Editor’s Note:
This is the second of nine weekly installments of
What Makes a Court Supreme , Justice Daniel J. O’Hern’s book about his years on the Wilentz Court. This installment concludes Chapter II: Chief Justice Robert N. Wilentz.

Another of the Chief Justice’s gifts to the Court was the gift of understanding — understanding of the relationship of law to the community around us. During a speech on June 8, 1995, at the graduation ceremony of the William J. Brennan Jr. American Inn of Court, he told the young lawyers:

Get to know as many people as you can possibly get to know — all kinds of people. Talk to them, eat with them, drink with them if you are so inclined. Just get to know as many people as there are. In that way you will understand more about people and more about life, more about things that people think about, and you will be a much more capable lawyer.

And, I would say, a more capable judge. In his 1991 address to the graduates of the Rutgers University School of Law in Newark, the Chief reflected on the divisions in our society. He saw a collection of islands separated by race, ethnicity and poverty — a situation he yearned to end or at least improve. He told the students:

The problem is deep, severe, crippling to a good society. And we are a good society. My concern is the possibility that we may accept this reality. My concern is that we may accept this condition as something we are willing to live with permanently. My concern is that when you see something, no matter how horrible, when you see it long enough and often enough, you stop seeing how horrible it is. The separateness of our society is horrible, its disparate wealth and education is horrible, and it is not getting better. We must not become blind to it. We must see it and we must deal with it. Not in order to become rich, not in order to become safe, not even to be fair — although all of that — but to be a happy society, at home with each other, at ease with each other, friends and neighbors, not enemies; not at arm’s length, but hand in hand.

The causes are complex but at this point in history we don’t need to fix blame. There is enough to go around for all of us. We need to fix society.

He also believed strongly in the right of society to protect itself. In 1983, he wrote State v. DesMarets, which affirmed mandatory criminal sentencing. In 1995, he wrote Doe v. Poritz, upholding Megan’s Law, which requires community notification of the presence of sex offenders. As this excerpt from Poritz shows, he was not soft on crime:

[W]e remain convinced that the statute is constitutional. To rule otherwise is to find society is unable to protect itself from sexual predators … . That the remedy has a potentially severe effect arises from no fault of government, or of society, but rather from the nature of the remedy and the problem.

Another gift to the Court was the Chief’s dignity. He knew what was required to keep the Court great in the public’s mind. That commitment to dignity was illustrated in his handling of two of the Court’s greatest unpublished opinions. The case, State v. Valentine, involved the reasonableness of a police search of a young man who had paused to relieve himself behind a tree. The state asserted that these were suspicious circumstances giving cause for a warrantless arrest. A majority of the Court agreed and was prepared to sustain the search.

Justice Robert L. Clifford wrote a tongue-in-cheek dissent reflecting on the urinary tract problems of men and the reasons they might be impelled to seek the cover of a tree. He reasoned that there was nothing suspicious at all about hiding behind a tree to relieve oneself.

RE-CIRC. BY FAX 1-13-94


A-39 September Term 1993







Argued November 9, 1993 – Decided

On appeal from the Superior Court, Appellate Division

Deborah Bartolomey, Deputy Attorney General, argued the cause for appellant (Fred DeVesa, Acting Attorney General of New Jersey, attorney).

Neal M. Frank, Designated Counsel, argued the Cause for respondent (Zulima V. Farber, Public Defender, attorney).

CLIFFORD, J., dissenting.

The Court’s opinion, with its intimation of incredulity, ante at ____, ____ (slip op. at 3, 20), at defendant’s claim that he ducked behind a tree to relieve himself even though he was but a short distance from home, reads as if no member of the majority has ever experienced the sudden, urgent demand of nature’s call and the pressing need for an immediate — I mean immediate — response. I have, so I am not about to join in the Court’s unquestioning acceptance of Officer Nuccio’s disbelief of defendant’s explanation of his conduct. See also William Shakespeare, Macbeth act 2, sc. 3, 25-38 (Sylvan Barnet ed., Signet Classic 1986) (discussing effects of overindulgence); cf. The Unfriendly Skies , A.B.A. J. , Jan. 1994, at 33 (quoting Associated Press’s report of scolding by Chief Judge Norman C. Roettger, Jr., of the U.S. District Court for the Southern District of Florida, of prosecutors who had allowed a German tourist to remain in jail for nine months before his sentencing on a charge of interfering with flight crew: “The intoxicated tourist told a flight attendant ‘the roof would go’ if he wasn’t permitted to use the bathroom, which she took to be a bomb threat. Roettger said the phrase was a German colloquialism that meant his bladder was about to explode.”).

