Band’s Refuse Removal, Inc. v. Borough of Fair Lawn

Nature of the Case

This was a dispute over a garbage contract.

Facts

Fair Lawn (D) contracted with the Capassos to provide waste removal services. Fair Lawn also passed an ordinance that required a permit to pick up garbage and that only a person who held a contract with the city could obtain a permit.

Band’s Refuse Removal (P) had a contract to pick up garbage with a local Western Electric plant and it applied for a permit and was denied. Band’s sued Fair Lawn and the Capassos were allowed to intervene. After a grand jury investigation, the plaintiff was allowed to amend the complaint to allege that the contract between Fair Lawn and the Capassos 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. During the trial proceedings, the Capassos 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 trial the trial judge ordered Band’s to subpoena certain named witnesses even though the company had no intention of calling them. The judge also wanted to institute a public investigation into the matters before the court and appointed an amicus curiae.

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 appealed the verdict. The appellate court held the ordinance valid and that the plaintiff could not challenge it because it did not bid and was not a resident of Fair Lawn.

Issue

In what respects must a court be impartial?

Holding and Rule of Law

A court must be impartial not only in fact but also in appearance.

The power of the trial judge to call witnesses is not unlimited. A judge’s conduct of a trial contrary to the traditional rules and concepts which have been established for the protection of private rights constitutes a denial of due process. If a judge participates to an unreasonable degree in the conduct of the trial, even to the point of assuming the role of an advocate, he has prejudiced the defendant’s rights.

This judge overstepped the bounds of judicial inquiry in this case. He took on the role of an advocate. We agree with Capasso that the trial court committed prejudicial error by producing a large number of witnesses and admitting their testimony in evidence. Capasso had no advance notice of the identity of any of the witnesses and no opportunity to conduct a pretrial investigation. In addition, the court created new issues that were never mentioned or suggested in the pretrial order. During the twelfth day of trial the judge permitted Fair Lawn to amend their answer and change their position to one of the invalidity of the contract and the return of all monies expended. This was a shock and a surprise and was again a substantial deprivation of Capasso’s fundamental rights. Fairness dictates that if Fair Lawn were allowed to switch sides in the middle of the trial, that Capasso’s be allowed reasonable time for discovery and investigation.

Disposition

Reversed and remanded for retrial.