Fatma E. Cezzaroglu v. v. Borough of Roselle

COMMITTEE ON OPINIONS

February 6, 2015

Mrs. Fatma E. Cezzaroglu

Mr. Ali N. Cezzaroglu

8655 Bay Parkway, Unit D4

Brooklyn, New York 11214

Adam J. Colicchio, Esq.

Palumbo & Renaud

190 North Avenue E.

Cranford, New Jersey 07016

Re: Fatma E. Cezzaroglu and Ali N. Cezzaroglu

v. Borough of Roselle

Docket No. 010577-2014

Dear Mr. and Mrs. Cezzaroglu and Mr. Colicchio

This letter constitutes the court s opinion with respect to plaintiffs motion to disqualify the undersigned, under R. 1:12-1. For the reasons that follow, plaintiffs motion is denied.

The facts and procedural history relevant to the motion are as follows. Plaintiffs are the owners of the single family home located at 1234 Chestnut Street, in the Borough of Roselle, County of Union, and State of New Jersey. The property is identified on the Borough of Roselle s tax map as Block 4505, Lot 9 (the subject property ).

Plaintiffs initiated an appeal challenging the 2013 tax year assessment on the subject property before the Union County Board of Taxation. After conducting a hearing, the Union County Board of Taxation concluded that the ratio of assessed to true value of the subject property was within the common level range, and entered judgment dismissing without prejudice plaintiffs petition of appeal. See N.J.S.A. 54:3-22. Plaintiffs filed an appeal of the county board of taxation s judgment with the Tax Court on September 10, 2013, and the matter was assigned docket number 013730-2013 (the 2013 Tax Appeal ). The trial of the 2013 Tax Appeal was conducted before the undersigned on December 5, 2014. Following the testimony of Ali N. Cezzaroglu, plaintiffs appraiser and the presentation of plaintiffs proofs, the defendant Borough of Roselle (the defendant ), moved to dismiss plaintiffs complaint under R. 4:37-2(b). In an oral opinion, the undersigned concluded that plaintiffs failed to produce evidence sufficiently definite, positive and certain in quality and quantity to overcome the presumption of validity which attaches to the quantum of the tax assessment. Pantasote Co. v. City of Passaic, 100 N.J. 408, 412-14 (1985). Specifically, the undersigned found plaintiffs expert s report, and the testimony upon which it was based, was not supported by credible and reliable data, proper analysis or personal observations. Accordingly, the court granted defendant s motion and dismissed plaintiffs 2013 Tax Appeal complaint under R. 4:37-2(b).

On or about January 26, 2015, plaintiffs filed a Notice of Appeal with the Appellate Division of the Superior Court of New Jersey contesting the December 5, 2014 ruling by the court (the Notice of Appeal ). Plaintiffs Notice of Appeal was filed outside of the 45 day time period fixed under R. 2:4-1(a). Therefore, on January 29, 2015, the Clerk of the Appellate Division returned unfiled the Notice of Appeal informing plaintiffs that a motion to extend the time for filing an appeal under R. 2:4-4 must be submitted and granted. As of the date of this letter opinion, the undersigned is unaware if plaintiffs have submitted a motion to extend the time for filing an appeal under R. 2:4-4. However, as set forth herein, the status of plaintiffs Notice of Appeal in the 2013 Tax Appeal has no influence, bearing or impact on the court in the instant matter.

Plaintiffs initiated the instant matter by filing an appeal challenging the 2014 tax year assessment on the subject property before the Union County Board of Taxation. After conducting a hearing, the Union County Board of Taxation concluded that the ratio of assessed to true value of the subject property was within the common level range, and entered judgment, dismissing without prejudice, plaintiffs petition of appeal. See N.J.S.A. 54:3-22. Plaintiffs subsequently filed an appeal of the county board of taxation s judgment with the Tax Court on July 10, 2014 (the 2014 Tax Appeal ).

On January 8, 2015 the court received a Notice of Motion from plaintiffs, bearing a return date of January 2, 2015, to [h]ave this case be heard by a judge other than Hon. Joshua D. Novin, which the undersigned is treating as a Motion to Disqualify under R. 1:12-1. In the certification annexed to the Notice of Motion, plaintiff, Fatma E. Cezzaroglu, writes

Potential prejudicial outcome exists since he has ruled on case No. 013730-2013 for the same property and assessment for the previous year (013730-2013)

On receipt of the motion, the court notified plaintiffs and defendant that same was not timely received, under R. 1:6-3, to be heard on the court s January 23, 2015 motion calendar, and therefore would be heard on February 6, 2015, the next available motion calendar. No opposition to the motion was received by the court on behalf of defendant.

Conclusions of Law

Applications which question the impartiality and integrity of the judiciary must be closely scrutinized. Judges are required to maintain, enforce, and observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. DeNike v. Cupo, 196 N.J. 502, 514 (2008)(quoting Canon 1 of the Code of Judicial Conduct). The Canons of the Code of Judicial Conduct demand that judges "act at all times in a manner that promotes public confidence," and "avoid all impropriety and appearance of impropriety." Ibid.

