Opinion Denying Motion for Recusal — Children's Health Defense v. Rutgers (D.N.J.)

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No. 3:21-cv-15333-ZNQ-TJB · Doc. 19 · 2021-09-13 · Docket on CourtListener

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UNITED STATES DISTRICT COURT  
DISTRICT OF NEW JERSEY 
 
CHILDREN’S HEALTH DEFENSE, INC., et 
al.,  
 
Civil Action No. 21-15333 (ZNQ) (TJB)  
 
OPINION 
 
 
Plaintiffs, 
 
v.  
RUTGERS, THE STATE UNIVERSITY OF 
NEW JERSEY, et al., 
 
Defendants. 
 
QURAISHI, District Judge 
This matter comes before the Court upon a Motion for Recusal filed by Plaintiffs 
Children’s Health Defense, Inc. (“CHD”), Peter Cordi, Raelynne Miller, Kayla Mateo, Adriana 
Pinto, and Jake Bothe (collectively, “Plaintiffs”).  (the “Motion”, ECF No. 17.)  Plaintiffs filed a 
Memorandum of Law in support of the Motion.  (“Plaintiffs’ Memorandum”, ECF No. 17-1.)  
Defendants Rutgers, the State University of New Jersey (“Rutgers”), Board of Governors, Rutgers 
School of Biomedical and Health Sciences, Chancellor Brian L. Strom, and President Jonathan 
Holloway (collectively, “Defendants”) opposed the Motion.  (Opposition Brief, ECF No. 18.).  The 
Court has carefully considered the parties’ submissions and decides the Motion without oral 
argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.  For the 
reasons stated herein, the Motion will be denied.  
I. 
BACKGROUND 
On August 16, 2021, Plaintiffs filed a complaint seeking a declaration that the portion of 
Rutgers’ COVID-19 policy requiring students to be vaccinated prior to returning to campus (the 
“Policy”) is unlawful.  (Complaint ¶ 1, ECF No. 1.)  The Complaint spans seven counts and alleges 
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the Policy is “both illegal and unconstitutional” and coerces students to accept “an experimental 
COVID-19 vaccine” as a precondition for their return to campus.  (Id. ¶¶ 1,3.) 
On August 30, 2021, Plaintiffs filed an emergency motion seeking a temporary restraining 
order on behalf of Plaintiff Adriana Pinto.  (ECF No. 10.)  In response to the emergency motion, 
the Court conducted conference calls by telephone with counsel on August 31 and September 1, 
2021.  During those conferences, counsel for Plaintiffs raised a potential concern regarding the 
undersigned’s connection to Rutgers, and sought leave to file a motion to recuse prior to the Court 
adjudicating the motion for a temporary restraining order.  The Court granted Plaintiffs’ leave to 
file the Motion and set a schedule for the parties’ briefing.  (ECF No. 16.)  The Court now considers 
the Motion. 
II. 
THE PARTIES’ ARGUMENTS 
A. 
Plaintiffs’ Motion for Recusal 
Plaintiffs begin by clarifying that the Motion is not premised on a belief that the 
undersigned “actually has a personal bias or prejudice against Plaintiffs or in favor of any adverse 
party.”  (Plaintiffs’ Memorandum at 1)1 (emphasis added.)  Rather, they argue that the 
undersigned’s adjunct faculty position at Rutgers Law School during the last scholastic year 
“creates an appearance of potential bias, especially to Plaintiff students at Rutgers, and to millions 
of similarly situated students across the country.”  (Id. at 5) (emphasis added.)  A first aspect of 
Plaintiffs’ concern, is a worry that the public—notably, Rutgers students and other students—
could perceive a bias because the undersigned, while teaching, benefitted from the “collegiality, 
prestige, income, favorable publicity and the pleasure of being an alum ‘who made it.’”  (Id. at 5.)  
Seizing on the timing aspect, Plaintiffs also analogize the situation in this case to the common and 
 
