Letter,Correspondence: Sutton Anthony Vs Beth Israel Hospital

On December 07, 2018 a Letter,Correspondence was filed involving a dispute between Suttonanthony, and Beth Israel Hospital, Daryl Terry, John Jane Does 1-10, Thomas Adams, Zack Lipner, for Employment (Other Than Cepa Or Lad) in the District Court of Essex County.

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ELDRIDGE HAWKINS LLC
Attorney At Law
Attorney ID No. 214731967
60 Evergreen Place, Suite 510
East Orange, New Jersey 07018
Telephone: (973) 676-5070
Facsimile: (973) 676-7356
Attorney for: ANTHONY SUTTON

JUNE 24, 2021

RE: SUTTON ANTHONY VS BETH ISRAEL HOSPITAL

Dear Clerk, Judge, and Counsel:

Since | have filed the motion for reconsideration and recusal in the within matter,

| ran across the attached NJ Supreme Court Case State v. McCabe that should give us

all better guidance in this matter of recusal.

The New jersey Supreme Court has made it clear that should a reasonable

person be able to interpret a judge’s actions as being biased, and THE MERE

APPEARANCE OF IMPROPRIETY should require the judge to be recused and a new

judge to hear the remaining issues.

| submit this case and the standard stated therein in support of Plaintiffs Motion

for Recusal and to more specifically clarify that another judge should hear the Plaintiffs

reconsideration motion.

Respectfully Submitted,

DATED: JUNE 24, 2021 /s/Eldridge Hawkins
Eldridge Hawkins, Esq.
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State v. McCabe

Supreme Court of New Jersey

Jan 25, 2010

201.N.J. 34 (N.J. 2010)

No. A-88 September Term 2008.

Argued October 26, 2009.

Decided January 25, 2010.

35 Appeal from the Municipal Court, Morris Township, Robert J. Nish, J. *35

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).

ae “37

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
38 restrictions. We are asked to decide *38 whether a municipal court judge
mst cease himself when the judge and the defense attorney are -

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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.
2.C: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
39 executrix of the estate, who was defending the will. *39

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 motion to recuse Judge Nish.

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ee
ET anna ee VE ee py eg rareeeraae veers arenes a ae
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 youre still
representing that — I mean, this is still an active case.

THE GOURT: 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 nf _ hig

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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.
4l “41

III.
FD
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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
42 year if the defendant waives indictment *42 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 2 a »U rt

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Jersey Judiciary, Superior Court Caseload Reference Guide 2005-2009 3 (2009),
available at http://www.judiciary.state.nj.us/quant/ fiveyear.pdf.

? Many were resolved without a court appearance, including about 1.4 million
traffic tickets paid through the municipal court’s website, NJMCdirect.com,
according to the AOC.

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 (ast 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 and the
appearance of impartiality in municipal court is vital to our system of
justice.

IV.
Last term in DeNike, this Court reviewed certain ethical precepts that are
relevant to this case. As we stated, those standards

include the bedrock principle articulated in Canon 1 of the Code of
Judicial Conduct that ’[a]n independent and honorable judiciary is
43 indispensable to justice *43 in our society.” To that end, judges are
required to maintain, enforce, and observe “high standards of
conduct so that the integrity and independence of the judiciary may
be preserved.” Ibid.

Judges are “to act at all times in a manner that promotes public
confidence,” id. Canon 2(A), and “must avoid all impropriety and
appearance of impropriety,” I$ nnn Cpr ng
g Ze
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objectivity and impartiality may fairly be brought into question.”
Ibid. In other words, judges must avoid acting in a biased way orina
manner that may be perceived as partial. To demand any less would
invite questions about the impartiality of the justice system and
thereby “threaten[] the integrity of our judicial process.” State v.
Tucker, 264 N.J.Super. 549, 554, 625 A.2d 34 (App. Div. 1993), certif.
denied, 135 N.J. 468, 640 A.2d 850 (1994).

[ DeNike, supra, 196 N.J. at 514-15, 958 A.2d 446.]

Two additional rules focus directly on the subject of disqualification. Canon
3(C)(@) of the Code of Judicial Conduct provides that ’[a] judge should
disqualify himself or herself in a proceeding in which the judge’s impartiality
might reasonably be questioned.” Likewise, Rule 1:12-1(f) instructs judges
not to sit in any matter “when there is any... reason which might preclude a
fair and unbiased hearing and judgment, or which might reasonably lead
counsel or the parties to believe so.’””

? Other aspects of the Rule are not relevant here. See Rule 1:12-1(a)-(e)
(requiring disqualification for familial relationships, prior role as counsel in
case, prior opinion in action, and interest in event or action).

Our rules, therefore, are designed to address actual conflicts and bias as well
as the appearance of impropriety. In evaluating McCabe’s recusal motion,
the municipal court judge looked for proof of prejudice to McCabe. Yet “it is
not necessary to prove actual prejudice on the part of the court[;] ... the
mere appearance of bias may require disqualification [TJhe belief that the
proceedings were unfair must be objectively reasonable.” State v. Marshall,
148 N.J. 89, 279, 690 A.2d 1 (citing R. 1:12-1(f)), cert. denied, 522 U.S. 850, 118
S.Ct. 140, 139 L.Ed.2d 88 (1997). *44

In DeNike, supra, those principles guided us to the following standard to
evaluate requests for recusal: "Would a reasonable, fi ully informed person
Aakers 21....201.. alm fon

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represented); State v. Perez, 356 N.J.Super. 527, 532, 813 A.2d 597 (App.Div.
2003) (requiring recusal when municipal court judge made comments that
“reasonable person would take as reflecting bias” against minority group).

