Giuseppe Amato v. Township of Ocean School District ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2542-23
A-2543-23
GIUSEPPE AMATO,
APPROVED FOR PUBLICATION
Petitioner-Respondent,
November 25, 2024
v. APPELLATE DIVISION
TOWNSHIP OF OCEAN
SCHOOL DISTRICT,
Respondent-Appellant.
___________________________
Argued October 17, 2024 – Decided November 25, 2024
Before Judges Rose, DeAlmeida and Puglisi.
On appeal from interlocutory orders of the New Jersey
Department of Labor and Workforce Development,
Division of Workers' Compensation, Claim Petition
No. 2021-19450.
Randolph Brause argued the cause for appellant
(Leitner Tort DeFazio & Brause, PC, attorneys;
Randolph Brause, on the briefs).
Eugene J. Melody argued the cause for respondent
(Martin Melody, LLC, attorneys; Eugene J. Melody, of
counsel and on the briefs).
The opinion of the court was delivered by
PUGLISI, J.A.D.
These compensation cases, calendared back-to-back and consolidated for
purposes of this opinion, present a novel issue: whether a judge of compensation
was required to recuse herself from presiding over a matter involving the
application of a statute for which the judge was a sponsor in her prior capacity
as a member of the Legislature.
By leave granted, respondent Township of Ocean School District appeals
from two orders of the Division of Workers' Compensation: the February 21,
2024 order denying its motion for recusal of the assigned judge of compensation;
and the March 14, 2024 order finding decedent 1 was an essential employee
during the period of occupational exposure to COVID-19. Having considered
respondent's contentions in light of the record and applicable law, we affirm
both orders.
Decedent was a full-time teacher in respondent's intermediate school.
After ceasing in-person instruction because of the COVID-19 pandemic, the
school reopened on February 8, 2021, and decedent returned to work. She
became ill and died on May 18, 2021, of respiratory failure as a result of
COVID-19.
1
Decedent was petitioner Giuseppe Amato's wife, Denise Amato.
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Petitioner filed a dependency claim with the Division alleging decedent
suffered an occupational disease when she contracted COVID-19 during the
period of occupational exposure and died as a result of the disease. Respondent
answered that decedent's exposure to COVID-19 did not arise out of or in the
course of her employment.
Petitioner moved for an order declaring decedent entitled to a presumption
she was an essential employee as provided by N.J.S.A. 34:15-31.11 and .12,
which respondent opposed. Upon the assigned judge's retirement, the matter
was transferred to Judge of Compensation Joann Downey, whom respondent
moved to recuse.
I.
We first address whether a judge of compensation is required to recuse
herself from presiding over a matter involving the application of a statute for
which the judge was a sponsor in her prior capacity as a member of the
Legislature. Judge Downey was a member of the New Jersey Assembly from
2016 to 2020. In that role, she was one of eight sponsors of Senate Bill 2380,
which was passed by the Legislature on July 30, 2020, and approved by the
Governor on September 14, 2020. The bill amended the workers' compensation
statute to create a rebuttable presumption that an essential employee's
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contraction of COVID-19 during the state of emergency was work-related. See
N.J.S.A. 34:15-31.11 and .12.
In denying respondent's motion to recuse, the judge first addressed its
contention she prejudged the case. The judge acknowledged that in
conferencing with the attorneys, she expressed her opinion of what she believed
to be an essential employee. The judge stated her "job" during conferences was
to speak frankly with the attorneys and discuss "where [she was] going" based
on "the law and the facts that have so far been presented to [her] during those
conferences."
The judge then addressed her role as a legislator:
So, at that time yes, I was a sponsor of this bill
which concerns the employment benefits and [COVID-
19] infections contracted by essential employees. But
being an assembly member on a bill as far as I can see
from any of the Rules of Judicial Conduct and including
the fact that I tried to look [at] . . . what cases there were
available to see if there was any reasoning whatsoever
that . . . would make me specifically not permitted to be
able to sit in this matter because of any undue prejudice
and I know that I don't have any undue prejudice.
