Have Politics, Power Struggles Tarnished Reputation of NJ’s Judiciary?

Colleen O'Dea | April 4, 2014 | More Issues, Politics
Derided and second-guessed by openly hostile governor, punished for controversial decisions, the state's court system struggles to maintain independence

Former Appellate Judge Dorothea O'C. Wefing, former Superior Court Assignment Judge Maurice Gallipoli, and former New Jersey Supreme Court Justice James H. Coleman Jr.
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.”

Doing the Right Thing

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.

Pensions and Health Benefits

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.”

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Christie’s decision in May 2010 to not re-appoint Wallace, which would have given him lifetime tenure, had a snowball effect that has affected the court system.

“The Governor upended judicial independence in our state by saying he instead wanted to nominate a judge more in his own likeness,” Lamparello said. “Close to four years later, Justice Wallace’s vacancy remains unfilled.”

That decision put Christie and the Democrats in the Senate at loggerheads, with the status of the courts suffering. Currently two of the seven justices are judges appointed by Rabner to temporarily fill vacancies. There have been several controversial issues that have been decided, in part, by judges not nominated by the governor and confirmed by the Legislature

And there are 50 other judicial vacancies throughout the state — one in tax court and 49 in the Superior Court, with 21 of those in Essex County alone — according to a spokeswoman for the state’s courts.

“This is a critical time and Essex County is a prime example of that,” said Thomas Quinn, president of the Essex County Bar Association. “We have really deteriorated remarkably badly, especially in the criminal area and family area. Those areas are impacting John Q. Public . . . This seems like a judicial and lawyer issue. It really is a public issue.”

According to data from the courts, the combined trial courts backlog in Essex County for the year that ended June 30 was 3,231. From July 1 through February 28, that backlog is at 4,471 cases. There were a total of 27,305 cases pending February 28, compared with 26,491 pending on June 30.

There is a dispute over what exactly is keeping the Essex vacancies open, with Christie blaming Sen. Richard Codey (D-Essex), and Codey blaming Christie last fall.

But one part of the equation involves the practice of senatorial courtesy. Unwritten, it has been followed for 169 years in the state, according to Lamparello. The principle is that a senator may block any nominee from within his county for any reason. There is no public notice, but word usually gets out.

“The use of senatorial courtesy to obstruct appointments and the refusal of the Senate to hold confirmation hearings for judicial candidates is shameful,” Lamparello said, in calling for an end to the practice. “It has left courthouses around the state struggling in the face of record numbers of vacancies. The Senate has a constitutional obligation to provide ‘advice and consent’ on nominees — candidates deserve better than indefinite limbo and our citizens deserve courthouses with a full bank of judges to preside over their matters.”
He outlined a number of other reforms:

  • The state constitution should be amended to give judges lifetime tenure automatically after an initial term in office unless they are deemed unfit
  • Justices who move up from one level of court should not lose the tenure they had already earned in Superior or Appellate Division.
  • The state should put in place a system to ensure judges get regular pay increases — either by tying their salary hikes to those received by other state employees or by enacting automatic cost-of-living increases. New Jersey judges have not had a raise in five years.
  • A constitutional amendment should be proposed to raise the mandatory retirement age from 70, which by today’s standards is too young.
  • Quinn suggested the judicial ethics rules should be retooled to allow judges to speak publicly about issues like the importance of an independent judiciary, which they typically refrain from discussing today in order to remain completely impartial and stay out of discussions of politics.

    “We should take the reins off them, let them have a stronger voice,” he said.

    Virtually every speaker embraced educational campaigns at all ages, from elementary school students to adults, to help people understand the role of the judiciary as an independent branch of government.

    “We need to push for ways to make our system work, but also for education,” Poritz said. “We can’t make political changes happen unless we reach people and make them understand the value of an independent judiciary.”

    Public Education

    Former Appellate Judge Dorothea O’C. Wefing, who filled in on the Supreme Court for 16 months and is co-chair of the task force, agreed that educating the public is going to be vital.

    “They probably do not really understand how important an independent judiciary is to them,” Wefing said at the start of the meeting.

    Otherwise, the result will be a damaged court system that will ultimately hurt the public.

    Poritz recalled her feelings on being named chief justice and travelling to meet jurists from other states, “I was so proud to be chief justice in this court system that around the country was looked to as one of, if not the, finest in the country. . . I had no sense of how easy it would be to lose that, how quickly we could lose that.”

    The next hearing is to take place May 15 at 1 pm in Atlantic City. People interested in testifying should contact the task force.