What a judge says before, during or after a hearing “off-the-record” likely sheds light on the Court’s decision making process including, but not limited to, what evidence was considered and whether the proper, relevant legal standard was applied. At least this is what the Appellate Division held in K.D.M. v. J.A.M. out of Burlington County in an unreported decision on December 28, 2022.

In that matter, K.D.M. filed for and obtained a Temporary Restraining Order against J.A.M., who was the father of her then-fiancé with whom she resided for multiple years. K.D.M. alleged, and proved, that J.A.M. subjected her to a pattern of unwanted physical contact of a sexual nature. The trial court concluded that K.D.M. proved that J.A.M.’s behavior constituted a predicate act of harassment under N.J.S.A. 2C:33-4(b) and (c), and that the entry of a Final Restraining Order (“FRO”) was necessary to protect her from further abuse pursuant to Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). The FRO was entered on February 8, 2021, and subsequently amended on May 3, 2021 to include an award of counsel fees to K.D.M. against J.A.M.

J.A.M. filed a notice of appeal challenging the Amended FRO. While the appeal was pending, he filed a motion in the trial court to settle the record pursuant to Rule 2:5-5(a). In furtherance of that application, counsel for J.A.M. certified that the captured recording immediately following the entry of the FRO detailed the Judge’s conversation with Court staff which he believed was relevant to the appeal and demonstrated the trial court judge’s erred mental processes and impartiality in granting the FRO. During that recording, the trial court judge referred to J.A.M. as a “dirty old man.” The motion was denied by a different trial court judge on August 13, 2021. J.A.M. filed an amended notice of appeal thereafter challenging the August 13, 2021 Order.

J.A.M. raised four points on appeal: (1) he did not receive a fair and impartial trial in violation of his Due Process rights; (2) the trial court erred in finding the predicate act of harassment; (3) the motion Judge erred in denying his motion to supplement the record in light of the “highly inflammatory and biased comments made by the trial judge immediately following his ruling; and (4) the court erred in granting K.D.M.’s request for counsel fees.

The Appellate Division held that J.A.M. was not seeking to supplement the record with evidence adduced at trial. Rather, he sought to correct an unjustified abbreviation of the transcript of the FRO hearing. The Appellate Division held that it was error for the trial court to apply the factors relevant to a motion to supplement the record when deciding his motion. Instead, the correct standard was whether the record was fully and truly complete without the post-opinion exchange between the trial court judge and his staff. The Appellate Division held that it was not fully and truly complete.

In so holding, the Appellate Division stated the exchange, while strictly off-the-record, substantively relates to the evidentiary standard applied by the trial court judge and conveys a pejorative opinion of J.A.M. that seriously undermines the appearance of the court’s impartiality.

After making that ruling, the Appellate Division turned to the effect the post-decision remarks had upon J.A.M.’s due process rights under the 14th Amendment to the United States Constitution. The right to due process encompasses the right to a fair hearing in the State of New Jersey. The Appellate Division held that a “crucial element of a fair hearing is ‘an unbiased tribunal.’”

To be certain, proving actual bias is not the standard to establish a due process violation. In New Jersey, the mere appearance of bias may require disqualification. So long as an objectively reasonable belief that the tribunal is not impartial is provided, it will suffice to constitute a constitutional deprivation.

The Appellate Division found that the trial court judge’s post-decision comments raise concerns about the impartiality of the tribunal. The Appellate Division held that the trial court judge’s reference of J.A.M. as a “dirty old man” suggests a disfavored view of J.A.M. that may have influenced the ultimate decision. To be clear: the Appellate Division also found that the use of this term was not in the presence of J.A.M. or his counsel, and that no demonstrated bias was pointed to beyond those words. However, the Appellate Division held those facts were immaterial to their analysis.

In so holding, the Appellate Division stated that any listener could reasonably consider those comments to be indicative of bias against J.A.M. and that he is entitled to a hearing before a tribunal free from any suggestion of bias against him. Further, while the trial court did apply the correct preponderance of the evidence standard, the Appellate Division indicated that the post-decision comments suggest the findings of fact may have been based upon a less certain basis than indicated during the oral opinion.

As a result of the above, the Appellate Division vacated the FRO and remanded the matter for a new hearing before a different trial court judge. This also had the effect of vacating the award of counsel fees within the reversed, amended FRO.

In short, what a Judge says “off-the-record” either before or after a hearing may be relevant to whether a litigant received a fair and impartial trial. Obtaining the recording and/or transcript may prove difficult, as it was here. However, it is clear that the comments made may be relevant to whether any perceived or actual biases existed warranting a new hearing before a new trial court judge.