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

Citation. 62 N.J. Super. 522, 163 A.2d 465, 1960 N.J. Super
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Brief Fact Summary.

Capasso (Defendant) appeals from a judgment declaring their garbage collection contract with the Borough of Fair Lawn void, declaring all payments made to them under the contract void, declaring Fair Lawn Ordinance 688 void, and awarding $303,052.62 to the Borough of Fair Lawn (Defendant). Defendant contends that the judgment must be reversed because of the manner in which the trial judge conducted the proceedings.

Synopsis of Rule of Law.

A trial judge must exercise impartiality and judicial restraint in order to protect a litigant’s right of due process.


In February, 1957, the Borough of Fair Lawn (Borough), advertised for bids for collection of the town’s garbage. The borough awarded the contract to Capasso, the lowest bidder, and they began garbage collection. In August, 1957, the Borough adopted Ordinance 688, which required a permit to collect garbage, and further provided that only a person who had a contract with the town could be granted a permit. In other words, only the Capassos could collect garbage in Fair Lawn. Band’s Refuse Removal, Inc. (Plaintiff), had a contract to collect garbage from a plant in the town, so it applied for a permit. According to the ordinance, the Borough denied the application. Plaintiff filed a complaint alleging that the ordinance was arbitrary, discriminatory, unconstitutional and ultra vires. Plaintiff asked that the court declare the ordinance void and order the borough to renew its previous permit or issue a new one. Plaintiff then sued the borough and the defendants subsequently filed an answer alleging that their actions were proper since the contract had been awarded to the Capassos under a proper competitive bidding process. The Capassos then intervened as Defendants and filed a counterclaim asking the Borough to be restrained from issuing a permit to Plaintiff during the term of their contract. In terms of Plaintiff’s action, the appellate court held that Ordinance 688 was valid and that Plaintiff could not challenge the legality of the bidding process because it had not bid and was not a resident of Fair Lawn. In terms of Capasso’s counterclaim against the Borough, the Law Division declared the garbage collection contract between the Borough and Capasso void, any payments made to Capasso under the contract void, and declared Ordinance 688 void. It also held awarded $303,052.62 to the Borough. Defendant appeals the judgment, asserting that the judgment must be reversed because of the manner in which the trial judge conducted the proceedings. On the first day of the trial counsel for the Defendants moved that the judge disqualify himself because his actions before trial demonstrated that he had prejudged the issues and had a plan to use the litigation as a vehicle for a broad municipal investigation. Defendant’s counsel also objected throughout the trial to the participation in the action by the trial judge. During the trial, the judge called his own witnesses, and examined them at length.


Has a trial judge acted prejudicially if he or she participates in the proceedings?


Yes. Judgment reversed and the matter is remanded to determine the validity of the contract. The trial judge overstepped the permissible bounds of judicial inquiry. Generally, it has been held that a trial judge may interrogate a witness, when it is not excessive. However, this power to call and examine witnesses is not unlimited. A judge’s power must be balanced against the interests of a litigant. In the instant case, prejudicial error resulted from the trial court’s production of a large number of witnesses and admission of their testimony. Prejudicial error also resulted from the creation of new issues by the court without notice. A trial judge’s function is to serve litigants by determining their disputes and issues based upon the applicable rules of law. A judge may not initiate litigation or expand the case by adding new issues without giving the parties full and fair opportunity to meet those issues. As a result of the creation of new issues and denial of opportunity to investigate those issues the defendant was denied due process.


The court has adopted the classical view that a judge should have an inactive role in proceedings and should make decisions based on the rules of law.

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