1 For clarity, the Court cites to the parties’ submissions by reference to their internal pagination rather than the one 
imposed by the District’s CM/ECF system. 
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customary recusals made by newly appointed judges when presented with cases involving the law 
firms they just departed.  (Id.)  
A second aspect of Plaintiffs’ concern is that the undersigned might be perceived to favor 
the Policy because he taught at Rutgers during the pandemic and at a time when Rutgers enacted 
its other COVID-19 policies.  (Id. at 4,6).  Moreover, the undersigned complied with them.  (Id. at 
6.)  They contend that “[t]he fact that Judge Quraishi taught at Rutgers during the pandemic, 
necessarily upholding Rutgers’ pandemic restrictions, furthers a reasonable perception that he 
might be likely to uphold Rutgers’ vaccine restrictions as he adhered to masking (and presumably 
testing requirements, if Rutgers imposed them at the time he taught).”  (Id.)  According to 
Plaintiffs, if the undersigned had disagreed with the Policy, he would have discontinued teaching 
at the school.  (Id.) 
B. 
Defendants’ Opposition 
Defendants criticize the Motion as being unsupported by legal authority.  (Opposition Brief 
at 1,9.)  They cite a host of contradictory cases from the Third Circuit, the District of New Jersey, 
and other jurisdictions.  (Id. at 5–9.)  Based on their review of these cases, Defendants argue that 
“recusal is required only where a judge’s connections to the school are material to an issue in the 
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.”  (Id. at 9.)  Defendants conclude none of the grounds alleged 
here warrant recusal.  (Id.)   
Finally, Defendants contend that the only two cases Plaintiffs cite are readily 
distinguishable.  (Id. at 9-10.)  Specifically, Defendants argue the Potashnick case is inapposite 
because it addressed an extraordinary situation where the plaintiff’s attorney was simultaneously 
representing the presiding judge in other matters, the judge and the plaintiff’s attorney had other 
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“business dealings,” and the judge’s father was a senior, named partner in the law firm representing 
plaintiff.  (Id. at 10.)  Defendants argue the second case Plaintiffs cite is further afield because it 
did not even involve a conflict of interest, rather it involved a judge who sided with a party prior 
to reading the key evidence or having heard from opposing counsel.  (Id.)  In sum, Defendants 
contend the Motion should be denied because Plaintiffs’ arguments are devoid of legal support, 
the cases Plaintiffs do cite are easily distinguishable, and there is a host of authority contrary to 
Plaintiffs’ position.  (Id.) 
III. 
LEGAL STANDARD 
Recusal is within the discretion of the trial judge.  United States v. Wilensky, 757 F.2d 594, 
599–600 (3d Cir. 1985).  Disqualifications of a federal judge are governed by 28 U.S.C. § 455.  
Under its first paragraph, a judge “shall disqualify himself in any proceeding in which his 
impartiality might reasonably be questioned.”  28 U.S.C. § 455(a).  “The test for recusal under 
§ 455(a) is whether a reasonable person, with knowledge of all the facts, would conclude that the 
judge’s impartiality might reasonably be questioned.”  In re Kensington Int’l Ltd., 368 F.3d 289, 
301 (3d Cir. 2004) (citing Alexander v. Primerica Holdings, 10 F.3d 155, 164 (3d Cir. 1993)).  In 
that case, the Court of Appeals further explained that: 
the hypothetical reasonable person under § 455(a) must be someone 
outside the judicial system because judicial insiders, “accustomed to 
the process of dispassionate decision making and keenly aware of 
their Constitutional and ethical obligations to decide matters solely 
on the merits, may regard asserted conflicts to be more innocuous 
than an outsider would.” 
 
