OP-ED: The recommendations of the Subcommittee on Judicial Independence in the New Jersey Municipal Courts will not do enough to remedy systemic problems.
Article by Peter H. Lederman, Esq.
Published in the New Jersey Law Journal
The New Jersey State Bar Association Board of Trustees recently adopted in large part, the report of the Subcommittee on Judicial Independence in the Municipal Courts. This subcommittee continued previous inquiries involving judicial independence in the New Jersey Municipal Court system.
The process of reforming municipal courts has been if nothing else slow, considering these courts were created in 1947 and for the most part remain intact and unchanged. Indeed, many believe the municipal court system requires no reform, that local courts should resolve local problems and that communities are best served with local police, Prosecutors and Judges.
There are others who are concerned with the problem of Judges and Prosecutors serving at the whim of political leaders, influenced by police pressure and revenue considerations. The NJSBA Subcommittee came to the conclusion that changes were needed to restore judicial independence.
The Subcommittee’s recommendations involve several changes involving Municipal Court Judicial appointments. Firstly, the Subcommittee recommended establishing a uniform process for vetting Judges at the time of appointment and reappointment. This process begins when the town selects a Judge. After selection, the Judge’s qualifications are reviewed by a “Due Diligence Committee” selected by the County Bar Association and comprised of five municipal court practitioners.
The evaluation of this Committee is forwarded to the County Assignment Judge. He then presents them to a second committee, referred to as the “Review Committee”. This committee is comprised of the Assignment Judge, the Presiding Municipal Court Judge, the Vicinage Municipal Case Manager and any others chosen by the Assignment Judge. The Assignment Judge then makes a final determination as to whether the proposed Judge should be appointed, after consideration of these evaluations.
The second proposal involves tenure for Municipal Court Judge. This proposal requires that a Judge complete three, three year terms as a Municipal Court Judge, after which tenure arises upon completion of a fourth consecutive term. The town must demonstrate good cause for denying tenure at this point.
A third recommendation involves creation of a statewide committee to assist in the judicial selection process, by establishing standards when selection and tenure are considered.
Finally, the Committee chose not to address the issue of Court consolidation, suggesting rather that these issues be considered sometime in the future.
In my opinion, these proposals miss the mark. I know they are the result of hard work and serious thought from the Subcommittee members, many of whom I know, have worked with and respect. These proposals though, seek to tweak a very imperfect system without addressing pervasive systematic flaws. My concern is that a tweaked system with serious flaws, remains a seriously flawed system. Belief that the creation of layers of new “committees” to vet Judges will resolve inherent structural flaws in Municipal Courts would be akin to believing that reduction in income tax rates would be equivalent to reforming the income tax system.
This is not to say that the proposed changes might not work. Their ability to succeed would be a consequence of those individuals who assume the bench and prosecute. In a perfect world, perceived structural problems could be mitigated because of the character of individuals chosen to do these jobs, as a result of the proposed selection process.
Unfortunately, that “perfect world” always seems to escape human grasp. There is no good reason to expect this to be the case should the Subcommittee’s proposals take effect.
Rather, I imagine that the goals of the proposal would be frustrated for various reasons. Consider the proposition that any judge capable of navigating the reappointment process and surviving for nine years would still have to have made police officers, Councilmen and Mayors happy. Obviously, if this were not the case, they would not have been proposed for additional terms in the first place.
At the same time, the proposed changes do nothing to prevent local Municipal Courts from remaining “home courts” for the police officers. The bias toward the State arising from familiarity after repeated contact with officers remains. The same bias arises from proximity of police station and court. None of the proposed changes, furthermore, will discourage the use of Municipal Courts as revenue generators.
In the last analysis, implementing these proposed changes would amount to “taking the eye off the prize” by diverting attention from systematic problems in Municipal Courts. In a perverse way, they would almost provide a reason to keep the present Municipal Court system in place, with the mistaken belief that problems with independence in the Municipal Courts have been resolved with these changes. Nothing would be further from the truth. Unless, of course, we lived in a “perfect world”.
Read Peter Lederman’s follow-up article “The Conversation Continues…”