Editor’s Note: This is the sixth of nine installments of What Makes a Court Supreme, Justice Daniel J. O’Hern’s book about his years on the Wilentz Court.
Chapter VI: Doc
We called Justice Marie L. Garibaldi “Doc” because she collected so many honorary degrees. Almost every May, at least one institution of higher education would confer on her an honorary doctorate. She deserved them all.
Justice Garibaldi was the first woman to serve on the Supreme Court or its predecessors. Gov. Thomas H. Kean announced her appointment on Sept. 28, 1982, and Justice Garibaldi was sworn in on Nov. l7 of that year.
A specialist in tax law, she was a partner at what is now Riker, Danzig, Scherer, Hyland and Perretti in Morristown. Before joining that firm, she was on the staff of the Internal Revenue Service’s New York regional counsel. (Of course, whenever we had a tax case, Justice Garibaldi would say: “I didn’t do that kind of tax work.”)
At the time of her nomination, she was president of the New Jersey State Bar Association. She also was a trustee of St. Peter’s College as well as a director of the New Jersey Chamber of Commerce, New Jersey Bell Telephone Co. and Washington Savings Bank.
Justice Garibaldi was born in Jersey City on Nov. 26, 1934. She graduated from Connecticut College in 1956 and Columbia University School of Law in 1959, was admitted to the bar the next year and received her master’s degree in tax law from New York University in 1963.
Justice Garibaldi’s life was one of firsts. We used to say, “she does not want to belong to any organization unless she is the only woman in it.” She was the first woman to serve as president of the State Bar Association and as a member of the Essex Club in Newark, a stately English Georgian Revival structure built in 1926 as a place where business leaders could mingle.
Justice Robert L. Clifford remembered her this way in a tribute published in the spring of 2000 in the Rutgers Law Journal:
She will live to be 118. Optimistic, cheerful, busy, involved, outwardly-focused, resourceful, smart (in many ways, including “street” smart), she always seems to have things pretty well under control — because she does. You’re going to have to get up very early in the morning if you’re going to beat Marie Garibaldi. (In fact, in the twelve years that we served together I think I arrived at the Justice Complex or the Chief’s chambers before she did exactly once, and that was because she had had a flat.)
When Justice Garibaldi arrived at the Court in 1982 — the first woman ever appointed to that position (are we still making a big point of that?) — various institutions of higher learning fell all over themselves to award her honorary doctorate degrees. So help me, there must have been half a dozen of them in the first two years, as a consequence of which she picked up the name “Doc.”
Two things stand out in my recollection of Marie Garibaldi’s time on the Court. The first is her unfailingly pleasant demeanor. With her, it was perfectly natural, not assumed. She could be forceful, even aggressive, in the discussion of cases; but if ever she felt exasperation or impatience (as I fear some of the rest of us did), she never revealed it. The second is her eminent good sense and sound judgment. How many times did she snap us back to reality with a pithy observation such as “You people are nuts!” when we were blathering away on an intellectual frolic and detour? Her feet were on the ground, always, and thank goodness she was there to make sure that the rest of us didn’t take flight.
Justice Garibaldi was enormously productive during her 18 years on the Court. She authored more than 230 opinions, many of them of major significance. From her first day on the Court, she displayed the openness that was characteristic of her entire service. Her opinions were direct and comprehensive. Chief Justice Wilentz entrusted to her the most sensitive of our decisions because he sensed that there would be universal respect and that no hidden agenda lay behind the decision.
We liked to joke about the fact that she was naturally photogenic and a darling of the press. She was such a favorite of the media that on one occasion, a local newspaper printed her photograph with a story announcing the reappointment of Justice Gary S. Stein to a tenured term. One of the Court’s clerks was moved to write the following parody:
The Statewide Gazette
Friday, December 20, 1991
Garibaldi Colleague Wins Reappointment to Supreme Court; Senators Unanimously Approve Justice Until Retirement
The New Jersey Senate yesterday gave tenure on the Supreme Court to a colleague of Justice Marie Garibaldi, the only woman ever to serve on the State’s highest court. “I’m delighted for old What’s-his-Face,” said Madam Justice, “but am concerned that now that he’s secure in the job, he’ll become a major pain in the prat rather than just a stubborn mule,” she added, with an airy wave in the general direction of Bergen County.
