LINDA COOK v. MARTIN W. STRUBLE

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4887-05T34887-05T3

LINDA COOK,

Plaintiff-Respondent,

v.

MARTIN W. STRUBLE,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 19, 2007 - Decided

Before Judges Wefing, Parker and R. B. Coleman.

On appeal from the Superior Court, Chancery Division, Family Part, Morris County, Docket No. FV-14-1067-06.

Damiano Marcello Fracasso, attorney for appellant.

Linda Cook, respondent pro se.

PER CURIAM

In this domestic violence matter, defendant Martin W. Struble appeals from a final restraining order (FRO) entered on May 3, 2006. Because there was a conflict of interest between plaintiff and the municipal judge who issued the temporary restraining order (TRO), we vacate the TRO and, because it formed the basis for the final hearing, we reverse the FRO and remand the entire matter to be heard anew by a different municipal judge.

The parties had a lengthy live-in relationship during which a child was born. At the time of the domestic violence trial in May 2006, the child was nine years old. There was no prior history of domestic violence between the parties.

On March 4 or 5, 2006, plaintiff moved out of the parties' home with their child. Thereafter, defendant made numerous phone calls attempting to contact the child. Plaintiff testified that she told defendant to stop calling her and that he could contact the child and arrange visits by calling her sister. Ultimately, defendant filed an FD complaint and moved for access to the child. On April 10, 2006, the parties entered a consent agreement whereby defendant would have supervised visits with the child. After April 10, however, defendant continued to telephone plaintiff at work and on her cell phone because she did not comply with the consent agreement. Defendant testified that plaintiff never told him to stop calling. He further testified that plaintiff's phone had caller ID and plaintiff could have simply given the phone to the child and let her talk to him.

The parties did not dispute the number of phone calls defendant made to plaintiff. The issues in the final hearing were whether plaintiff told defendant to stop making the calls and whether he made the calls with a purpose to harass plaintiff. The trial court found plaintiff more credible than defendant and, although the court indicated that defendant's desire to have contact with his daughter was understandable, it was not an excuse to harass plaintiff through repeated phone calls. The court found, moreover, that defendant made the repeated phone calls with a purpose to alarm or seriously annoy plaintiff. Consequently, the trial court entered the FRO. The order provided that plaintiff would have temporary custody of the child but that defendant had visitation in accordance with the April 10 consent order.

In this appeal, defendant argues (1) the merits of the trial court's finding of domestic violence and issuance of the FRO; and (2) the conflict of interest between plaintiff and the municipal judge. We will not address the merits of defendant's arguments that the trial court erred in granting the FRO because, as we have indicated previously, the conflict of interest between plaintiff and the municipal judge who granted the TRO renders the TRO a nullity and requires that we reverse and remand the matter on that ground.

Plaintiff was employed as a municipal court administrator. She testified that in her position, she takes domestic violence complaints prepared by the police department, reviews them, enters them into the system, forwards them to the Prosecutor's Office or criminal intake or the family court. Presumably, she first refers them to the municipal judge for his consideration pursuant to R. 5:7A(a). Not all applications for TROs are granted. The judge must review the complaint to ascertain whether the plaintiff has alleged a prima facie case of domestic violence. Ibid.

In her brief, plaintiff stated:

Prior to this hearing a temporary restraining order was issued [by the municipal judge]. Prior to me placing myself in this position, as a court [a]dministrator, I informed [the municipal judge] I fear for my safety and my children(s) [s]afety. And that I could not keep the defendant from calling and scaring me at my [w]ork place. I then also provided this information to my above superiors. Resulting [i]n one conclusion to seek a temporary restraining order. Yes, I have been employed [i]n the Borough . . . for over 19 years. Eight of those years were in [t]he . . . Police Department.

As an employee of the court system, a municipal court administrator is subject to the Code of Conduct for Judiciary Employees. Canon 3, entitled Avoiding Actual or Apparent Impropriety, provides that:

A court employee shall observe high standards of conduct so that the integrity and independence of the courts may be preserved, and shall avoid impropriety or the appearance of impropriety.

Canon 4, entitled Avoiding Actual or Apparent Conflicts of Interest, provides that:

Court employees shall regulate outside activities to minimize the risk of conflict with court-related duties. Generally a conflict of interest exists when the court employee's objective ability or independence of judgment in the performance of his or her job is impaired or reasonably may appear to be impaired. Outside employment or other activities, whether related to judicial administration or not, must not involve the court employee in conflict of interest nor appear to do so, nor encroach on or conflict with judiciary-related duties.

