Former NJ Supreme Court Justice Weighs in on Recent Rulings

July 11, 2013 | Law & Public Safety
Former New Jersey Supreme Court Justice Gary Stein discusses the rulings on COAH, the rights of property owners during beach replenishment projects, the Voting Rights Act and Defense of Marriage Act.

Rulings from the New Jersey Supreme Court and the U.S. Supreme Court have grabbed headlines recently, including the decision that Gov. Chris Christie lacked the authority to abolish the Council on Affordable Housing, that property owners may not be compensated large amounts for loss of ocean views, the Voting Rights Act should not have been reauthorized and the strike-down of the Defense of Marriage Act. Former New Jersey Supreme Court Justice Gary Stein, who served for 17 years, shared his thoughts on the high profile decisions with NJ Today Managing Editor Mike Schneider.

After the state Supreme Court ruled Christie didn’t have the authority to abolish COAH, the governor had a scathing critique of the decision, calling the court liberal and Chief Justice Stuart Rabner an activist. Stein disagreed with that characterization, saying he read Rabner’s opinion.

“It’s a very scholarly, constrained opinion that interprets the Reorganization Act passed by the legislature. And what he said is COAH is simply not an agency that was subject to reorganization. And he based that on the legislative language in a very narrow, scholarly opinion. So it’s not a policy oriented opinion at all,” Stein said.

Stein was a member of the state Supreme Court when the Fair Housing Act that created COAH passed. “At that time there were three Mount Laurel judges divided throughout the state who were charged with the responsibility for deciding fair housing cases. And our court took all of those cases, when the Fair Housing Act was passed, and transferred them to COAH because we were satisfied that COAH would be an independent agency. So the notion that COAH could be dissolved and its functions transferred to the Department of Community Affairs simply isn’t consistent with what we would’ve required back in 1987,” he said.

The New Jersey Supreme Court also had a ruling recently that decided a couple in Harvey Cedars was not entitled to $375,000 for the loss of their ocean view because of a federal beach replenishment project. In that case, the court sided with the Christie administration, but Stein said governors shouldn’t try to interfere with the judicial system.

“Governors ought to understand that when they criticize judicial opinions too often and too publicly and personalize the criticism, they run the risk of politicizing the judiciary. And one of the great strengths of New Jersey’s judiciary since the 1947 Constitution was its independence and its insulation from politics. And that may not be a popular issue at election time, but it’s a very important institutional value for New Jersey,” Stein said. “The importance of an independent judiciary was regarded by Gov. Driscoll back in the ’40s as the most important reason for the new Constitution. And so I worry about comments that threaten the independence of New Jersey’s judiciary.”

The U.S. Supreme Court recently decided to invalidate part of the Voting Rights Act, which was originally passed in 1965 to stop southern states from depriving African-Americans the right to vote. The measure was reauthorized in 1970, 1982 and 2006, but Stein pointed out that the re-authorization was done based on a formula from 1972.

“What the Supreme Court said last week was that when Congress reauthorized the law in 2006, it was not justifiable to use the 1972 standard and Chief Justice Roberts, who wrote the opinion for a five-member majority, said there should be current justification for making these southern states and other counties subject to the pre-clearance law,” Stein explained. “The dissent by Justice Ginsberg took another tact and said, ‘No that’s not the question. The question is whether Congress was justified in concluding that those states continue to discriminate. And if Congress was satisfied with that, the court should defer.’ I think Justice Ginsberg had the better of the arguments but it’s not cut and dry and you could make a respectable argument either way depending on how you frame the issue.”

Another U.S. Supreme Court decision that took over headlines was its strike down of the Defense of Marriage Act or DOMA. The issue hits close to home in New Jersey because a motion has been filed to challenge state law, saying same-sex couples aren’t being treated equally because they don’t receive federal benefits awarded to heterosexual couples.

Stein said public opinion about same-sex marriage has evolved in the past 10 years. “When the New Jersey Supreme Court had the issue, the court in effect said, ‘Well we’re not satisfied that it’s evolved enough yet. We’re gonna insist on equality for same-sex couples, equal rights, but we’re not gonna say that a prohibition on same-sex marriage is unconstitutional.’ I think public opinion perhaps has overtaken that point of view,” he said. “So it’ll be interesting to see how the judicial branch deals with this. But I think the Supreme Court’s opinion on the Defense of Marriage Act was eminently correct and I suspect it’s just a matter of time.”

Vacancies on the state Supreme Court have come under fire, with Christie saying his nominees haven’t been voted upon because of political issues. Stein said while he doesn’t know for sure if the lack of appointments has affected the work of the court, he said in the past when he was a justice, fewer members impeded the deliberations.

“I think the court needs the full seven justices. I think it’s important for the Senate to sooner rather than later give the governor an up or down vote on these two pending nominees. And I think the New Jersey Supreme Court, if it’s to function the way the legislature and the framers of the ’47 Constitution intended, needs to have seven justices serving on that court who don’t have to look over their shoulder and worry about whether their decisions meet somebody’s political standards,” Stein said.

Stein said he is very worried about the impact of politics on the state Supreme Court. “The fact that Justice Wallace was denied tenure was, in my view, an enormous mistake and I think it caused not only justices on the court but judges throughout the judicial system to begin to think about their jobs in another way,” he said. “Judges who are on the bench who think that their reappointment might be affected by whether their decisions are viewed with approval or disapproval by the governor’s office may be looking over their shoulder.”

He said that is a disturbing idea and one that was never a consideration during his tenure. “The court I served on reversed 30 death sentences in a row,” Stein said. “If any one of us had to face either a popular vote or a tenure reappointment while we were reversing 30 consecutive death sentences, it would’ve been tough. But never would we worry that we were gonna be faced with a political consequence for our decisions.”

When asked if some who have followed in his footsteps do worry about such issues, Stein said, “I don’t know but it wouldn’t surprise me.”