Unlike most justices, Virginia Long was well-steeped as a jurist by the time she ascended to the state’s highest court. With five years on the trial bench and 15 in the Appellate Division, she saw how lofty statements of law and policy tended to play out in actual courtroom practice.
So it is not surprising that many of her Supreme Court opinions, particularly in tort and family cases, are tailored to give judges not only the black-letter law but also instructions on how to apply it.
Take her concurrence in Nisivoccia v. Glass Gardens, 175 N.J. 559 (2003), a supermarket slip-and-fall. The Court said a mode-of-operation charge was appropriate when items, in this case grapes, were likely to fall from their slit bags and create a hazard – even in a checkout lane far from the produce aisle. The Court then found the trial court erred in entering a directed verdict for the store.
“I write separately to dispel what I view as possible confusion that could arise from the opinion,” Long wrote. “[W]hen a substantial risk of injury is inherent in the method of operation of a business, the plaintiff is relieved of coming forward with proof of actual or constructive notice of the dangerous condition.”
The concurrence underscores her understanding about the impact of fuzzy policy. Long knows the nightmare for judges who may think they have to include location of a supermarket slip-and-fall in the equation.
“She has an astute appreciation for what happens to these academic principles when you apply them,” says Ronald Grayzel, of Levinson Axelrod in Edison.
Other blueprint decisions include Gilhooley v. County of Union, 164 N.J. 533 (2000), which allows plaintiffs with moderately severe injuries to recover damages if there was objective proof of injury and impact on the plaintiff’s activities.
In tort cases, she follows the tradition of Chief Justices Richard Hughes, Joseph Weintraub and Robert Wilentz who have liberally applied the law to fashion remedies where none existed.
One example is Laidlow v. Hariton Machinery Co. Inc., 170 N.J. 602 (2002). Long ruled that employees can overcome the workers’ compensation bar to suits if it can be shown that safety equipment was intentionally removed and the employer knew injury could result. The Court “was looking for any possible reason to get this plaintiff out of the workers’ compensation system,” says Kenneth Pogash, staff counsel with Kramkowski, Fabricant & Bressler in Fairfield, who represented Liberty Mutual in the case.
Long took a leap on deciding the meaning of “intentional” and left an open issue, in Pogash’s eyes. “If this is an intentional act, is it covered by insurance?”
But plaintiffs’ attorneys shouldn’t expect Long to be a pushover when there are statutory obstacles to overcome. In fact, she expanded the doctrine of charitable immunity in Ryan v. Holy Trinity Evangelical Lutheran Church, 175 N.J. 333 (2003). Leading the Court in dismissing a personal injury action, Long wrote that an association organized for educational or religious purposes does not have to show some level of income from charitable donations to qualify for Charitable Immunity Act protection.
Neither is she averse to performing field surgery on a statute to patch a constitutional deficiency while achieving the underlying legislative purpose. In Moriarty v. Bradt, 177 N.J. 84 (2003), she upheld the grandparents’ visitation statute but added a requirement that a grandparent show, by a preponderance of the evidence, that denial of visitation would harm the child. “We note that where necessary to save a statute, ‘appropriate construction [to] restore [it] to health’ is a well-established rule,” she wrote.
In V.C. v. M.J.B., 163 N.J. 200 (2000), Long wrote that a mother’s lesbian partner was entitled to visitation rights after a breakup if she served as a psychological parent. Long emphasized the broader impact, saying the “standard we enunciate is applicable to all persons who have willingly, and with the approval of the legal parent, undertaken the duties of a parent to a child not related by blood or adoption.”
Long also wrote a concurrence – to her own majority opinion – in which she recognized the changing nature of families, and matrimonial lawyers say she is the justice most responsible for the Court’s innovations in that field.
“The scepter has been passed on to her,” says Francis Donahue, of Donahue, Hagan, Klein & Newsome in Short Hills, who represented the grandparents in Moriarty, referring to a knowledge of family issues in the tradition of Morris Pashman in Lepis v. Lepis, 83 N.J. 139 (1980), and Worrall Mountain in Painter v. Painter, 65 N.J. 196 (1974).
Long’s inclination to let family law evolve with the times worries Gregory Sullivan, who in V.C. represented the amicus Concerned Women of America, a conservative organization in Washington, D.C. The decision is an example of how Long imposes “her policy preferences on the citizens of New Jersey,” says Sullivan, a partner in Hartsough Kenny & Chase in Hamilton. He predicts V.C. will be the linchpin if the Court permits gay marriage down the road.
On the criminal law side, Long is gaining the reputation of carrying the mantle of retired Justice Alan Handler, who was the Court’s most vociferous opponent of the death penalty.
Dissenting in State v. Timmendequas, 168 N.J. 20 (2002), Long called for a moratorium on the death penalty and elimination of proportionality review – a comparison of similar cases – until a meaningful process is developed.
She has also sided with the prosecution in Fourth Amendment cases. In State v. Roach, 172 N.J. 19 (2002), she led the Court in upholding a warrantless seizure of drugs during a weapons search of a motorist. The motorist refused orders to stop moving his hands toward a bulge in his pants, which police feared was a weapon. It turned out to be a bag of cocaine, but Long, looking at “the totality of the circumstances,” said the search was reasonable if the officers feared for their safety.
“I respect her, though I don’t agree with her all the time,” says James McConnell, the assistant Somerset County prosecutor who argued Roach. He says Long’s decision was based on common sense.
A LEXIS search as of mid-January shows Long is the only current justice whose dissents outnumber majority decisions – 46 to 44. She has the most dissents, and half have been in criminal matters. Long has 13 concurrences and is the second most prolific writer, with 103 decisions, compared with 113 for Peter Verniero, the most prolific.
Long dissented alone – outright or in partial decisions – in 10 criminal cases, eight of which involved the death penalty. She dissented alone in only four noncriminal cases, all civil.
Her most frequent ally in her dissents is James Zazzali, who joined her 15 times.
Even going back to her days as a trial and appeals court judge, the 61-year-old Democrat has had a reputation for asking a lot of questions. Attorneys say she is professional and unlikely to embarrass an attorney. For their part, lawyers should be direct and succinct. She identifies the issue quickly and clearly. As a result, many lawyers say they are not surprised by the outcome – like it or not.