CHRISTINE GILLESPIE, Petitioner-Appellant,
v. NEWARK PUBLIC SCHOOLS, DOCKET NO. A-5317-09T4
Respondent-Respondent. __________________________________
May 17, 2011 Before Judges Graves and Waugh.
On appeal from the New Jersey Department of Labor, Division of Workers' Compensation, Docket No. 98-038133.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM Petitioner Christine Gillespie appeals from three orders of
the Division of Workers' Compensation (Division). We affirm as to one order and dismiss the appeal as to the remaining orders.
Argued May 3, 2011 - Decided
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5317-09T4
I. We discern the following facts and procedural history from
the record. We set forth only the information necessary for the disposition of the issues before us.
Gillespie was a schoolteacher employed by respondent Newark Public Schools (Newark) as a "Language Arts Staff Developer." On September 4, 1998, Gillespie was injured as she was shelving books when "[the bookshelf's] contents fell down upon her, knock[ed] her to the floor . . . [and] gash[ed] her head." On November 20, 1998, she filed a workers' compensation claim in which she alleged that she had "sustained an injury . . . compensable" under the Workers' Compensation Act (Act), N.J.S.A. 34:15-1 to -69.3, because the "accident ar[ose] out of and in the course of [her] employment." On March 5, 1999, respondent filed an answer, denying petitioner was "in the course of employment" at the time of her injuries.
During the ten years following the filing of Gillespie's claim, there was extensive motion practice concerning her eligibility for compensation and medical treatment under the Act, as well as the identity of medical practitioners who could provide treatment. During the course of that motion practice, Gillespie filed a motion seeking the recusal of the judge of
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compensation assigned to her case. The motion was apparently denied.
In or about September 2008, Newark moved to dismiss the compensation petition for lack of prosecution. Gillespie opposed the motion. The judge granted the motion, but his order provided that the matter could be reinstated if Gillespie submitted to certain surgery by a physician named in the order. Rather than appealing that order, Gillespie wrote to the Commissioner of the New Jersey Department of Labor, which includes the Division, asking that the judge and his decision be investigated. She wrote to the Commissioner a second time, and sent a copy to the Division Director, who is the chief judge of compensation. In the interim, the judge who entered the dismissal order had retired.
The chief judge of compensation treated Gillespie's second correspondence as a pro se application for reinstatement, and assigned it to another judge of compensation for disposition. When Gillespie did not appear personally on March 30, 2009, the new judge adjourned the motion and entered an order requiring Gillespie to appear on May 11, 2009. It appears from the record that the judge wanted Gillespie to be at the hearing so that she could directly ascertain Gillespie's position with respect to
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the disputed surgical procedure that had led to the December 2008 order of dismissal.
In a March 31 letter forwarding the order implementing the March 30 adjournment, the judge directed counsel for Newark to provide her with written assurance, prior to the adjourned date of the hearing, that Newark was still willing to have Mark McBride, M.D., perform the proposed surgery on Gillespie and that McBride was still willing to do so. She also requested information concerning McBride's qualifications. She further directed Gillespie's then counsel to provide "a letter executed by [his] client that she will submit to the surgery to be performed by Dr. McBride." The judge asked for "a firm date for (pre-surgery) consultation . . . scheduled with Dr. McBride on the return hearing date," so counsel for Newark could verify the availability of the surgery at the hearing.
The March 31 letter concluded with the following, addressed to Gillespie's then counsel: "Lastly, I have been advised that [Gillespie's husband] may have been tape recording the entire proceeding on the record without court knowledge or permission. I advise you . . . to review the court rules in this regard." Gillespie's husband, a member of the Bar who was not representing his wife at the time, became counsel of record in December 2009.
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Shortly before the May 11 hearing date, Gillespie wrote to the judge stating that she did not wish to proceed with the motion to reinstate.1 Gillespie's counsel appeared on May 11, without his client, and confirmed that Gillespie wished to withdraw the application for reinstatement. Although Newark sought to have the motion denied rather than withdrawn, the judge allowed Gillespie to withdraw the application.