Justice Garibaldi’s newly tenured colleague tried to offer a word or two, but nobody paid him any heed. The press’s attention was fixed on the Court’s youngest member, who, however, appeared to be preoccupied with her intensive study of the Bluebook and travel brochures. Oh — the name of her tenured colleague is Stein — first name Gary, as in “Gari-baldi.”
Justice Garibaldi’s signature opinions were in the trilogy of right-to-die cases, In re Farrell, In re Peter and In re Jobes, in which she emphasized the principles that pervade her jurisprudence: self-responsibility and self-determination.
Justice Garibaldi was the architect of our gender-discrimination law, most notably with her decision in Lehmann v. Toys ‘R’ Us, Inc. The Chief Justice entrusted her with matters of delicate constitutional balance, as in the case of Communications Workers of America v. Florio , in which she upheld the constitutional principle of separation of powers that permitted the governor to exercise the authority to implement layoffs. No one ever questioned her independence.
She was a protector of free speech, as in Costello v. Ocean County Observer, Turf Lawnmower Repair, Inc. v. Bergen Record Corporation and Ward v. Zelikovsky. She was especially gifted in the areas of her expertise, such as corporate affairs and taxation. Her opinions in Brenner v. Berkowitz and Lawson Mardon Wheaton, Inc. v. Smith defined the internal management of corporations. In Sons of Thunder, Inc. v. Borden, Inc., she dealt with fairness in contract negotiations.
We sometimes called Justice Garibaldi the “Iron Lady.” And for anyone who doubts she was tough, State v. Priester is an example of why she got the name. In that case, a convicted rapist sought to be released from his prison sentence on the basis of a medical disability. He had incurred his unfortunate injuries in a fall from the second story of the Bergen County Jail while trying to escape. He managed to land astride a fence, suffering diminished use of his legs and impairment of bladder, bowel and sexual functions. You can imagine what happened. After a sympathetic analysis of the record and medical testimony, Justice Garibaldi was constrained to conclude that the evidence did not demonstrate that the defendant’s condition had so deteriorated from the date of the sentence as to warrant clemency. She added for emphasis: “We also find it relevant that defendant’s serious injury and resultant illness were the direct result of his own criminal behavior.”
Justice Garibaldi, however, was not a clone of Margaret Thatcher, the model of an Iron Lady at the time. In Baumann v. Marinaro, she recognized the need for flexibility in the law to see that justice was done when service of process had been improperly made on an individual. In Lowe v. Zarghami, she upheld the right of patients to sue when they were not aware that their physicians were public employees entitled to certain immunities.
Justice Garibaldi wrote many important capital punishment decisions, including State v. Martini , State v. DiFrisco and State v. Muhammad, involving victim-impact statements. In the area of criminal procedure, she insisted on fairness in the administration of the criminal justice system through uniform procedural guidelines for extended sentencing. She was the master of complexity, too, as in Waterson v. General Motors Corporation, a difficult case involving enhanced damages for injuries caused by the failure to use a seat belt. And in Cesare v. Cesare, she defined the parental rights of visitation and custody.
Expansive View of Freedom of Expression
Equally important to the life of the Court were Justice Garibaldi’s dissenting opinions. In State v. Novembrino , she departed from the Court’s view that the New Jersey Constitution did not embrace a good-faith exception to the exclusionary rule. Her views on constitutional freedom of expression are expansive. The so-called liberal wing of the Court was too willing, in her view, to curtail speech it did not like. She joined the dissent in In the Matter of the Petition of Felmeister & Isaacs and would have restrained the Court’s regulation of attorney advertising. And in In the Matter of Norma Randolph, she would have similarly loosened the Court’s rein on the free-speech rights of judicial employees.
