Chief justice raises alarm as court vacancies reach ‘highest level in the history’

New Jersey Supreme Court Chief Justice Stuart Rabner urged lawmakers and the governor to speed the approval of new judges Friday, warning the broad swath of vacant seats had stopped some counties from scheduling certain types of trials altogether.

Seventy-five of the 433 seats on the Superior Court bench are vacant as of Friday, Rabner said during an address at the State Bar Association’s annual convention in Atlantic City. That’s the highest number of vacancies in the court’s history.

“In one vicinage, there are no divorce trials, at all, being scheduled because there aren’t enough judges. Another projects it takes five years to go from the filing to a trial,” Rabner said. “That means for too many people who are unable to resolve their differences, their lives are on indefinite hold.”

Other types of cases also face staggering delays. It can take complex personal injury cases three or four years to get to trial, Rabner said. Just over 82,000 cases were backlogged at the start of March, the most recent month for which backlog data is available. That number was 23,917 in March 2020.

Dropping the number of judicial vacancies to between 25 and 30 — levels court officials have said are sustainable — would require Gov. Phil Murphy to get more judges confirmed than he has since taking office in 2018.

The rising number of vacancies and further delays caused by in-person restrictions in place earlier in the pandemic have had an unequal impact on trials depending on their type.

Criminal, family, and domestic violence cases, among some others, are prioritized because they often involve pressing issues that require speedy resolutions, but with the stable of judges thinning, the prioritization has stopped some cases entirely.

“Trials in civil rights matters, in whistleblower cases, products liability, environmental, and other matters have been postponed indefinitely in many places,” Rabner said. “Why aren’t we able to conduct more cases in civil? Because we need judges for pressing matters in family and in criminal.”

Trial delays have a ripple effect, Rabner said. Without a trial date, parties that might otherwise settle a case have little reason to come to the negotiating table.

Lawmakers this week began chipping away at the vacancies. The Senate Judiciary Committee Thursday advanced the nominations of 11 would-be Superior Court judges. Another 12 potential judges are awaiting advancement.

The 11 nominees could be confirmed to the bench by next Thursday, when the full Senate will convene for a voting session, but that won’t be enough to bring down the staggering vacancies at the court. More than 20 judges are set to retire this year, Rabner said.

Rabner also issued a warning about thinning at the state’s highest court, where only five of seven seats are occupied by confirmed justices. 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 weeks ahead, we will soon reach a day when only four members have met those constitutional requirements,” Rabner said. “Ask any student of the constitutional convention of 1947, and they will tell you that is not what the framers of the modern constitution had in mind.”

Murphy has made a nomination to only one of the two vacant Supreme Court seats.

Rachel Wainer Apter, the director of the New Jersey Division on Civil Rights and Murphy’s nominee for the seat left vacant by the retirement of Justice Jaynee LaVecchia, has seen her nomination stalled by State Sen. Holly Schepisi (R-Bergen) through an invocation of senatorial courtesy.

The unwritten rule allows senators to indefinitely block gubernatorial nominees from their home counties or legislative districts. They do not have to give a reason.

Rabner has temporarily elevated Jose Fuentes, the presiding judge of the state’s Appellate Division, to the high court to replace LaVecchia but has refrained from provisionally raising another judge to retired Justice Faustino Fernandez Vina’s seat for fears of imperiling the high court’s tradition of partisan balance.

“The New Jersey Supreme Court regularly grapples with some of the most challenging and significant issues that our state faces,” Rabner said. “I urge the legislative and executive branches to come together to resolve this problem before it gets even more challenging.”

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 so without any meaningful relief or assistance,” said Jeralyn Lawrence, the association’s president. “It is unprecedented that we face in the not-too-distant future three vacancies on the Supreme Court, which is not what the framers of our constitution ever intended. Given the dire consequences the chief justice shared today, we urge all parties to fill these vacancies with utmost urgency for the sake of the public and the legal system.”

Justice delayed

The impact of the Supreme Court vacancies is just starting to be felt. Two recent Supreme Court cases might have ended differently had the court had a full cohort, including one that granted parole to Sundiata Acoli, who was jailed for the 1973 murder of a New Jersey State Trooper and had been repeatedly denied parole.

But trial courts have been facing pain for a while. Though lower priority cases have fared the worst, even types of cases the courts prioritized have suffered delays, Rabner said.

In domestic violence cases, where temporary restraining orders are often entered that can bar the accused from seeing their children or entering their marital home, courts should hold a final hearing within 10 days of a temporary restraining order being issued, Rabner said, but it now sometimes takes several months.

“That means a parent is sometimes displaced from the home and can’t see their child for months before having the chance to testify before a judge,” Rabner said. “That should not happen in a system of justice.”

Criminal cases haven’t escaped delays either. Pandemic and vacancy-borne delays have reversed a drop in pre-trial detentions, which had for years declined following the implementation of bail reform that created a presumption of release for all but the most serious crimes.

Near the start of the pandemic, roughly 5,000 people were behind bars while awaiting trial. Today, that number is closer to 6,800, Rabner said. Judge Glenn Grant, the administrative director of the courts, in April said hundreds had been waiting in jail for a trial for more than two years.

“On top of that, thousands more defendants who’ve been released pre-trial are also awaiting their day in court. Their lives remain on hold just as countless victims also await justice, year after year,” Rabner said.

Silver linings

While much of Rabner’s speech presented a dire view of the New Jersey’s courts, his address wasn’t without its bright spots.

He hailed 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 lauded a pilot program in Essex and Morris counties to identify individuals with mental health issues and connect them with services.

A court program to connect people on probation and drug court graduates with jobs or job training had aided hundreds, an especially valued service as some employers continue to face hiring troubles, Rabner said.

And the chief justice touted a Passaic County program that connects individuals on probation for gun crimes with resources and services to prevent reoffense, a key issue as lawmakers consider reversing some of the bail reforms amid a surge in gun violence.

“The program has already expanded to seven additional vicinages,” Rabner said.

An earlier version of this story should have said the judicial nominees advanced Thursday were from a number of counties.