US Federal District Judge Kevin McNulty, Martin Luther King Courthouse, Newark, NJ. (Carmen Natale)
A federal judge has invited parties in four cases against the Port Authority of New York and New Jersey that are pending before him to weigh in on whether he should hand them off to another judge because he provided legal services for the agency as a partner at Gibbons before he went on the bench.
U.S. District Judge Kevin McNulty in Newark issued four sua sponte orders on June 20 explaining why his “impartiality might reasonably be questioned” under the canons of the Code of Conduct for federal judges, but said that he would not disqualify himself unless someone “objects to my presiding over this case” within 20 days.
One of the actions, Galicki v. State of New Jersey, is a putative class action on behalf of people who were caught in Fort Lee traffic as the result of the access lane closings last September that are at the heart of the Bridgegate scandal.
McNulty, who was sworn in as a judge on July 20, 2012, said there was a basis for his recusal because of work done by himself and the Gibbons firm for the Port Authority but he invoked the “remittal of disqualification” provision in canon 3D, a provision similar to ethics rules that allow conflicted lawyers to keep cases by informing the client and obtaining a waiver.
McNulty disclosed that in or around 2006, he personally billed 27 hours on a matter for the Port Authority, which was and remains a Gibbons client.
The case was Nash v. Port Authority, an unsuccessful appeal from a New York state court decision that the Port Authority was liable on claims arising out of the 1993 World Trade Center bombing.
McNulty’s “best recollection” was that he “consulted and did some early research” on the Nash appeal but he said did not remember any client contact, he did not appear in the case and his name was not on the brief. The New York appeals court’s 2008 opinion in Nash identifies two Gibbons lawyers –John Gibbons and Jeffrey Nagel – as the Port Authority’s attorneys, with no mention of McNulty.
He also saw a problem in Gibbons’ representation of the agency in 15 to 20 matters between 2000 and 2012, when he was a partner at the firm. Though he had no involvement and did not know what those matters were about, he was “closely associated” with the lawyers who worked on them and his compensation might have been affected because he shared in the firm profits.
Although none of the specific situations where canon 3C(1) requires disqualification based on prior representation by a judge or the judge’s firm applied because the Gibbons matters were separate from the current cases, the general language concerning reasonably questionable impartiality did, McNulty wrote.
The orders also mention that McNulty did a stint in the U.S. Attorney’s office from 1987 to 1998 before Chris Christie, now the New Jersey governor and a defendant in Galicki, was put in charge of the office.
The remittal process, which provides an alternative to withdrawing from a case, requires the judge to disclose the basis for disqualification on the record and allow the parties and their counsel to confer on the issue outside the presence of the judge. The judge can keep the case if everyone agrees in writing or on the record.
McNulty’s orders set up a procedure to shield himself from knowledge of any objections, which are to be lodged in writing with his clerk who “will not disclose” to him any consent or refusal to consent to his staying on a case. Nor will he question anyone about the basis for their consent or objection, he added. And if the case is reassigned, the new judge will not be informed of who consented and who objected.
One objection will be enough to knock him off but lack of objection will be deemed consent.
If he stays on a case, at “some convenient time,” he will ask the parties to confirm their consent in open court or in writing, he added.
John Bissell, a retired federal judge who served as the district’s chief judge from 2001 to 2005 and is now with Connell Foley in Roseland, said that he was not familiar with remittal and that it was probably not used often because most judges decide whether to disqualify themselves without seeking input.
He said McNulty’s procedure seemed “perfectly appropriate and properly cautious.”
Acting Rutgers-Newark Law School Dean Ronald Chen, who teaches federal courts did not recall a prior instance of a judge in New Jersey using remittal, saying there has probably been one but judges usually recuse or they don’t.
Chen noted that New Jersey state judicial ethics canons do not provide for remittal so that a party does not feel coerced to consent, and said that from a policy perspective, he preferred New Jersey’s position.
But he said he thought McNulty acted properly, using the tools available to him to deal with a situation that does not call for automatic disqualification but involves a “gray zone, in which questions could be raised.”
Newly appointed judges like McNulty are “more mindful of potential appearance issues because they have recently been representing private clients,” Chen said.
John Sullivan of Cozen O’Connor in Cherry Hill, a lawyer for former Port Authority deputy director William Baroni, a defendant in Galicki, declined comment, as did in-house Port Authority lawyer Rosanne Facchini, through agency spokesman Steven Coleman.
Plaintiff lawyer Rosemarie Arnold of Fort Lee did not return a call.
Not responding by press time were the Attorney General’s office, which represents Christie and the state, and Kevin Marino of Chatham’s Marino Tortorella & Boyle, who represents William Stepien, Christie’s former campaign manager.
The lawyers in the other cases also did not return calls.
Jeffrey Catenacci of Winston & Strawn represents Maher Terminals which sued the Port Authority in 2012, over allegedly illegal port charges and fees. Mark Olinsky of Sills Cummis & Gross in Newark is defending the agency.
The other two cases are civil rights suits against the Port Authority and its police filed in May by Ricardo Rodriguez of Prosper & Rodriguez in Morristown on behalf of Benjamin Perez and Heather Fogarty. The complaints have not yet been served.
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