SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3484-19

JEREMY JEDYNAK, in

his official capacity as 

council member of the

Township of Rockaway,

Plaintiff-Respondent,

v.

GOVERNING BODY OF

THE TOWNSHIP OF 

ROCKAWAY,

Defendant.

__________________________

JOHN SCHMIDT and

MARY HOLLENBECK,

Plaintiffs-Appellants,

v.

ROCKAWAY TOWNSHIP 

COUNCIL,

Defendant-Respondent.

__________________________

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2

A-3484-19

TUCKER M. KELLEY,

Plaintiff-Appellant,

v.

ROCKAWAY TOWNSHIP

COUNCIL,

Defendant-Respondent.

__________________________

Submitted February 28, 2022 – Decided March 23, 2022

Before Judges Vernoia and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Morris County, Docket Nos. L-2112-19, 

C-0099-19, and C-0100-19.

Mary Hollenbeck, John P. Schmidt, and Tucker M.

Kelley, appellants pro se.

Maraziti Falcon, LLP, attorneys for respondent

Rockaway Township Council (Andrew M. Brewer, on 

the brief).

PER CURIAM

Pro se plaintiffs John Schmidt, Mary Hollenbeck, and Tucker M. Kelley 

appeal from a December 11, 2019 order denying their motion for recusal of 

Assignment Judge Stuart A. Minkowitz; a December 24, 2019 order denying 

their request that Douglas Brookes be removed as a Councilmember of the 
3

A-3484-19

Rockaway Township Council (the Council); and a February 20, 2020 order 

denying their motion for reconsideration of the December 24, 2019 order. We 

affirm all orders under review.

I.

The following facts are derived from the record. On November 7, 2017, 

Phyllis Smith, a Republican, was elected to serve a four-year term on the 

Council beginning January 1, 2018, and ending December 31, 2021. On 

September 9, 2019, Councilmember Smith resigned her seat, effective 

immediately. Her resignation created a vacancy on the Council and triggered 

the provisions of the Municipal Vacancy Law (MVL),

1 which provides the 

procedure for filling a vacant seat on a township council when the vacancy was 

caused by an incumbent elected as a member of a political party:

If the incumbent whose office has become vacant was 

elected to office as the nominee of a political party, the 

municipal committee of the political party of which the 

incumbent was the nominee shall, no later than [fifteen]

days after the occurrence of the vacancy, present to the 

governing body the names of three nominees for the 

selection of a successor to fill the vacancy. The 

governing body shall, within [thirty] days after the 

occurrence of the vacancy, appoint one of the nominees 

as the successor to fill the vacancy. If the governing 

body fails to appoint one of the nominees within the 

time prescribed herein, the municipal committee that 

1

 N.J.S.A. 40A:16-1 to -23.
4

A-3484-19

named the three nominees shall, within the next 

[fifteen] days, appoint one of the nominees as the 

successor to fill the vacancy, and such person shall be 

sworn in immediately. If the municipal committee 

which nominated the incumbent fails to submit the 

names of the nominees within the time prescribed 

herein, the governing body may, within the next 

[fifteen] days, fill the vacancy by the appointment of a 

successor from the same political party which had 

nominated the incumbent whose office has become 

vacant.

[N.J.S.A. 40A:16-11.]

The Rockaway Township Republican Committee (RTRC) encountered 

difficulties identifying three individuals willing to replace Smith. Despite the 

RTRC's best attempts, only one person was willing to serve—Brookes. At a 

meeting held on September 19, 2019, to address the vacancy left by former 

Councilmember Smith's resignation, the RTRC chairperson signed a "Notice of 

Nomination to Fill Vacancy and Acceptance by Candidate" containing only 

Brookes's name.

Prior to its September 24, 2019 meeting, the Council received a letter from 

the RTRC's attorney stating the RTRC was waiving any additional time it had 

to fill the vacancy under the MVL, and that the RTRC did not object to the 

Council considering additional candidates to fill the vacancy. At the September 

24, 2019 meeting, council members were asked if there were any names they 
5

A-3484-19

wished to nominate. When no additional names were provided, Brookes was 

appointed to Smith's former position as a member of the Council by acclamation.