Id. at 303 (quoting United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)). Further, 
“[b]ecause [Section] 455(a) is intended to promote not only fairness to the litigants but also public 
confidence in the judiciary, a party seeking recusal need not demonstrate that the judge is actually 
biased, but rather that he would appear to be biased to ‘a reasonable person, with knowledge of all 
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the facts.’” Jacobsen v. Hartford Ins. Co. Flood & Home (Sandy), Civ. No. 13-6910, 2017 WL 
3749749, at *1 (D.N.J. Aug. 30, 2017) (quoting United States v. Jacobs, 311 F. App'x 535, 537 
(3d Cir. 2008)) (citation omitted).  Last, as a general matter, “[a] recusal motion must be based on 
‘objective facts,’ not mere ‘possibilities’ and ‘unsubstantiated allegations.’”  Id. (quoting United 
States v. Martorano, 866 F.2d 62, 68 (3d Cir. 1989)).   
IV. 
ANALYSIS 
The Court has reviewed the parties’ submissions and the relevant case law.  As Defendants’ 
point out, there is no shortage of authority on the issue of recusals from within this District and 
from the Third Circuit.  In a comparable case, Jersey Asparagus Farms, Inc. v. Rutgers Univ., 
Chief Judge Wolfson denied a motion for recusal where the plaintiff argued that she should be 
disqualified based on her connections to Rutgers.  Civ. No. 10-2849, 2011 WL 1584171, at *1 
(D.N.J. Apr. 26, 2011).  In support of its motion, the plaintiff had argued among other things that: 
(1) she was an alumna of both Rutgers University and its law school, (2) she had previously 
delivered the convocation address at Rutgers Law School, (3) she was featured on two separate 
webpages on Rutgers’ website, and (4) one of her sons was also a graduate of the law school and 
her husband was an adjunct professor at the law school.  Id. at *2.  
Judge Wolfson began by distinguishing between the law school and the undergraduate 
campus at issue before her.  Id.  Specifically, she explained that the challenged program was 
operated at “Cook College of Rutgers University’s undergraduate campus” and that “no reasonable 
person in New Jersey would confuse Cook College . . . with the law school.”  Id.  Judge Wolfson 
also highlighted that the law school and undergraduate campuses were at two different locations, 
and that each had its own distinct identity.  Id.  She also cited another decision from the Third 
Circuit as grounds for denial of the motion to recuse.  Id. at *3–4 (citing  Okpor v. Rutgers, 196 F. 
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App’x 129 (3d Cir. 2006) (holding appellant presented insufficient grounds for  Judge Wolfson to 
recuse herself from a case involving Rutgers University based on the facts that she hired “judicial 
interns from Rutgers School of Law, of which she is an alumnus, and her husband’s employment 
by the State Attorney General’s Office” because this information would not cause ‘a reasonable 
man knowing all the circumstances . . . [to] harbor doubts concerning the judge’s impartiality.’”))  
Ultimately in Jersey Asparagus Farms, Judge Wolfson held that her contacts did “not call for 
recusal under 28 U.S.C. § 455(a) because no reasonable person would conclude that [her] 
connections to the law school would call into question [her] impartiality with respect to the 
undergraduate institution.”  Id. at *3.   
The Court finds the reasoning of Jersey Asparagus Farms, Inc. persuasive. The 
undersigned was an adjunct professor for only two semesters at the law school,2 not the 
undergraduate institution.  As noted in Jersey Asparagus Farms, Inc., there is a distinction between 
the undergraduate institution and the law school.  First, their campuses are in different locations.  
The law school where the undersigned taught is located in Newark, New Jersey, while the 
undergraduate campus is located in New Brunswick, New Jersey.  No reasonable person could 
confuse the two different institutions.  Second, and more importantly, the Policy at issue in this 
suit was announced, drafted, and executed by Rutgers University, not the law school.   
To the extent that Plaintiffs believe the recency of the undersigned’s adjunct faculty 
position at Rutgers Law School is troubling, the Third Circuit has already addressed this issue in 
another case.  It affirmed a district judge’s refusal to recuse herself where she was currently 
 