As for the outpouring of my concurring colleague, his argument simply does not hold water. Because his flow of words seems unimpeded by any mid-stream reflection of real-life experience, I can only express the hope that the serenity with which he accepts today’s maculation of the law will see him through the little physical surprises that I for one am certain await him in his fast-approaching maturity.

Moreover, I am not impressed, as the majority apparently is, ante at ___, ___ (slip op. at 3, 20), by defendant’s failure to have made eye contact with the officer. Defendant might not succeed as a jut-jawed stand-in for Arnold Schwarzenegger as the Terminator or Terminator 2, but fluttering eyes and milquetoast demeanor do not a villain make.

For me, the case comes down to a challenge to our ingenuity in teasing out of this slim record a range of nuances of conduct and speech that lead to a result favoring either admissibility or suppression. Had the issue come to us on a petition for certification rather than as an appeal of right under Rule 2:2-1(a), I very much doubt that we would have taken the case. The controlling principles of law are firmly established; the problem arises with their application in an acutely fact-sensitive area. Because I think the majority in the court below has the better of the argument on that score, I would affirm substantially for the reasons set forth in its opinion.

Justice Alan B. Handler composed a droll reply that addressed with equal humor the vagaries of the human condition.

Circulated: 1/10/94


A-39 September Term 1993







HANDLER, J., concurring.

I concur in the opinion of the Court, which holds that under all the circumstances — defendant’s unusual conduct and actions, his facile explanation, the lateness of the hour, defendant’s criminal record, and the high-crime environment — Officer Nuccio had an adequate basis for an investigatory stop and pat-down search.

I would add the observation, fully noted by the Court, ante at ___ (slip op. at ___), that the necessity for the limited search in this case does not arise solely from the fact that defendant was found in a high-crime area. Other factors combined to make him a justified object of suspicion. E.g. , State in the Interest of H.B. , 75 N.J. 243, 268 (1977) (Handler, J., dissenting) (“A founded and solid feeling that a person is an armed criminal cannot be predicated simply upon the proposition that crime is rampant in densely populated states and congested cities. Rather, it must emanate from specific and articulable facts pointing a straight finger of suspicion at the individual.”).

Further, with the Court I share Officer Nuccio’s disbelief of defendant’s explanation of his suspicious, furtive behavior. The dissent reminds us that the urgent demands of the bladder are visited without distinction on the righteous as well as the reprobate. The dissent may have reason to be more compassionate for those who suffer from the tyranny of the bladder. Nevertheless, common sense should not be supplanted by the micturations of a neurogenic bladder or the expertise of a lithotomist or urologist in assessing the veracity of defendant’s allegations. When asked what he was doing by Officer Nuccio, defendant responded that he was “about to urinate, until he saw the police vehicle.” Officer Nuccio was understandably skeptical of that response given the proximity of defendant’s home. Further, the record does not shed light on how defendant’s “urinary urgency” was met. The record contains no suggestion that during the prolonged series of events that followed his emergence from behind the trees — his questioning by the officer, the pat-down, the wait for the arrival of backup officers, the arrest, and the subsequent transportation of defendant to the police station — defendant acted in any way that he was prey to an importunate bladder. The void is only in the evidence. Nothing indicates that defendant’s urgency was relieved or miraculously abated, simply nothing in the record to support the dissent’s empathetic endorsement of defendant’s defense based on the imminent nature of nature’s call. Rather, it underscores the soundness of the conclusion of the majority, whose author’s view is clearly untainted by the kind of personal feelings that are projected by the dissent. Defendant exhibited only a “weak excuse,” not a weak bladder. Ante at ___ (slip op. at ___).