Therefore, the rules mandate that any application which seeks disqualification of a judge from presiding over a trial or an argument must clearly identify the reasons for disqualification and be made to the judge before trial or argument. R. 1:12-2. The grounds for judicial disqualification can be found in R. 1:12-1 and N.J.S.A. 2A:15-49. A judge is disqualified from, and shall not preside over a 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;

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

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

(f) has discussed or negotiated his or her post-retirement employment with any party, attorney or law firm involved in the matter; or

(g) 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.

Paragraphs (c), (d) and (e) shall not prevent a judge from sitting because of having given an opinion in another action in which the same matter in controversy came in question or given an opinion on any question in controversy in the pending action in the course of previous proceedings therein, or because the board of chosen freeholders of a county or the municipality in which the judge resides or is liable to be taxed are or may be parties to the record or otherwise interested.

[R. 1:12-1]

Similarly, N.J.S.A. 2A:15-49, provides that no judge shall oversee the trial of or argument of any matter in controversy pending before his or her court, when the judge

a. Is related in the third degree to any of the parties to the action, which degree shall be computed as at common law; or

b. Has been attorney of record or counsel for a party to such action; or

c. Has given his opinion upon a matter in question in such action; or

d. Is interested in the event of such action.

This section shall not be construed to prevent a judge from sitting on such trial or argument because he has given his opinion in another action in which the same matter in controversy came in question or given his opinion on any question in controversy in the pending action in the course of previous proceedings therein, or because the board of chosen freeholders of a county or municipality in which he is a resident or liable to be taxed are or may be parties to the record or otherwise interested.

Additional authority can be found in the Code of Judicial Conduct for circumstances when disqualification of a judge is appropriate. Canon 3(C)(1) 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, 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;

(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a witness concerning it;

(c) the judge knows that he or she, individually or as a fiduciary, or the judge s spouse, parent or child or any other member of the judge s family residing in the judge s household, has a financial interest in the subject matter in controversy or in a party to the proceeding or any other interest that could be affected by the outcome of the proceeding;

(d) the judge has initiated contact about or discussed or negotiated his or her post-retirement employment with any party, attorney or law firm involved in any matter pending before the judge in which the judge is participating personally and substantially, regardless of whether or not the discussions or negotiations lead to employment of the judge by the party, attorney or law firm;

(e) the judge or the judge s spouse, or a person within the third degree of relationship to either of them, or the spouse of such person

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as, or is in the employ of or associated in the practice of law with, a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be affected by the outcome of the proceeding;

(iv) is to the judge s knowledge likely to be a witness in the proceeding.

Although R. 1:12-1(a) through (d), N.J.S.A. 2A:15-49 and Canon 3(C)(1)(b), (c) and (e) of the Code of Judicial Conduct bear notable similarities, the most striking difference is the inclusion of the objectively reasonable person standard under R. 1:12-1(g), and in the introductory language of Canon 3(C)(1) of the Code of Judicial Conduct. Accordingly, a movant need not demonstrate actual prejudice on the part of the court, rather establishment of an appearance of bias may require disqualification so long as the belief of unfairness is objectively reasonable. Chandok v. Chandok, 406 N.J. Super. 595, 603-604 (App. Div. 2009)(quoting Panitch v. Panitch, 339 N.J. Super. 63, 67 (App. Div. 2001), certif. denied, 200 N.J. 207 (2009)).

The court is mindful that disposition of a motion for disqualification is entrusted to the sound discretion of the trial judge whose recusal is sought. Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div. 2009)(quoting Panitch v. Panitch, supra, 339 N.J. Super. at 66). See also Bonnet v. Stewart, 155 N.J. Super. 326, 330 (App. Div. 1978), certif. denied, 77 N.J. 468 (1978). It is unnecessary and would be improper for a judge to withdraw from a case upon a mere suggestion that he is disqualified unless the alleged cause of recusal is known by him to exist or is shown to be true in fact. Panitch v. Panitch, supra, 339 N.J. Super. at 66 (quoting Hundred East Credit Corp. v. Eric Schuster, 212 N.J. Super. 350, 358 (App. Div. 1986), certif. denied, 107 N.J. 60 (1986)). A judge is not prohibited from presiding over a matter simply because he or she has "given his opinion . . . on any question in controversy in the pending action in the course of previous proceedings [11] therein." R. 1:12-1. Moreover, reversal on appeal of a judgment in a prior proceeding has been determined to be an inappropriate ground warranting disqualification. The mere fact that a judgment resulting from previous proceedings had been reversed on appeal is not a sufficient ground for recusal. Hundred East Credit Corp. v. Eric Schuster Corp., supra, 212 N.J. Super. at 358 (citing State v. Walker, 33 N.J. 580, 591 (1960), certif. denied, 371 U.S. 850 (1962)). Fundamental to any consideration of possible judicial disqualification is a showing of prejudice or bias. State v. Marshall, 148 N.J. 89, 277 (1997), certif. denied, 522 U.S. 850 (1997). However, as previously recited, it 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. Chandok v. Chandok, supra, 406 N.J. Super. at 603-604 (quoting Panitch v. Panitch, supra, 339 N.J. Super. at 67).