The judge informed Gillespie's counsel that she considered his client's practice of sending ex-parte letters to be "most inappropriate."2 Counsel responded that he had advised his client not to send such letters. The judge described the contents of some of the letters as "venomous" and suggested that Gillespie was attempting to prejudice her against Newark through the letters. Consequently, she stated on the record that she would not consider such letters in the future, but would instead have them forwarded to Gillespie's then attorney.
On December 3, 2009, Gillespie, now represented by her husband, filed another motion to reinstate her claim. On March 1, 2010, Gillespie filed a motion to recuse the judge, arguing
1 The letter is not included in the record.
2 The letters referred to by the judge are not included in the record.
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that she had demonstrated bias toward Gillespie.3 The recusal motion was heard on May 24, 2010.
Gillespie alleged that the judge had engaged in biased conduct, contending that she had wrongfully accused Gillespie's husband of "secretly wire taping a . . . hearing" and then "started screaming and threatened to have security throw [Gillespie's husband] out of the building" when he approached her to discuss the March 31, 2009 letter; that the March 31 letter written by the judge "showed bias"; and that Newark's counsel had "planted [that] bias thought in the Judge's head" by approaching her and informing her that he believed Gillespie's husband was "playing with a tape recorder." She also argued that the judge had acted improperly by
sending all sorts of hurdles and hoops for [her] to jump through, go for an exam, do this, do that, before [the judge] would restore the case. You don't have jurisdiction to do that before you restore. You restore the case. They set it down for a hearing and then you issue your orders [for] scheduling.
3 The motions to reinstate and for recusal are not in the record. However, we note that Gillespie's reply brief improperly contains an affidavit, created in March 2011 while this appeal was pending, setting forth her reasons for the recusal application.
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Finally, Gillespie asserted that the judge was wrong not to have addressed her motion to vacate the dismissal at the March 2009 hearing.
In her ruling, the judge explained that she was not biased against Gillespie. She noted that the March 31, 2009 letter only stated that Gillespie's husband "may have been tape recording"4 the hearing. The judge further explained that she would not speak to Gillespie's husband at the time complained about because she does "not allow petitioners or respondent[s], witnesses, . . . spouses, [or] family members to come into [her] chambers to address [her] in an irate manner."
The judge did not directly address Gillespie's argument that she demonstrated bias when she adjourned the motion because Gillespie failed to appear on March 29. The judge did state that she did not address the motion in May because it had been "voluntarily withdrawn."
However, during the recusal argument, the judge outlined her own well-founded concerns with the 2008 dismissal order:
I'm not sure that [the prior judge] properly dismissed [Gillespie's claim]. There really shouldn't be conditional dismissal of any claim by th[e] statute because you can't
4 At the May 11 hearing, counsel for Newark stated that he had informed the judge of the possible use of a tape recorder. The circumstances under which that occurred are not set out in the record.
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extend the statute beyond the one year ....
....
. . . I agree with [Gillespie] in that the language of the original order of dismissal should not have been made a condition for attendance of a medical exam. Because what that can do is it can extend the time period beyond a year and a judge does not have the authority to extend that jurisdiction. So the way that the language reads in that order, I agree with you in that I think it's improper.
After the judge denied the recusal motion, Gillespie immediately demanded "[t]hat leave to appeal to the Commissioner [of Labor be] included in the Order." The judge adjourned the motion to reinstate, which is still pending.
This appeal followed.
II. In her notice of appeal, which was filed on July 8, 2010,
Gillespie lists three orders: (1) the December 5, 2008 order of dismissal, (2) the March 30, 2009 order rescheduling the reinstatement motion to May 11, 2009, and (3) the May 24, 2010 order denying the recusal application. The first issue we address is whether this appeal is properly before us as to those orders.
We view the December 2008 order as a final administrative order, appealable as of right. R. 2:2-3(a)(1). Appeals from
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such orders must be filed within forty-five days of their entry. R. 2:4-1(a). Although the December 5 order may have been erroneous, it should have been appealed within the forty-five days required by the rule.5 Because the time to appeal the December 2008 order has long-since expired, that order is not properly before us. Consequently, we dismiss that aspect of the appeal.
The March 2009 order was interlocutory and related to Gillespie's motion to reinstate her claim. That motion was subsequently withdrawn by Gillespie, as confirmed by her attorney, on the record, on May 11, 2009. Because the underlying motion was withdrawn, we conclude that the March 2009 order is moot. In any event, even if its withdrawal in May 2009 did not render it moot, the time to appeal would have commenced on May 11 and expired prior to the filing of this appeal over one year later. Consequently, we also dismiss that aspect of the appeal.
