In his nine months since taking office last May, John Wallace Jr. hasn’t exactly come out swinging: As of last week, he had written only one majority opinion one dissent, and no concurrences. By contrast, his colleague Barry Albin had – in his first nine months – written five majority and four dissenting opinions.
But Wallace’s languid style comes as no surprise. During his decade on the Appellate Division, he developed a reputation as a quiet, stoic presence on the bench – one who listens more than talks. By all accounts, that’s what appellate lawyers should expect of him as a justice.
Wallace’s extensive experience as a judge – coupled with his race and geography – made his nomination a juggernaut. Wallace, a Harvard graduate with 19 years on the state court bench, 11 of them in the Appellate Division, sported impeccable credentials. Southern New Jersey politicians were happy to see a resident of the south on the Court for the first time since Justice Vincent Haneman, of Brigantine, who sat from 1960 to 1971.
The choice of Wallace also placated African-American politicians who had been distressed over Gov. James McGreevey’s original choice to replace Justice James Coleman Jr., the Court’s first black justice. Former Public Advocate Zulima Farber was opposed due to her Hispanic background. (McGreevey withdrew her nomination after it became public that motor vehicle charges against Farber had led to a bench warrant and a suspension of her driver’s license.)
In contrast, Wallace seems to be above the fray and, as to temperament, not easily riled. When a lawyer mistakenly called him “Justice Coleman” during oral argument, more than six months after he replaced Coleman, he took it in stride. He was “absolutely fine” and issued “a gentle correction,” recalls another lawyer present in the courtroom at the time.
Another lawyer, who knew Wallace before he became a judge, says that when he appeared before Wallace for the first time, his old friend gave him a wink of acknowledgment. It was “not an attempt to signal the fix is in.” Instead, it was a way to “make me feel welcome” and it “made my day,” says the lawyer, who declines to be identified.
As of Feb. 10, Wallace had participated in 27 Supreme Court decisions, according to a LEXIS search.
His lone majority opinion, in State v. Bellamy, 178 N.J. 127 (2003), held that before pleading guilty to a sexual offense, a defendant is entitled to be advised of the possibility of civil commitment under the Sexually Violent Predator Act and that a defendant not so advised could withdraw his plea. Justice Peter Verniero did not participate in the 6-0 decision, which reversed an appeals court ruling.
Requiring a trial court to inform a defendant of the potential consequences of a plea was a matter of “fundamental fairness,” wrote Wallace. That punctilious insistence on fairness, coupled with a concern for the underdog, are threads that run through Wallace’s appeals court jurisprudence and apparently continue to define him as a justice.
Wallace’s desire to be fair, however, is tempered by a sense of restraint, combined with what he referred to, in his testimony before the Senate Judiciary Committee, as avoidance of “personal beliefs when making decisions” in favor of “apply[ing] the facts to the law.”
A pair of 4-3 rulings last Nov. 24 demonstrate those sometimes conflicting traits. In Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, and Knorr v. Smeal, 178 N.J. 169, Wallace voted with Chief Justice Deborah Poritz and Justices Albin and Jaynee LaVecchia to find equitable exceptions to strict application of the affidavit-of-merit requirement.
But he did not join the separate dissents/concurrences by Justices Virginia Long and James Zazzali in Ferreira, which, respectively, would have jettisoned the mandatory dismissal-with-prejudice rule of Cornblatt v. Barow, 153 N.J. 218 (1998), and called into question the constitutionality of the affidavit-of-merit requirement.
That one of Wallace’s only two decisions thus far is a dissent is a bit surprising, given that it is only the second of his judicial career. He last dissented in 1993, as a judge on the Appellate Division, where he was known for hewing to the majority line, rarely even joining others’ dissents or concurrences.
In his Feb. 10 dissent in State v. Milton, A-67-02, Wallace disagreed with the majority’s reversal of a conviction based on the trial judge’s failure to inquire further into a polled juror’s somewhat equivocal response on how she voted. Wallace found that though it would have been preferable to follow up, the failure to do so was harmless. He was joined by Poritz and Verniero, probably the most conservative justices on criminal matters.
Like Coleman, however, Wallace resists easy pigeonholing. Two weeks earlier, for example, on Jan. 26, 2004, he sided with his more liberal colleagues in reversing a conviction for cocaine possession in State v. Pena, A-51, over a dissent by Poritz and Verniero. Pena held that the trial court should have granted the defendant’s request to charge the jury that, if it believed him when he claimed he thought the suitcase he was transporting contained stolen property rather than drugs, it could convict him of the non-lesser-included offense of receipt of stolen property.
Lawyers who have argued before Wallace describe him as patient, pleasant and gentlemanly in demeanor. Though he asks few questions, those he does ask show he is closely acquainted with the facts of the case and cares about the practical impact of the Court’s decisions.
Wallace “typically comes to oral argument with specific areas of concern and doesn’t hesitate to ask about those areas,” while not dominating the argument, says Lawrence Lustberg, a partner with Newark’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione.
Vito Gagliardi Jr., who argued before the Court last month for North Haledon, which wants to stop sending its students to a regional district high school, says Wallace inquired about the effect of the proposed withdrawal on the students. The question, in In the Matter of North Haledon School District, A-13-03, showed Wallace’s concern about “the real world impact” of the cases before him, says Gagliardi, of Morristown’s Porzio, Bromberg & Newman.
That pragmatic approach was also manifest last November during arguments in State v. Cook, A-66-02, which involved the admissibility of a murder confession. Wallace in essence asked “wouldn’t it be better for the court to have a videotape recordation of the full interrogation with which an objective determination of the voluntariness of the waiver could be determined?” recalls Leslie Stolbof Sinemus, a South Orange solo practitioner who argued in favor of videotaping on behalf of amicus curiae, the Association of Criminal Defense Lawyers-New Jersey.