Edward Barocas, who has guided the ACLU of New Jersey’s litigation efforts for the past 17 years, has left his post after overseeing a period of dramatic growth in the civil rights group’s size and influence.
Barocas, 51, became the group’s legal director a few months before the terrorist attacks of 2001. When he started with the ACLU, its legal department had a staff of two attorneys who relied heavily on outside counsel, but it now has seven attorneys and one program assistant.
During his time at the ACLU, while maintaining a steady stream of litigation focusing on bread-and-butter issues such as free speech, freedom of religion and open government, Barocas orchestrated a legal challenge to secret federal detention hearings for “special interest” deportees after the Sept. 11 attacks. He also challenged the secrecy of detentions of federal Immigration and Customs Enforcement inmates in local jails in Hudson and Passaic counties.
Barocas also coordinated the ACLU’s legal advocacy with other groups to challenge a ban on same-sex marriage. At his interview for the legal director job, Barocas identified marriage equality as a top civil rights issue for New Jersey in the coming decade, and the ACLU frequently issued amicus briefs in cases until Gov. Chris Christie’s administration withdrew its appeal of a September 2013 ruling in Garden State Equality v. Dow, which directed the state to permit same-sex couples to marry.
Barocas also used the group’s resources to protect the rights of homeless people thrown out of public libraries and train stations. Cases concerning police misconduct and criminal law have been an ongoing focus for the ACLU, and in recent years the rights of immigrants have again received the group’s attention.
Barocas, who has muscular dystrophy and uses a wheelchair, said he left the ACLU because the rigors of his work routine have become “too exhausting” in recent years. He hopes to continue practicing law on a limited schedule.
“Because of my disability, it took a lot of extra energy to do this job. I did it as long as I could, and I’m glad I could do it,” Barocas said.
Jeanne LoCicero, who joined the ACLU-NJ in 2004 and became deputy legal director in 2008, was named the new legal director.
Barocas joined the ACLU-NJ from the Office of the Public Defender, where he represented convicted sex offenders in hearings to determine their tier classification under Megan’s Law. He also worked for the Division of Mental Health Advocacy while at the office, advocating for the rights of the mentally ill.
When Barocas applied for the legal director position at the ACLU, his prior work with convicted sex offenders showed a willingness to represent the interests of “the most unpopular clients imaginable,” which suggested a good fit with the ACLU, said Ronald Chen, the former dean of Rutgers Law School-Newark, who was on the search committee. At Barocas’ job interview, Chen said, it was apparent that “this was his dream job. We saw someone who was quite young, with not only a passion but a vision for what a legal director can do,” Chen recalled.
Barocas “is an incredible resource and has an encyclopedic knowledge of free speech law in New Jersey,” said Bruce Rosen, a former ACLU-NJ board member who is with McCusker, Anselmi, Rosen & Carvelli in Florham Park. “I often called him about close and difficult issues when I represented the Elizabeth Board of Education.”
Rosen represented the ACLU in Scheeler v. Office of the Governor, in which the Appellate Division ruled that requests for documents under the Open Public Records Act were themselves accessible by others under OPRA. The ACLU Foundation collected nearly $30,000 in legal fees for that case, said Rosen, who called Barocas “a world-class mensch” and a “funny and caring guy with a great sense of self.”
Barocas, who said he has always been driven by empathy, learned while attending law school at George Washington University that his true interest was constitutional law.
“The driving force in going to law school was never money. It has always been that drive to do what is right and what makes peoples’ lives better. I always felt we spend so much time at our jobs and you’re truly lucky and blessed if doing so and being able to make a difference is a joy,” Barocas said.
At the age of 27, Barocas discovered his ability to use the legal system to bring about change. It was during his first argument before the state Supreme Court, where he appeared on behalf of a sex offender. The case involved what expert testimony should be permitted at the tier designation hearing used to determine the strictness of measures imposed under Megan’s Law.
While he was answering questions from Justice Marie Garibaldi, Barocas said he realized “it was exactly why I went to law school: to impart to the justices exactly why the fundamental rights we have as individuals would require a more fair system than the government, at the time, was providing.”
The court agreed to allow limited expert testimony when it issued its 2006 ruling, In the Matter of Registant G.B.
“It’s a wonderful feeling that I hope every lawyer has: that moment when you know your abilities make a difference,” Barocas said.
“That moment in court, and the resulting decision, made me recognize how powerful the law can be in making sure the world we live in is more fair and more just,” he said. “Truly, that became the case when I came to the ACLU.”
Under Barocas’ direction, the ACLU also brought a successful petition to the Department of Justice calling for an investigation and federal monitoring of civil rights violations by the Newark Police Department, and a suit that stopped the state Motor Vehicle Commission from unilaterally imposing REAL ID requirements.
In a post-9/11 suit brought by the ACLU to challenge the federal government’s right to carry out secret detentions, Barocas showed skill in crafting state-law cases that confounded his adversaries from the Department of Justice, Chen said.
In ACLU v. County of Hudson, the group obtained an order directing the names of foreign nationals detained by the federal government in jails in Hudson and Passaic counties to be made public. But the Appellate Division reversed that ruling after the federal government adopted a regulation overriding all state disclosure laws.
Barocas has no regrets about bringing the ACLU’s post-9/11 cases. He doesn’t see the suits as lost causes, but thinks their prospects were hurt because of “the general atmosphere in the country.”
“Sometimes there are cases and issues that are so important, they must be brought even when success is unlikely. It’s important to bring the cases that lost, so that a decade later, it’s raised in the public consciousness, and the laudable dissent becomes the important majority,” he said.
Chen said Barocas’ skill in crafting state-law cases was on display in ACLU of New Jersey v. Hendricks, in which the group challenged $11 million in state grants by Gov. Chris Christie’s administration to construct new facilities at a seminary in Princeton and a yeshiva in Lakewood. The Appellate Division held that the subsidies were unconstitutional, but in May, the state Supreme Court sent that case to a lower court for fact-finding.
Barocas intentionally brought the ACLU case under the New Jersey Constitution, not the federal Constitution, out of a belief that the court may interpret the New Jersey law more broadly, said Chen.
“That entire mode of attack has been part of Ed’s plan for some time, and he looks at these things with the big picture,” Chen said.