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At Special Task Force, Strong Suggestions for Curing Judicial Crisis

For a number New Jersey attorneys, delays in appointing judges and playing politics with state Supreme Court are cause for growing malaise

Retired Judge John Harper
Retired Judge John Harper.

For many New Jersey lawyers, the current fight over the state judiciary is a cause for concern -- if not frustration. That was apparent at the second hearing of a special task force yesterday during the annual meeting of the New Jersey State Bar Association in Atlantic City.

Just how troubled some attorneys are can be seen in a comment that one offered, that the crisis facing New Jersey's judiciary could be solved by filing a misconduct complaint against Gov. Chris Christie, who is also a lawyer.

That was only one of a dozen suggestions, mainly sparked off by a growing anxiety about judges not being appointed in a timely manner and about the possibility that the state Supreme Court will be hobbled by politics.

Unlike the first hearing, those who testified yesterday were admonished not to name names or point fingers at specific individuals and to come up with positive suggestions:

Giving judges immediate tenure until retirement or creating an independent panel to determine whether judges receive tenure after an initial appointment and civics lessons for both schoolchildren and adults were other suggestions made to the Task Force on Judicial Independence during a two-and-a-half hour hearing.

Created by the NJSBA, the task force is charged with studying the status of the judiciary in New Jersey and recommending how to protect its integrity, which many say is being threatened by politics.

There are a number of issues of concern, including long-standing vacancies on the bench -- Essex County has 21 and there are two openings on the Supreme Court -- due to stalemates between Christie and state senators and the public rebuke of some judges who have made rulings the governor did not like. Some untenured judges reportedly are worried about making decisions in controversial cases lest they not be reappointed.

The greatest concern is over the state's highest court. Christie has criticized "activist" Supreme Court justices and was the first governor since the modern constitution to decline to reappoint a Supreme Court justice -- he has done so twice -- and so far has been mum about whether he plans to reappoint Chief Justice Stuart Rabner, whose initial seven-year term expires at the end of June. The state bar, all 20 of 21 county associations, as well as specialty bar groups and law school alumni associations have all urged Christie to reappoint Rabner. NJSBA has also endorsed a constitutional amendment requiring that judges be automatically given tenure until age 70 at the end of an initial seven-year term unless they have demonstrated unfitness.

Unlike the first hearing, during which several speakers lamented actions by both Christie and state senators that have hurt the reputation and functioning of the state's court system, no one placed blame, at least not by name.

Without using his name, William Staehle, a Morristown civil trial lawyer, placed it squarely on the shoulders of Christie, though not mentioning his name, and said one solution the task force should consider is filing charges against the governor for violating rules of professional conduct that govern lawyers. Specifically, he cited rule 8.4(d), which states that it is "professional misconduct" for a lawyer to "engage in conduct that is prejudicial to the administration of justice."

Staehle cited Christie's decision in May 2010 not to reappoint Supreme Court Justices John E. Wallace Jr. as starting a "childish tug of war between the Senate and himself" and further criticized Christie's decision not to reappoint Justice Helen Hoens last year.

"The person who caused those catastrophes is also a lawyer" whose decisions have "undermined the administration of justice," Staehle said.

Dorothea O'C Wefing, cochair of the task force and a former judge who filled in on the Supreme Court for about a year, interrupted Staehle, saying the purpose of the hearing was not to place blame and it "might be counterproductive" to talk about what happens if Christie refuses to reappoint Rabner.

"The situation is very delicate," she said. "We should not be attributing fault right now."

Staehle continued more generally, saying "nothing could be more prejudicial than the assault we are seeing now" on the judiciary. He noted that the Arkansas Supreme Court suspended former President Clinton's law license for five years for giving false testimony under oath during the Monica Lewinsky investigation.

Former Hudson County Superior Court Assignment Judge Maurice Gallipoli told Staehle that he, or any other member of the bar, "could file a grievance against this person to whom you attribute fault."

Staehle said after the hearing that he was disappointed the members of the task force did not want to discuss that issue and he thinks it would "be more forceful" if the task force were to bring the grievance.

Kevin Roberts, a Christie spokesman, termed the suggestion that Christie should be cited for misconduct "irrational and uninformed."

Christie had a defender at the hearing. Jeff Golden, a founder and vice president of Fathers' and Children's Equality in New Jersey, said Christie is acting as allowed by the state constitution and that's no cause for giving lifetime tenure to judges.

"Just because the current governor has chosen to exercise power that no other governor has done in the past does not mean we should scrap the whole constitution," said Golden. "Everyone should be responsible to someone. The public needs to know that if judges make a mistake they can get rid of them."

Billy Corriher, director of research for legal progress at the Center for American Progress, said the tenure decision needs to be removed from the political process. He supports the proposed constitutional amendment, but said it still doesn't go far enough and suggested giving judges tenure upon their appointment, as federal judges receive, would be the best situation but that "might be a heavy lift." Alternatively, he backed the creation of an independent commission to decide whether a judge should receive tenure.

"It takes the decision out of the politicians' hands and puts it in the hands of those in the know," Corriher said.

Others urged passage of the amendment, or similar language. Sean Hadley of the New Jersey Education Association said it's unclear whether prior Supreme Court justices would have issued school funding decisions unpopular with some politicians that have helped improve education, particularly for low-income people. And Eric Lesh, head of the fair courts project at Lambda Legal, said protections are needed against the backlash some judges have faced in making high-profile civil rights decisions, such as those regarding same-sex marriage, that are unpopular with some people.

As at the task force's first hearing last month, speakers and task force members discussed the need to do more to educate students and the public at large about the importance of an independent judiciary to guaranteeing people's rights.

Retired Judge John Harper said that while sitting judges are not allowed to speak publicly on the issue, a number of untenured judges have told him privately that are worried about not being reappointed.

"There's no excuse to allow political infighting thwart the judicial process," he said. The only way to ensure a fair and impartial judiciary for the public is to make sure that judges "not feel pressure based on public opinion or on the social or political goals of the executive or legislative branches."

The task force has scheduled two more hearings in June and expects to issue a report after that.

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