2 While the undersigned found highly rewarding the opportunity to interact with Rutgers’s law students, a two-
semester adjunct position teaching a ten-student class hardly qualifies as a substantial relationship.  See Estate of 
Grieco v. National Med. Consultants, P.C., Civ. No. 16-1959, 2018 WL 4562405, at *4 (D.N.J. Sept. 24, 2018) 
(“Were this insubstantial a relationship a basis for recusal, recusals would be legion, and there would be a veritable 
merry-go-round of transfers from one judge to another within the Court. Such disruption in the Court’s discretion to 
manage its docket is not required by the recusal statute.”). 
 
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teaching a class as an adjunct professor at the University of Pennsylvania School of Law.  Sessoms 
v. Trustees of the U. of Penn., 739 F. App’x 84, 90 (3d Cir. 2018) (emphasis added).  In Sessoms, 
the appellant argued that a district judge’s current employment as an adjunct professor at Penn’s 
school of law gave rise to an appearance of impropriety.  Id.  The Third Circuit rejected appellant’s 
argument and noted with approval the district judge’s reliance on the Guide to Judiciary Policy: 
Where the party to a suit is a university, but not the employing law 
school itself, ‘the judge should recuse (or remit) from cases 
involving the university . . . where the judge’s impartiality might 
reasonably be questioned in view of the size and cohesiveness of the 
university, the degree of independence of the law school, the nature 
of the case, and related facts.   
Id. at 90 (quoting Compendium of Selected Ethics Advisory Opinions, § 3.4-3(a)).  The Third 
Circuit endorsed the judge’s evaluation of the considerations and affirmed her decision. 
The decision in Sessoms is likewise compelling here.  The undersigned does not currently 
teach at the law school, and only did so for two semesters.  Moreover, Rutgers University is akin 
to University of Pennsylvania insofar as both easily qualify as “exceptionally large, sprawling” 
institutions, a factor found important in Sessoms.  See 739 F. App’x at 90.  And as already noted, 
the Rutgers law school in Newark is independent insofar as it is both functionally and 
geographically distinct from the undergraduate campus in New Brunswick.   
The Third Circuit is not alone in its view of recusals; other circuits have reached similar 
conclusions.  See, e.g., Wu v. Thomas, 996 F.2d 271, 274–75 & n. 7 (11th Cir.1993) (per curiam) 
(holding that recusal was not required where “judge was alumnus of defendant-university, served 
as unpaid adjunct professor who offered internships for the university’s law students, gave the 
university a yearly donation for football tickets, and planned to create scholarship at the 
university.”); Harris v. Board of Sup’rs of Louisiana State Univ., 409 F. Appx. 725, 727–28 (5th 
Cir. 2010) (upholding denial of recusal motion filed by employment discrimination plaintiff who 
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formerly worked at the LSU Health Sciences Center where judge was a member of the LSU Law 
Center’s board of trustees); Roe v. St. Louis Univ., 746 F.3d 874, 886 (8th Cir. 2014) (upholding 
denial of recusal motion in case brought by university student against the university, where the 
judge was an alumnus of the university and its law school and taught classes at the law school);  
Maurey v. Univ. of So. Cal., 12 F. Appx. 529, 532 (9th Cir. 2001) (upholding denial of recusal 
motion in an employment case involving USC’s School of Urban and Regional Planning despite 
the judge having served on the Board of Councilors at USC Law School); Szeinbach v. Ohio State 
Univ., No. 08-822, 2015 WL 12991136, at *3 (S.D. Ohio July 8, 2015) (denying recusal motion 
in an employment case against university where judge served as an adjunct professor at law school 
and plaintiff previously worked at the college of pharmacy). 
To the extent Plaintiffs here believe a judge’s receipt of income from a university risks an 
appearance of bias, courts have found it insufficient as grounds for recusal.  The trial court’s 
