would not affect his decision making ability in any case in which the attorney was involved. The judge also denied the motion in the prior case because he felt the attorney had been substituted in as a tactical move.
Here, the Appellate Division noted that Rekha’s attorney was substituted as her attorney 2 months prior to trial and that, prior thereto, the judge criticized Rekha for failing to comply with discovery. Once the attorney commenced representation, two Case Management Conferences were held prior to her filing the recusal motion. The judge continued to find Rekha in violation of discovery Orders and ultimately issued an Order suppressing her pleadings and precluding her from producing evidence at trial, scheduled for 9 days after the Order’s issuance. It was only on the day before trial that the motion for recusal was filed on short notice. In denying the motion, the trial judge noted that he had already twice denied such motions in other matters with which the attorney was involved and that he was relying on his reasoning in relation to one of those prior denials. The judge also added that Rekha deliberately tried to delay trial both before and after she retained the attorney and that the attorney knew when he entered the case that a trial date was set.
Reviewing R. 1:12-2 of the New Jersey Rules of Court, which states that "[a]ny party, on motion made to the judge before trial . . . and stating the reasons therefor, may seek that judge’s disqualification," the Appellate Division noted that such decisions are within the sound discretion of the judge whose recusal is sought. Quoting the New Jersey Supreme Court’s opinion in State v. Marshall, 148 N.J. 89 (1997), the Court stated, "On the other hand, ‘[i]t is unnecessary to prove actual prejudice on the part of the court, but rather "the mere appearance of bias may require disqualification,"’ so long as the belief of unfairness is ‘objectively reasonable.’"
Relying primarily on her attorney’s Certification in support of her recusal motion, the Appellate Division determined that the recusal motion should have been granted, agreeing with Rekha that a reasonable person could have concluded, based on the specifically contentious circumstances between the judge and her attorney, that the judge might be biased against the attorney based on their prior relationship and litigation. The Appellate Division then concluded, however, that the issue should have been raised and resolved prior to the attorney’s entry into the case; the judge should have notified Vic’s attorney of the relationship as well before allowing the attorney’s entry; and Rekha’s attorney should have alerted the court and Vic’s attorney that he could not assure that Rekha would not seek the judge’s recusal. Notably, when Rekha’s attorney entered the case with the consent of Vic’s attorney, Vic’s attorney was not made aware of the relationship at issue. The Court added that the judge should have recused himself from all prior litigation involving Rekha’s attorney.
In finding that the recusal motion should have been granted, the Appellate Division also concluded that a new trial was necessary, specifically directing the new judge to determine whether the conduct of Rekha or her attorney merited an award of fees or levying of sanctions to reduce Vic’s expenses required for the retrial.