The judge then addressed potential bias:
I have no personal knowledge of the facts, of the
actual disputed facts. The only thing that I have
knowledge of is the law and the law making—I don't
think that's extrajudicial knowledge. I think that's
judicial knowledge. It's my understanding basically as
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a person who's here sitting before you and I'm supposed
to interpret the law it's best to know about the law and
it's best to be able to read the law and be able to take in
all the facts and then apply the facts to the law. That's
what I intend to do in this case as I have with any other
case I've had before me so far.
On appeal, respondent argues the judge should have granted its recusal
motion to avoid the appearance of bias. "[R]ecusal motions are 'entrusted to the
sound discretion of the judge and are subject to review for abuse of discretion.'"
Goldfarb v. Solimine, 460 N.J. Super. 22, 30 (App. Div. 2019) (quoting State v.
McCabe, 201 N.J. 34, 45 (2010)), aff'd as modified and remanded on other
grounds, 245 N.J. 326 (2021).
New Jersey court rules do not directly control the actions of workers'
compensation judges. Waters v. Island Transp. Corp., 229 N.J. Super. 541, 550
(App. Div. 1989). Nevertheless, the code of conduct for judges of compensation
is based on the New Jersey Code of Judicial Conduct. Code of Conduct for
Judges of Comp. pmbl., N.J.A.C. 12:235-10 app. Judges of compensation are
required to perform their duties impartially and to disqualify themselves in
proceedings where "their impartiality or the appearance of their impartiality
might reasonably be questioned." Id. r. 3.16(B). The applicable standard as
defined in the Compensation Code is whether "a reasonable, fully informed
person [would] have doubts about the judge's impartiality." Id. r. 3.16 cmt. 2.
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This standard also refers to DeNike v. Cupo, where our Supreme Court
concluded:
Indeed, as this Court recognized nearly a half century
ago, "'justice must satisfy the appearance of justice.'"
State v. Deutsch, 34 N.J. 190, 206 (1961) (quoting
Offutt v. United States, 348 U.S. 11, 14 (1954)). That
standard requires judges to "refrain . . . from sitting in
any causes where their objectivity and impartiality may
fairly be brought into question." Ibid. In other words,
judges must avoid acting in a biased way or in a manner
that may be perceived as partial. To demand any less
would invite questions about the impartiality of the
justice system and thereby "threaten[] the integrity of
our judicial process." State v. Tucker, 264 N.J. Super.
549, 554 (App. Div. 1993).
[196 N.J. 502, 514-15 (2008) (alteration in original)
(citations reformatted).]
Our decision in Panitch v. Panitch, 339 N.J. Super. 63, 66-67 (App. Div.
2001), provides guidance on how a Superior Court judge should decide a motion
for recusal:
It is improper for a judge to withdraw from a case
upon a mere suggestion that he [or she] is disqualified
"unless the alleged cause of recusal is known by him
[or her] to exist or is shown to be true in fact." Hundred
E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super.
350, 358 (App. Div. 1986). The challenged judge who
hears the motion should clearly set forth the "objective
and subjective bases for the ultimate decision." Magill
v. Casel, 238 N.J. Super. 57, 65 (App. Div. 1990). In
construing the analogous federal statute on judicial
disqualification, Justice Kennedy stated in a concurring
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opinion that "[i]f through obduracy, honest mistake, or
simple inability to attain self[-]knowledge the judge
fails to acknowledge a disqualifying predisposition or
circumstance, an appellate court must order recusal no
matter what the source." Liteky v. United States, 510
U.S. 540, 563 (1994) (Kennedy, J., concurring).
"Litigants ought not have to face a judge where there is
reasonable question of impartiality . . . ." Alexander v.
Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir.
1993).
