Constitution, Rules in Conflict Over Way To Temporarily Fill Court Seat

By Mary Pat Gallagher

New Jersey Law Journal

August 11, 2010

A month before the start of the new Supreme Court term, the seat once occupied by Justice John Wallace Jr. is empty, raising the question of who, if anyone, might fill it temporarily in light of the standoff between the governor and Senate over Wallace’s replacement.

And, if someone is to be named to the spot, who will do the choosing?

The state Constitution and court rules do not provide an easy answer.

The Constitution says the chief justice can assign a senior Superior Court judge for temporary service on the Court. But it is not clear whether that can be done for a purpose other than to meet the quorum requirement of five justices.

The court rules expressly allow it under a greater variety of circumstances, not just when needed for a quorum, but also “to replace a justice who is absent or unable to act, or to expedite the business of the court.”

The rules are also both broader and narrower than the Constitution concerning who can fill in on the high Court.

While the Constitution authorizes temporary stints by senior Superior Court judges — which presumably includes trial judges — Rule 2:13-2 narrows that to Appellate Division judges and allows retired Supreme Court justices who are not practicing law.

In addition, N.J.S.A. 43:6-A-13 authorizes the Court to recall retired justices.

Seton Hall Law School Professor Edward Hartnett, who teaches constitutional law, says that the rule, which would appear to allow Chief Justice Stuart Rabner to name a interim justice, is not valid because it goes beyond what the Constitution allows.

Instead, it is Gov. Chris Christie who has the constitutional power to fill the seat temporarily through a recess appointment, says Hartnett.

Christie chose Anne Patterson of Morristown’s Riker Danzig Scherer Hyland & Perretti to replace Wallace, but the nomination has been stalled by the refusal of Senate Majority Leader Stephen Sweeney, D-Gloucester, to hold confirmation hearings.

Christie’s decision not to reappoint Wallace to a tenured term was widely criticized as undermining judicial independence. Sweeney cited that reason when he announced on May 4 that he would not allow the Patterson nomination to move forward until March 2012, when Wallace would have reached the mandatory retirement age of 70.

If Hartnett is correct about recess appointments, Christie could circumvent the Legislature and place Patterson or someone else of his choosing on the Court before the new term begins on Sept. 13.

Hartnett points to Art. V, sec. 1, para. 13, which allows the governor to “fill any vacancy occurring in any office during a recess of the Legislature, appointment to which may be made by the Governor with the advice and consent of the Senate.”

The interim appointment is good until the end of “the next regular session of the Senate, unless a successor shall be sooner appointed and qualify.”

Thus, in Hartnett’s view, Christie could act as soon as this summer and certainly no later than the year-end recess, and the appointment would be good until the end of 2011.

Hartnett notes that federal recess appointments are not uncommon under constitutional language comparable to that of New Jersey. Art. II, sec. 2 of the U.S. Constitution reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Hartnett’s opinion that the Constitution does not allow Rabner to plug the vacancy is based in part on the history of the relevant provision, Art. VI, sec. 2, para. 1.

Adopted in 1947, it reads: “Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service, as provided by rules of the Supreme Court, to serve temporarily in the Supreme Court.”

As originally drafted, the paragraph specifically referred to using the power when necessary to make a quorum, and the paring of the quorum reference from the final version was a stylistic change, Hartnett says.

He also finds support in the evolution of R. 2:13-2, pointing out that the language about replacing absent justices and expediting Court business was not added until 1967, and the provision allowing appointment of retired justices did not appear until 1978.

Hartnett is not the only one who doubts Rabner’s authority to assign an interim justice.

Earl Maltz, a constitutional law professor at Rutgers Law School-Camden, agrees, based on the language of Article VI. It “doesn’t say if the seat is vacant for a while that the Chief Justice can appoint someone,” he notes.

To allow temporary assignments for nonquorum purposes, such as expediting Court business as the rule states, would give the chief justice “unfettered authority,” adds Maltz.

But he also finds it significant that the rule granting such authority has been around for decades and thus constitutes a longstanding gloss on the constitutional language that has apparently never been challenged and is thus entitled to some weight.

Taking a different stance is Frank Askin, director of Rutgers Law School-Newark’s Constitutional Litigation Clinic and an experienced litigant before the Court.

If the chief justice can bring someone up for a single case, “I don’t know that they can’t bring them up for all cases,” says Askin.

Another constitutional law professor, Robert Williams of Rutgers Law School-Camden, says that in the past, chief justices “have not considered themselves constrained” from making nonquorum-related assignments.

The current situation presents a “classic textbook case of separation of powers” with the three co-equal branches of government “staring each other down.” Without a seventh justice, the Court is more likely to deadlock 3-3, making the Appellate Division the final arbiter, Williams says.

