Town council members saying they want to replace their municipal judge because she doesn’t generate enough revenue … The police chief sitting in on the interview to choose a local judge … The police court-shopping because they don't like a municipal court judge …
These are just some of the actions that compromise the independence of the municipal court system. That's what a subcommittee of the New Jersey State Bar Association heard on Monday as it held its first hearing into possible problems with and political influence over the state's lowest court system, the one residents are most likely to encounter.
Barbara Ungar, a New Brunswick defense attorney who is chairing the subcommittee, said the group is looking into the impact that fiscal constraints have on municipal courts. It’s also investigating the lack of uniformity in appointing judges, as well as their lack of tenure. The goal: recommend changes that will "enhance the future independence of the courts, which ultimately benefits the public as a whole."
New Jersey's 537 municipal courts handle traffic offenses, disorderly persons and petty disorderly persons offenses, and violations of municipal ordinances. They also handle instances of domestic violence and some housing matters.
The Municipal Court Practice Section of the bar, at the request of the association's board of trustees, created a Subcommittee on Judicial Independence in the municipal courts. It is tasked with holding four public hearings throughout the state to gather information and data from lawyers, judges, and members of the public on the topic.
This charge grew out of hearings by the Task Force on Judicial Independence in 2014. Created to address Gov. Chris Christie's decision to not reappoint two Supreme Court justices and his threat to not reappoint Chief Justice Stuart Rabner, the task force also heard testimony about the growing influence of politics and money in the municipal courts. In its May 2015 report, the task force urged the creation of a separate body to study the issue.
The task force wrote that the various offenses heard in municipal courts "may lead to the imposition of fines along with other associated penalties. The manner in which such issues are disposed of can and often does have a significant impact upon a municipality’s budget and financial strength ... The question is critically important; the municipal court is the court with which most citizens come in contact. Its integrity, both actual and perceived, is critical to the public’s acceptance of its determinations, which must be made without regard to whether findings of guilt, and the imposition of fines, could serve to assure continuation of a judge’s position."
Municipal court judges are appointed by local officials to three year terms. After a judge's term expires, he can be refused reappointment for any reason, or for no reason -- just because a new regime is in power in town hall and wants to hire its ally to be the judge.
Michael Speck, a Freehold lawyer who said he has represented hundred of defendants in municipal court, termed the lack of independence "a serious problem" that is complicated because of the influence of elected officials, money, and the police.
He said that state troopers used to delay stopping cars they caught breaking the law on the Garden State Parkway in one town in Middlesex County until they entered another town because it was a more favorable environment.
"If you find a defendant not guilty, there is a concern you will not be reappointed because the police won't like you anymore," Speck said. "I think we have to figure out some kind of way to give them tenure ... We need to protect judges from the pressure that can be put on them from politicians, the police and the public."
"The process would not be an easy one," said former longtime Belleville Municipal Court Judge Frank Zinna, who retired three years ago. "We know tenure might be the answer, though it could also be counterproductive. If we say, 'on your third appointment you are tenured,' we know many municipalities would not appoint them again because they don't want a tenured judge."
Zinna floated the idea of having most municipal judges represent several towns, rather than one, as a way of professionalizing the system.
Marc Garfinkle, a Morristown lawyer who estimated he handled 2,000 municipal cases in 20 of the state's 21 counties, opposes tenure for judges and said municipal courts need to maintain their autonomy because they best can deal with the specific circumstances of each community -- for instance, shore towns have different issues than rural towns or cities. He compared it to different umpires calling different strike zones in baseball games.
"It's still OK and it's not fair and it's not equal," he said. "We are not supposed to be equal. We are supposed to have equal rights. Don't look to pensions to solve that problem. That problem is one of integrity. A judge knows what he is supposed to do."
Steven Hernandez, a Toms River lawyer almost exclusively representing clients charged with drunk-driving offenses, disagreed with Garfinkle and said there are problems when cases are handled differently by different judges in different counties. He said the greatest issue affecting the independence of the courts is that "those municipal court judges are expected to be revenue generators for towns."
He cited several examples from around the state. In one, a mayor said his borough depends on revenues from its municipal court to survive. In another, he said a local judge denied his request for funds to hire an expert to defend an indigent client and then court officials got angry when he appealed and the municipal court was ordered to pay the bill, which was no more than $600.
"The court administrator was so unhappy about it because I cost the town money and that's a no-no," Hernandez said. "If a defendant is innocent until proven guilty, the municipal court budget should be set at zero. But that's not realistic because the towns count so much on these. The judges won't do things to upset the apple cart."
He also pointed to the case of Eatontown, where leaked emails showed township committee members complaining they had hired the wrong judge because revenues were down and urging the hiring of a different judge who had brought additional revenues into another town. That judge, Richard Thompson, had handled nine municipalities in Monmouth County and was suspended last October pending an investigation by the Advisory Committee on Judicial Conduct.
Hernandez said tenure is not the answer, severing the relationship between the judge and town officials is. He suggested that someone else, perhaps the county Superior Court assignment judge, appoint local judges.
That's an idea that Linda Feinberg, the former Mercer County Superior Court assignment judge, said she found "interesting."
Committee members also discussed the possibility of having local bar associations vet municipal judge candidates or having the assignment judge appoint a committee of lawyers, public defenders and prosecutors to recommend local judges or determine whether local judges be reappointed.
The next public hearing is scheduled for May 2, from 5 p.m. to 7 p.m. at Rowan University in Glassboro. Additional hearings are set for May 19 in Atlantic City and June 6 at Seton Hall University School of Law in Newark.