New Jersey’s judiciary -- nationally recognized for its independence and important legal precedents -- has been thrown into a state of crisis due to politics, according to many of the state’s most prominent lawyers, judges, and scholars. They argue that only a combination of public education, a constitutional amendment, and legislative changes can reverse the slide and return New Jersey’s judicial branch to its former status.
A Task Force on Judicial Independence has been created by the New Jersey Bar Association to look into these issues and recommend ways to correct what is seen as the judiciary's decline. The association plans to hold a series of four hearings (the first occurred earlier this week). A full report is expected to follow.
Several political factors are threatening to ruin -- or already have ruined -- the reputation of the New Jersey courts as some of the best in the nation, according to those who testified, including a former Supreme Court Justice and the head of the Bar Association.
Among the reasons the judiciary has come under fire: Gov. Chris Christie's stated goal and actions to remake the New Jersey's courts to mirror his beliefs, a deadlock over some nominees with the state Senate, and the continued use by state Senators of the unwritten policy of senatorial courtesy to block some of Christie's choices.
There have been many attacks. Legislative and financial Judges have been subject to verbal abuse, criticized for being too liberal or activists. They are concerned for their futures to such an extent that Superior Court assignment judges shy away from giving controversial cases to judges without tenure for fear they won't be reappointed.
"We are in the midst of a time like no other in the history of our modern state," said Ralph J. Lamparello, president of the New Jersey State Bar Association, whose testimony opened the hearing at its headquarters in New Brunswick. "There is a concerted effort among the executive and legislative branches of government to politicize the judicial branch and subordinate its co-equal status."
In the past four years, two Supreme Court justices -- John Wallace and Helen Hoens -- became the first and second justices to not be reappointed by a governor to lifetime tenure since the adoption of the modern state constitution in 1947. The constitution calls for all judges to be eligible for a life-time appointment after an initial seven-year term,
Chief Justice Stuart Rabner, whose initial seven-year term on the bench ends June 29, could face the same fate, which would make him the first sitting chief justice ousted from the court. Rabner and Christie worked together in the U.S. Attorney's Office and Christie praised Rabner's nomination. But the governor has been mum about Rabner's future and lashed out after Rabner’s ruling last summer that said Christie did not have the authority to abolish the state Council on Affordable Housing.
At the time, Christie issued this statement, "The Chief Justice's activist opinion arrogantly bolsters another of the failures he and his colleagues have foisted on New Jersey taxpayers. This only steels my determination to continue to fight to bring common sense back to New Jersey's judiciary.”
But lawyers and retired judges, including former Chief Justice Deborah Portiz, reminded the task force panel that judges are not supposed to do what is politically popular, but what is legally correct. It is also the best -- the only -- branch of government that has the ability to be unbiased in looking out for citizens.
"Some branch of government has to protect the minority from the majority," said Poritz, who retired in 2006 when she reached the mandatory retirement age of 70 after 10 years at the head of the state's highest court. "Independence and integrity are the soul of judiciary."
Poritz, like the speakers who followed her, said educating the public about civics, about the separation of powers in the branches of government and about the importance of an independent judiciary are one of the most important ways to beat back the recent attacks on judges.
In 2011, the Legislature enacted and Christie signed changes to the pension and health benefits for state employees, requiring them to pay more and eliminating cost-of-living increases. One judge sued the state, saying the law did not apply to sitting judges because the state constitution said judges and justices salaries could "not be diminished during the term of their appointment" and the additional payments for pensions and health benefits amounted to a pay cut. A split state Supreme Court agreed.
As Lamparello explained, "A constitutional amendment diminishing the compensation of judges was put forth in just six days, on July 30, 2012 . . . In order to place that constitutional amendment before the public, a super-majority, three-fifths of both houses of the Legislature, had to act. And, act they did -- certainly, in concert with the executive branch, who called the DePascale decision “a case of liberal activist judges running amok.”
Voters overwhelmingly approved the amendment forcing the judges to pay more that November.
Then-Mercer County Superior Court Assignment Judge Linda Feinberg was subject to one of those verbal attacks from none other than Christie when she made the initial ruling in 2011 about judges' pension and health benefits costs that the Supreme Court upheld. Christie blasted Feinberg's decision and called her a "self-interested judge standing up for a group of her self-interested colleagues . . . the little cliquey club of 432."
Addressing the task force on Tuesday, Feinberg recalled her ruling and the backlash.
"I knew the decision would be unpopular," said Feinberg, who is now retired and said she had decided to retire before that ruling, not because of what Christie said. "I did not expect personal attacks. Unfortunately, these comments transformed a legal issue, an important legal issue, into a personal one.
"Personal attacks undermine the integrity of the judicial process," continued Feinberg. "Personal attacks on judges diminish all of us."
She said that while she was assignment judge for 16 years, she made her decisions on assignment cases based on a judge's length of service and other matters but rarely considered whether he had tenure.
"Today, in this climate of unwarranted personal attacks, that must be carefully evaluated," Feinberg said. "Judges are not only deciding cases, but at the same time they are potentially jeopardizing their careers. Now you must think about whether a judge has tenure when assigning controversial cases."