Posted November 18, 2013

Is Political Squabble Behind Essex County's Double-Digit Judicial Vacancies?

Until Senator Codey appoints Christie pick to water commission, governor will not nominate any judges -- according to some observers


Earlier this year, Gov. Chris Christie was having breakfast at McLoone’s Boathouse in West Orange with Essex County Executive Joseph DiVincenzo, the same place at which the Essex County Bar Association was having a meeting. With a record number of judicial vacancies in Essex County at the time, a member of the bar association asked the governor to stop by and comment on why the positions weren’t being filled.

"The reason nothing’s happening, the reason we’re not appointing 12, 15 judges tomorrow in Essex County is because of Sen. Codey," Christie told bar association members, referring to Essex County Democrat Richard Codey.

That was in April, when there were 15 vacancies. Since then, the problem has only gotten worse. The number of vacancies is now 21.

To appoint a Superior Court judge, the governor makes a nomination and submits it to the Senate, which can then confirm or deny it. But in New Jersey, there is a practice called "Senatorial Courtesy," whereby the Senator in the nominee’s home county can block the nomination from even going to a vote. Christie claims Codey is doing just that.

Codey says the governor is not telling the truth and that in fact he and some other Essex County lawmakers met three years ago with Christie’s former appointments counsel, Michele Brown, and Jeffrey Chiesa, who was then the governor’s chief counsel before becoming Attorney General, and they agreed to a package of six judges that would move forward. But the governor has failed to nominate those six people, Codey said.

“Those six judges have not moved forward. You’re going to have to ask the governor why they haven’t. I made a commitment to sign off on them, and I will,” Codey said.

According to Codey, the problem is that the governor wants to put Cedar Grove Township Manager Thomas Tucci Jr. on the Passaic Valley Sewerage Commission, and Codey will not sign off on that appointment. Tucci was nominated three times to the commission, beginning in July of 2010 and most recently in February of this year, but the nomination has never made it to a Senate vote.

“I won’t do it,” Codey said, noting that he’s signed off on 90 percent of the governor’s other nominations. “The appointment process is supposed to be a compromise between the Senate and the governor,” he says, adding, “If I’m doing something wrong, how come this [stalemate on appointments] has never happened before?”

“There’s no doubt why this is happening,” said Thomas F. Quinn, an attorney with Wilson Elser Moskowitz Edelman & Dicker LLP in Florham Park and president of the Essex County Bar Association. The way he sees it, if Codey won't let the governor appoint someone to the Passiac Valley Water Commission, Christie won't appoint a judge.

Meanwhile, as Codey and Christie go back and forth, the dearth of judges has directly affected anyone awaiting trial, from defendants sitting in jail to people suing large corporations for malpractice.

The problem isn’t just in Essex County. It’s statewide. And it doesn’t seem to be going away.

Almost two years ago, the New Jersey State Bar Association passed a resolution calling on the governor and the Senate to put aside their differences and hire some judges. At the time, there were 47 judicial vacancies -- out of a possible 443. Today, there are 50. Aside from Essex County, Middlesex and Union counties are each down five judges, and Camden County is down four. The rest of the vacancies are scattered throughout the remaining counties.

The total number of judicial vacancies across the state fluctuates, as judges retire and new ones are appointed. In fact that vacancy figure was running in the low 20s and 30s under the past several governors. But for much of Christie’s first term, it has been running in the high 40s, according to the Administrative Office of the Courts.

But while vicinages across the state are missing judges, the biggest hole, far and away, remains in Essex County, the state’s busiest courthouse. There are so few judges to hear cases that Essex County Assignment Judge Patricia Costello put a temporary halt on matrimonial trials and certain complex civil trials in 2011. The moratorium was lifted after some judges were recalled from retirement and eight others were brought in from other vicinages, but the problem largely remains.

In fact, the governor has hardly nominated any judges from Essex County. Of his 33 judicial appointments this year, only two were from Essex County, and both names went through. In fact since taking office in June 2010, the governor has nominated 100 judges, and only seven have been from Essex County -- and all but one of those seven nominations went through. The governor’s office declined to comment on its judicial appointments.

To be sure, there’s been political squabbling between the Democrat-controlled Senate and the Republican governor for several years now, over more than just judicial appointments. Scores of other gubernatorial appointments, from seemingly inconsequential nominations like those to the New Jersey Advisory Commission on the Status of Women or the New Jersey Historic Trust to more weighty positions, like the Port Authority, have been blocked.

In Essex County, only five of the 15 people the governor nominated this year to various non-judicial positions have gone through. In the prior three years of his term, about half of his Essex County nominees have made it out of the Senate, according to records provided by the Office of Legislative Services.

The result is a backlog of cases. On the criminal side, there were 900 pending post-indictment cases as of June 2010. In March 2013, that figure had risen to 1,213, making Essex the worst county in the state in terms of a case backlog. Since then, resources have been deployed and that number has dipped back to 1,130, though that figure is still high. And there’s a fear that the backlog will grow again if new judges aren’t named, the judges on loan are called back to their home counties, and the judges who have been called back from retirement are no longer funded, Quinn said.

