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Judicial Tyrants Rule New Jersey
Critics of NJ Chief Justice Deborah Poritz are questioning the intellectual quality of the decisions written during her tenure. Supreme Court opinions delivered on shaky legal reasoning, they explain, can easily be reversed by future courts.
A recent ruling by the Poritz court that the state could continue to obtain long-term loans without voter approval, is a case in point.
The state constitution appears to require voter approval for that kind of borrowing
The Supreme Court conceded as much but Poritz asserted the mandate has been flouted so long by the Legislature that to end the practice now would create chaos.
The decision upholds an earlier ruling forcing the state to spend $8.6 billion for school construction in poor school districts and allows the McGreevey administration to spend $175 million on a plan to help revive Camden - both without voter approval.
Since the Supreme Court was created in the 1947 state constitution, it has been dominated by Arthur Vanderbilt, Joseph Weintraub, Richard Hughes and Robert Wilentz and often peopled by justices who were considered legal scholars.]
But nowadays It is almost impossible to go through a political campaign in New Jersey without hearing conservative candidates declare that if elected, they will stand up and defy New Jersey's high court. One recent candidate asserted that he would go to jail rather than obey a Supreme Court decision that ordered him to spend taxpayers' dollars for something he opposed.
Opposition to state Supreme Court rulings that have forced suburban communities to allow low-income housing have enraged state legislators and local officials for almost three decades.
The unanimous ruling by the Hughes court that closed all public schools until the Legislature passed the state's first income tax to help pay for education still rankles politicians and voters today, more than a quarter of a century after it was handed down.
At this point, the independence of the New Jersey court may be beyond the power of any governor or Legislature to change.
Governors come and go. They appoint justices to the court only to have the justices make rulings that disappoint them. Legislatures change names and partisan colorings but they have little impact on the operations of the court.
Former Gov. Christie Whitman learned that lesson last year when the justices, most of whom she appointed, unanimously ruled that a statute setting a final date for changing election ballots could be ignored.
The ruling allowed the Democratic Party to reprint ballots that listed U.S. Sen. Robert Torricelli as their candidate for Senate and substitute Frank Lautenberg, a former U.S. senator, after Torricelli withdrew from the race [because he was behind in the polls – Ed.]
Whitman and just about every Republican in the state cried foul, but the ruling stood and Lautenberg easily defeated Republican Douglas Forrester.
As one liberal attorney commented, "We were glad to applaud the outcome, but the court's ruling was not easily justified. The court said the old ballot deadline was based on the time it used to take to print ballots.
"With new electronic technology, the ballots could be printed almost overnight and as long as the Democrats were willing to pay for the printing, there was no practical reason for not allowing the new ballots."
"That's OK, but the constitution was ignored and once again the court failed to order the Legislature to change the constitution or be stuck with the old deadline in future years."
From an article by Jim Goodman, Trenton Times, June 8, 2003
Commentary: Under the 1776 NJ Constitution, the judiciary was not independent, as it is today. Article I provided that "the Government of this Province shall be vested in a Governor, Legislative Council and General Assembly". The judiciary was not even named as a branch. The early view was that the judiciary was part of the Executive Branch, and that, as with the Executive (the Governor was elected not by the people directly as now, but by the State Legislature), judges should be named by the Legislature. Therefore, Article 12 provided that judges be selected by the Legislature for limited terms, a mechanism obviously creating dependence. Today NJ Supreme Court judges enjoy uninterrupted terms till mandatory retirement at age 70.
The Governor and the Legislative Council served as the "Court of Appeals in the last resort" (exercising the same power as our current State Supreme Court) under Article 9. The Council actually provided a political review of legal decisions rendered by the Supreme Court (Article 12).
Notwithstanding this (former) dependency, the NJ Supreme Court is often credited with establishing the doctrine of judicial review in the case of Holmes v. Walton (1780), a full 23 years before the US Supreme Court landmark case of Marbury v. Madison. The case involved a challenge to a statutory enactment calling for jury trials consisting of six (6) jurors. The 1776 State Constitution, however, incorporated English Common law by reference which required trial by twelve (12) jurors. The legislature acquiesced, and amended the statute to require 12 jurors. Today, the NJ Supreme Court shows no such deference to the State Constitution.