Rutgers Opposition to Recusal Motion — Children's Health Defense v. Rutgers

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No. 3:21-cv-15333-ZNQ-TJB · Doc. 18 · 2021-09-06 · Docket on CourtListener

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FAEGRE DRINKER BIDDLE & REATH, LLP 
Jeffrey S. Jacobson  
Andrew B. Joseph 
Kristen N. Roshto  
600 Campus Drive 
Florham Park, New Jersey 07932 
(973) 549-7000 
(973) 360-9831 (fax) 
Jeffrey.Jacobson@faegredrinker.com 
Andrew.Joseph@faegredrinker.com 
Kristen.Roshto@faegredrinker.com 
Attorneys for Rutgers, The State University of New Jersey, et al. 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF NEW JERSEY 
 
 
CHILDREN’S HEALTH DEFENSE, 
INC., PETER CORDI, RAELYNNE 
MILLER, KAYLA MATEO, ADRIANA 
PINTO, JAKE BOTHE, AND DOES 1-
13,  
 
Plaintiffs, 
 
v. 
 
 
RUTGERS, THE STATE UNIVERSITY 
OF NEW JERSEY, BOARD OF 
GOVERNORS, RUTGERS SCHOOL OF 
BIOMEDICAL AND HEALTH 
SCIENCES, CHANCELLOR BRIAN L. 
STROM, PRESIDENT JONATHAN 
HOLLOWAY, in their official capacities, 
 
Defendants. 
 
 
Civil Action No. 3:21-cv-15333-ZNQ-TJB 
 
Civil Action 
 
(Document Filed Electronically) 
 
 
 
MEMORANDUM OF RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, 
IN OPPOSITION TO PLAINTIFFS’ MOTION FOR RECUSAL   
 
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TABLE OF CONTENTS 
 
Page 
 
 
-i- 
 
 
INTRODUCTION ................................................................................................. 1 
FACTUAL BACKGROUND ................................................................................ 2 
ARGUMENT......................................................................................................... 5 
CONCLUSION ................................................................................................... 10 
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-ii- 
 
 
TABLE OF AUTHORITIES 
 
Page(s) 
CASES 
Jersey Asparagus Farms, Inc. v. Rutgers Univ., 
Civ. No. 10-2849 (FLW), 2011 WL 1584171 (D.N.J. Apr. 26, 
2011) ............................................................................................................. 5, 6 
Levitt v. University of Texas, 
847 F.2d 221 (5th Cir. 1988) ........................................................................ 7, 10 
Lunde v. Helms, 
29 F.3d 367 (8th Cir. 1994) ................................................................................ 7 
Maurey v. University of Southern California, 
12 F. App’x 529 (9th Cir. 2001) ......................................................................... 8 
Meng Huang v. Ohio State Univ., 
Civ. No. 2:19-cv-1976, 2020 WL 8461547 (S.D. Ohio Oct. 26, 
2020) ................................................................................................................. 8 
Muhammad v. Moore, 
611 F. App’x 352 (7th Cir. 2015) ....................................................................... 6 
Okpor v. Rutgers, 
196 F. App’x 129 (3d Cir. 2006) ........................................................................ 6 
Potashnick v. Port City Construction Co., 
609 F.2d 1101 (5th Cir. 1980) ...................................................................... 9, 10 
Roe v. St. Louis Univ., 
746 F.3d 874 (8th Cir. 2014) .............................................................................. 7 
Royer v. Pennsylvania State Univ., 
No. 03:00-cv-290-KRG-KAP, 2012 WL 956422 (W.D. Pa. Feb. 
28, 2012) ............................................................................................................ 8 
Sessoms v. Trustees of the University of Pennsylvania, Civ. No. 16-
2954, 2017 WL 2242847, at *1 (E.D. Pa. May 23, 2017) ................................... 7 
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TABLE OF AUTHORITIES 
(continued) 
Page 
 