V.
We now apply the above standard to the facts of this case. First, we consider
the State’s argument that the case is moot. The State contends that
dismissal of the probate case eliminated any conflict and that this appeal
should therefore be dismissed as moot. We disagree.

McCabe’s defense counsel, Mr. Albin, moved to dismiss the probate case
about two months after Judge Nish denied the recusal motion. That after-
the-fact dismissal cannot cure an appearance problem that might have
existed at the time the recusal motion was heard. In addition, the motion to
dismiss highlights the dilemma presented: Judge Nish did not oppose the
motion, and we accept that he had no reason to do so. But someone in his
position likely could not oppose such a motion because to challenge it would
offer proof of the need for recusal.

Further, the New Jersey Constitution does not restrict the exercise of
judicial power to actual cases and controversies. State v. Gartland, 149 N.J.
456, 464, 694 A.2d 564 (1997); see also N.J. Const. art. VI, § 1, 41. The issue
before the Court is a matter of significant public importance, which could
justify deciding this appeal even if it were technically moot. Reilly v. AAA
45 Mid-Atlantic “45 Ins. Co. of N.J., 194 N.J. 474, 484, 946 A.ad 564 (2008);
Gartland, supra, 149 N.J. at 464, 694 A.2d 564.

We turn next to the merits and begin with the standard of review. Motions
for disqualification must be made directly to the judge presiding over the
case. R, 1:12-2; Magill v. Casel, 238 N.J.Super. 57, 63, 568 A.2d 1221 (App.Div.
1990). They are entrusted to the sound discretion of the judge and are
subject to review for abuse of discretion. Panitch v. Papitch.220 N.LSuner. 63,

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mistakenly focused on whether McCabe had suffered any prejudice. The
Superior Court addressed the language contained in Rule 112-1 (f) —
whether “there is any other reason which might preclude a fair and unbiased
hearing and judgment, or which might reasonably lead counsel or the parties
to believe so” — but did not speak to the possible appearance of impropriety
discussed in Marshall, DeNike, and other precedent. We apply the test set
forth in DeNike, supra: “Would a reasonable, fully informed person have
doubts about the judge’s impartiality?” 196 NJ. at 517, 958 A.ad 446.

To be sure, there is no evidence of bias or unfairness in the record. Nor is
there proof of any animosity between the municipal judge and defense
counsel. The core problem relates to the probate case: the complaint that
attorney Nish moved to reinstate was still pending when the McCabe matter
reached Judge Nish’s courtroom. Although there had been no activity in
the
probate case for two years, Judge Nish and Mr. Albin were still adversaries in
an open matter. It is not accurate to refer to the probate case as a prior
matter or to their relationship as one involving former adversaries, as the
State does. The facts are different. Under the circumstances here, allowin
g a
46 Judge to *46 oversee a case in which the defendant's attorney is also the
judge’s adversary in another pending matter is to invite reasonable doubts
about the judge’s partiality. That, in turn, raises reasonable questions in the
minds of litigants and the public about the fairness of the proceedings and
the overall integrity of the process. For those reasons, disqualification is
required in this case.

Motions for recusal ordinarily require a case-by-case analysis of the
particular facts presented. That said, it is difficult to conceive of a situation
like this one in which disqualification would not be necessary. A bright-line
rule in this area will offer guidance to municipal judges and litigants alike; it
will also help ensure the confidence of the public in the judicial system.
Accordingly, we hold that part-time municipal court judges must recuse
themselves whenever the judge a ar 7 in

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that time.

When recusal is necessary, the municipal court case can be transf
erred to
another judge in the same or a nearby municipal court. R. 7:8-2(b). Because
we focus on conflicts posed by pending matters, that approach should not
impose a heavy burden on the Judiciary, as the State suggests. Whatev
er the
burden, though, it must be met, because the cost to the Judiciary’s
reputation otherwise would be greater.

A more nuanced situation arises when the lawyer and the municipal
court
Judge were former adversaries in a closed case. That fact alone does not
compel recusal. In deciding whether disqualification is appropriate,
judges
should evaluate the factors in Rule 1:12-1. Other relevant consideratio
ns
include any history of animosity between counsel, see Chandok v. Chando
k,
406 N.J.Super. 595, 606, 968 A.2d 1196 (App.Div.), certif: denied, 200
N.J. 207,
47 976 A.2d 384 (2009) (requiring recusal “because the * 7 acrimonious
relationship between counsel and the judge, including the prior litigat
ion
which included charges of assault and unethical conduct, gave rise to
more
than a reasonable belief by an objectively reasonable litigant that the judge
could not be fair and impartial”), and how recently the judge and opposi
ng
counsel were adversaries, cf. DeNike, supra, 196 N.J. at 520-21, 958 A.2d
446
(proposing general guidance for judges as to timing of post-retirement
employment discussions). The timing ofa motion for recusal may
also be
telling in certain instances. However, we reiterate that “it is improper
for a
court to recuse itself unless the factual bases for its disqualification are
shown by the movant to be true or are already known by the court.”
Marshall, supra, 148 N.J. at 276, 690 A.2d.1 (citations omitted).

We add that there is no claim or evidence of bad faith or unethical conduc
t
on the part of Judge Nish, who freely allowed for an appeal of his order.
Also, nothing in the record suggests that Mr. Albin was attempting to “shop”
for aurea judge at a late hour. It is the appearance of impropriety — and

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1
different judge.

For reversal and remandment — Chief Justice RABNER and Justices LONG,
ALBIN, WALLACE, RIVERA-SOTO and HOENS — 6.

Opposed — None.

*48
48

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Stephen L Petrillo Track Judge’s New Case

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Document Filed Date

June 25, 2021

Case Filing Date

December 07, 2018

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Letter,Correspondence: Sutton Anthony Vs Beth Israel Hospital

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