Although amused by the opinions, the Chief Justice sensed in both of them a potential to undermine confidence in the Court. Sufficient time has passed that I feel it proper to report his suggestions to the two opinion writers. He wrote:





RE: My Funny Valentine

DATE: January 13, 1994

I hope that this note is not sent because of my jealousy about being excluded from the uproarious pissing debate. I am not at all convinced that what I am about to suggest is important, or, put differently, that the opinions in this matter, if they go out as presently written, will do no harm. They certainly will not do any great harm. So I’ll just tell it to you the way it seems to me, and then you will do whatever you want to do.

It’s fun for a court to have fun once in a while, even to have Justices whose style becomes fun. If it stays in-house, in New Jersey, in the Law Journal, and doesn’t happen too often, it can add something to the Court. If it detracts, it detracts very little. My concern with this case is that [if] it is going to go beyond New Jersey, beyond the Law Journal, the legal propositions will be awash with the great humor that they have caused. I assume you both know that what is funny is not what you have said, but the fact that Justices have said it — the idea that a judge can talk about urine, bladders, piss, and actually argue about these fundamental needs is just more than most people can tolerate. It’s positively amusing. Just what the case is all about will get very much lost, but the fact that Justices can disagree and really argue with each other about what it means to have to take a piss: ah, that’s something that captures the imagination. It’s the pissing Court. “Jersey Court in Pissing Contest.” They’ll certainly wait for our next opinion with more anticipation, and presumably, like all good comedians, we’ll have to work hard to live up to our reputation.

If you are so inclined, I suggest that Justice Clifford note the credibility of defendant’s story (with a straight face) and leave it at that. Justice Handler can fold his tent.

No big deal — if you want to leave it the way it is we’ll all live through it.

The point is simple. They will be laughing — at us.


That was the end of the discussion. It was enough that the Chief should express his concern for the well-being of the Court that both members immediately withdrew their opinions.

Compliments and Critiques From the Chief

The Chief Justice’s comments on opinions could be brutally frank. In an opinion I had circulated concerning the right to trial by jury in a chancery case, I had written, “the right to trial by jury is an ever-present reminder of our belief in the importance of the individual.” He responded, “C—. It’s got nothing to do with that except in your mind. It is the importance of the community vs. the king.”

His comments on circulating opinions were always helpful. He was a beautiful writer and a great reader. Even in his final illness, he offered valuable suggestions to me in connection with an opinion about a capital defendant’s right to waive any further appeal.

The case was State v. Martini. It had been argued on June 4, 1996, and I had circulated the draft opinion for the Court on June 13, writing:

It is difficult to explain why a murderer who has admitted his guilt and had his conviction and sentence of death affirmed on direct appeal should not be granted his request to be executed immediately. For some no explanation is necessary. For others no explanation will suffice. For those who wish to understand we explain that under our form of government it is not the inmate on death row … who determines when and whether the State shall execute a prisoner; the regular processes of the law make that determination.

The Chief Justice was at Mount Sinai Medical Center in New York City, but he sent back the draft, recommending that there be two concluding sentences in the paragraph instead of one and that the opinion recite simply, “The law itself makes that determination.” “Not much better,” he wrote, “but you pick it.” He also suggested that I use a sentence from page four of the opinion that said that “[In State v. Koedatich ] we found that the public has an interest in the reliability and integrity of a death sentencing decision that transcends the preferences of individual defendants.” His suggestions made the opinion better but they saddened me, to think of him in the hospital and still working to the end. In another part of the opinion I had left an open question of “what to do about payment for the court’s expert.” He wrote in the margin. “Pay him (or her) — just figure out who gets the bill — don’t go grey!” A small thing, but characteristic of his style: just do it.

Most of all, he knew when we needed to be prodded and when we needed to be praised. We all loved receiving compliments from him. My favorite came from a zoning case. He was never able to be completely flowery. In this case, he wrote, “OK, CJ. Dan: don’t get mad, but I must tell you: You write clear, just like a great English judge. (At least when you’re thinking.)”

Each of us valued words of respect from the Chief Justice. He was especially generous in support of our circulated opinions, always reading them carefully and commenting, in some cases, with humor.