It is unnecessary to prove actual prejudice on the
part of the court, but rather "the mere appearance of
bias may require disqualification. . . . However, before
the court may be disqualified on the ground of an
appearance of bias, the belief that the proceedings were
unfair must be objectively reasonable." State v.
Marshall, 148 N.J. 89, 279 (1997).
[(Third alteration in original) (citations reformatted).]
We have not directly addressed whether a former legislator who later
became a compensation judge may rule on a matter that concerns the application
of a statute that the judge sponsored while in the Legislature. However, other
jurisdictions have considered this issue with regard to federal judges. For
example, in Limeco, Inc. v. Division of Lime, 571 F. Supp. 710, 711 (N.D. Miss.
1983), a federal judge recused himself based on his involvement in a legislative
process over forty years earlier because of the appearance of partiality. Eighteen
years later, the Sixth Circuit disagreed:
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We decline to hold that Limeco correctly states a
rule of mandatory recusal and believe the weight of
authority to the contrary to be far more persuasive. We
hold that a judge who, as a legislator, sponsored or
voted for legislation implementing or favoring the
death penalty cannot be presumed to be disqualified
from reviewing capital cases as a judge. 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. 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. . . .
Moreover, such a rule does not comport with 28
U.S.C. § 455(a), which states that a judge "shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." This rule
requires a fact-specific analysis of the judge's prior
activity, legislative or otherwise, to determine if
disqualification is required.
[Buell v. Mitchell, 274 F.3d 337, 347 (6th Cir. 2001).]
In his concurring opinion in Liteky, 510 U.S. at 557-58, Justice Kennedy
described the basis for a federal judge to grant a motion for recusal:
Section 455(a) provides that a judge "shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned." For
present purposes, it should suffice to say that § 455(a)
is triggered by an attitude or state of mind so resistant
to fair and dispassionate inquiry as to cause a party, the
public, or a reviewing court to have reasonable grounds
to question the neutral and objective character of a
judge's rulings or findings. I think all would agree that
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a high threshold is required to satisfy this standard.
Thus, under § 455(a), a judge should be disqualified
only if it appears that he or she harbors an aversion,
hostility or disposition of a kind that a fair-minded
person could not set aside when judging the dispute.
We agree with this approach here. A compensation judge who formerly
sponsored a bill enacted into law is not per se disqualified from presiding over
cases implicating or interpreting that law. "A judge ordinarily is not
disqualifiable because of his [or her] own life experiences." Johnson v. Salem
Corp., 189 N.J. Super. 50, 60 (App. Div. 1983). "[E]ach of us is a product of
the aggregate of our experiences, and our understanding is enhanced by the
totality of our experiences." Id. at 60-61. Thus, a judge's 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.
Rather, the judge must determine whether a reasonable person would
doubt the judge's impartiality, given the judge's prior involvement in the
legislative proceedings and the issues and facts presented in the case before the
judge. We are satisfied that Judge Downey did not abuse her discretion in
deciding a recusal was unwarranted in this case. Her knowledge of the law and
lawmaking was not extrajudicial knowledge but rather judicial knowledge that
many judges take with them to the bench. In addition, her comments during
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conferences were based on her application of the statute, as it was enacted, to
the facts presented to her at that time.
Respondent also argues that the judge, as a former sponsor of the bill,
could be called as a witness and therefore should not have decided the matter .
We are unpersuaded by this speculative contention. While a court may look to
legislative history, including the sponsors' statements, to shed light on an
ambiguous statute, individual legislators are typically not subject to examination
as to how they personally interpreted the statute. That is because we are not
interested in the statement of one legislator as to what he or she believed was
the correct interpretation of a statute. See DiProsporo v. Penn, 183 N.J. 477,
499 (2005).
II.
We next turn to respondent's appeal of the order declaring decedent an
essential employee. "Appellate review of workers' compensation cases is
'limited to whether the findings made could have been reached on sufficient
credible evidence present in the record . . . with due regard also to the agency's
expertise[.]'" Hersh v. Cnty. of Morris, 217 N.J. 236, 242 (2014) (alteration in
original) (quoting Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64
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(2004)). "Nonetheless, the judge of compensation's legal findings are not
entitled to any deference and, thus, are reviewed de novo." Id. at 243.