 
-iii- 
 
 
Sessoms v. Trustees of the University of Pennsylvania, 
739 F. App’x 84 (3d Cir. 2018) ...................................................................... 6, 7 
Shaw v. Temple Univ., 
Civ. No. 16-5567, 2017 WL 11612283 (E.D. Pa. Aug. 30, 2017) ...................... 7 
Webbe v. McGhie Land Title Co., 
549 F.2d 1358 (10th Cir. 1976) ........................................................................ 10 
Wu v. Thomas, 
996 F.2d 271 (11th Cir. 1993) ............................................................................ 7 
STATUTES, RULES & REGULATIONS 
28 U.S.C. § 144 ...................................................................................................... 6 
28 U.S.C. § 455 ...................................................................................................... 8 
28 U.S.C. § 544(a) .................................................................................................. 1 
N.J.A.C. § 8:57-6.4 ................................................................................................. 3 
N.J.S.A. § 18A:61D-1 ............................................................................................. 3 
OTHER AUTHORITIES 
https://universitybusiness.com/state-by-state-look-at-colleges-
requiring-vaccines/ (last visited Sept. 5, 2021) ................................................... 5 
https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7032e4-H.pdf 
(last visited Sept. 5, 2021) .................................................................................. 3 
Vaccination Requirement for Fall 2021 Semester, Seton Hall 
University, available at https://www.shu.edu/health-intervention-
communication/vaccine-requirement-and-declaration.cfm (last 
visited Sept. 5, 2021) ......................................................................................... 5 
 
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INTRODUCTION 
No cause exists, pursuant to 28 U.S.C. § 544(a) or any other statute or 
principle, for the Honorable Zahid N. Quraishi (“Judge Quraishi” or “the Court”) to 
recuse himself from this dispute between Rutgers, the State University of New 
Jersey (“Rutgers”), on one hand, and Children’s Health Defense, Inc. (“CHD”) and 
a handful of Rutgers students who have joined CHD in this lawsuit, on the other. 
This Court is hardly the first to be assigned a case involving a university where 
the jurist serves or previously served as an adjunct law professor.  Although 
Plaintiffs contend that Judge Quraishi’s having previously lectured at Rutgers Law 
School requires recusal from this matter, they cite no authority supporting their 
extraordinary request, and none exists.  Even more concerning, Plaintiffs’ brief 
omitted mention of the numerous cases denying recusal motions in identical 
circumstances.  Two of those examples involve Rutgers, with Chief Judge Wolfson 
deciding not to recuse herself from cases involving Rutgers.  The Third Circuit Court 
of Appeals has twice upheld decisions by judges—one by Judge Wolfson, the other 
by a jurist in the Eastern District of Pennsylvania—not to recuse from cases 
involving universities where they served or were actively serving as adjunct law 
professors.  Many other Courts of Appeals have issued similar rulings.  This long 
line of precedents rejecting analogous recusal requests demonstrates that Plaintiffs’ 
motion lacks support and does not present a close call:  The Court should deny it.   
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FACTUAL BACKGROUND 
The Court knows the facts of this motion well, and they are not in dispute.  On 
June 3, 2019, the United States District Court for the District of New Jersey 
appointed Judge Quraishi as a United States Magistrate Judge.  For the Fall 2020 
semester that began in September 2020, and again in the Spring 2021 semester that 
began in January 2021, Rutgers Law School appointed Judge Quraishi as a Part Time 
Lecturer to teach fewer than a dozen students a two-credit course in Trial 
Presentation, at a salary of $1,886 per credit.  See Exs. C, E to Declaration of Julio 
C. Gomez (“Gomez Decl.,” Dkt. Nos. 17-5, 17-7).  On April 19, 2021, President 
Joseph R. Biden, Jr., nominated Judge Quraishi to become a United States District 
Judge.  Judge Quraishi’s Rutgers appointment as a Part-Time Lecturer ended shortly 
thereafter, at the close of the Spring 2021 semester, and was not renewed.  The 
United States Senate confirmed Judge Quraishi’s nomination on June 10, 2021, and 
Judge Quraishi received his commission as a District Judge on June 22. 
When Plaintiffs filed this case last month, the Rutgers Law School website 
still listed Judge Quraishi as an adjunct professor.  (Because Rutgers Law School 
had not updated the faculty directory, the site also still referred to Judge Quraishi as 
a Magistrate Judge).  See Gomez Decl. Ex. A (Dkt. No. 17-3).  Rutgers has since 
updated its website to reflect that Judge Quraishi no longer serves as a member of 
the adjunct faculty.  See id. Ex. B (Dkt. No. 17-4).  Plaintiffs do not dispute that 
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Judge Quraishi has no present teaching responsibilities at Rutgers Law School, and 
their recusal motion does not contend that whatever decisions Judge Quraishi may 
make in this matter would have any personal effects on him, financial or otherwise—
other than the interest every New Jersey resident shares in protecting health and 
safety and putting the COVID-19 pandemic in the rear-view mirror.   
Rutgers, like all other institutions of higher education in this state, is subject 
to N.J.S.A. § 18A:61D-1.  That law obligates Rutgers to require all students, “as a 
condition of admission or continued enrollment,” to submit “a valid immunization 
record which documents the administration of all required immunizations against 
vaccine preventable disease [i.e., measles, mumps, rubella, diphtheria, tetanus, etc.], 
or evidence of immunity from these diseases, in accordance with regulations 
promulgated by the Department of Health.”  One such regulation, N.J.A.C. § 8:57-
6.4, states that “[n]othing in this subchapter shall be construed as limiting the 
authority of a New Jersey institution of higher education to establish additional 
requirements for student immunizations or documentation that such institution shall 
determine appropriate and which is recommended by the [federal Advisory 
Committee on Immunization Practices or] ACIP.”  ACIP recommends the three 
COVID-19 immunizations available in the United States—those manufactured by 
Pfizer-BioNtech, 
Moderna, 
and 
Johnson 
& 
Johnson/Janssen. 
 
