NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0974-17T3
TAYLOR L. GURNEY,
Plaintiff-Respondent,
v.
CHRISTOPHER J. PETERSON,
Defendant-Appellant.
____________________________________________________
Submitted October 5, 2017 – Decided October 26, 2017
Before Judges Fisher and Sumners.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part, Bergen
County, Docket No. FD-02-0181-17.
Geist Law LLC, attorneys for appellant (Jared
A. Geist, on the brief).
Landel, Bernstein & Kalosieh, LLP, attorneys
for respondent (Thomas S. Garlick, on the
brief).
PER CURIAM
Defendant moved for a change of venue in this family court
matter; by rule, such a motion must be heard by either the
vicinage's assignment judge, the presiding judge of the family
part, or the assignment judge's designee. R. 4:3-3(a). Defendant's
motion, however, was adjudicated through the implementation of a
procedure not contemplated by that rule or any other rule of which
we are aware.
At the outset of the hearing on the return date, the motion
judge announced he had been directed by the assignment judge to
hear oral argument, after which he (the motion judge) would "make
a recommendation to the Assignment Judge and/or [sic] the Presiding
Judge." Consistent with that direction, the motion judge stated
at the conclusion of the parties' arguments, that he would "make
a recommendation" to the assignment judge or presiding judge.
The record on appeal reveals that on August 31, 2017, a few
days after the return date, the presiding judge entered an order
denying the motion to change venue. His rationale for denying the
motion – stated only in conclusory terms – memorializes his
consideration of the parties' written and oral arguments and the
motion judge's "recommendation submitted after the oral argument."
The motion judge's recommendation is not contained in the record;
indeed, for all we know it may have been conveyed orally and there
may be no record of it at all. But, most importantly, the parties
appear not to have been made aware of the content of the
recommendation. Consequently, we too are in the dark as to what
it was that the motion judge recommended.
2 A-0974-17T3
All that, however, hardly matters. What matters is that the
procedure adopted here was unauthorized and is, therefore,
unacceptable. Our rules do not contemplate a process by which one
judge reviews the motion papers and hears counsel's argument, and
then provides another judge with a recommendation as to how to
rule. Judges must decide matters by personally participating in
the proceeding without the recommendation or involvement of
another. Even if it could be said the ultimate disposition of the
venue motion was legally sound – a question we do not reach – we
have been compelled to intervene because the procedure followed
here was fundamentally flawed. "[J]ustice must satisfy the
appearance of justice." Offutt v. United States, 348 U.S. 11, 14,
75 S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954). Utilization of
unauthorized, ad hoc procedures tends to shake the public's
confidence in the ability of our courts to fairly administer the
law. See State v. Deutsch, 34 N.J. 190, 206 (1961) (expressing
that it is "vital that justice be administered not only with a
balance that is clear and true but also with such eminently fair
procedures that the litigants and the public will always have
confidence that it is being so administered").
Consequently, we grant defendant's motion for leave to
appeal, summarily vacate the order under review, and remand for
the motion's rehearing. Because the presiding judge's further
3 A-0974-17T3
consideration of the matter has been tainted by the impermissible
manner in which the motion was decided, we direct that the motion
be heard and considered by the vicinage's assignment judge or the
assignment judge's designee.1 We ask that the motion be decided as
expeditiously as practicable.
1
In opposing this motion for leave to appeal, plaintiff claims
there was no error because the assignment judge was authorized by
Rule 4:3-3(a) to designate any judge to hear and decide the motion.
That is certainly true, but that's not what happened. The
assignment judge didn't designate the motion judge to rule on the
venue motion; she only designated him to hear the motion and then
provide a recommendation to another judge.
4 A-0974-17T3
TAYLOR L. GURNEY VS. CHRISTOPHER J. PETERSON (FD-02-0181-17, BERGEN COUNTY AND STATEWIDE
Combined Opinion