Jason Foy of Foy & Seplowitz in Hackensack, left, and Jeralyn Lawrence of Lawrence Law in Watchung. Courtesy photos
When Justice Barry Albin’s tenure came to a close on July 6, with him having reached the judiciary’s mandatory retirement age of 70, it left the New Jersey Supreme Court to operate with a record level of vacancies.
That’s in addition to the number of vacancies in New Jersey’s trial courts.
After two decades of serving on New Jersey’s highest court, Albin returned to private practice at Lowenstein Sandler, where he will chair the firm’s newly formed appellate practice from the firm’s Roseland office.
His departure leaves only four permanent justices on the state’s Supreme Court—Chief Justice Stuart Rabner and Justices Anne M. Patterson, Lee A. Solomon, and Fabiana Pierre-Louis. Rabner has temporarily assigned a fifth member of the court, Judge Jose L. Fuentes of the Appellate Division.
Rabner warned of this situation earlier in the year.
“Ask any students of the Constitutional Convention of 1947, and they will tell you that is not what the Framers of the modern Constitution envisioned,” said Rabner in his comments at the New Jersey State Bar Association convention on May 20. “Nowhere in the debates about the Judicial Branch did they contemplate a vacancy level of more than 40% on the state’s highest court.”
“I urge the legislative and executive branches to come together to resolve the problem before it gets even more challenging,” added Rabner.
“Chief Justice Rabner has maintained the Court’s integral role in New Jersey and its continued commitment to justice even in light of recent retirements,” Assembly Speaker Craig J. Coughlin, D-Middlesex, said via a spokesperson. “I am confident the governor and Senate will fulfill the constitutional obligation to nominate and confirm the most qualified associate justices in the near future.”
Calls to Senate President Nicholas P. Scutari, D-Union, and Judiciary Committee Chair Brian Stack, D-Hudson, went unreturned.
‘Nothing Is Happening’?
Jeralyn Lawrence, president of the NJSBA, said in a recent interview: “We are operating with historic vacancies of 43% in the crown jewel of the New Jersey judiciary. And from all outward appearances, nothing is happening.”
“Justice Albin retired two weeks ago. How can it be July 20 and there is not a judiciary meeting scheduled?” she said during an interview conducted on that date.
“The outlook looks quite bleak,” added Lawrence, a partner at Lawrence Law in Watchung.
In addition to Albin’s departure, three additional Supreme Court justices have recently retired—Justices Jaynee LaVecchia, Faustino J. Fernandez-Vina and Walter F. Timpone. Timpone retired in 2020. Fernandez-Vina reached the mandatory retirement earlier this year and headed to Parker McCay. LaVecchia initially announced her retirement in early 2021 but delayed her departure until the end of that year. In January 2022, she joined McCarter & English’s business litigation group as a partner.
Fuentes, of the Appellate Division, has served on the court on a temporary basis since February, pending confirmation of a replacement for LaVecchia. Gov. Phil Murphy has nominated Rachel Wainer Apter, head of the New Jersey Division on Civil Rights and former law clerk to the late U.S. Supreme Court Justice Ruth Bader Ginsburg. Apter’s nomination has stalled due to Bergen County Republican state Sen. Holly Schepisi’s refusal to give her consent to the nomination through senatorial courtesy.
“The burden should not be on [Chief] Justice Rabner to fill vacancies; that should be filled by Gov. Murphy and the Legislature,” said Lawrence.
“What we have been trying to drive home is that this impacts you a great deal,” Lawrence said. “If it doesn’t impact you today, it will tomorrow, or it will affect your friends and your family.”
In his May 20 comments, Rabner also addressed the “sustained and growing” number of judicial vacancies across the Superior Court vicinages.
Vacancies by County
Since May, the number of Superior Court judicial vacancies has been reduced, from 76 to 62, according to statistics provided by the Administrative Office of the Courts.
The county hardest hit by vacancies is Bergen, with eight open seats. Essex and Union need seven seats filled. Hudson and Passaic stand at five vacancies each. Middlesex and Ocean have four. Camden and Somerset have three each.
Some counties are faring better. Atlantic, Cape May, Cumberland, Glouceter, Monmouth, and Morris counties each need two judicial positions filled. Hunterdon, Mercer, Salem, and Warren each are short one judge. Sussex and Burlington have no vacancies.
Bergen County Bar Association President Jason Foy in an interview expressed concern for the vacancies in that vicinage.
“If you go back to 2014, Bergen County was operating with six judicial vacancies,” said Foy. “At that time, Assignment Judge Peter Doyne was faced with the prospect of suspending operations in the Civil and Family [parts].
“We are now beyond six vacancies and still recovering from the pandemic,” Foy continued. ”Judge [Estela] De La Cruz retired on June 1, and if we don’t do anything, Bergen County could be facing 10 judicial vacancies by the end of the year.”
“What the BCBA has done is make overtures to our local senators to express our need and make ourselves available to do whatever is necessary to fill all Bergen County vacancies,” said Foy, a partner at Foy & Seplowitz in Hackensack.
In letters to Bergen County Sens. Gordon Johnson, Joseph Lagana, and Paul Sarlo, all Democrats, and Schepisi, Foy requested, on behalf of the BCBA, the nomination of qualified judges.
“The Bergen judiciary has always held a position of leadership in the State,” wrote Foy in the April 28 letter to the group of senators, two of whom (Lagana and Schepisi) are lawyers. “The empirical data demonstrates that despite the pandemic, the swift and efficient administration of justice continued unabated in Bergen County.
“However, there is no question that the administration of justice in Bergen County cannot be adequately served if these vacancies come to pass with no plan to address them immediately,” Foy wrote. “Justice delayed, will indeed be justice denied.”
Lawrence said sitting judges ”are overwhelmed and overworked, and there is no relief on the way.”
Lawrence, a family law practitioner, added: ”You can’t get divorced, there are people languishing in jail, and you have parents going through a divorce and not seeing their children for months.
“Families are hurting, children are hurting, litigants are hurting,” said Lawrence. “And there are answers. You need the two branches of government to solve the problem.”
“Governor Murphy has vigorously worked to fill judicial vacancies since he took office in 2018,” stated Natalie Hamilton, Press Assistant to Governor Murphy.
“Since then, the Senate has confirmed a total of 87 Superior Court judges nominated by the Governor,” said Hamilton. “In calendar year 2022, 32 Superior Court judges have been confirmed and 11 judicial nominees await confirmation by the Senate. The Governor nominated Rachel Wainer Apter to fill a vacant Supreme Court seat over 16 months ago and continues to await the Senate giving her a hearing and a vote.”
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