See 
https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7032e4-H.pdf 
(last 
visited 
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Sept. 5, 2021).  Accordingly, the Department of Health’s regulation facially 
authorizes Rutgers and all other New Jersey colleges and universities to require 
students to submit proof of one or these COVID-19 immunizations. 
On or about March 25, 2021, Rutgers exercised this statutory and regulatory 
authority to add a vaccine to those that students must document having taken “as a 
condition of admission or continued enrollment.”  Rutgers advised Plaintiffs and 
their fellow students that for the Fall 2021 academic semester, they would have to 
submit proof of having received one of the three ACIP-approved COVID-19 
immunizations or else obtain a lawful religious or medical exemption from doing so.  
News reports suggest that Rutgers may have been the first university in the country 
to announce such a mandate, but a vast number of other institutions of higher 
education have since done so, too.  In New Jersey alone, Caldwell University, Drew 
University, Essex County College, Fairleigh Dickinson University, Kean University, 
Monmouth University, Montclair State University, Mount St. Mary’s University, 
New Jersey City University, New Jersey Institute of Technology, Princeton 
University, Ramapo College, Rider University, Rowan University, Seton Hall 
University, Stevens Institute of Technology, Stockton University, and William 
Paterson University, which have the same statutory authority and obligations as 
Rutgers, have joined Rutgers in requiring students to submit proof of COVID-19 
vaccination.  See University Business, “State-by-state look at colleges requiring 
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5 
COVID-19 
vaccines” 
(Sept. 
3, 
2021), 
available 
at 
https://universitybusiness.com/state-by-state-look-at-colleges-requiring-vaccines/ 
(last visited Sept. 5, 2021); see also Vaccination Requirement for Fall 2021 
Semester, Seton Hall University, available at  https://www.shu.edu/health-
intervention-communication/vaccine-requirement-and-declaration.cfm (last visited 
Sept. 5, 2021).   
The issues presented by Plaintiffs’ lawsuit, therefore, are not specific to 
Rutgers.  A ruling that New Jersey’s statutory and regulatory scheme allowing 
colleges and universities to require vaccinations is somehow unconstitutional would 
affect all of these institutions equally.  This affects the recusal analysis because, if 
Plaintiffs’ interpretation of recusal obligations is correct, any jurist that lectures or 
recently lectured at any of these schools could not preside in this case.  As explained 
below, however, Plaintiffs’ argument is not correct.   
ARGUMENT 
Plaintiffs do not want Judge Quraishi making the decisions in this case.  The 
sole basis for their motion seeking Judge Quraishi’s recusal is his former service for 
one year as an adjunct professor at Rutgers Law School.  It is settled law, however, 
that this is not a basis for recusal.   
Of course, Judge Quraishi is not the first New Jersey jurist to lecture at 
Rutgers Law School and to be assigned a case involving Rutgers.  In Jersey 
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Asparagus Farms, Inc. v. Rutgers Univ., Civ. No. 10-2849 (FLW), 2011 WL 
1584171, at *1 (D.N.J. Apr. 26, 2011), Judge Wolfson denied a motion for her 
recusal “based on [her] purported connections to Rutgers,” including her husband’s 
(and fellow judge’s) position on the faculty, her having lectured at Rutgers Law 
School, and other ties.  Citing other cases involving law school lecturing by jurists, 
Judge Wolfson held that her “connections to the law school do not call for recusal 
under 28 U.S.C. § 144 because the law school connections are immaterial to the 
instant suit and they would not convince a reasonable man that a bias exists.”  Id. at 
*3.  Judge Wolfson referenced Okpor v. Rutgers, 196 F. App’x 129 (3d Cir. 2006), 
