The Task Force on Judicial Independence—formed last year by the State Bar Association to address perceived threats to the autonomy of New Jersey’s judges during Gov. Chris Christie’s administration—is kicking into high gear.
The panel of retired judges, practicing attorneys, legal academics and lay people will hold four public hearings, the first on Tuesday at the Law Center in New Brunswick, and then will issue a report with its recommendations.
The purpose of the hearings, the task force says, is “to seek purposeful recommendations as to whether our current system of judicial appointment and reappointment may be improved, and if so, how?”
State Bar president Ralph Lamparello says the board of trustees voted in June 2013 to establish the task force, inspired in part by an impassioned speech given by Justice Barry Albin at the bar convention one month earlier.
Albin warned of political pressures that threaten the independence of judges and called on lawyers to take action.
The backdrop for Albin’s speech was Christie’s 2010 decision not to reappoint Supreme Court Justice John Wallace Jr., explicitly because he said he disagreed with Wallace’s judicial philosophy and wanted to build a more conservative court.
Albin’s message gained added force last August when Christie announced that he would not nominate Justice Helen Hoens for lifetime tenure.
And there is concern in the Bar that Christie will do the same with Chief Justice Stuart Rabner, whose first seven-year term ends on June 29.
That is only 90 days away and “no one has a clue,” says Lamparello, pointing out that by this time the name of a nominee—whether Rabner or a replacement—should have been submitted to the State Bar for vetting.
“There is at least a perception, if not the reality, that judicial independence has been threatened,” says task force co-chair Maurice Gallipoli, a retired Hudson County assignment judge now with Porzio Bromberg & Newman in Morristown.
His co-chair is Dorothea Wefing, a retired appeals court judge who spent her last 16 months on the bench filling in on the Supreme Court.
“The charge of the task force is simply to investigate that situation, to hear from interested members of the public and the profession, and anyone else who has something to offer from whatever walk of life, to see if recommendations can be made to make the system better and to ensure that there is an independent judiciary in New Jersey,” Gallipoli says.
He says he hopes that any ideas the task force puts forward will be seriously considered but acknowledges it cannot compel action. “The task force has no illusion that any recommendations it makes will be followed by the executive or the legislature,” he notes.
Task force member Barry Evenchick of Walder, Hayden & Brogan in Roseland, says that until the failure to reappoint Wallace, the New Jersey judiciary was “remarkably free” of outside influence, political or otherwise.
He calls it “very unfortunate and distressing” that now any judge in the state, whether a justice or a lower court judge, “should have to be looking over his or her shoulder” and wondering if a decision in a particular case might cost them reappointment.
He says a constitutional amendment is needed to fix things.
Article VI, section 9, paragraph 3 now states: “The Justices of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of 7 years and upon reappointment shall hold their offices during good behavior.”
Evenchick suggests adding language saying that reappointment is presumed in the absence of improper conduct or bad behavior.
Alternatively, the initial appointment could be for life, barring bad behavior, as it is for federal judges, he says.
He doesn’t see either of those changes as likely while Christie remains governor but says at the very least, the task force can focus the attention of the public and the legislature on the importance of judicial independence.
Addressing another threat to judicial independence, Lamparello hopes to get rid of senatorial courtesy, the policy that allows a single senator to block a judicial appointment indefinitely. Exercises of courtesy have caused judge shortages in some vicinages, leading the judiciary to delay certain kinds of proceedings, to import judges from other counties and to rely heavily on judges recalled from retirement. Essex, with 23 judicial openings, has been especially impacted, he says.
Lamparello, of Chasan Leyner & Lamparello in Secaucus, says the bar association selected the task force members but, once formed, it became an autonomous body that will make its own decisions.
It has already come up with a definition of judicial independence that will guide its efforts. It says the role of the judiciary as “to fairly resolve, in accordance with the law and the facts adduced in proceedings open to the public, disputes involving life, liberty, property or reputation of private or governmental parties. The ultimate authority of the judiciary rest upon the confidence of our citizens that their controversies and disputes, no matter their nature, will be decided by a judge…in accordance with the law and the evidence without fear of any political, professional or economic retaliation.”
The task force says the public hearings are not meant “to provide a forum for individuals who may be disgruntled with the judicial system or with the composition of the judiciary.”
Among those slated to appear on Tuesday or later are former Chief Justices Deborah Poritz, now of Drinker Biddle & Reath in Princeton, and James Zazzali, now of Gibbons in Newark.
The other public meetings are scheduled for May 15, at the annual bar convention in Atlantic City, June 3 at Seton Hall Law School in Newark, and June 17 at Rutgers Law School in Camden.
Gallipoli expects the task force report will be ready within a few months of the last meeting.
Other members include retired Justice James Coleman, now of Porzio Bromberg; and two retired appeals judges, Philip Carchman and Barbara Byrd-Wecker.
Judicial independence is also the topic of the 31st annual Chief Justice Weintraub lecture, to be given April 3 at Rutgers Law School in Newark, by retired Supreme Court Justice Gary Stein, now of PashmanStein in Hackensack, and U.S. District Judge Harold Baer of the Southern District of New York.
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