Here, plaintiffs allegations are unrelated to any grounds for disqualification identified under R. 1:12-1(a) through (f) or N.J.S.A. 2A:15-49 a. through d., and there are no facts known to the court that would give rise to any of those provisions. The same is true for Canon 3(C)(1)(b) through (e) of the Code of Judicial Conduct, which includes circumstances when the judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

Therefore, the only remaining bases for disqualification which could be applicable to the instant matter are: (i) Canon 3(C)(1)(a) of the Code of Judicial Conduct, where the judge s impartiality might reasonably be questioned where the judge has a personal bias or prejudice concerning a party or a party s lawyer ; and (ii) R. 1:12-1(g), 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.

The plaintiffs in this matter are self-represented litigants with whom the undersigned has had limited contact. The extent of the contact involves the undersigned having presided over and entered judgment dismissing plaintiffs 2013 Tax Appeal. Other than that contact, the undersigned has never met plaintiffs in any capacity, either socially, professionally or otherwise. Additionally, the undersigned has not engaged in any communication with plaintiffs, other than the 2013 Tax Appeal trial colloquy. Further, limited communications have taken place between plaintiffs and the undersigned s law clerk involving entry of judgment in the 2013 Tax Appeal, making a request for a copy of the Notice of Appeal, and scheduling matters. The undersigned has no personal or financial interest in the subject matter of this litigation. The undersigned possesses no personal knowledge related to disputed evidentiary facts. More importantly, at no time has the undersigned formed or expressed a personal bias or prejudice against plaintiffs or the subject property. The mere fact the undersigned rendered a judgment dismissing plaintiffs 2013 Tax Appeal will not preclude the undersigned from affording plaintiffs an impartial and unbiased hearing in the 2014 Tax Appeal matter. The court is entrusted with the responsibility to fairly, objectively, and equitably interpret, and apply the law to the facts and evidence presented. It is a strict adherence to this duty, and the principles embodied therein, which ensures the integrity and independence of the judiciary. In the face of such responsibility, the court is required to weigh and consider the evidence presented and to resolve each case on its own particular facts and merits. Housing Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994)(quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)).

Additionally, no reason exists which will preclude, or may reasonably lead the parties to believe that, a fair and unbiased hearing and judgment can be rendered in this matter. The entry of judgment by the undersigned, dismissing plaintiffs 2013 Tax Appeal, does not render the court predisposed to rule against plaintiffs in the 2014 Tax Appeal matter. The disposition of the 2013 Tax Appeal was predicated upon the specific data, information and testimony presented and introduced in court by plaintiffs and plaintiffs appraiser during the pendency of the trial. Although the trial of the 2014 Tax Appeal will involve issues parallel to the 2013 Tax Appeal trial, the 2014 Tax Appeal affects a different valuation date and the data and information will likely be distinct and dissimilar from the data and information relied upon in the 2 013 Tax Appeal. The 2013 Tax Appeal addressed the true value of the subject property as of the October 1, 2012 valuation date and the market conditions and extrinsic factors affecting the subject property s value at that time. The 2014 Tax Appeal must address the true value of the subject property as of the October 1, 2013 valuation date and the market conditions and extrinsic factors affecting the subject property s value at that time.

Additionally, plaintiffs allegations that a [p]otential prejudicial outcome exists are unsupported by any facts or evidence in this matter, and are simply untrue. The plaintiffs equate entry of judgment, that they deem unfavorable, in the 2013 Tax Appeal to an alleged bias of the undersigned. However, entry of that judgment was not predicated on a bias or prejudice, but rather was centered on the quality and reliability of the evidence presented at trial. At the close of plaintiffs proofs in the 2013 Tax Appeal, the court concluded that plaintiffs failed to produce evidence sufficiently definite, positive and certain in quality and quantity to overcome the presumption of validity which attaches to the quantum of the tax assessment. Pantasote Co. v. City of Passaic, supra, 100 N.J. at 412-14. Thus, even in the absence of defendant s motion to dismiss plaintiffs complaint under R. 4:37-2(b), the court was nonetheless required to decide if plaintiffs had overcome the presumption of validity attached to the tax assessment. Accordingly, if the court independently concluded that plaintiffs did not carry the requisite burden, dismissal of the action would have been warranted by the court under R. 4:40-1.

Although the Appellate Division has cautioned that a showing of actual prejudice or bias of the court is not necessary and that the mere appearance of bias may require disqualification, the litigant s belief that the proceedings were unfair must be objectively reasonable. Panitch v. Panitch, supra, 339 N.J. Super. at 67. Here, the court concludes that an objectively reasonable, fully informed member of the public would not perceive that any prejudice or bias exists warranting disqualification of the undersigned from presiding over the 2014 Tax Appeal. Plaintiffs have failed to establish any objectively reasonable appearance of bias and have not demonstrated any actual prejudice by the undersigned. Further, the allegations raised herein by plaintiffs will not preclude the undersigned from affording plaintiffs a fair and unbiased hearing and judgment in the 2014 Tax Appeal.

For the reasons set forth herein, plaintiffs motion is denied.

Very truly yours,

Hon. Joshua D. Novin, J.T.C.