The backlog is even worse on the civil and family side. Because defendants on the criminal side are legally guaranteed a speedy trial, some civil judges have been moved to the criminal division to ensure that those cases are kept moving.

“You don’t want a criminal going free because you didn’t try cases fast enough,” Quinn said.

And so civil cases that will take a day or two are moving forward but those that will take several weeks, like a large medical malpractice case, are not being heard, Quinn said. On the family side, there are some rules about hearing child abuse and domestic violence cases expeditiously, but matrimonial cases are being put on the back burner. People trying to get divorced are being forced to live together for a lot longer than they’d like because no one is hearing their cases, Quinn said.

In June 2010, there was a backlog of 90 cases in family court. As of August -- the most recent data available -- that figure had risen to 281.

“I have no doubt that the lack of consistent family judges has caused the number of backlogged cases to rise,” Quinn said.

To keep the civil docket moving, Essex County Assignment Judge Dennis Carey essentially set up blue-ribbon panels filled with well-known civil litigators, and about a week before the trial, they are assigned a group of cases slated to go to trial if they don’t settle. This group evaluates the cases and works with the parties involved and has been able to produce a significant number of settlements on cases that would otherwise have gone to trial, said Quinn.

Robert Scrivo, a partner at McElroy, Deutsch, Mulvaney & Carpenter in Morristown and the Essex County Bar Association’s most recent past president, said because criminal defendants have a right to a speedy trial and cases involving child services and domestic violence have timetables established by statute, the cases that don’t have statutory requirements are being pushed back, again and again.

“If you spoke to the chairman of our family division in the Essex County Bar Association, she could probably give a lot of examples of people who are ready, willing, and able to have witnesses lined up, economists lined up, everyone ready to go, but they can’t get heard because there aren’t enough judges to hear those cases,” Scrivo said.

Likewise, there are many examples of civil cases where the plaintiffs and defendants were ready to go, the witnesses were ready, and there was no chance of a settlement, but there was no judge available to hear their case, he said.

“It’s been bad but there hasn’t been a complete stoppage, and that’s because the Chief Justice designated judges from other counties to sit in Essex County over the past few years, because there have been no appointments. So we have judges from Bergen, Monmouth, Morris, Passaic, and several other counties assigned here to alleviate the backlog,” said Scrivo, who, when he was county bar president, wrote to New Jersey Supreme Court Chief Justice Stuart Rabner, requesting that he designate additional judges to Essex on a temporary basis. Rabner consented and transferred a handful of judges last year.

Scrivo says he doesn’t know exactly where the fault lies. At one time, there was talk that Sen. Ronald Rice (D-Essex) was blocking appointments because he was unhappy with the nomination of Christopher Cerf to the position of education commissioner, he said. Cerf lived primarily in Montclair at the time, which is in Rice’s district. Rice had some differences with Cerf’s background and education philosophy. But Cerf subsequently moved to Somerset County, which opened the way to his appointment as commissioner.

“The whole issue about who’s getting appointed and how they get appointed has just been one big battle under this particular governor,” said Senator-elect Peter Barnes (D-Middlesex), who was chairman of the Assembly Judiciary Committee before winning the Senate seat vacated by gubernatorial candidate Barbara Buono.

A former president of the Middlesex County Bar Association, Barnes says members of the bar have been particularly surprised about how partisan Christie has been in his appointments to the high court. He points to the governor’s failure to reappoint Supreme Court Justice John E. Wallace, a Democrat, back in May of 2010, and replacing him with Anne M. Patterson, a Morris County lawyer and a Republican. Christie has said he wants to remake the Court, getting rid of activist -- or liberal -- judges.

Before that, New Jersey’s governors traditionally reappointed sitting justices, and observed the convention of maintaining an equal balance of Democrats and Republicans on the high court. “The tradition led to the sterling reputation, nationally, of New Jersey’s Supreme Court.

“There’s always been an equal number of Democrats and Republicans on the court, and for whatever reason, Gov. Christie is not using that approach.,” Barnes said. In August, Christie failed to renominate Supreme Court Justice Helen Hoens, because he said Democratic lawmakers were only going to deny the Republican jurist tenure. Hoens was put on the court by former Gov. Jon Corzine, a Democrat, and had served since 2006. Christie appointed Republican jurist Faustino Fernandez-Vina to take Hoens’ place.

“Justices Wallace and Hoens were generally respected, intelligent capable people who had earned tenure, and they were knocked out. That hurts the reputation of the court, and it sets the table for a battle royal on all the other appointments,” Barnes said.

Alan I. Model, a labor relations lawyer for Littler Mendelson in Newark, said he was president of the Essex County Bar Association during the temporary halt on civil and family cases being heard, and as far as he can tell, little has changed since then.

“There are still cases that cannot be heard. There are motions that cannot be heard. There are still judges brought in from other counties and judges coming back on recall. But nothing is moving forward as far as I’m aware,” he said. “As someone who’s not involved in politics, all I can see is the impact this is having on citizens’ faith in the court process and the impact it’s having on litigation.”

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