On October 15, 2019, Kelley filed a complaint and order to show cause in 

the Law Division. As a member of the Council, Kelley alleged that the 

Township of Rockaway violated the MVL by allowing the RTRC to waive its 

time to search for replacement nominees for the remainder of the statutorily 

prescribed fifteen-day period. On November 13, 2019, pursuant to Rule 4:38-

1(a),

2

Judge Minkowitz sua sponte consolidated Kelley's complaint with 

complaints filed in the Law Division by Schmidt, Hollenbeck, and a separate 

complaint filed by plaintiff Jeremy Jedynak.

In his complaint, Jedynak, a former elected member of the Council, 

challenged his removal from office. Schmidt and Hollenbeck contended the 

meeting addressing Jedynak's removal violated the Open Public Meetings Act 

(OPMA), N.J.S.A. 10:4-12(a), and they sought to invalidate certain actions 

taken by the Council in Jedynak's absence. The judge found the three complaints 

2

 Rule 4:38-1 provides for "Consolidation." Subsection (a) addresses "Actions 

in the Superior Court." It states: "When actions involving a common question 

of law or fact arising out of the same transaction or series of transactions are 

pending in the Superior Court, the court on a party's or its own motion may order 

the actions consolidated."
6

A-3484-19

all alleged a common set of facts and raised the same legal issues, warranting 

resolution in one action.

On November 26, 2019, plaintiffs filed a motion for Judge Minkowitz's

disqualification under Rule 1:12-2. Plaintiffs alleged that in previous matters 

held before the judge, he demonstrated bias against them. The allegations were

based on a series of comments made on the record by Judge Minkowitz, as well 

as what plaintiffs claimed was a pattern of ostensibly granting favorable 

extensions to the Township of Rockaway.

On December 11, 2019, the judge first conducted oral argument relative 

to the motion for his disqualification. After hearing arguments, Judge 

Minkowitz rendered an oral opinion denying the motion. The judge found 

plaintiffs did not demonstrate he was biased, and he noted his obligation to 

remain "neutral" in the proceedings. The judge then went on to hear oral 

arguments on the merits of the complaints and reserved decision.

On December 24, 2019, Judge Minkowitz entered a judgment 

accompanied by a written statement of reasons. The judge denied the relief 

sought by Kelley and found Brookes's appointment to the Council was valid 

under the MVL. Specifically, Judge Minkowitz stated:

[T]he RTRC effectively waived its fifteen (15) day 

period once it realized it could not find three (3) 
7

A-3484-19

qualified nominees, in keeping with the MVL's goal of 

filling municipal vacancies in a timely manner. By 

deferring to the Council's judgment to select a nominee, 

the first fifteen (15) day period terminated early. The 

RTRC then provided notice to the Council in the form 

of a September 24, 2019 letter, which indicated that the 

RTRC was only able to present one name, and 

effectively waived any additional time that the RTRC 

may have had to present two (2) additional names. 

[(Citation omitted).] In keeping with the legislative 

intent of the MVL to fill vacancies as quickly as 

possible, without constraining the ability of the 

municipal committee or the governing body to act, the 

next fifteen (15) day period for the Council to appoint 

a new member properly began once the RTRC deferred 

to the Council. Since the Municipal Committee elected 

not to exercise its rights under the MVL, the second 

fifteen (15) day period began and the Council was 

within its discretion to appoint Brookes to replace 

Smith.

On February 20, 2020, the judge denied Kelley's motion for reconsideration and 

denied the Council's cross-motion seeking sanctions and attorney's fees. This 

appeal ensued.

On appeal, plaintiffs argue Judge Minkowitz erred by: (1) not recusing 

himself under the Rules of Court and Code of Judicial Cannons; and (2) carving 

out an exception allowing the Council to appoint a successor within fifteen days 

after Smith resigned, without three nominees being submitted, in violation of 

the MVL.
8

A-3484-19

II.

As an initial matter, the Council argues we lack jurisdiction because 

plaintiffs have not appealed from the final outcome of the underlying action, but 

rather, they only seek review of the judge's order denying their motion to recuse. 

Citing Rule 2:5-6, which governs "Appeals from Interlocutory Orders, 

Decisions and Actions," the Council asserts plaintiffs' appeal must be denied for 

failing to follow the appellate process.

Rule 2:5-6(a) provides "[a]pplications for leave to appeal from 

interlocutory orders of courts or of judges sitting as statutory agents and from 

interlocutory decisions or actions of state administrative agencies or officers 

shall be made . . . within [twenty] days after the date of service of such an order." 

