Band's Refuse Removal, Inc. v. Borough Of Fair Lawn

163 A.2d 465 (1960)


Fair Lawn (D) contracted with the Capassos (D1) to pick up garbage. D also passed an ordinance that required a permit to pick up garbage and that only a person who holds a contract with D could even qualify for a permit. Band's Refuse (P) had a contract to pick up garbage with a local Western Electric plant, and it applied for a permit and was denied. P sued D, and the Capassos (D1) were allowed to intervene. After a grand jury investigation, P was allowed to amend the complaint to allege that the contract between D and D1 was not the product of a competitive bid and was a product of secret agreements and understandings that tainted the bidding with fraud. A judgment was issued that declared the contract void ab initio. On the very first day of the trial, Ds moved that the judge disqualify himself because his activities before trial demonstrated that he had prejudged the issues and exhibited a plan to use the litigation as a vehicle for a broad municipal investigation. D1 had objected on numerous occasions regarding prejudicial actions by the trial court during the proceedings such as communicating with opposing counsel and the intent of the judge prior to trial to declare the contract void. Six days before the opening of the trial, the trial judge requested counsel to appear before him. The attorney for D1 could not attend, but the court proceeded to question P and D, requesting that they produce and subpoena certain named witnesses. P's attorney said that he had had no intention of calling them. The trial judge proceeded to read a statement obviously prepared in advance indicating that D's unwillingness to inquire into the validity of the contract under the present circumstances is most unusual,' .... 'together with the newspaper accounts of fraud connected with the collection of garbage under the contract involved in this suit, makes it imperative in the public interest that the matter be investigated * * *.' The trial judge then proceeded to appoint an amicus curiae, whose duty it would be 'to present evidence, subpoena witnesses, examine all witnesses, and submit to the court briefs on the law and facts.' A casual reading of the record, reveals an extraordinary participation by the judge in the trial of the cause. He devoted much time in preparing for the questioning of witnesses and the offering of exhibits. This preparation on the part of the court extended to the issuance of subpoenas by the court itself and by its amicus curiae, and the contacting of witnesses for their appearance. The trial judge secured files and documents from the prosecutor's office and sifted them in advance, in preparation of having such of them as he deemed relevant offered as exhibits. During trial the judge produced 27 witnesses, cross-examined them himself, ruled on the propriety of his own questions and upon the admissibility of his own exhibits. On occasion, the judge even attacked the credibility of the witnesses he called. Capassos (D1) appealed the verdict. The appellate court held the ordinance valid, and that P could not challenge it as P did not bid and was not a resident of D.