ADMINISTRATIVE LAW

OFFICE OF ADMINISTRATIVE LAW

Uniform Administrative Procedure Rules

Disqualification of Judges; Extensions of Time Limits; Code of Judicial Conduct for Administrative Law Judges

Proposed Amendments:  N.J.A.C. 1:1-14.12 and 18.8; and 1:1 Appendix

Authorized By:  Laura Sanders, Acting Director, Office of Administrative Law.

Authority:  N.J.S.A. 52:14F-5(e), (f), and (g).

Calendar Reference:  See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2013-023.

            Submit comments by April 5, 2013 to:

                        Patricia Prunty, Assistant Director

                        Office of Administrative Law

                        Quakerbridge Plaza, Bldg. 9

                        P.O. Box 049

                        Quakerbridge Road

                        Trenton, New Jersey 08625

The agency proposal follows:

Summary 

The Office of Administrative Law (OAL) is proposing amendments to N.J.A.C. 1:1-14.12 to ensure that the standards concerning disqualification of administrative law judges conform to the standards applicable to judges in the Superior Court. 

Proposed N.J.A.C. 1:1-14.12(a)6 provides that a judge should disqualify him or herself if there have been post retirement employment discussions with any party, attorney, or law firm involved in the matter.  This rule comports with the New Jersey Supreme Court's guidance in DeNike v. Cupo, 169 N.J. 502 (2008) and is identical to the Court Rule, R. 12-1(f).

The amendments to N.J.A.C. 1:1-14.12(a)1 and 4 deletes those paragraphs, again in conformity with the New Jersey Supreme Court Rules.  Paragraph (a)1 provides for disqualification when the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding, and paragraph (a)4 provides for disqualification when the judge is by blood or marriage the second cousin of or is more closely related to a likely witness to the proceeding. Such disqualification would now be considered under N.J.A.C. 1:1-14.12(a)7, as proposed for recodification from N.J.A,C. 1:1-14.12(a)8, which provides for disqualification when there is any other reason which might preclude a fair and unbiased hearing and decision, or which might reasonably lead the parties or their representatives to believe so.  

The proposed amendment to N.J.A.C. 1:1-14.12(a)1, as proposed for recodification from paragraph (a)2, deletes the requirement for disqualification if the judge is the second cousin or more closely related, by blood or marriage, to an officer, director or trustee of a party.  Disqualification is still required where that relationship exists between the judge and any party.  Proposed N.J.A.C. 1:1-14.12(a)3, as proposed for recodification from paragraph (a)5, requires disqualification where the judge has been the attorney of record or counsel in the action. The amendment to this paragraph deletes the language concerning association with a lawyer who has served in the action. N.J.A.C. 1:1-14.12(a)6, which provides for disqualification when the judge has served in government employment and in such capacity participated as counsel, advisor, or material witness concerning the proceeding, is proposed for deletion.  These amendments conform to the language of the New Jersey Supreme Court Rules and the interpretations thereof.

Similarly, the proposed amendment deletes the current N.J.A.C. 1:1-14.12(a)7, which provides for disqualification when the judge is interested, individually or as a fiduciary, or whose spouse or minor child residing in the same household is interested in the outcome of the proceeding.  A party could raise the issue of disqualification based upon these factors under the standard set forth in proposed N.J.A.C. 1:1-14.12(a)7.  As with the other proposed changes to the disqualification rule, this amendment ensures that the standard concerning disqualification of an administrative law judge is the same as that applicable to Superior Court judges.

The proposal adds a provision for disqualification where the judge has given an opinion upon a matter in question in the action, at N.J.A.C. 1:1-14.12(a)4, and where the judge is interested in the event of the action, at N.J.A.C. 1:1-14.12(a)5.  Again, these amendments ensure conformity of the provisions applicable to administrative law judges and those imposed on judges of the Superior Court.

The proposal also adds a new N.J.A.C. 1:1-14.12(b) that provides that N.J.A.C. 1:1-14.12(a)3, 4, and 5 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.

The proposed amendments to N.J.A.C. 1:1-18.8(c) and (e) eliminate the requirement that a proposed order of extension of time to issue an initial or final decision be served on all parties.  The extension process has never provided an opportunity for parties to comment or object to a proposed order of extension. In most cases, the extension process is conducted entirely through e-mail and, due to the short time frames often involved, orders are executed by the OAL Director and agency head before the proposed order is received by the parties.  It has always been the practice of the Office of Administrative Law to retain any objection to extensions in the file for consideration should there be a subsequent request for an extension. Thus, service of the proposed order serves no purpose and consumes staff time in an era of limited resources.  The parties will receive adequate notice of the status of the matter through receipt of the executed order. 