In support of its argument, the Council cites Magill v. Casel, 238 N.J. Super. 57 

(App. Div. 1990), where we held "[a] party may not seek appellate review of an 

adverse interlocutory order without seeking relief from the outcome of the 

litigation as embodied in the judgment." Id. at 62. The appeal in Magill was 

dismissed because plaintiff appealed a judge's decision not to recuse but not the

underlying judgment. Ibid.

Neither Rule 2:5-6 nor Magill control here. In addition to the denial of 

their recusal motion, plaintiffs also appeal from the judgment denying Kelley's 
9

A-3484-19

relief to unseat Brookes. The judgment is a final decision, as is the subsequent 

order denying reconsideration of the judgment. We reject the Council's 

argument and conclude plaintiffs' appeal seeks review of final judicial 

determinations. Therefore, plaintiffs' appeal is not interlocutory.

III.

Turning to the merits of plaintiffs' appeal, generally, recusal motions are 

"entrusted to the sound discretion of the judge and are subject to review for 

abuse of discretion." State v. McCabe, 201 N.J. 34, 45 (2010). We review de 

novo whether the judge applied the proper legal standard. Ibid. Judges must act 

in a way "that promotes public confidence in the independence, integrity and 

impartiality of the judiciary, and shall avoid impropriety and the appearance of 

impropriety." Code of Judicial Conduct R. 2.1; see also In re Reddin, 221 N.J. 

221, 227 (2015).

To determine if an appearance of impropriety exists, we ask "[w]ould a 

reasonable, fully informed person have doubts about the judge's impartiality?" 

DeNike v. Cupo, 196 N.J. 502, 517 (2008); see also Code of Judicial Conduct

R. 2.1 cmt. 3. Judges must recuse themselves from "proceedings in which their 

impartiality or the appearance of their impartiality might reasonably be 

questioned," Code of Judicial Conduct R. 3.17(B), or if "there is any other 
10 A-3484-19

reason which might preclude a fair and unbiased hearing and judgment, or which 

might reasonably lead counsel or the parties to believe so," R. 1:12-1(g).

Withdrawing from a case "upon a mere suggestion" of disqualification is 

improper. Panitch v. Panitch, 339 N.J. Super. 63, 66-67 (App. Div. 2001). A 

judge should not step aside from a case "unless the alleged cause of recusal is 

known by him 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); see also Laird 

v. Tatum, 409 U.S. 824, 837 (1972) (holding a judge's "duty to sit where not 

disqualified . . . is equally as strong as the duty to not sit where disqualified")

(emphases added); State v. Marshall, 148 N.J. 89, 276 (1997) ("[J]udges are not 

free to err on the side of caution; it is improper for a court to recuse itself unless 

the factual bases for its disqualification are shown by the movant to be true or 

are already known by the court.").

To hold otherwise would create an incentive for disgruntled litigants to 

claim bias in order to remove a judge from a case who has ruled against them. 

That a judge rendered decisions in a case that did not favor the party seeking 

recusal—even a decision we reversed on appeal—is insufficient grounds for 

recusal. Marshall, 148 N.J. at 276; Hundred E. Credit Corp., 212 N.J. Super. at 

358. A judge is not prevented from sitting by giving an "opinion on any question 
11 A-3484-19

in controversy in the pending action in the course of previous proceedings 

therein." N.J.S.A. 2A:15-49; see also R. 1:12-1 (stating same).

Rule 1:12-2 states that a party may file a motion seeking a judge's 

disqualification. This can also be done upon the court's own motion when 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." R. 1:12-

1(g). A judge's participation in prior proceedings in a case is not, on its own, 

sufficient grounds for disqualification. Matthews v. Deane, 196 N.J. Super. 441, 

445 (Ch. Div. 1984) (citing State v. Walker, 33 N.J. 580, 591 (1960)).

It is crucial for the moving party to demonstrate "prejudice or potential 

bias" in order to succeed on a motion for judicial qualification. State v. Flowers, 

109 N.J. Super. 309, 312 (App. Div. 1970). The mere suggestion of bias is 

insufficient to support a Rule 1:12-2 motion—the cause of disqualification must 

be known to be true to the judge or demonstrated to be true in fact. Hundred E. 

