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Superior Court Judge Wilbur Mathesius on Friday recused from a whistleblower trial against the Board of Public Utilities, citing an “unwaivable conflict” arising from his financial interest in a company that received BPU grants. Mathesius, a Mercer County judge since 2002, owns about $30,000 in stock in EPV Solar Inc. of Hopewell, a solar-heating panel manufacturer that received $500,000 in 2003 and $499,795 in February for clean-energy projects. BPU officials moved for his recusal on Feb. 13, arguing that his connection to EPV could give the impression he would not be impartial in the case, Potena v. Board of Public Utilities, MER-L-2974-04, which is scheduled for trial in March. Plaintiff, Joseph Potena alleges he was fired as the BPU’s chief fiscal officer job because, among other things, he told the Department of the Treasury about an $80 million bank account that established rebate checks for the Office of Clean Energy. He alleged the account was not set up under Treasury guidelines, a violation of state law. The BPU argued in its brief that because of the relationship between EPV and the BPU, there is a “strong likelihood that a future appearance of partiality will arise” and a reasonable person could conclude that Mathesius “received knowledge of and developed opinions about the BPU which will preclude a fair and unbiased hearing or judgment.” Mathesius said he bought the stock for $20,000 or $30,000 in 1979. Since the share income was not valued at more than $1,000, he was not required to report it on his judicial disclosure form, he added. Mathesius said he was not aware the BPU had awarded the grants to EPV until he read the court papers. “Unfortunately, I had to read about the connection between my stock and this case in the newspaper,” he said. “It’s a quizzical proposition: why didn’t the lawyers just present me with the facts?” The BPU’s brief cited Canon 2 of the Code of Judicial Conduct, which says a judge should avoid impropriety or the appearance of impropriety, and Canon 3, which says a judge should perform his or her duties impartially. It also cited Rule 1:12, which disqualifies a judge if he or she is “interested in the event of the action” or if there is “any reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.” Potena’s lawyer, Joseph Lang, saw no need for recusal and said the BPU did not proffer evidence that Mathesius would be partial. “The defendants have failed to make any showing of a financial or other interest that could be affected by the outcome of the trial,” wrote Lang, of Lenox, Socey, Wilgus, Formidoni, Brown, Giordano & Casey in Trenton. Lang said many matters before judges may touch on their life experiences but not impact their decisions. He pointed to Sheeran v. Progressive Life Insurance Co., 182 N.J. Super. 237 (App. Div. 1981), which held that an administrative law judge was not barred from hearing a case involving the Department of Insurance even though he had previously been a department hearing officer. The BPU is represented by Karol Corbin Walker of LeClairRyan in Newark. The other state defendants are BPU president Jeanne Fox, represented by Angelo Genova of Genova, Burns & Vernoia in Livingston; BPU chief of policy Lance Miller, represented by William Maderer, of Saiber in Newark; and Office of Clean Energy director Michael Winka, represented by J. Andrew Kinsey of Florio Perrucci Steinhardt & Fader in Phillipsburg. Kinsey says Winka is satisfied with the result, Maderer declines to comment, and Genova and Walker did not return calls. Mathesius has found his way into the limelight for repeated shoot-from-the-hip comments made during his career as a Mercer County executive and a judge. In November 2006, the state Supreme Court suspended him for a month without pay for injudicious comments; the Court said he berated a jury, criticized death penalty rulings and denigrated other judges in public. Seven months later, he issued a 7,000-word, 75-footnote invective-laced commentary, titled “Reflections of a Disreputer,” which decried what he considered his mistreatment. Excerpts were published last June in New Jersey Lawyer, the State Bar Association’s weekly newspaper.

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