judge on the court’s own motion. Magill v. Casel, 238
N.J. Super 57, 62 (App. Div. 1990). In State v. Horton,
199 N.J. Super. 368 (App. Div. 1985), the court
analyzed both provisions and concluded that, since a
single standard should be understood, the provisions of
the rule should apply. There, the trial judge formerly
represented defendant in a juvenile matter. Although the
court noted that technically there would be no
disqualification under R. 1:12-1(c), there was
disqualification under subsection (f). The court directed
that since the matter was remanded for retrial that the
retrial be held before a different judge.
R. 1:12-1 sets forth six instances of mandatory
disqualification by a judge. Case law has interpreted
some of the proscriptions set forth in the rule. See
generally State v. Marshall, 148 N.J. 89, 275 (1997).
As to paragraph (b), see State v. Connolly, 120 N.J.
Super. 511 (App. Div. 1972), holding that a trial judge
must disqualify himself from a criminal trial by the
county prosecutor’s office if he bears the stipulated
degree of relationship (is by blood or marriage the first
cousin of or more closely related) to an assistant
prosecutor, whether or not that relative has in any way
participated in the case. However, no reversible error was
found in the trial judge’s failure to have so done because
his failure was inadvertent, and defendant neither
objected to his sitting nor thereafter claimed prejudice.
As to paragraph (d), see State v. Marshall, 148 N.J. at
278 (“the effect of paragraph (d) is directed primarily at
statements outside of the declarant’s role as a judge.”).
Paragraph (f) mandates disqualification “when there
is any other reason which might preclude a fair and
unbiased hearing and judgement, or which might
reasonably lead counsel or the parties to believe so.” For
example, the following instances were held to come
within the proscription of the provision. See State v.
Tucker, 264 N.J. Super. 549 (App. Div. 1993), certif.
denied, 135 N.J. 468 (1994) (judge who as assistant
prosecutor presented case which involved defendant to a
grand jury was required to recuse himself; denial of
reversal motion resulted in reversal of conviction); State v.
Horton, supra, (judge disqualified by prior representation
of defendant in different action); State v. Utsch, 184 N.J.
Super. 575 (App. Div. 1982) (municipal court judge
properly disqualified himself on his own motion
following an unwarranted personal attack by defendant’s
attorney.)
The following instances were held not to come
within the proscription of (f). State v. Marshall, 148 N.J.
at 279 (none of the alleged examples of bias or prejudice
warranted disqualification of same PCR judge who had
presided over defendant’s trial); State v. Bisaccia, 319
N.J. Super 1, 21 (App. Div. 1999) (fact that wiretap
authorization judge had previously, as county
prosecutor, defended appeals and habeas corpus in a
separate earlier appeal brought by defendants did not
require suppression of wiretaps); State v. Salentre, 275
N.J. Super 410 (App. Div.), certif. denied, 138 N.J. 269
(1994) (judge’s rejection of plea agreement does not
disqualify him from presiding over ensuing trial); State v.
Leverette, 64 N.J. 569 (1974) (holding that trial judge is
not disqualified by having expressed displeasure with
defense counsel who failed to appear for five successive
calendar calls).In State v. McNamara, 212 N.J. Super. 102, 108-110
(App. Div. 1986), certif. denied, 108 N.J. 210 (1987),
the Appellate Division held that the fact that the trial
judge had been the first assistant prosecutor of the county
at the time that the indictment was returned did not
require his recusal, relying upon a directive issued by the
Administrative Director of the Courts regarding
disqualification of trial judges in criminal matters. The
Court noted that any relief must be sought from the
Supreme Court.The court rules also provide for disqualification of a
judge on a party’s motion before trial or argument. R.
1:12-2. This motion must be made directly before the
judge being sought to be disqualified. Bonnett v. Stewart,
155 N.J. Super. 326, 330 (App. Div. 1978), certif. denied
77 N.J. 468 (1978).“Fundamental to any consideration of possible
judicial disqualification is a showing of prejudice or
potential bias.” State v. Marshall, 148 N.J. at 276. “An
error by a court in the previous proceeding does not
necessarily justify an inference of bias and will not, by
itself, furnish a ground for disqualification.” Ibid.B. Discipline and Removal of Judges
The New Jersey Constitution grants the Supreme
Court the authority to remove Superior Court Judges “in
such a manner as shall be provided by law.” N.J. Const.
1947, Art. 6, §6, ¶ 4. The Superior Court also has
“jurisdiction over the admission to the practice of law and
the discipline of persons admitted.” Art. 6, §2, ¶ 3. The
Judicial Removal Act, N.J.S.A. 2B:2A-1 (formerly
N.J.S.A. 2A:1B-1) was enacted in 1970 to “implement