Credit Corp., 212 N.J. Super. at 358.

In support of their claim that Judge Minkowitz exhibited bias against 

them, plaintiffs cite to three remarks from cases previously litigated before the 

judge. First, plaintiffs take issue with a remark made in a written opinion 

denying a motion for reconsideration in an Open Public Records Act action. 
12 A-3484-19

According to plaintiffs, Judge Minkowitz looked unfavorably at Schmidt's body 

language during a plenary hearing, noting his face turned red when questioned,

and that he could not maintain eye contact. For this and other reasons, the judge 

found Schmidt was not a "credible witness." Second, during oral arguments in 

an OPMA matter, plaintiffs allege that Judge Minkowitz threatened Schmidt 

with "contempt of court." Though plaintiffs did not provide a transcript of the 

remark,3Judge Minkowitz disputed plaintiffs' version of events at a motion 

hearing in the matter under review:

I don't think I said you had committed contempt, 

I never found you in contempt, but I – I think I said, 

again, you did not provide transcript to support your 

argument, but I think I said that if you continued down 

this road it could be deemed as contemptuous conduct.

I think that's what I said as you were making 

statements, ad hominem attacks against an attorney in 

open court on this record that were irrelevant to the 

proceedings.

Third, plaintiffs claim that at the same OPMA case oral argument, Judge 

Minkowitz told Hollenbeck that "she should consult an attorney or research it." 

Plaintiffs assert this "inappropriate quip" "implied that [she] was [sic] non3

 Rule 2:6-1(a)(1)(I) provides that required contents of appellant's appendix 

shall contain "such other parts of the record . . . as are essential to the proper 

consideration of the issues."
13 A-3484-19

intelligent." Again, no transcript containing this statement or further 

information about the context in which it was made was provided in this record 

in violation of Rule 2:6-1(a)(1)(I).

We see no abuse of discretion or misapplication of the law in Judge 

Minkowitz's denial of the recusal motion. The judge found Schmidt's testimony 

was "incredible." And, citing plaintiffs for using "contemptuous" language does 

not suffice to justify recusal. A reasonable, fully informed person would have 

no doubts about the judge's impartiality. See DeNike, 196 N.J. at 517. Plaintiffs'

arguments on recusal are premised on their disagreements with the decisions 

rendered by the judge as to the interpretation of the MVL.

Moreover, the record is devoid of any indication those decisions were the 

product of bias or unfair treatment, and the judge correctly found there was no 

actual prejudice, or appearance of prejudice on the part of the court. Plaintiffs' 

disagreements with the judge's decisions are not a sufficient basis for recusal

under Rule 1:12-2. Therefore, we affirm the denial of the recusal motion.

IV.

We are also unpersuaded by plaintiffs' argument that Judge Minkowitz 

misinterpreted the MVL. "Municipal action will be overturned by a court if it 

is arbitrary, capricious or unreasonable." Bryant v. City of Atl. City, 309 N.J. 
14 A-3484-19

Super. 596, 610 (App. Div. 1998). While a trial court's factual determinations 

should be accorded broad deference, "[a] trial court's interpretation of the law 

and the legal consequences that flow from established facts are not entitled to 

any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 

140 N.J. 366, 378 (1995).

Contrary to plaintiffs' contention, the applicable statute—N.J.S.A. 

40A:16-1 to -23—does not require the Council to wait the full fifteen days 

allotted to the local political committee, here the RTRC, where the committee 

nominates only one person as the replacement member and states it cannot find, 

and will not submit, any additional names for consideration.

In Brubaker v. Borough of Ship Bottom, the trial court engrafted a judicial 

exception on the above statutory language to

address those situations in which it is alleged that three 

nominees cannot be found. . . . could mire the court in 

interminable hearings to verify that each and every 

member of the incumbent's political party honestly has 

declined the invitation to serve. The proceedings alone, 

not to mention the requisite pretrial discovery, could 

carry on beyond the next general election at which the 

vacancy could be filled.

[246 N.J. Super. 55, 60-61 (Law Div. 1990).]

Judge Minkowitz's interpretation of the MVL aligns with the Brubaker

holding and the plain meaning of the statute. Therefore, plaintiffs' challenge to 
15 A-3484-19

the judge's decision lacks merit. We find insufficient merit in plaintiffs' 

remaining arguments to warrant further discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.