NJ Judges Can Rule on Laws They Authored as Legislators

Judge Joann Kagan Downey was extremely familiar with the employment rule at issue in the case before her—she wrote the law.

Does that closeness to the law make her too biased to enforce it? Not in New Jersey.

A state appeals court Monday upheld Downey’s refusal to step aside from a case filed by a teacher’s family suing a school after the educator returned to work in 2021, contracted Covid-19 and died. The school can’t remove Downey after siding with the family and keeping the case alive, even if she wrote the “essential employee” law, the New Jersey Superior Court Appellate Division ruled.

“Her knowledge of the law and lawmaking was not extrajudicial knowledge but rather judicial knowledge that many judges take with them to the bench,” Judge Lisa A. Puglisi wrote for the unanimous panel.

The first-of-its-kind decision for New Jersey clears former lawmakers to guide implementation of laws they help write. The decision also helps the judges on New Jersey’s bench continue ruling, as it continues to deal with a dire judicial capacity crunch.

New Jersey, which must sometimes pause civil cases in parts of the state due to the shortage of available judges, draws legislators largely from the legal field. Making lawmakers-turned-judges recuse themselves would create more backlogs, Puglisi said.

“Establishing a rule that a judge must recuse himself in cases involving legislation that had been enacted when a judge served as a legislator would force recusal in an inordinate amount of cases,” said Puglisi, citing a federal case. “In addition, it might prevent individuals who are or were legislators from serving as members of the judiciary and from bringing their unique perspectives to the bench.”

Perspective

The case struck at the tension between a legal system that benefits from judges with legislative perspective and an ethics system concerned about bias.

Judges must recuse even if a reasonable, “fully informed person” would have doubts about a judge’s impartiality. However, recusal by all former lawmakers would mean missing out on the perspective and experience of judges like Downey, who served as New Jersey Assembly chair for the Human Services Committee during the Covid-19 pandemic.

Seeing no state rules and sparse precedent nationwide, Downey stuck on the case. The appeals court agreed with the decision, aligning the state with a limited set of federal cases protecting the prerogatives of federal judges.

Downey also properly interpreted her law, the court said, ruling that the teacher couldn’t sue outside of workers compensation for her Covid-19 infection because she was an “essential worker” under the law, but that she was presumed to have contracted the illness on-the-job.

“A judge ordinarily is not disqualifiable because of his [or her] own life experiences,” Puglisi said. Personal “knowledge of or experience with certain legislative history does not necessarily render the judge biased or unable to make a fair judgment in the matter.”

Judges Lisa Rose and Patrick DeAlmeida also heard the case.

Leitner Tort DeFazio & Brause represented the school. Eugene J. Melody of Little Silver, N.J. represented the family.

The case is Amato v. T’ship of Ocean School Dist., N.J. Super. Ct. App. Div., No. A-2542-23, 11/25/24.