another case in which she denied a motion to recuse in a case involving Rutgers and 
where the Third Circuit upheld that decision.  The Third Circuit similarly upheld the 
denial of recusal in Sessoms v. Trustees of the University of Pennsylvania, 739 F. 
App’x 84, 90 (3d Cir. 2018), where a district judge sitting in Philadelphia was 
currently teaching classes as a member of Penn Law School’s adjunct faculty.  The 
Third Circuit’s decisions alone provide a sufficient basis for this Court to deny 
Plaintiffs’ recusal motion.  
Importantly, too, multiple United States Courts of Appeals have reached the 
same conclusion when judges denied recusal motions premised on their service as 
adjunct law professors at defendant universities.  In Muhammad v. Moore, 611 F. 
App’x 352, 355 (7th Cir. 2015), the Seventh Circuit held that formerly teaching at 
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the defendant University of Illinois’ law school “f[e]ll far short of meeting th[e] 
standard” for recusal.  In Roe v. St. Louis Univ., 746 F.3d 874, 886 (8th Cir. 2014), 
the Eighth Circuit upheld denial of a motion to recuse where a judge had taught 
classes at the defendant’s law school.  See also Lunde v. Helms, 29 F.3d 367, 370-
71 (8th Cir. 1994) (upholding denial of recusal in case involving University of Iowa 
where the judge had taught at the University’s law school, especially because a 
judgment against the university would not have had any financial impact on the 
judge).  In Wu v. Thomas, 996 F.2d 271, 275 (11th Cir. 1993), the Eleventh Circuit 
agreed with a district judge’s decision that “his status as an adjunct professor” would 
not cause a “reasonable observer [to] assume that [the Judge] had extra-judicial 
knowledge of the case or otherwise question [the Judge’s] impartiality.”  And, in 
Levitt v. University of Texas, 847 F.2d 221, 225 n.13 (5th Cir. 1988), the judge’s 
wife was a student at the school, the judge was a double-alumnus of the school, and 
the law firm at which the judge previously worked had represented the school.  
“None of th[ose] circumstances . . . rises to the threshold standard of raising a doubt 
in the mind of a reasonable observer as to [the court’s] impartiality,” and “[t]here 
was no duty on the judge’s part to recuse himself.”  Id. at 226.  It bears repeating 
that Plaintiffs cited none of these decisions in their recusal motion.   
Within the Third Circuit, beyond the lower court in Sessoms, Civ. No. 16-
2954, 2017 WL 2242847, at *1 (E.D. Pa. May 23, 2017), the court in Shaw v. Temple 
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Univ., Civ. No. 16-5567, 2017 WL 11612283, at *1-*3 (E.D. Pa. Aug. 30, 2017), 
denied a motion for his recusal where he recently had served as an adjunct professor 
at Temple Law School and he and others in his family were Temple alumni.  In 
Royer v. Pennsylvania State Univ., No. 03:00-cv-290-KRG-KAP, 2012 WL 956422, 
at *2 (W.D. Pa. Feb. 28, 2012), the court held that “teaching at Penn State could not 
constitute a ‘financial interest’ that would have disqualified [a judge] under 28 
U.S.C. § 455.”  The law on this subject, in other words, is quite clear. 
One of the more detailed explanations of why service on a law school’s 
adjunct faculty does not require recusal came in Meng Huang v. Ohio State Univ., 
Civ. No. 2:19-cv-1976, 2020 WL 8461547, at *1 (S.D. Ohio Oct. 26, 2020).  In 
Meng Huang, a magistrate judge rejected calls for her recusal based on her current 
status teaching “a single section of a one-credit class on Depositions” at the 
university.  “[A] finding that recusal is required in this case would result in the 
creation, in the absence of any supporting case law or commentary, of what would 
amount to a rule of automatic recusal in every case involving the Ohio State 
University for judges who teach at the Moritz College of Law as adjuncts and on a 
part-time basis only.”  Id. at *2 (internal quotation and citation omitted).  The judge 