Petitioner's motion sought an order declaring decedent an essential
employee. N.J.S.A. 34:15-31.11 (emphasis added) defines an essential
employee as
an employee in the public or private sector who, during
a state of emergency:
(1) is a public safety worker or first responder,
including any fire, police or other emergency
responders;
(2) is involved in providing medical and other
healthcare services, emergency transportation, social
services, and other care services, including services
provided in health care facilities, residential facilities,
or homes;
(3) performs functions which involve physical
proximity to members of the public and are essential to
the public's health, safety, and welfare, including
transportation services, hotel and other residential
services, financial services, and the production,
preparation, storage, sale, and distribution of essential
goods such as food, beverages, medicine, fuel, and
supplies for conducting essential business and work at
home; or
(4) is any other employee deemed an essential
employee by the public authority declaring the state of
emergency.
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An employee who is an employee of the State
who is offered the option of working at home but has
refused that option shall not be regarded as an essential
employee.
Petitioner sought the order because essential employees who contracted
COVID-19 are entitled to "a rebuttable presumption that the contraction of the
disease is work-related and fully compensable for the purposes of benefits
provided under [N.J.S.A.] 34:15-1 [to -6], ordinary and accidental disability
retirement, and any other benefits provided by law to individuals suffering
injury or illness through the course of their employment." N.J.S.A. 34:15-31.12.
The "presumption may be rebutted by a preponderance of the evidence showing
that the worker was not exposed to the disease while working in the pla ce of
employment other than the individual's own residence." Ibid.
In determining decedent was an essential employee, the judge found the
following facts. On March 9, 2020, Governor Murphy issued Executive Order
(EO) 103, declaring a public health emergency and state of emergency in New
Jersey as a result of the COVID-19 pandemic. Exec. Order No. 103 (Mar. 9,
2020), 52 N.J.R. 549(a) (Apr. 6, 2020). EO 103 authorized the State Office of
Emergency Management (OEM), in conjunction with the New Jersey
Department of Health (DOH), to take any actions necessary to protect the health
and welfare of New Jersey citizens. Ibid.
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On March 16, 2020, the Governor issued EO 104, closing all schools in
New Jersey. Exec. Order No. 104 (Mar. 16, 2020), 52 N.J.R. 550(a) (Apr. 6,
2020). On August 13, 2020, the Governor signed EO 175, which superseded the
prior EOs requiring schools to remain closed and allowed schools to reopen for
in-person instruction subject to health and safety protocols. Exec. Order No.
175 (Aug. 13, 2020), 52 N.J.R. 1699(a) (Sept. 21, 2020).
In response to the COVID-19 pandemic, the Cybersecurity and
Infrastructure Security Agency (CISA), an agency of the United States
Department of Homeland Security, issued guidance as to who should be
considered essential employees; kindergarten through twelfth grade teachers
were included in the list. CISA, Guidance on the Essential Critical
Infrastructure Workforce: Ensuring Community and National Resilience in
COVID-19 Response 10 (version 4.0 Aug. 18, 2020). CISA's essential
employee guidelines were adopted by OEM. Essential Employees, OEM,
https://nj.gov/njoem/programs/essential-employees.shtml (last visited Nov. 18,
2024).2
2
The version of OEM's website published at the time of the judge's decision
referred to version 4.0 of CISA's guidance, which was in effect at the time
decedent returned to work. The current version of OEM's website refers to
version 4.1 of CISA's guidance.
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In addition, on October 16, 2020, DOH promulgated a COVID-19
vaccination plan which identified "education and child-care workers" as
essential employees. N.J. Dept of Health, COVID-19 Vaccination Plan 43
(version 1 Oct. 16, 2020). On June 4, 2021, Governor Murphy signed EO 244
ending the COVID-19 public health emergency. Exec. Order No. 244 (June 4,
2021), 53 N.J.R. 1131(a) (July 6, 2021).
