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There are very few cases in workers’ compensation where a party asks a judge to recuse himself or herself. One recent case,Executrix of the Estate of Rosemarie Bellino v. County of Hudson, A-0275-11T4, (App. Div. April 30, 2013) provides guidance on the legal standard.
Rosemarie Beillino worked as a sheriff’s officer for the County of Hudson and filed five workers’ compensation claims. The case was tried over eight non-consecutive days between September 16, 2009 to March 16, 2011. The Judge of Compensation heard several witnesses including the petitioner, two other sheriff’s officers, the county payroll supervisor, Dr. Arthur Tiger, Dr. Malcolm Hermele, Dr. William Kritzberg, Dr. Arthur Rothman and Dr. Arthur Canario.
Ultimately, the judge dismissed three of the five cases and found for the petitioner on an elbow claim and carpal tunnel claim. The judge did not find that petitioner was totally and permanently disabled. The petitioner died prior to the argument before the Appellate Division.
Following the testimony in the case but before any decision, petitioner’s attorney asked to speak to the judge, who advised that she did not want to have any ex-parte discussions. Therefore, counsel for petitioner left a note for the judge along with some case law. That led the judge to contact both parties during which conversation petitioner’s attorney advised that she felt the judge had crossed the line in the case and had become more of an advocate than a trier of fact. The judge directed that counsel file a motion for recusal.
In the motion for recusal, counsel argued that there was bias in part because the judge asked numerous questions of petitioner comprising 12 pages in the transcript. In addition, counsel pointed to the judge’s “expressed incredulity to the petitioner’s statements that . . . she had been regularly required by her job to work beyond the 4:30 p.m. normal workday end.” Further, counsel noted that the judge relied upon her personal trial experience at one point and “prevented petitioner from placing a description on the record of the process delineating her manner of interaction with prisoners/participants and the physical movements that would have been involved.” The judge also noted at one point that she was aware of the arraignment process in Hudson County and did not need clarification. Lastly, counsel felt it was inappropriate for the judge to allow inquiries into the income and the nature of petitioner’s spouse’s retirement.
The Judge of Compensation denied the motion noting in part that the motion was filed 21 months after petitioner had testified. The Appellate Division affirmed. The Court first observed that judges must “refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial.”State v. McCabe, 201 N.J. 34, 42-43, (2010). The Court further observed that when a party argues that a judge is biased, “the moving party must prepare the case ‘on paper or by calling witnesses.’Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). Judges of Compensation are governed by rules of conduct,N.J.A.C. 12:235-10.1 to 10.23, modeled after the Code of Judicial Conduct.
The Court distinguished two unreported cases because there was no evidence of impatience or irritability in the record and no evidence that the judge took over all questioning. The Court weighed the total number of pages of petitioner’s testimony (110) against the 12 pages of the judge’s questioning and concluded that this was not significant. “We are satisfied neither the length of questioning nor nature of the judge’s questioning rises to the level of the judge becoming an advocate, dominating questioning and calling witnesses.”
As to counsel’s concern about the judge’s demeanor, tone and facial expressions during a conference call prior to the recusal motion, the Court said “. . . she failed to produce affidavits or certifications to support her allegations of the judge’s demonstrated bias.”