Town of Bartlett v. Edward C. Furlong, III d/b/a Lil' Man Snowmobile Rentals

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0370, Town of Bartlett v. Edward C.
Furlong, III d/b/a Lil’ Man Snowmobile Rentals, the court on
May 3, 2019, issued the following order:

The defendant’s motion “for leave to reply to” the plaintiff’s objection to
his motion “for expedited consideration for plain error ruling” is granted to the
limited extent that the defendant requests the court to consider his arguments
contained within the motion for leave to reply. Otherwise, the relief requested
in the motion for leave to reply is denied. The relief requested in the motion
“for expedited consideration for plain error ruling” is, likewise, denied. Having
considered the defendant’s brief and reply brief, the town’s memorandum of
law, and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Edward C. Furlong, III, appeals an order of the Circuit
Court (Boyle, J.) denying his motion to vacate the judgment that we upheld in
Town of Bartlett v. Furlong, 168 N.H. 171 (2015). He argues, in part, that the
presiding trial judge in Furlong, Judge Pamela Albee, had an undisclosed
conflict of interest that compelled her disqualification from the case, and that
now entitles him to a new trial.1 The town counters that there was no conflict
of interest requiring Judge Albee’s disqualification, and that, in view of the
defendant’s currently-pending bankruptcy, only the bankruptcy court has
jurisdiction to grant the relief that the defendant seeks. Because we conclude
that the defendant has not established a basis for Judge Albee’s recusal, we
will assume, without deciding, that we have jurisdiction to decide this appeal.

“[T]he Code of Judicial Conduct requires disqualification of a judge in a
proceeding in which the judge’s impartiality might reasonably be questioned

1 In our order of September 28, 2018, we granted the town’s motion to dismiss the appeal as to

all issues raised in the notice of appeal other than question 6, which reads, “Whether Judge
Boyle’s denial of defendant’s motion to vacate was an unsustainable act of discretion?” The
motion to vacate was based solely upon Judge Albee’s alleged conflict of interest. Thus, the
only issue that is properly before us is whether the trial court erred by not vacating the
judgment on the basis of Judge Albee’s alleged conflict of interest, and we decline to review
those arguments in the defendant’s brief that are beyond the scope of this issue, or those
documents in his appendix that were not submitted by the parties in connection with the
motion to vacate, see Sup. Ct. R. 13(1) (defining the record). To the extent that the town, in its
motion to strike portions of the defendant’s brief and appendix, seeks to strike arguments or
documents that are within the scope of our review as described above, the motion is denied.
To the extent it seeks to strike arguments or documents that are beyond the scope of our
review as described above, the motion is moot.
and to avoid even the appearance of impropriety.” Achille v. Achille, 167 N.H.
706, 710 (2015) (quotation omitted). Whether there is an appearance of
impropriety is determined under an objective standard, that is, would a
reasonable person, and not the judge herself, question the judge’s impartiality?
Id. The test is whether an objective, disinterested observer, fully informed of
the facts, would entertain significant doubt that justice would be done in the
case. Id. We have held that an appearance of partiality exists, as a matter of
law, when the trial judge is related within the third degree to a partner of a law
firm that represents a party-in-interest before the trial judge. See Blaisdell v.
City of Rochester, 135 N.H. 589, 592-94 (1992); Sup. Ct. R. 38, Canon
2.11(A)(2). The party claiming an appearance of partiality bears the burden of
proof. See LaMontagne Builders v. Brooks, 154 N.H. 252, 263 (2015).

In this case, the defendant asserted in his motion to vacate that Judge
Albee had “a 3rd degree conflict of interest with” a lawyer, Debra Fauver, who
was employed by a law firm that also employed his prior counsel in the case,
Randall Cooper. According to the defendant, Judge Albee was aware that he
had sued Cooper for legal malpractice. The defendant claimed that Fauver was
Judge Albee’s “former law partner,” and relied upon Blaisdell to argue that
Judge Albee’s disqualification, and the disclosure of her relationship with
Fauver and her law firm, were required.

Despite his allegation of a “3rd degree conflict of interest,” however, the
defendant offered no proof of any familial relationship between Judge Albee and
Fauver. See Sup. Ct. R. 38, terminology (defining “third degree of relationship”
to include a “great-grandparent, grandparent, parent, uncle, aunt, brother,
sister, child, grandchild, great-grandchild, nephew, and niece”). This case is
unlike Blaisdell, in which the trial judge was the nephew of a partner of the law
firm that was representing a party adverse to the party seeking the judge’s
recusal. Blaisdell, 135 N.H. at 591. Instead, the only evidence of any
relationship between Judge Albee and Fauver that the defendant offered was a
biographical summary of Fauver that he had apparently printed from her law
firm’s website, stating: “Prior to joining the firm, [Fauver] worked as an
associate attorney in the law practice of Pamela D. Albee . . . .”

The mere fact that a judge, at some point in the past, had an
employment relationship with another attorney is not, by itself, enough to
create a reasonable question concerning the judge’s impartiality, even when the
other attorney represents a party-in-interest before the judge. See Hauptmann
v. Wilentz, 555 F. Supp. 28, 32 (D.N.J. 1982) (rejecting argument that trial
judge’s former status as partner of a law firm at a time that the firm employed,
twenty years previously, an attorney for one of the parties to the case created a
reasonable question concerning the judge’s impartiality when the judge’s
relationship with the law firm had terminated thirteen years previously). In
this case, the defendant offered no evidence of any ongoing relationship
between Judge Albee and Fauver, or with any other person associated with

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Cooper’s law firm. Nor did he offer any evidence concerning when Fauver was
“an associate attorney in the law practice of Pamela D. Albee,” or when that
employment relationship terminated. We conclude that the mere fact that
Judge Albee, prior to her appointment to the bench, employed Fauver in her
law practice does not give rise to a reasonable question concerning Judge
Albee’s impartiality. Accordingly, the trial court did not err by denying the
motion to vacate the judgment in this case.

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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