I write in response to the commentary “In a Perfect World” (NJLJ, Nov. 13, 2017), written by my friend and fellow long-suffering municipal court practitioner. When I was asked to serve on the NJSBA’s Subcommittee on Judicial Independence in the Municipal Courts, I agreed on one condition. That condition was that this would not be just another report that got laid in a drawer only to have the dust blown off of it when the next study report was laid on top of it. What were then known as the “Inferior Courts” have been studied ad nausea and their deficiencies are widely known. The subcommittee had reports going back before the 1947 Constitution. Recommendations for sweeping change teem and are scrupulously ignored.
That prior article first asserts, “[T]hese courts were created in 1947 and for the most part remain intact and unchanged.” I was not around in 1947, but in 1965 when I was sworn in, the municipal court was enormously different. Some towns rolled out the fire trucks every month and set up a card table for the judge. Municipal courts would go on way past midnight. Once you started a case, you tried it until it was over. Stories abound (probably apocryphal) of lawyers getting home with only enough time to shower and change before reporting to the Superior Court in the morning. I remember before the Breathalyzer. Every police department had a Police Surgeon who agreed to be awakened in the wee hours of the morning in order to administer psychophysical tests to a driver and pronounce him drunk. An appeal to the then County Court was not de novo on the record; it was a new trial. There was no record. If you wanted a record you hired your own court reporter. Those who think nothing has changed lack historical perspective.
A major impediment to the rectification of the shortcomings of the Municipal Courts is the lack of political will in the legislature to force the municipality to cede the coveted judicial appointment power. A radical solution, not involving legislative action, is needed. Unlike the legislature, the Supreme Court — immune to the pressure of the League of Municipalities and sensitive to the criticism leveled at the Municipal Court — might risk acting to remedy this deficiency. The rule proposed below is our attempt to offer the court that opportunity. There is precedent for this type of solution. Municipal Court administrators, deputy court administrators and Municipal Court directors who were once hired exclusively by the municipality, are now subject to the approval of the assignment judge. We should extend that same thinking to the judge. And, who knows, when confronted with the prospect of such a rule, perhaps the legislature will be spurred to action.
No attorney may serve as a Municipal Court Judge unless the Assignment Judge of the vicinage has conﬁrmed that appointment. In the conﬁrmation process the Assignment Judge shall consider the finding of qualified or unqualified of the Due Diligence Committee of the County Bar Association as well as the input of the Assignment Judge’s Review Committee. The Assignment Judge’s Review Committee shall include the Presiding Municipal Court Judge, the Municipal Court Division Manager, and others in the discretion of the Assignment Judge.
The rule leaves the power of the Municipality to appoint its Municipal Court Judge intact. It prohibits any attorney (whose conduct is governed by the Rules of Court) from serving as a Municipal Court Judge without the approval of the Assignment Judge in the vicinage in which the Municipal Court is located.
The prior article does a good job of describing the process embodied in the above rule, and then goes on to argue that improving something is somehow the wrong thing to do. He allows, “This is not to say that the proposed changes will not work.” His caveat is, “My concern is that a tweaked system with serious flaws, remains a seriously flawed system.” He concludes, “In a perverse way, they would almost provide a reason to keep the present Municipal Court system in place, with the mistaken belief that the problems with independence in the Municipal Courts have been resolved with these changes.”
The perfect really is the enemy of the good. The world is not perfect; it is an oblate spheroid, which is sort of kind of round.
Fishman is a partner with Fishman & Fishman in Lawnside, focusing his practice on workers’ compensation, personal injury, and drunk driving defense.