On one occasion, the Chief had been working on an opinion, Madden v. Township of Delran , about the municipal obligation to provide indigent defendants with representation. The issue had provoked a simmering dispute. Controversial orders had been issued requiring counties to provide additional funds for court costs. The members of the Court exhibited a noticeable lack of enthusiasm toward the Chief Justice’s first draft. Several justices suggested that its tone was “imperialistic, if not monarchical,” in addition to being “autocratic.” The Chief’s covering letter to us with the revised opinion is an example of his humor:

As others have said with more conviction [a veiled reference to a prior member of the Court who dealt with suggestions for change in an opinion by ignoring them while graciously stating that all suggestions had been incorporated in the revised opinion], I have accepted all of your suggestions. There is a tone of friendship in the opinion that may have formerly been lacking. The question of power to compel municipalities to pay counsel is explicitly left open, although the possible sources of the power are mentioned. Some slight repetition has been eliminated, others retained. [The municipality] is flagged but not flogged. The question of whether we will do anything about [the municipality] is not addressed, but our power to [order the provision of] counsel is fairly clearly stated. Other suggestions, too numerous to mention, have been graciously incorporated in the revision. Some imperious observations … have been eliminated. In deference to Justice Clifford, I have not added any more footnotes.

That kind of graciousness enlivened the tedious hours of Court conferences and defined his relationship with us.

At the same time, his work habits were unassailable. It was not uncommon for him to send us faxes well past midnight, even toward the end of his life. Three months before he died, I received a fax he had sent at 12:34 a.m. about an ethics case.

One of the Chief Justice’s engaging qualities was his interest in our travel plans. In 1986, when my wife and I were planning a trip to Venice, he said, “Of course Dan, you must stay at the Cipriani.” We did not stay there. It cost $600 a night. When we arrived at the Pension Seguso instead, we found a bottle of champagne and flowers in the room with the following message:

Barbara and Dan,

Just wanted to get you started right. You’re on vacation, forget everything else, enjoy every minute of it. And eat something before you taste the wine.

Love, Robert Wilentz

Keeping in Touch While on Vacation

And when the Chief Justice went on vacation himself, he often kept in touch with the Court, as shown in this letter written on the stationery of the La Bastide de Gordes in Provence, in the south of France, on Sept. 7, 1994:

Mes Amis:

This was a lovely hotel. I have broken the little safe in the room (no great loss: the concierge (f.) told me that she had the key), the shower thing (the one that used to be attached to a metal tube), the beautiful window lock, lost my key to the room, paraded through the lobby in my shower robe on my way to the pool, and requested a drink in the hotel lounge at 11 PM — it closes at 7:30. In fact all of Gordes closed at 7:30. There are 2,021 permanent residents, all dead, and about 5,000 tourists, all German. The outstanding characteristics of the town (other than the urge to get out) are the extremely steep & narrow “walks,” made from ankle-straining stones and the age of everything (500 yrs. — otherwise they tear it down).

Visited Venasque where there is not a suitable monument erected in honor of Justice and Mrs. O’Hern. A little trip he suggested for an evening (“The roads are all well marked”) took 2 hours & but for my bravery, could have resulted in extreme panic. It takes 20 minutes with the benefit of light. I will never forget it — a little opinion on inverse capitalization & retroactive taxation of illegal tax foreclosure sales & proceeds will be appropriately assigned. Venasque supposedly has 785 residents including a handful whose families have lived there since the 7th century (B.C. or A.D. — it makes no difference); the rest are dead.

Leave tomorrow (by car) for Paris. All is well! C.J. (?)

P.S. — No word from anyone yet on the tomatoes!

The latter was a reference to one of his greatest undertakings — growing tomatoes at his home in Deal. As the Chief was about to return from his trip, Justice Clifford replied:

September Fourteenth, 1994

TO: Chief Justice Wilentz


RE: Stewardship

Well, Chief, I must confess that I am left wondering just what is the big deal about your job. I mean, this has been a piece of cake: a little conference in Morristown, a little argument time in Trenton, and nobody bothering me with nothin’. … No probation officers picketing, no bar association [complaints] … , no urgent communiqués (save for seventeen copies of your travel schedule, sent by [Steven] Bonville to each member’s home and chambers, then faxed, then delivered by Charlie [Brill], then the whole process repeated every third day).