decision in Sessom held “mere employment is not considered a financial interest for purposes of 
the statute.”  Sessoms v. Trustees of Univ. of Pa., No. 16-2954, 2017 WL 2242847, at *2 (E.D. Pa. 
May 23, 2017), aff'd sub nom. Sessoms v. Trustees of Univ. of Pennsylvania, 739 F. App’x 84 (3d 
Cir. 2018); see also Royer v. Pa. State Univ., No. 03:00-290, 2012 WL 956422, at *2 (W.D. Pa. 
Feb. 28, 2012) (being paid to teach at a university does not qualify as a “financial interest” that 
would require a judge to recuse himself under § 455); Osei v. Temple Univ., 666 F. App’x 113, 
116-17 (3d Cir. 2016) (affirming a trial judge’s denial of a motion to recusal in a case where 
appellant argued that he had new evidence that the judge had a “prior pecuniary affiliation” with 
Temple University that prevented the judge from fairly deciding his underlying motion.).   
As a separate issue, the Court notes that Plaintiffs seemingly conflate Rutgers’ general 
COVID-19 policy with its mandatory vaccine policy, which is the subject of this suit.  Plaintiffs’ 
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attempts to link the undersigned’s adherence to Rutgers’ other COVID-19 policies and its 
mandatory vaccine policy at issue is tenuous at best.  The two policies are distinct.  The vaccine 
policy requires “all students planning to attend in the Fall 2021 semester [to] present evidence of 
COVID-19 immunization at least 2 weeks prior to coming onto campus for any reason, including 
but not limited to moving into a residence hall, attending campus classes, and/or entering any 
campus building.”  Complaint at n. 1 (appending a link to https://policies.rutgers.edu/view-
policies/academic-%E2%80%93-section-10#3). The fact that the undersigned taught at Rutgers 
during the pandemic and adhered to the masking policy, does not raise a reasonable question 
regarding the Court’s capacity to remain impartial while assessing the propriety of the vaccine 
policy. 3 
In short, the Court rejects Plaintiffs’ arguments that any judge’s prior teaching affiliation 
with their law school raises questions as to their impartiality in any case involving the same 
university, or that any judge’s adherence to a masking policy raises questions as to their 
impartiality with respect to a challenge to a mandatory vaccination program.  The Court finds that 
a reasonable person, with knowledge of all the facts, would not conclude that its impartiality might 
reasonably be questioned.   
On a final and brief note, the Court would be remiss if it did not caution  Plaintiffs’ counsel 
with respect to the thoroughness of his submission on this motion.  The Memorandum in support 
ignores a number of adverse authorities in this District and from the Court of Appeals.  This is 
 
3 Plaintiffs were apparently aware the undersigned complied with masking requirements while teaching because they 
submitted and cite to advertisements for the undersigned’s trial advocacy class with a photograph showing me wearing 
a mask.  (Pl. Ex. C. to Decl. of Couns., ECF No. 17-5.)  In the advertisement, Rutgers’ Vice Dean also explained 
safety protocols such as social distancing in classes and sanitizing a classroom before and after class.  (Id.)  Notably 
absent from the Vice Dean’s statement is any mention of a vaccine policy.   
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inconsistent with counsel’s obligations under Rule 3.3 of the Rules of Professional Conduct.  The 
Court trusts counsel will redouble his efforts to discharge his duties in the future. 
V. 
CONCLUSION  
The Court finds that it can address this case fairly and impartially, and that there is no 
reasonable basis to conclude otherwise.  Therefore, the Court will exercise its affirmative duty to 
keep this case on its docket.  Plaintiffs’ Motion for Recusal is denied.  An appropriate order will 
follow. 
 
 
 
 
 
 
 
 
 
 
 
 
       s/ Zahid N Quraishi                   . 
 
 
 
 
 
 
ZAHID N. QURAISHI  
 
 
 
 
 
 
UNITED STATES DISTRICT JUDGE  
 
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