Judiciary spokeswoman Winnie Comfort had no comment concerning the professors’ views, saying the Court does not do so in such matters. Christie spokesman Michael Drewniak did not comment by press time.
Through the years, Appellate Division judges have been asked to step in when a justice recused.

And chief justices have routinely recalled just-retired judges for a short while so they could help decide cases argued while they were still on the bench.

Most recently, Rabner recalled Wallace for that reason, and since the end of his term on May 20, Wallace has taken part in about 30 decisions and written seven or more majority opinions.

Rabner’s June 1 order recalling Wallace “for the limited purpose of participating in the final disposition of appeals argued or submitted” before May 20, does not cite the Constitution or the rule, only the statutory recall authority.

To the extent that Rabner decides to use the rule and add an interim justice, his choices are more circumscribed than it might appear.

Only a retired justice who is not practicing law is eligible.

That excludes everyone except Marie Garibaldi, who served from 1982 until 1990, and possibly Wallace.

Garibaldi declines comment on whether she would be willing to return after a 20-year hiatus, and it is not known whether Wallace, who could not be reached, is now practicing law and thus disqualified.

That leaves only Appellate Division judges, in the order of their seniority.

Comfort says Stephen Skillman, appointed in March 1981, is the longest-serving.

He faces mandatory retirement in December. Next in line is Edwin Stern, a judge since December 1981 who turns 70 next year.

The next most-senior judges are Sussex County Superior Court Judge Peter Conforti, who turns 70 in November 2013; Appellate Division Judge Ronald Graves, 70 in December 2013; and Hudson County Superior Court Judge Shirley Tolentino, 70 in February 2013.

OPRA Gives Criminal Defendant Access To Detective’s Educational Records

By Charles Toutant

New Jersey Law Journal

June 28, 2010

A state appeals court held on Monday that New Jersey’s Open Public Records Act allows a criminal defendant to obtain the educational records of detectives assigned to his case — including a list of courses on interrogation and confessions they have taken.

The Appellate Division said a trial judge was wrong to find that a provision in OPRA allows a county prosecutor to refuse to disclose educational data beyond that relating to qualifications required for government employment.

“Given the overarching public policy favoring public disclosure, any ambiguity [in the statute] must be resolved against those seeking to withhold information from public scrutiny,” the panel wrote in Kovalcik v. Somerset County Prosecutor’s Office , A-5432-08.

Charged with sexual assault and child welfare endangerment, Vasil Kovalcik requested during discovery the professional resumes of Jorge Ramos and Kristen Houck, detectives for the Somerset County Prosecutor’s Office who worked on the case against him. He also asked for lists of their courses on interrogation and confessions.

When the request was denied, he asked for the documents under OPRA. In April 2009, a records custodian for the prosecutor’s office certified that the documents could not be found for Ramos or Houck. In May 2009, a different records custodian certified that a pre-employment background check of Houck yielded a two-page list of courses she took before joining the office.

But the counsel for the prosecutor’s office argued that OPRA’s exemption for personnel records, N.J.S.A. 47:1A-10, did not mandate public disclosure of the list, since the courses were not required as a qualification of employment.

At a hearing, Superior Court Judge Yolanda Ciccone asked the records custodian o state the “basic qualifications” for becoming a prosecutor’s investigator. The custodian responded that a detective must attend the Division of Criminal Justice Academy and obtain a Police Training Commission certification.

Ciccone said the only information available under 47:1A-10 about a government employee’s educational background is that which established whether he or she met the basic requirements of the job. Any other disclosure about her education is “at the pleasure of the prosecutor,” Ciccone ruled.

On appeal, Judges Stephen Skillman and Jose Fuentes disagreed. They held that because the list of classes taken by Houck met the statutory definition under OPRA of a record that was “kept” or “maintained” by the prosecutor’s office “in the course of … its official business,” the item was subject to disclosure absent a countervailing legal impediment.

They also said the records custodian failed to shoulder his burden of proving that the denial of the record was authorized by law, since the colloquy between the records custodian and Ciccone had no evidentiary value because it was not given under oath, and was not subject to cross-examination.

Reviewing the two-page list, filed under seal, the appeals court concluded that it did not contain information that would trigger concern for Houck’s privacy rights, such as a Social Security number, personal financial information, health records or disciplinary matters.

The appeals court upheld denial of the request for Ramos’ educational records that the custodian certified could not be found. The prosecutor’s office “is not obligated under OPRA to create a document that compiles information; it is only obligated to provide that which is already in existence,” the court said.

