Conflict of Interest: Second Cousin of Municipal Court Judge Accepting Position as Prosecutor in same Municipality

123 N.J.L.J. 991
April 20, 1989

OPINION 627

Conflict of Interest:
Second Cousin of Municipal
Court Judge Accepting Position
as Prosecutor in same Municipality

The inquirer is the prosecutor in a municipal court where the sitting judge is his second cousin. He asks whether this presents a conflict, thus requiring one or the other to disqualify himself.
R. 1:12-1 sets forth the basis for disqualification of judges on their own motion based upon family relationship. R. 1:12-2 provides for disqualification on the motion of a party. This we are not con cerned here. R. 1:12-l(a) requires a judge to disqualify himself on his own motion if he is by blood or marriage a second cousin of, or is more closely related to, any party to the action. Subsection (b) of the rule provides for disqualification if the judge is by blood or marriage a first cousin or is more closely related to any attorney in the action.
The inquirer is in the category referred to in subsection (b), but since he is not a first cousin this could not require disqualification of the judge. In the case of Clawans v. Waugh, 10 N.J. Super. 605 (Cty. Ct. 1951) it was held that in order to disqualify the judge there must exist a ground authorized by law and "it is not for the courts to add other grounds of disqualification." Id. at 612, quoting 48 C.J.S. 77, Judges. The court went on to say that where the reasons for disqualification are set out in a constitution or statute (see N.J.S.A. 2A:15-49), such provisions are exclusive. The cited rule is broader than the statute and certainly the ruling in Clawans will apply.
Since the cited rule clearly does not disqualify the inquirer, there is no reasons why he cannot continue as prosecutor in the municipal court in which his second cousin is the municipal judge.