Barry Albin’s substantial experience as a trial lawyer puts him in a distinct minority on the Supreme Court, where most justices come from other branches of government. His years of criminal trial work, mostly on the defense side, seem to be already shaping his approach to appellate judging after less than two years on the bench.
Albin was nominated to the Court in 2002 after a 20-year career in criminal defense and civil rights law at Wilentz, Goldman & Spitzer in Woodbridge. Before going into private practice, he put in stints as a deputy attorney general in the Division of Criminal Justice and as an assistant prosecutor in Passaic and Middlesex counties.
One of the traits of a good trial lawyer is the ability to read – and trust – juries, and that comfort level is evident in his majority opinions and dissents so far. Albin seems to embrace a broader role for the jury and a more limited one for the trial judge.
“What I think is his core value is, he believes very strongly in the value and importance of the civil jury system as an opportunity for people to try their differences with a judge and a jury, and for the judge to have a limited role to play in shepherding the case,” says Ronald Grayzel, of Levinson Axelrod in Edison.
That means getting the merits in front of the jury whenever possible. For example, in companion cases on the Affidavit of Merit Statute, Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003), and Knorr v. Smeal, 178 N.J. 169 (2003), Albin wrote that professional malpractice suits should not be dismissed for technical noncompliance in the face of good-faith efforts to meet the statute’s terms. The statute, he said, “was not intended to encourage gamesmanship or a slavish adherence to form over substance.”
Similarly, in a premises liability case, Parks v. Rogers, 176 N.J. 491 (2003), he led the Court in overturning summary judgment for the defense and holding that a homeowner has a duty to warn an unwary social guest of hazardous conditions on the premises.
Dissenting in Tomeo v. Thomas Whitesell Construction, 176 N.J. 366 (2003), Albin wrote that an employer who disabled a safety feature on a snow blower should not be immune from suit by an injured worker. He rejected the majority holding that held the employer to a reduced standard of liability on the finding that the snow blower was a consumer product, not an industrial machine.
Likewise, in criminal cases, his majority and dissenting opinions reflect a preference that every major element of every charge go before a jury.
In State v. Summers, 176 N.J. 306 (2003), a narcotics case where the appeal turned on the propriety of expert testimony about the drug trade, the majority opinion found that the jury was properly advised that it was the ultimate finder of fact, but Albin wrote in dissent that the expert testimony infringed on the jury’s right to determine guilt or innocence.
Likewise, in State v. Pelham, 176 N.J. 448 (2003), a vehicular homicide case, Albin said in dissent that the jury and not the judge should decide the issue of causation when the victim had indicated a desire to be removed from life support.
“There seems to be reflected in those cases some division among members of the Court as to what issues properly belong before a judge and what issues belong before a jury,” says Alan Zegas, a criminal defense attorney in Chatham. “My view is he sees the jury as the principal decision-maker in criminal cases. . . . [T]he role that a jury plays in the criminal system is perhaps larger than the role that other justices see. I think he has a very different kind of experience than most of the justices have had.”
That kind of practical experience leads to practical rulings, like his majority opinion State v. Garron, 177 N.J. 147 (2003), which holds that a sexual assault complainant’s right, under the rape-shield statute, to avoid questioning about her past sex life must yield to the defendant’s Sixth Amendment right to confront witnesses.
Albin’s trial experience helped him in other ways. As an assistant Middlesex County prosecutor, he met and became friendly with another young prosecutor, James McGreevey. When he was elected the mayor of Woodbridge and later to the state Senate, McGreevey remained friendly with Albin, a Democrat. McGreevey’s term as governor has been marked by a number of controversial appointments, but Albin’s elevation to the Supreme Court has not been one of them. Albin sailed through the confirmation process with the bar’s endorsement.
Lawyers who have argued before Albin describe him as an active questioner who quickly cuts to the heart of a case.
“He doesn’t sit there and be a bump on a log,” says Christopher Carey, who argued before Albin in Vastano v. Algeier, 175 N.J. 431 (2003). Albin’s opinion in that case affirmed dismissal of a legal malpractice suit against Carey’s client on statute of limitations grounds. Carey, a partner at Graham, Curtin & Sheridan in Morristown, says that in another argument he heard while waiting for his case to be called, Albin showed displeasure with a lawyer he considered unresponsive. “He seemed to require a forthright answer and does not take well to any responses that are not directly in reply to his question.”
While he’s universally described as even-tempered, Albin can show a blunt style in the courtroom, as with the argument last September in State v. Bellamy, 178 N.J. 127 (2003). In that case, where the Court ruled that defendants charged under the New Jersey Sexually Violent Predator Act must be informed that they face lifelong civil commitment before they enter a plea, Albin took aim at a deputy attorney general who appeared to be downplaying the gravity of lifetime commitment.
“It would be pretty serious to me if I knew I was going to be committed for the rest of my life,” Albin said, drawing laughter from spectators.
Lawyers appearing before Albin shouldn’t think he’s a liberal just because he’s a Democrat who came from the same firm as Chief Justice Robert Wilentz.
Plaintiffs’ employment lawyer Linda Wong says she was surprised by Albin’s positions against punitive damages for public employers in her client’s sexual harassment case, Lockley v. Department of Corrections, 177 N.J. 413 (2003), and in a Conscientious Employee Protection Act case decided at the same time, Green v. Jersey City Board of Education, 177 N.J. 434 (2003).
In Green, Albin joined Verniero and LaVecchia in a dissent holding that the plaintiff should not receive punitives from the defendant, a low-income school district. In Lockley, the same three said in a concurring opinion that they might have overturned case law allowing punitives against public entities if the issue had been addressed more squarely.
“I thought [before Lockley] he was kind of liberal. I was kind of surprised that he didn’t take a more activist position,” says Wong, of Princeton’s Wong Fleming.
In the 13 cases where Albin dissented, he has been joined most often by Justice Virginia Long, five times; James Zazzali, four times; and Jaynee LaVecchia and Peter Verniero, three times each.