distinguished holding a position as an adjunct professor from service on a 
University’s governing body, which she believed would require recusal.  See id. at 
*3.  Even holding a supervisory position, moreover, does not necessarily require 
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recusal.  In Maurey v. University of Southern California, 12 F. App’x 529, 532 (9th 
Cir. 2001), the Ninth Circuit upheld a judge’s decision not to recuse even though he 
served “on USC Law School’s Board of Councilors.”      
Plaintiffs’ sole contention in this case is that the prestige associated with Judge 
Quraishi’s prior service as a part-time lecturer of 10 students per semester, combined 
with the fact that Judge Quraishi was likely “wearing a mask,” complying with 
Rutgers’ other COVID-19 policies, and asking his students to follow those policies, 
too, while he was teaching, would cause a reasonable person to question Judge 
Quraishi’s impartiality.  Mot. at 4-6.  As shown above, there is no legal support at 
all for Plaintiffs’ position.  Rutgers’ research, in fact, has not revealed any cases in 
which a district judge’s prior service as an adjunct professor at a university’s law 
school, in a case where the outcome would have no financial or other impact on the 
jurist, led to recusal or raised even a serious doubt as to whether recusal might have 
been appropriate. Recusal is required only where the jurist’s connections to the 
school are material to an issue in this lawsuit, the jurist has a financial interest in the 
case, or the jurist is part of the school’s governing body or decision-making process.  
No such allegations have been made or could be made in this case.    
Plaintiffs cite only two cases in their motion, neither of which comes close to 
resembling the facts presented here.  In the first, Potashnick v. Port City 
Construction Co., 609 F.2d 1101, 1110 (5th Cir. 1980), the plaintiff’s attorney was 
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simultaneously representing the presiding judge in “several unrelated matters,” and 
the judge “was involved in [other] business dealings with the plaintiff’s attorney,” 
too.  The judge’s father also was the senior and named partner in the law firm 
representing the plaintiff.  See id.  No similar connections are at issue here.  In Levitt, 
847 F.2d at 226—one of the cases cited above involving a judge who served as an 
adjunct professor—the Fifth Circuit explicitly cited and distinguished Potashnick.   
The only other case on which Plaintiffs rely is Webbe v. McGhie Land Title 
Co., 549 F.2d 1358 (10th Cir. 1976), which did not even involve an alleged conflict 
of interest.  The trial judge demonstrated partiality by siding with a plaintiff before 
having read the key evidence and before having allowed the defendant’s lawyer to 
address the court.  After reversing summary judgment, the Tenth Circuit determined 
that “there is not a reasonable likelihood that the trial judge . . . could later preside 
over the trial of this matter in a fair and impartial manner.”  Id. at 1361.  Here, of 
course, Plaintiffs have conceded “there is no reason to question Judge Quraishi’s 
integrity, honesty, temperament, or character.”  Mot. at 1.  
CONCLUSION 
Because Plaintiffs’ recusal motion ignored controlling Third Circuit and 
District of New Jersey precedent that runs directly counter to their arguments and 
presented no case law or information supporting their extraordinary request for 
recusal, the Court should deny their motion. 
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Dated: September 6, 2021 
Respectfully submitted, 
 
 
 /s/ Jeffrey S. Jacobson  
Jeffrey S. Jacobson 
Andrew B. Joseph 
Kristen N. Roshto 
FAEGRE DRINKER BIDDLE & REATH, LLP 
600 Campus Drive 
Florham Park, New Jersey 07932 
(973) 549-7000 
(973) 360-9831 (fax) 
Jeffrey.Jacobson@faegredrinker.com 
Andrew.Joseph@faegredrinker.com 
Kristen.Roshto@faegredrinker.com 
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