So on your return you will find your judicial machinery as finely-tuned and running as smoothly as when you left it. The only glitch I experienced came, as might be expected, from the conduct of some of the members, who as a lot remain incorrigible. Why, for instance, should the presiding justice be subjected, during oral argument, to the insolence of a member drawing the hand across his throat as a sign that he had heard quite enough from the poor disciplinary respondent who was struggling to avoid the three-years suspension that he richly deserves and will doubtless receive? Why must my every effort to bring order to our proceedings be met with indifference bordering on contempt? But you know these problems all too well, and I am sure Senior Associate-Justice-in-Waiting Handler will have to endure much of the same.

So, welcome back. And be prepared for close examination by some of your nosey colleagues on the identity of the persons with whom you [were traveling].

Tomato report to be delivered orally.


The Chief’s witty personality drew the admiration and affection of the members of our Court.

The Chief Justice was a joy to be with. I often traveled with him to and from the New Jersey shore in bad weather. Invariably, we would stop after argument or conference at a tavern in South Trenton. Sometimes we would talk at the bar with other patrons, but never discuss the business of the Court. We sat with the Chief’s driver, Charlie Brill. He was a bad influence on the Chief; he kept him supplied with cigarettes. Another stopping point for us was the Clarksburg Inn, a place of legend that opened in 1854 in western Monmouth County. On these occasions, the Chief always picked up the tab; I had the proverbial fishhooks in my pockets.

He had warm, personal relationships with the Court members. And it was reciprocal. After Jackie died in 1989, the Chief Justice fell ill, probably the result of neglect of his own health. As he was recuperating that summer, I offered to take him for a walk on the boardwalk in Ocean Grove. He expressed reluctance, uncomfortable about being seen in public in a less-than-robust state. I reassured him that no one would recognize him, and sure enough no one did — at least as far as we could tell.

Chief Justice Wilentz was a great conversationalist. I remember a night in the summer of 1991 during the Persian Gulf crisis. We were having our annual dinner at the Breakers in Spring Lake with Justice Marie L. Garibaldi and her mother, Marie, fondly known as “the General” for her strong personality. The General was condemning Iraqi President Saddam Hussein’s invasion of Kuwait, and the Chief was playing devil’s advocate. He defended Hussein’s position as having been based on a line in the sand drawn by white men. It was all in good fun on the Chief’s part.

One year, the Chief Justice asked whether he could bring his housekeeper, Araminta Mustafa, who had been chosen by his staff and was a great comfort to him. I told him it was fine, and so did Justice Garibaldi and the General. So she joined us, to the joy of the Chief.

The Chief Justice also was a great mimic. One example occurred during the post-argument discussion of a major commercial case. The lawyer was a rather famous television personality who grilled guest panelists on his show. The Chief did a hilarious imitation of counsel’s argument, complete with a Groucho Marx strut around the conference table: “Chief Justice Wilentz, how can you say that about my client?”

The Chief Justice also took great interest in our families. On March 18, 1991, on the occasion of the wedding of our son Daniel, we received the following note:

Dear Barbara and Dan:

As I just told Dan, the wedding and reception were a joy to behold and a joy to attend. The newlyweds were bright, beaming and beautiful (and handsome), the wedding party a happy bubbling sight for elderly eyes, and the entire assemblage, including some dour judges, a marvelous assortment of fine elegant people, most of them happily young, and all of them happy. The church and the ceremony, to my unpracticed eye and ear, were perfect, the words of the priest, and the priest himself, so unpretentious, simple, yet full of meaning, and the celebration that followed so fulfilling in every way for everyone.

I have said too much already, so I won’t compliment you on your selection of the day, the place, the food, the band, I’ll just say when it was over I had the feeling that all is right with the world.

You have a great family.



What kept the Chief on an even keel was that he was essentially a modest man. He never lost touch with his childhood roots in Perth Amboy. Throughout his life, he spent New Year’s Eve with his boyhood friends in Perth Amboy. And he often recalled his involvement with his own family in the life of that community. Although he had a keen intellect, he was wise enough to know that the best of judges are not perfect. For instance, he was the first to acknowledge that we must often decide cases without precedent. In upholding Megan’s Law in Doe v. Poritz , the sex-offender community-notification act, he wrote:

We sail on truly uncharted waters, for no other state has adopted such a far-reaching statute. All other notification statutes apparently make public notification discretionary on the part of officials; the statute before us, however, mandates it.