Based on the foregoing, the judge found decedent, as a teacher in public
middle school, was an essential employee.
Respondent argues the judge erred because there were genuine issues of
material facts as to whether teachers should be considered essential employees
pursuant to N.J.S.A. 34:15-31.11 because the statute does not specifically or
implicitly include them. Respondent points out that at the time of its enactment,
New Jersey schools were closed and learning occurred virtually.
We disagree with this narrow reading of the statute because it ignores
section (4), which extends the definition of essential employees to include "any
other employee deemed an essential employee by the public authority declaring
the state of emergency." Thus, even if the statute did not identify teachers as
essential employees, it nevertheless encompassed any other employee the
governing authority deemed essential. Teachers were deemed essential
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employees through the Governor's delegation of the responsibility to protect the
public to OEM, and OEM's adoption of CISA's list of essential employees,
which included teachers.
This determination is further buttressed by EO 175, which permitted the
reopening of schools because "in-person instruction provides students with
academic, social, emotional, and mental health supports that cannot be provided
with the same level of efficacy in a remote setting" and "is critical in facilitating
the social and emotional health of students." Exec. Order No. 175, 52 N.J.R. at
1699. As a result of EO 175, schools reopened while there was still a public
health emergency in place.
Respondent further argues that the judge erred because there is no
provision for summary decisions in workers' compensation court , yet she
summarily found decedent was an essential employee based on "nothing but [the
judge's] personal beliefs" regarding the statute. According to respondent,
petitioner's motion lacked any competent evidentiary materials, because he
provided no evidence or affidavits other than his attorney's certification , which
included conclusory arguments. Respondent also contends petitioner did not
provide a statement of material facts, a requirement for summary decisions
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according to Rule 4:46-2(a) and Brill v. Guardian Life Insurance Co. of
America, 142 N.J. 520 (1995).
We are unpersuaded by respondent's arguments. Petitioner sought a
declaratory judgment as to a limited aspect of the matter. A party to a workers'
compensation dispute may obtain "a declaration of rights" pursuant to the
Declaratory Judgment Act (DJA), N.J.S.A. 2A:16-50 to -62. See Weir v. Mkt.
Transition Facility of N.J., 318 N.J. Super. 436, 442-43 (App. Div. 1999).
N.J.S.A. 2A:16-53 permits a person to seek a "declaration of rights, status or
other legal relations" when that person's rights or status are affected by a statute.
"A declaratory action . . . is proper provided there is a justiciable controversy,
the party claiming the relief has standing, and there are no adequate or
appropriate alternative remedies." Lab. Ready Ne., Inc. v. Dir., Div. of Tax'n,
25 N.J. Tax 607, 612 (Tax 2011) (citing Registrar & Transfer Co. v. Dir., Div.
of Tax'n, 157 N.J. Super. 532, 538-43 (Ch. Div. 1978)).
Personal affidavits were not necessary to decide whether decedent was an
essential employee because there was no disagreement she was a full-time
teacher in respondent's school district and the issue was not determined on facts
specific to decedent. In addition, Rule 4:46-2(a) permits, but does not require,
the court to dismiss a motion for summary judgment for failure to file a
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statement of material facts. Because the judge's decision here turned on
statutory interpretation and analysis of public documents, the lack of a statement
of material facts was not fatal to the application and the judge did not abuse her
discretion in considering the application absent the statement.
Lastly, we note the presumption under N.J.S.A. 34:15-31.12 that an
essential employee's "contraction of the disease [was] work-related and fully
compensable" is rebuttable. Thus, notwithstanding the judge's declaratory
finding that decedent was an essential employee, respondent may introduce
evidence to rebut the presumption that decedent's contraction of COVID-19 was
work-related.
Affirmed.
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