The May 2010 order denied a motion that was filed while Gillespie's most recent motion to reinstate was pending. In fact, the motion sought recusal of the judge who was scheduled to decide the pending motion. When recusal was denied,
5 Once the time to appeal expired, the proper approach was to move for reinstatement in the compensation court. See R. 4:50- 1(d) (allowing relief from a void final judgment).
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Gillespie requested the opportunity to appeal the denial to the Commissioner of Labor. We know of no such avenue of administrative appeal. N.J.S.A. 34:15-66 provides that appeals from the decisions of judges of compensation are made to the Appellate Division.
Although Gillespie filed her notice of appeal within forty- five days of entry of the May 2010 order, we have concluded that it was not a final order because her motion to reinstate was still pending. Leave to appeal should have been sought on motion pursuant to Rule 2:2-4. Nevertheless, we grant leave to appeal nunc pro tunc. We will consider the merits of Gillespie's arguments with respect to the issue of recusal.
The disposition of a recusal motion is entrusted to the "'sound discretion' of the judge whose recusal is sought." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:12-2 (2011) (citing Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.), certif. denied, 200 N.J. 207 (2009)); see also Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). The mere fact that a litigant disagrees with a judge's decisions when they are not in his or her favor, however, is not grounds for recusal. The denial of a motion seeking recusal is reviewed under "an abuse of discretion standard." See Panitch v. Panitch, 339 N.J. Super. 63, 71 (App. Div. 2001).
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Judges of compensation are governed by rules of conduct, N.J.A.C. 12:235-10.1 to 10.23, modeled on the Code of Judicial Conduct. With respect to disqualification, N.J.A.C. 12:235- 10.7(a)(1) provides that a "judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, [if] . . . [t]he judge has a personal bias or prejudice concerning a party or a party's lawyer or has personal knowledge of disputed evidentiary facts concerning the proceeding."
Gillespie premises her argument for recusal on personal bias, pointing primarily to the judge's comments about her ex- parte letters, her letter suggesting that Gillespie's husband might have been using a tape recorder during one proceeding, her refusal to speak to Gillespie's husband at a time he was not counsel of record, her order requiring Gillespie to set forth her position on the surgical procedure in advance of the May 11, 2009 hearing, and her failure to rule on the motion to restore the compensation claim. We see no basis for recusal in the record before us.
The writing of ex-parte letters to any court is inappropriate, and the judge properly advised Gillespie not to continue that conduct. The judge's March 31, 2009 letter did not wrongfully accuse Gillespie's husband of misconduct, but
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stated that she had been advised that there might have been a tape recorder and that the appropriate rules should be consulted in that regard. The judge was under no obligation to speak with a litigant's relative in an informal setting, especially if that relative was seeking to express his or her views concerning the merits or procedures involving a pending case. We see no reasonable basis to believe that those actions are indicative of personal bias against Gillespie or her husband.
We also see no personal bias reflected in the judge's instruction to counsel for both sides that their clients' respective positions concerning the proposed McBride surgery be firmly established prior to consideration of the application to reinstate the claim.6 Nor do we see any indication of bias with respect to the judge's direction that a party be present at a hearing so that future actions can be decided upon. Finally, the judge properly declined to decide the reinstatement motion when it was withdrawn at the May 11, 2009 hearing. On May 24, 2010, the judge would have addressed setting aside the December 2008 order, about which she expressed considerable doubt, had Gillespie not insisted on her not doing so pending an appeal.
6 Nevertheless, we recommend that the motion for reinstatement be considered on its own merits and that, if granted, the judge then establish timelines for an orderly and expeditious resolution of all issues remaining in this case.
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Gillespie's briefs raise other arguments, many of them related to issues not properly before us, that are without merit and not warranting discussion in a written opinion. R. 2:11- 3(e)(1)(E).
In summary, we dismiss the appeal as to all orders except the May 24, 2010 order denying the recusal motion, which we affirm. The matter is remanded to the Division for consideration of Gillespie's pending motion to reinstate.
Affirmed in part, dismissed in part.
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