In the Family Part of the Superior Court, it is often tempting to seek the removal of a seemingly biased judge. When a decision is unfavorable, it is easy to suspect bias or corruption. Of course, trial judges in the State of New Jersey are obligated to conduct proceedings in a fair and impartial manner. In fact, the proceeding must not only be free of actual bias, it must be free from even the appearance of bias. So, when there are objectively reasonable grounds to suspect bias, what do you do?
Court Rule 1:12-2 provides that “[a]ny party, on motion made to the judge before trial or argument and stating the reasons therefor, may seek that judge’s disqualification.” Thus, assuming the trial judge has not voluntarily stepped aside of his or her own accord, you must file a motion to disqualify.
Court Rule 1:12-1 governs identifies seven mandatory grounds for a judge’s disqualification. Specifically, a judge is required to step aside if he or she: (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; (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.
The trial judge is required to disqualify only if he or she is satisfied that there is an “objectively reasonable” belief that continued proceedings would be unfair. But it bears reiterating that actual bias is not required. The objectively reasonable appearance of bias is sufficient to require disqualification.
Even so, it is unnecessary and improper for a trial judge to disqualify himself or herself at a litigant’s mere suggestion. Rather, disqualification is appropriate only when the alleged cause is known by the trial judge or is shown to be true. Perhaps most importantly to litigants in the Family Part, an unfavorable decision does not justify an inference of bias unless the error is so blatant as to support such a claim.
The legal standard discussed above might make it seem easy to disqualify a judge from hearing the case. It is not. Disqualification is quite difficult to accomplish. As stated above, the disaffected party must file a motion seeking disqualification. Unfortunately, the trial judge is unlikely to admit to wrongdoing or even the appearance of wrongdoing. Therefore, assuming the initial motion is denied by the trial judge, the disaffected litigant will need seek review by the Appellate Division and perhaps the New Jersey Supreme Court. In doing so, there must be careful strategic considerations.
First, litigants should consider the costs of this course of action. The motion and appeal are likely to be expensive, and it may cost thousands upon thousands of dollars to resolve the claim.
Second, litigants must consider the time necessary to obtain a decision from both the trial court and the Appellate Division. A motion in the trial court is usually resolved within a month or two, but assuming it gets denied, it can take several months (perhaps more than one year) to obtain relief from the Appellate Division. In the interim, all existing court orders generally remain in effect.
Finally, and most importantly, there is a serious risk that: (a) the attempt at disqualification ultimately will be unsuccessful; and (b) the trial judge, who continues to preside over the case, will now be quite unhappy with whomever sought his or her disqualification.
If you intend to seek the disqualification of a judge, I strongly recommend retaining Shaw Divorce & Family Law LLC to represent you. Strategic and aggressive counsel will help to maximize your odds of success. Please contact the firm to schedule a free initial consultation. I would be happy to sit down with you free of charge to explore the facts, explain the law, and address the likely timeline, costs, and range of possible outcomes.