Another case that broke new ground was Kelly v. Gwinnell , the social-host decision. Two years later, on Dec. 22, 1986, a news report on Monitor Radio, the broadcast service of The Christian Science Monitor , said a study showed that U.S. motorists’ chances of being involved in a drunken driving accident were the lowest ever. Most experts said “the new mood of responsibility began to take shape” after the Kelly ruling, according to the broadcast. “The spirit of the Kelly decision has taken hold nationwide in the minds of legislators and the courts. Nine states have enacted dramshop laws in the last year and a half. In addition, 14 states have raised their legal drinking age to 21 and now all but eight states agree on a stiffer definition of legal drunkenness, a blood alcohol level of .1 percent or lower,” the broadcast continued.

Open-Floor Policy

In a commentary published on Aug. 4, 1996, in The Record of Hackensack, Justice Gary S. Stein summarized best the Chief Justice’s qualities of leadership:

If the Chief felt strongly about a specific case, he sometimes would elect to begin the discussion. On occasion, his opening views would be rejected by each of the six members who spoke after him. His self-confidence and open-mindedness were never better illustrated than by those cases in which no one agreed with him, and the Chief would almost invariably reverse course and join the rest of the Court.

He always set high standards for the Court’s deliberations. If once around the table did not produce a consensus, he would go around again, and then a third time. If any member wished to continue discussing a case, the Chief kept the floor open. If we were deadlocked about a result or a rationale, he would patiently prolong the debate while it remained productive, and then tactfully suggest that we revisit the issue the next time the Court convened. If a discussion got the least bit edgy, he would poke good-natured fun at someone or something to lighten the tone.

As we all did, he treasured our collegiality and believed that the Court eventually would reach consensus, no matter how difficult the issue. His goal was justice, and he knew that that goal was best achieved when the Court functioned in an atmosphere of free and open deliberation, characterized by trust and candor.

When writing an opinion for the Court, the Chief graciously accepted criticism and readily offered to revise his own work to meet the concerns of various members. Sometimes he feigned injury at the affront to his work, but in good humor he eventually would agree to make the requested revisions.

His respect for the other members of the Court and his natural facility for gracious leadership paid rich dividends. In my 11½ years on the Court, I never heard a single harsh word spoken at conference. The Court’s collegiality was unique. And on those important occasions when he cared passionately about an issue, he received the Court’s thoughtful attention. He had earned it. Whether or not we agreed entirely with his views, the members’ respect for his basic goals and commitment to justice sometimes helped to forge consensus where none seemed possible. Consistent with basic principle, individual members of the Court would try to temper their views in order to advocate the common good. The congenial atmosphere the Chief had fostered made compromise both possible and desirable.

. . .

His work ethic and his output were prodigious. For the Court to receive a 10- or 15-page, single-spaced memo from the Chief about a case, an opinion, or an administrative problem was commonplace. His memos were always direct, piercing, and provocative. Of course, we all worked hard, but the standard had been set.

On the last day of each term, when our work was virtually completed, the Chief would break out some fine champagne and we would sit around and reminisce about the term’s highs and lows, trading insults and barbs, needling each member in turn and the Chief most of all. The glow generated by that annual event was not only from the champagne, but also from our warmth and affection for each other, for the institution on which we were privileged to serve, and for the man who calmly and graciously had steered us through the term.

During his funeral service in Perth Amboy, the Chief Justice was praised by former governors, and hundreds of people came to pay their respects. His children spoke of him as a father, as a great piano player, as a man who could dance around the living room floor at holiday time to The Nutcracker Suite and as a warm and loving friend. Their perspective was different from mine, but I could easily recognize the father they adored.

Our Court has moved on, and it will continue to render justice for all, consistent with its great tradition. But the Court — and all the people of New Jersey — have good reason to look back with gratitude and pride on the 17-year tenure of Chief Justice Robert Wilentz. We shall not soon see his like again. I was lucky to have served with him.

— Edited by Pamela Brownstein

Next week: Chapter III: Justice Robert L. Clifford

The Series

The following is the chapter publication schedule for Justice Daniel J. O’Hern’s book: