The last few months haven’t exactly been stellar for New Jersey judges. In one case, for example, a municipal court judge is facing censure for sending a string of apparently abusive e-mails to a prosecutor who had requested a trial adjournment. The judge sent the e-mails just before midnight on New Year’s Eve, which makes the story even stranger. In another case, a Superior Court judge faces removal proceedings for suggesting that a sexual assault victim could have prevented her problem by “closing her legs.” (Wow. That’s a new level of awful.) And, in Goldfarb v. Solimine, the Appellate Division recently sharply criticized a trial court judge for engaging in improper ex parte communications with defense counsel, and arranging to handle a trial as a result.
The Goldfarb facts were as follows. Goldfarb quit his job to take a new job with Solimine. Solimine allegedly reneged on the contract, putting Goldfarb out of work for a period of time. Goldfarb sought reliance damages, consisting of the difference between what he would have earned had he not quit his job, and what he ultimately earned for a period of time after finding another job.
The problems started before trial, when defense counsel apparently engaged in a bit of “judge-shopping.” One of the associates at the defense firm had been a law clerk for a certain judge in the county where the trial was supposed to happen. The former law clerk texted the judge to ask whether she’d be available to preside over the trial, which was being handled by a senior lawyer at the firm. The defense firm apparently felt that the judge might favor their side. The judge knew that the senior attorney liked to appear before her. So, the judge contacted the Presiding Judge and arranged to hear the case.
Unfortunately for the judge and for defense counsel, plaintiff’s counsel somehow found out about the ex parte communication and went ballistic, raising the issue first in chambers and then on the record. The judge responded: “I am appalled that what had been the bedrock of practice, that what a judge tells you in chambers stays in chambers seems to no longer be the rule.” The judge went on to say that, as far as the assignment of cases goes, “I get my pick…because that’s what 25 years on the bench will get you.”
It gets worse. At trial, the judge issued a series of evidentiary rulings favoring the defense. First, in the middle of the trial, she barred Goldfarb’s damages expert from testifying. Then, she restricted Goldfarb’s damages to the difference between his actual earnings and the low end of a range of salary that Solomon had promised to pay. Based on the judge’s instructions, the jury came back with a $250,000 award in Goldfarb’s favor, which was less than he had claimed.
Now, the judge may have had excellent legal reasons for making these rulings in Solomine’s favor. The problem comes down to appearances. And that’s essentially what the Appellate Division held, writing: “The trial judge abused her discretion in denying the recusal motion [made by Goldfarb]. Contrary to Code of Judicial Conduct Rule 3.8, the judge here considered and responded to an inappropriate ex parte communication from her former law clerk.…The source and manner of the ex parte communication – a text message from a former law clerk to the judge’s cell phone – exacerbated the improper appearance that one party had exploited a prior relationship with the judge.” The Court sent the case back to the trial court for a new trial on damages only stating that such a remedy was needed to “restore public confidence.” As to defense counsel’s subject practice of judge-shopping, the Court noted that judge-shopping “creates a perception of partiality that undermines the legitimacy and credibility of the courts.”
There are a lot of jokes about politics and backroom dealings in New Jersey. Some of them are even funny. (I remember our late former Governor, Brendan Byrne, remarking that when he died, he wanted to be buried in Hudson County, so that he could stay active in politics.) But an appearance of partiality by a judge is never funny. If you go to Court, you may not win, but you should always come away feeling that you got a fair say. That didn’t happen here.
The bigger point is that judges are people, too. They make mistakes, they have a worldview, and sometimes they allow their prejudices to show through. That’s all the more reason why, if you can, you should try to work your differences out instead of subjecting yourself to the meatgrinder that is the legal system. As a wag once said, the only justice in the halls of justice usually takes place in the halls.
You can read the full decision by clicking here.