Chief Justice Sounds Alarm as Court Vacation Hits ‘Highest Level in History’
New Jersey Supreme Court Chief Justice Stuart Rabner urged lawmakers and the governor to expedite the approval of new justices on Friday, warning that the wide range of vacant seats has prevented some counties from completely scheduling certain types of court case.
Seventy-five of the 433 seats on the Superior Court bench are vacant Friday, Rabner said during a speech at the state Bar Association’s annual convention in Atlantic City. This is the highest number of vacancies in the Court’s history.
“In one neighborhood, there are no divorce trials scheduled at all because there are not enough judges. Another projects it takes five years to go from filing to trial,” Rabner said. “It means that for too many people unable to resolve their differences, their lives are on hold indefinitely.”
Other types of cases are also facing considerable delays. It can take three or four years for complex personal injury cases to come to trial, Rabner said. Just over 82,000 cases were pending in early March, the most recent month for which backlog data is available. This number was 23,917 in March 2020.
Dropping the number of judicial vacancies to between 25 and 30 — the levels court officials have deemed viable — would force Gov. Phil Murphy to confirm more judges than he has since taking office in 2018.
The growing number of vacancies and additional delays caused by the in-person restrictions in place at the start of the pandemic have had an uneven impact on trials depending on their type.
Criminal, family and domestic violence cases, among others, are prioritized because they often involve pressing issues that need to be resolved quickly, but with the decrease in the number of judges, prioritization has stopped some cases altogether.
“Trials on civil rights, whistleblower cases, product liability, environmental and other issues have been postponed indefinitely in many places,” Rabner said. “Why aren’t we able to do more civil cases? Because we need judges for urgent family and criminal cases.
Trial delays have a ripple effect, Rabner said. Without a trial date, parties who might otherwise settle a case have little reason to come to the negotiating table.
Lawmakers this week began trimming vacancies. The Senate Judiciary Committee advanced the nominations of 11 Superior Court nominees on Thursday. 12 other potential judges are pending advancement.
All 11 nominees could be confirmed to the bench by next Thursday, when the full Senate meets for a voting session, but that won’t be enough to knock down the staggering vacancies on the court. More than 20 judges are expected to retire this year, Rabner said.
Rabner also issued a warning about slimming on the state’s highest court, where only five of seven seats are filled by senior judges. One of those five, Justice Barry Albin, is due to step down when he reaches the mandatory retirement age of 70 on July 7.
“Unless there is movement in the coming weeks, we will soon reach a day when only four members will have met these constitutional requirements,” Rabner said. “Ask any student of the 1947 constitutional convention, and they’ll tell you that’s not what the framers of the modern constitution had in mind.”
Murphy made a nomination to only one of the two vacant seats on the Supreme Court.
Rachel Wainer Apter, director of New Jersey’s Civil Rights Division and Murphy’s nominee for the seat left vacant by the retirement of Judge Jaynee LaVecchia, had her nomination blocked by State Sen. Holly Schepisi (R -Bergen) by an invocation of senatorial courtesy.
The unwritten rule allows senators to block gubernatorial candidates from their home counties or legislative districts indefinitely. They don’t have to give a reason.
Rabner temporarily elevated Jose Fuentes, the presiding judge of the state’s appellate division, to the high court to replace LaVecchia, but refrained from temporarily appointing another judge to the seat of retired judge Faustino Fernandez Vina. , for fear of jeopardizing the high court’s tradition of partisan balance.
“The New Jersey Supreme Court routinely grapples with some of the toughest and most important issues facing our state,” Rabner said. “I urge the legislative and executive branches to come together to solve this problem before it gets even more difficult.”
The State Bar Association, which plays an advisory role in the judicial confirmation process, joined Rabner’s call for urgent action.
“Our state courts are in crisis and have been without any meaningful help or assistance,” said Jeralyn Lawrence, president of the association. “It is unprecedented that we are faced in the not too distant future with three vacancies on the Supreme Court, which is not what the framers of our constitution ever intended. Given the disastrous consequences that the judge in Chief shared today, we urge all parties to fill these vacancies urgently in the interest of the public and the justice system.
The impact of vacancies on the Supreme Court is just beginning to be felt. Two recent Supreme Court cases could have ended differently had the court had a full cohort, including one that granted parole to Soundiata Acoli, who was jailed for the 1973 murder of a state trooper of New Jersey and was repeatedly denied parole.
But trial courts have been dealing with the pain for some time. Although lower-priority cases were the worst, even court-priority types of cases faced delays, Rabner said.
In domestic violence cases, where temporary restraining orders are often issued that may prevent the accused from seeing their children or entering their marital home, courts should hold a final hearing within 10 days of the issuing a temporary restraining order, Rabner said, but it now sometimes takes several months.
“That means sometimes a parent is moved from the house and can’t see their child for months before they have a chance to testify in front of a judge,” Rabner said. “That shouldn’t happen in a justice system.”
Criminal cases have not escaped the delays either. Pandemic and vacancy-related delays reversed a decline in pre-trial detentions, which had declined for years following the implementation of bail reform that created a presumption of release for all crimes except the most serious.
Around the start of the pandemic, around 5,000 people were behind bars awaiting trial. Today, that number is closer to 6,800, Rabner said. Judge Glenn Grant, administrative director of the courts, said in April that hundreds of people had been waiting in jail for a trial for more than two years.
“In addition to this, thousands of other defendants who were released before trial are also awaiting their day in court. Their lives hang in the balance, just as countless victims also wait for justice, year after year,” Rabner said.
While much of Rabner’s speech presented a dire view of the New Jersey courts, his speech was not without its positives.
He praised a recently released list of recommendations to reduce bias in the state’s jury selection process and make those panels more representative of New Jersey. He hailed a pilot program in Essex and Morris counties to identify people with mental health issues and connect them to services.
A court program to connect probationers and drug court graduates to jobs or vocational training has helped hundreds of people, a service particularly appreciated as some employers continue to face hiring challenges, Rabner said.
And the chief justice touted a Passaic County program that connects people on probation for gun crimes to resources and services to prevent recidivism, a key issue as lawmakers consider rolling back some bail reforms amid a spike in gun violence.
“The program has already expanded to seven additional locations,” Rabner said.
An earlier version of this story should have said that the judicial candidates advanced Thursday came from a number of counties.