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The state supreme court has sent in a retired appeals court jurist to investigate complaints by some women judges in Essex County in Newark, N.J., that they are being discriminated against by Assignment Judge Joseph Falcone and the vicinage’s presiding judges. One judge, Francine Schott, took the unprecedented step of hiring a high-powered employment lawyer to press Chief Justice Deborah Poritz to reverse Schott’s reassignment to a different court. She succeeded as Poritz, in a rare move, overturned Falcone’s decision, according to five Essex judges and two lawyers. Schott’s action triggered a firestorm. Schott complained about her transfer from the Civil Part to the Criminal Part for the 2001-02 term that began last September. In particular, the sources say, Schott was miffed because she believed her transfer was an accommodation to Judge Donald Merkelbach, who wished to move from criminal to civil. Merkelbach was transferred to civil for the 2001-02 term. But after Schott’s complaint to Poritz, the two judges were sent back to their old assignments on the same day in late March. Both judges are tenured, though Schott has more seniority by about five months. Schott, according to three judges, initially sought a meeting with Poritz, but was turned down by Richard Williams, administrative director of the courts. She then retained plaintiffs’ employment lawyer Nancy Erika Smith of Montclair, N.J.’s Smith Mullin, who pressed her complaint. Though Schott still didn’t get a meeting, she was reassigned to civil. Poritz then asked former Appellate Division Judge Robert Muir Jr. to investigate whether women judges in Essex are discriminated against, according to five judges and a lawyer. Muir, who retired from the bench in 2000 and is now of counsel to the Morristown, N.J., firm of Porzio, Bromberg & Newman, interviewed most, if not all, of Essex’s dozen women judges in a single day during the first week of April, the sources say. Essex has 50 trial court judges. Says one woman judge: “We just got a call that day from Mike O’Brien [the vicinage's assistant court administrator], telling us to go see Muir in this room in the Hall of Records, at a particular time.” She says a van was sent to the Wilentz Complex on Halsey Street to fetch the four women judges, one by one, who sit in that building, three blocks away. O’Brien said on Friday there would be no comment from him, Falcone or the presiding judges, who recommend assignments to Falcone. O’Brien referred all inquiries to Winnie Comfort, chief spokeswoman for the Administrative Office of the Courts in Trenton. Comfort said there would be no comment from Poritz or Williams. Schott, Merkelbach and Muir did not return telephone calls seeking comment. Schott’s attorney, Smith, declined comment. The appointment of Muir is in keeping with guidelines set down by the state supreme court’s landmark ruling against hostile work environments in Lehmann v. Toys ‘R’ Us, 132 N.J. 587 (1993). The ruling establishes a defense for an employer who makes a reasonable and prompt investigation of a discrimination complaint. Schott fared better than a group of black women judges around the state who about a year ago sought a meeting with Poritz to air gripes. Two judges familiar with the effort say Williams strongly discouraged the meeting, and it never took place. Says one judge of Williams’ relationship with the chief justice: “He guards her door. She doesn’t always get the bad news.” ‘A SYSTEMIC THING’ Five judges, who spoke on the condition that their names would not be used, say the issue is not just what happened to Schott, but rather the larger question of whether women judges are treated fairly in Essex. “This is not about Falcone or any presiding [judge], but a systemic thing,” says one judge. “There’s no power [for women]. Essex is unfortunately the last bastion. That’s why it’s so vicious. They don’t want to give up that power. It’s like Custer’s Last Stand.” At present, no women judges serve in the vicinage’s top five leadership positions — the assignment judge and the posts of presiding judges of criminal, civil, family and chancery. Statewide, as of the beginning of this term, there were 19 women in those top spots. They include three assignment judges, four presiding judges in criminal, four in civil, five in family and three in chancery. Those 19 represent more than one-quarter of the leadership posts statewide and suggest that Poritz has made a concerted effort to increase the management role of women in the court system. Sylvia Pressler presides over the Appellate Division, and, of course, there’s Poritz, the state’s first woman chief justice. By all accounts, tensions have mounted in Essex during the past few months, in part because of assignments doled out to newer judges. Judge Jose Linares has been named an executive judge in the Civil Part, meaning he supervises a third of the civil judges, while Judge Stephen Bernstein was put in charge of the county’s arbitration program. Meanwhile, two female judges with similar seniority to Linares and Bernstein did not fare as well. Judge Michelle Hollar-Gregory was assigned to landlord-tenant court, while Judge Mary Jacobson was placed in the Civil Part. Falcone’s detractors point out that Hollar-Gregory, as corporate counsel for Newark, N.J., before joining the bench, has management experience. Falcone’s supporters, however, say his interest is in an efficient court system, even if it means stepping on some toes. For example, they say he has not hesitated to transfer male judges. In one case, he demoted a presiding judge and in another, he assigned three recall judges to landlord-tenant court. All three then quit. Some judges, however, still smart over Falcone’s move, when he became assignment judge in 1999, to remove Betty Lester as presiding judge of the Criminal Part and replace her with Harold Fullilove. Other judges point to the increase in women judges in the traditionally less desired Family Part, a decrease in their presence in the Criminal Part or making an assignment without taking into consideration the judge’s area of expertise. Superior Court Judge Rachel Davidson, a corporate lawyer, was placed in family, while Superior Court Judge Patricia Medina Talbert, an employment lawyer, was put in criminal. But other judges note that male judges also are placed, or rotated, in areas that don’t make use of their strengths, and that they, too, are sometimes unhappy with assignments. As for Merkelbach’s alleged desire to move to civil after being in criminal since he was sworn in in early 1993, sources critical of the transfer offer two possible motives. Two judges say the 65-year-old Merkelbach would like civil experience to strengthen his chance to land an of counsel job with a firm, doing arbitrations and mediations, when he decides to retire. Two other judges say they believe Merkelbach wanted to improve his chances of being transferred to Monmouth County by expanding his experience. In 2000, Merkelbach sold his home in Glen Ridge, N.J., and bought a home in Neptune, N.J. Monmouth County Assignment Judge Lawrence Lawson, however, says Merkelbach has not discussed a transfer with him.

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