N.J.A.C. 1:1 Appendix, Canon 3 of the Code of Judicial Conduct for Administrative Law Judges, concerning disqualification, has also been proposed for amendment to conform to the Supreme Court requirements.  The proposed Canon would require a judge's disqualification where the judge engaged in post-retirement discussions with any party, attorney, or law firm involved in any matter pending before the judge, whether or not such discussions lead to such employment.

The proposal also amends Canon 3C(1)(b) by deleting the language making the provision applicable to the judge's prior activity while in private practice, and deletes Canon 3C(1)(c) which applies to the judge's prior activity while in governmental employment.  As with the Rules of Judicial Conduct, the same standard would apply to prior private practice or governmental employment.  The amendments proposed to recodified Canon 3C(1)(d) clarify the standards for disqualification based on the financial interest of a family member, again to conform to the Superior Court standard.   The proposed amendment at Canon 3C(1)(f) specifies that disqualification cannot be avoided by disclosing a conflict and securing the  consent of the parties.

As the Office of Administrative Law has provided a 60-day comment period in this notice of proposal, this notice is excepted from the rulemaking calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a)5.

Social Impact

            The proposed amendments to the rules concerning disqualification and to the Code of Conduct for Administrative Law Judges set an appropriate standard for disqualification of an administrative law judge where there have been conversations concerning post-retirement employment and conforms the process to that of the New Jersey Superior Court. 

            The proposed amendment to the rule concerning extensions ensures that parties receive adequate notice of any extension in the decisional timeframe, while eliminating unnecessary and confusing proposed notices. 

Economic Impact

The proposed amendment concerning extensions should result in a small savings to the Office of Administrative Law and to agencies who are proposing an extension.  The rules concerning disqualification and post retirement employment have no economic impact.

Federal Standards Statement

            A Federal standards analysis is not required because the contested case hearing procedures, of which the proposed amendments are a part, are promulgated in implementation of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 and 52:14F-1 et seq., and are not subject to any Federal standards or requirements.

Jobs Impact

The proposed amendments will not generate or cause the loss of any jobs.

Agriculture Industry Impact

The proposed amendments will not impact on the agriculture industry.

Regulatory Flexibility Statement

The proposed amendments do not impose any reporting, recordkeeping, or other compliance requirements on small businesses, as defined under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq.  Therefore, a regulatory flexibility analysis is not required.  The proposed amendments set forth standards for disqualification of administrative law judges, standards for the conduct of administrative law judges, and amendments concerning the extension process.

Housing Affordability Impact Analysis

The proposed amendments will have no impact on housing affordability in this State.  The rules set forth procedures for contested case hearings.

Smart Growth Development Impact Analysis

The proposed amendments will have no impact on the number of housing units or the availability of affordable housing in the State, and will have no effect on housing in Planning Areas 1 or 2, or within designated centers under the State Development and Redevelopment Plan.   The amendments set forth procedures for contested case hearings.

Full text of the proposal follows (in N.J.A.C. 1:1-14.12 and 18.8, additions indicated in boldface thus and deletions indicated in brackets [thus]; in N.J.A.C. 1:1 Appendix, additions indicated underlined thus and deletions indicated in brackets [thus]):

1:1-14.12 Disqualification of judges
            (a) A judge shall, on his or her own motion, withdraw from participation in any proceeding [in which the judge's ability to provide a fair and impartial hearing might reasonably be questioned, including but not limited to instances where the judge] if the judge:

                        [1. Has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;]

                        [2.] 1. Is by blood or marriage the second cousin of or is more closely related to any party to the proceeding [or an officer, director or trustee of a party];

                        [3.] 2. Is by blood or marriage the first cousin of or is more closely related to any attorney in the case. This proscription shall extend to partners, employers, employees, or office associates of any such attorney;

                        [4. Is by blood or marriage the second cousin of or is more closely related to a likely witness to the proceeding;]

                        [5.] 3. [While in private practice served as] Has been attorney of record or counsel in the [case or was associated with a lawyer who served during such association as attorney of record or counsel in the proceeding, or the judge or such lawyer has been a witness concerning the case] action;

                        [6. Has served in government employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding;

                        7. Is interested, individually or as a fiduciary, or whose spouse or minor child residing in the same household is interested in the outcome of the proceeding; or]
                        4. Has given an opinion upon a matter in question in the action;
                        5. Is interested in the event of the action;

                        6. Has discussed or negotiated his or her post-retirement employment with any party, attorney, or law firm involved in the matter; or

                        [8.] 7. (No change in text.)