Municipal court administrators are directly supervised by the municipal judges in their municipality. The close working relationship between the clerk and the judge gives rise to an appearance of impropriety, as well as an actual conflict of interest. Plaintiff should have advised the municipal judge that she was seeking a TRO and asked him to direct her to another judge to consider her complaint.

A municipal judge is bound by the Code of Judicial Conduct which requires judges to avoid "the appearance of impropriety." Canon 2, Code of Judicial Conduct. Canon 2B provides in pertinent part:

A judge should not allow family, social, political or other relationships to influence judicial conduct or judgment.

[Emphasis added.]

Canon 3C addresses disqualification of judges in circumstances giving rise to conflicts of interest and provides in pertinent part:

(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer or has personal knowledge of disputed evidentiary facts concerning the proceeding;

Clearly, Canon 3C(1)(a) applies here where the judge's impartiality may be reasonably questioned when he signed the TRO for his court administrator after she discussed the matter with him. "[Q]uestionable impartiality is defined as whether a reasonable person would so question, knowing the relevant facts and circumstances and is an objective standard." Marxe v. Marxe, 238 N.J. Super. 490, 499 (Ch. Div. 1989). In Marxe, we were addressing the question of whether a law firm that had employed the judge's former law clerk was disqualified from representing a party before the judge. Under those circumstances, we found no cause for disqualification because the former court clerk was not working on the matter presented to the judge. Here, however, plaintiff was currently and actively employed as the court administrator to the judge who signed the TRO. A reasonable person might well question the impartiality of the judge and he should, therefore, have recused himself.

Rule 1:12-1 sets forth the causes for disqualification of judges:

The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter, if the judge

(a) is by blood or marriage the second cousin of or is more closely related to any party to the action;

(b) is by blood or marriage the first cousin of or is more closely related to any attorney in the action. This proscription shall extend to the partners, employers, employees or office associates of any such attorney except where the Chief Justice for good cause otherwise permits;

(c) has been attorney of record or counsel in the action; or

(d) has given an opinion upon a matter in question in the action; or

(e) is interested in the event of the action; or

(f) when 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.

See N.J.S.A. 2A:15-49 for a similar statutory list of what constitutes disqualification of a judge.

Based upon plaintiff's statements, the municipal judge should have recused himself under paragraphs (d), (e) and (f) of the rule because, according to plaintiff, she discussed the matter with him before filing the complaint and he advised her to seek the TRO. The judge's independent judgment was brought into question by his working relationship with plaintiff and his prior knowledge of her domestic issues.

"One of the primary functions of the rules governing judicial disqualification 'is to maintain public confidence in the integrity of the judicial process, which in turn depends on a belief in the impartiality of judicial decision making.'" State v. Kettles, 345 N.J. Super. 466, 470 (App. Div. 2001) (quoting United States v. Nobel, 696 F.2d 231, 235 (3d Cir. 1982), cert. denied, 462 U.S. 1118, 103 S. Ct. 3086, 77 L. Ed. 2d 1348 (1983)). "A trial judge not only has the right but . . . the obligation to recuse himself on his own motion if he is satisfied that there is good cause for believing that his not doing so 'might preclude a fair and unbiased hearing and judgment, or . . . might reasonably lead counsel or the parties to believe so.'" State v. Utsch, 184 N.J. Super. 575, 581 (App.
Div. 1982) (quoting R. 1:12-1(f)). "There must be an appearance of impartiality which fosters the confidence of litigants in the justice system. Any questions concerning that impartiality threatens the integrity of our judicial process." State v. Tucker, 264 N.J. Super. 549, 554 (App. Div. 1993).

The conflict of interest issue is of such significant dimension that it renders the TRO a nullity requiring us to vacate the TRO, reverse the FRO and remand the entire matter to begin anew. Rivers v. Rivers, 346 N.J. Super. 418, 421 (App. Div. 2002).

To avoid any further appearance of impropriety, plaintiff must file a new complaint in a different municipality and have the TRO considered by a municipal judge who is unfamiliar with plaintiff or this case. We note as an aside that venue was never addressed in the final hearing and there is nothing in the record to indicate the county in which plaintiff resided at the time she filed the complaint. R. 5:7A(f). Since she resided with defendant in Sussex County and filed the complaint in Morris County, that question should be clarified.

 
Reversed and remanded.

We note that defendant raised the conflict of interest issue at the final hearing, but the Superior Court judge declined to consider it.

(continued)

(continued)

9

A-4887-05T3

RECORD IMPOUNDED

October 11, 2007