The case against Kovalcik is pending. His lawyer, Jack Venturi, who heads a New Brunswick firm, did not return a call. Neither did the attorney for the prosecutor’s office, Scott Rodgers of Miller, Robertson & Rodgers in Somerville.

One of Wallace’s Closing Opinions Is a Broadside at Intrusive Police Searches

By Henry Gottlieb

New Jersey Law Journal

June 29, 2010

After Gov. Chris Christie declined to reappoint John Wallace Jr., calling him part of what’s wrong with the current Supreme Court, Wallace set about finishing up cases he had heard before his term ended, as outgoing justices usually do.

On Tuesday, he wrote the kind of opinion that Christie, a conservative former federal prosecutor, might have had in mind when he sought to remake the Court in his own image.

By a 5-2 vote, the Court threw out a drug conviction because the arresting officer found the critical narcotic evidence when he lifted the bottom of the suspect’s tee-shirt in a search for a weapon. The officer should have just done pat-down search.

“That maneuver exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned,” Wallace wrote for the majority in State v. Privott, A-7.

Sometimes it is okay for officers to go beyond a pat-down search to ensure their safety, the Court said. “Such is not the case here where the suspect was cooperative, and, as instructed, placed his hands on a fence when the policeman conducted the search,” Wallace wrote.

In a dissent, Justice Barry Albin wrote that the officer took appropriate action, given reports that the suspect might have a gun. “Courts should not look at the uncertain events facing the officer in the street through the distorting lens of hindsight,” he wrote, joined Justice Robert Rivera-Soto.

Wallace participated in the oral argument in the case last Dec. 1 and followed Court tradition of having former justices deliberate and sometimes write opinions in cases they heard before they stepped down. He maintains chambers in Woodbury.

He had two years to go before mandatory retirement age of 70, but in a break with tradition that ignited a protest by eight former justices and other members of the state’s legal establishment, Christie declined to re-nominate Wallace to the tenured seat.

The governor said his goal was to remake what he believed to be an activist Court. Though calling Wallace “someone I believe has pointed the Court in a direction I believe is inappropriate,” he didn’t name any decisions by Wallace that he found objectionable and didn’t say whether the activism he decried was exhibited in civil or criminal cases.

On Tuesday, spokesmen for Christie and the Attorney General Paula Dow did not return calls for comment about the Privott case.

It may not have been an example of activism, but it was a classic matter of defendant rights v. police power and the defendant won.

Plainfield Police Officer Jeffrey Plum testified at a hearing that he was patrolling on May 13, 2003 when he received a dispatcher’s call. An anonymous tipster had reported the presence of a dark-skinned man wearing a black jacket and a black and red cap with a handgun on a particular corner where violent gangs were known to congregate.

Plum said he observed a man who fit the description in many respects and was wearing a long tee-shirt that hung down below the jacket. The man, Tysen Privott, started walking away, but Plum — having seen the man move his hand to his waistband, and fearing there was a weapon there — frisked the suspect and also lifted the tee-shirt above the man’s stomach, the officer testified.

During that search he found a bag of cocaine, he testified.

Under Terry v. Ohio, 392 U.S. 1 (1968), officers can stop and frisk people without a search warrant if there are articulable facts and rational inferences that a weapon may be concealed. But officers must take “the least intrusive means” to allay their concern about their safety.

In this case, the Court found that Plum had an objectively reasonable concern for his safety, given the anonymous tip, the neighborhood’s reputation and the suspect’s hand movement.

But the Court also found, “a reasonable search, as well as the least intrusive maneuver needed to protect the safety of the officer against a possible weapon, would have been the traditional pat down search of defendant’s outer clothing.”

“That did not occur,” the Court said. “Rather, the police officer lifted defendant’s tee-shirt to expose defendant’s stomach, and in doing so, observed a plastic bag with suspected drugs in the waistband of defendant’s pants.”

The cocaine evidence seized from the defendant should have been suppressed the Court concluded. Privott, who was convicted and sentenced to five years in prison, is eligible for a new trial.

In the dissent, Albin said the officer, “making a split-second decision in a fast-moving and dangerous encounter” was merely trying to “gain control of a gun that might have been concealed and used to kill him.”

He said the majority should have applied cases along the lines of Adams v. Williams, 407 U.S. 143 (1972) that permit more than a pat-down frisk if the officer has a reasonable and articulable suspicion that suspects have weapons concealed in a specific place, such as a waistband.

“Here the officer — who rapidly responded to a dispatch, identified defendant as the suspected man with a gun, and went to further investigate – was not ‘required to proceed in the coldly logical sequence which may suggest itself after the event,’” Albin said, quoting from People v. Atmore, 91 Cal. Rptr. 311 (Ct. App. 1970).