            (b) Paragraphs (a)3, 4, and 5 above 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.
            [(b)] (c) A judge shall, as soon as practicable after assignment to a particular case, withdraw from participation in a proceeding whenever the judge finds that any of the criteria in (a)1 through [8] 7 above apply. A judge may not avoid disqualification by disclosing on the record the basis for disqualification and securing the consent of the parties.

            Recodify existing (c) and (d) as (d) and (e) (No change in text.)

1:1-18.8 Extensions of time limits
            (a) - (b) (No change.)
            (c) Requests to extend the time limit for initial decisions shall be submitted in writing to the Director of the Office of Administrative Law. If the Director concurs in the request, he or she shall sign a proposed order no later than the date the time limit for the initial decision is due to expire and shall forward the proposed order to the transmitting agency head [and serve copies on all parties]. If the agency head approves the request, he or she shall within 10 days of receipt of the proposed order sign the proposed order and return it to the Director, who shall issue the order and cause it to be served on all parties.
            (d) (No change.)

            (e) If the agency head requests an extension of the time limit for filing a final decision, he or she shall sign and forward a proposed order to the Director of the Office of Administrative Law [and serve copies on all parties]. If the Director approves the request, he or she shall within [ten] 10 days of receipt of the proposed order sign the proposed order and return it to the transmitting agency head, who shall issue the order and cause it to be served on all parties.
            (f) (No change.)

APPENDIX

CODE OF JUDICIAL CONDUCT FOR

ADMINISTRATIVE LAW JUDGES

PREAMBLE

(No change.)

CANONS 1. - 2.

(No change.)

CANON 3
AN ADMINISTRATIVE LAW JUDGE SHALL PERFORM

THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY

            The judicial duties of an administrative law judge take precedence over all other activities. Judicial duties include all the duties of the office prescribed by law. In the performance of these duties, the following standards apply.

            A. - B. (No change.)
           
            C. Disqualification:
                        (1) An administrative law judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
            Commentary: By decisional law, the rule of necessity may supersede the rule of disqualification. For example, a judge might be the only judge available in a matter requiring immediate judicial action. The judge must disclose on the record the basis for possible disqualification and use reasonable efforts to transfer the matter to another judge as soon as practicable.

            (a) (No change.)
            (b) [in private practice] 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;
            Commentary: A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed by a governmental agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association.
            [(c) the judge has served in governmental employment and in such capacity participated as counsel, advisor, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;]
            [(d)] (c) the judge knows that he or she, individually or as a fiduciary, or [his or her] the judge's spouse, parent or child or any other member of the judge's family residing in the judge's household[, or any other member of the judge's family or a person treated by the judge as a member of the judge's family residing in the judge's household,] has a more than de minimis financial interest in the subject matter in controversy or is a party to the proceeding, or any other more than de minimis interest that could be substantially affected by the outcome of the proceeding; generally, receiving service from a particular public utility is a de minimis interest;
            [(e)] (d) (No change in text.)

            (e) 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;
            Commentary: A judge may not initiate contact about or discuss or negotiate 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. A matter pending before the judge includes any matter or aspect of a matter which has not been completed, even if only the performance of a ministerial act remains outstanding, such as signing a consent order or a similar order. If the subject is raised in any fashion, the judge must put a halt to the discussion or negotiation at once, rebuff any offer, and disclose what occurred on the record in the presence of all parties and counsel. The judge, all parties, and attorneys on the record can then evaluate objectively whether any further relief is needed.
            A judge who engages in post-retirement employment negotiations or discussions while still on the bench with any party, attorney, or law firm that does not have a matter pending before the judge, must do so in a way that minimizes the need for disqualification, does not interfere with the proper performance of the judge's judicial duties, and upholds the integrity of the courts. A judge should delay starting any such negotiations or discussions until shortly before his or her planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of prospective employers. A judge should also inform the Director about the post-retirement employment negotiations or discussions to the extent that such negotiations or discussions will interfere with the judge's regular assignments.
            A judge should not initiate contact about or discuss or negotiate his or her post-retirement employment with a party, attorney, or law firm that has in the past appeared before the judge until the passage of a reasonable interval of time, so that the judge's impartiality in the handling of the case cannot reasonably be questioned. What is reasonable depends on the circumstances. For instance, it may be that an uncontested matter resolved swiftly by entry of a default judgment would not call for a lengthy interval of time. Prolonged or particularly acrimonious litigation may caution in favor of a longer delay. Actions likely to result in continuing post-judgment matters would also warrant a lengthier intervening period of time.

            (f) a judge disqualified by the terms of this Canon may not avoid disqualification by disclosing on the record the disqualifying interest and securing the consent of the parties.

CANONS 4. - 5.

(No change.)