Justice Garibaldi and I agreed in several dissents — notably in Devlin v. Mayor and Council, City of Ocean City, where we would not have reinstated Sunday closing laws that we believed were pre-empted by the Code of Criminal Justice. In Fischer v. Johns-Manville Corporation, we argued for more stringent standards in the imposition of punitive damages. And in Christian Science Board of Directors of the First Church of Christ, Scientist v. Evans, we found that there was adequate, substantial and credible evidence to support the trial court’s holding that “Christian Science Church” is a protectable trademark because it is a descriptive term that signifies a church’s affiliation with the mother church. Our most unfortunately worded dissent was in State v. Serrone, in which we believed that the Code of Criminal Justice, as originally enacted, did not contemplate consecutive life sentences for two murders. The press reported that “O’Hern and Garibaldi side with the murderer.”
Justice Garibaldi’s most famous dissent is, of course, Kelly v. Gwinnell. Justice Clifford circulated to us a collection of essays published less than three weeks later, on July 14, 1984, in the London Spectator in which British humorist Auberon Waugh satirized the sanctimonious attitude of temperance fanatics. Waugh wrote:
To measure the extremes to which these anti-drink fanatics are prepared to go, one must look across at the other side of the herring pond where the New Jersey Supreme Court ruled by a six to one majority last month that a host who gave his guests liquor was liable (no less than a publican) for injury to other parties caused by the guests’ subsequent drunk driving. As the one dissenting voice from this absurd ruling (Judge Marie Garibaldi, God bless her) pointed out, it means that hosts will in the future have to monitor their guests’ drinking.
Well, of course, that’s not something Justice Garibaldi would want anyone to do.
Similarly important to the work of the Court were her contributions to the field of alternative dispute resolution. Chief Justice Wilentz appointed her chair of the committee that developed the most comprehensive system of arbitration, mediation and dispute resolution in the nation.
Finally, she was the most agreeable of colleagues, as was made evident in a series of light-hearted poems various justices wrote on the occasion of her fifth anniversary on the Court. Here is one written by Justice Gary Stein and his wife, Et:
ODE TO MARIE
On New Jersey’s high Court of renown,Six malcontents grimace and frown,‘Cause they work night and day for miserly pay,While Marie’s always out on the town.
Six scholars so steeped in the law,Their opinions have scarcely a flaw.But ever since Marie said the host is home free,She’s the one that the bar holds in awe.
So tonight as you end your fifth year,Surrounded by clerks and good cheer,Remember your guys — dull, plodding but wise,You’re the only one who knows that we’re here!Love,Et and Gary
ODE TO MY BRETHREN
London, Paris, Moscow, or RomeSome of you think I scarcely am homeAnd while my dear brethren prepare our next tomeIt is said that the House of Savoy I do roam.
Though you may think my approach too precariousAnd wonder how I could be so darn gregariousI know all too well that your thrill is vicariousAnd you chalk it all up to “Marie the hilarious.”
Oh! Brethren of mine allow me to sayAll work and no play your hairs will make greyMake time for some bubbly and terrine de pateYou’ll find it brings laughter and joy to your day.
All kidding aside, all jest put to restI venture to say that you guys are the bestAnd though you may think me a fun-loving pestI know to replace you would be a futile quest.With my sincere thanks for your many kindnesses to me through the years —MLG
In tribute to her good companionship, Justice Handler named one of his newborn Williamsburg-bred sheep Marie, and we closely followed her progress. And when a Time magazine cover focused on sheep cloning, one of the justices altered it by pasting the word “Marie” above the title, “Will There Ever Be Another You?”
— Edited by Pamela Brownstein
Next week: Chapter VII: Justice Gary S. Stein
The following is the chapter publication schedule for Justice Daniel J. O’Hern’s book:
May 11: Chief Justice Robert N. Wilentz
May 18: Chief Justice Robert N. Wilentz, cont.
May 25: Justice Robert L. Clifford
June 1: Justice Alan B. Handler
June 8: Justice Stewart G. Pollock
June 15 : Justice Marie L. Garibaldi
June 22: Justice Gary S. Stein
June 29: Justice Daniel J. O’Hern
July 6: Supreme Court Clerk Stephen W. Townsend and Conclusion