NJSBA Family Law Section

I see they've scheduled hearings for the commission on judicial independence (April 1 in New Brunswick). 

I'm wondering whether the NJSBA, collectively, or any of us individually, would consider this to be a good opportunity to address the intimately related issue of judicial accountability.  The opening remarks on the first conference by Judge Wefing frame the current issue of  judicial independence by stating "there has always been a tension between support for judicial independence and the desire of the political branches to control the judiciary."  While we indeed need to ensure that the judiciary has the independence necessary to render tough decisions free from political influence, there is a more serious problem within our courts in the lack of judicial accountability.  If the ultimate goal is to serve the public, we need to address both sides of this issue.

I know I'm not the only one concerned about this issue - I hope others agree that something should be done and will speak up and call for reform.

When I reference "bad judges", I'm not talking about the judge who works hard and cares about what he/she is doing but gets it wrong occasionally, I'm talking about judges who should not be on the bench, least of all in the Family Part.  Judges, and we've all seen them and can tell horror stories, who plainly have no interest in reading papers, keeping up on the law, maintaining an appropriate judicial demeanor, etc.  They're rare - I'd say I've encountered it maybe a half dozen times in 16 years, but when it happens, it's often devastating (war stories below).  And if a judge is tenured, there is essentially no way to get rid of them.  Having a decision reversed on appeal is a nice solution to litigants who can afford it, but it does not address the underlying problem.  If we're going to focus on "independence" because having a politically independent judiciary is ultimately a service to the public, then I think is an opportune time to discuss the inverse.

I am absolutely sure everyone on this list who has been at this a few years can relate to these stories and probably give stronger incidents:

   1.  A judge who I had reversed on appeal five times.  It would have been 50 if the clients could have afforded it.  I heard off the record that the judge's reversal rate on appeal was roughly 80%. Just basic family law concepts that weren't grasped (and which the judge plainly didn't care to grasp - briefs and arguments and law simply ignored).

   2.  A judge who was openly sarcastic with lawyers and litigants, at one point giving snarky fake apologies and saying "oh yeah, the XX County Bar Association told me I'm supposed to demonstrate a better demeanor"

  3.  A judge who issued an obviously erroneous verbal decision on custody and removal, then declined to issue a written order... instead instructing my clients and I to wait outside the court room while she had the court daycare personnel release the child to the other parent and tell them (ex parte) to leave the State as the likelyhood of the appellate division stepping in on an emergent basis was a lot lower if the child was gone.

   4.  A judge who was presented with 100% on-point NJ SCT case law and said "Mr. Davis, we're not in the Supreme Court here, are we?"

There needs to be a process to remove tenured judges who consistently demonstrate that they are not up to the job.  If the judiciary can do this itself, great.  If not, I think it's the Bar's duty to address some resolution to the issue.   For example.... why do we only get the "judicial performance" questionnaires as to nontenured judges?  Wouldn't they be a great place for someone to see red flags... if almost every attorney is giving a judge an "F"?  Shouldn't that have some repercussions?  Perhaps we need to better define what constitutes "bad behavior" necessary under the Constitution to remove a judge - nothing in the text of the Constitution says this is limited to being indicted (as it seems to have been interpreted).  I submit that, in the context of the trust and power we place in judges, consistent, overwhelming poor performance reviews and disturbingly high reversal rates should qualify as "bad behavior" sufficient to issue walking papers.


I'm planning to testify before the Committee and raise the above issue.  I hope others, and the NJSBA, will do likewise (risking earning the ire of some in the honest hope of improving our system for all).

I'd love to hear others' thoughts on this issue.

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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
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I agree with all that you say.  I just want to point out that I don't believe that the judiciary can police itself.  Frankly, I'm of the belief that no group is capable of policing itself.  I see it as a fox in the hen house kind of thing.

I think maybe that judges should not be tenured if renewed after their first 7 years on the bench.  Also, from the other side of the fence, I don't think 'senatorial courtesy' should be permitted to continue either.  

Additionally, just like we have mandatory continuing education, I think that judges should have to also.  That is, the judicial college once a year is not good enough.  Additionally, a large percentage of the CLE should be mandated to cover the area of law they are sitting in, e.g., family, especially.  Also, I think that some judges clearly need to take ethics courses along with anger management and most important, DIVERSITY!!!!!

Thanks,

Marianne
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Marianne Auriemma Esq.
Maywood NJ
(201)712-9663

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Original Message:
Sent: 03-08-2014 15:37
From: David Perry Davis
Subject: Judicial independence commission & bad judges

I see they've scheduled hearings for the commission on judicial independence (April 1 in New Brunswick). 

I'm wondering whether the NJSBA, collectively, or any of us individually, would consider this to be a good opportunity to address the intimately related issue of judicial accountability.  The opening remarks on the first conference by Judge Wefing frame the current issue of  judicial independence by stating "there has always been a tension between support for judicial independence and the desire of the political branches to control the judiciary."  While we indeed need to ensure that the judiciary has the independence necessary to render tough decisions free from political influence, there is a more serious problem within our courts in the lack of judicial accountability.  If the ultimate goal is to serve the public, we need to address both sides of this issue.

I know I'm not the only one concerned about this issue - I hope others agree that something should be done and will speak up and call for reform.

When I reference "bad judges", I'm not talking about the judge who works hard and cares about what he/she is doing but gets it wrong occasionally, I'm talking about judges who should not be on the bench, least of all in the Family Part.  Judges, and we've all seen them and can tell horror stories, who plainly have no interest in reading papers, keeping up on the law, maintaining an appropriate judicial demeanor, etc.  They're rare - I'd say I've encountered it maybe a half dozen times in 16 years, but when it happens, it's often devastating (war stories below).  And if a judge is tenured, there is essentially no way to get rid of them.  Having a decision reversed on appeal is a nice solution to litigants who can afford it, but it does not address the underlying problem.  If we're going to focus on "independence" because having a politically independent judiciary is ultimately a service to the public, then I think is an opportune time to discuss the inverse.

I am absolutely sure everyone on this list who has been at this a few years can relate to these stories and probably give stronger incidents:

   1.  A judge who I had reversed on appeal five times.  It would have been 50 if the clients could have afforded it.  I heard off the record that the judge's reversal rate on appeal was roughly 80%. Just basic family law concepts that weren't grasped (and which the judge plainly didn't care to grasp - briefs and arguments and law simply ignored).

   2.  A judge who was openly sarcastic with lawyers and litigants, at one point giving snarky fake apologies and saying "oh yeah, the XX County Bar Association told me I'm supposed to demonstrate a better demeanor"

  3.  A judge who issued an obviously erroneous verbal decision on custody and removal, then declined to issue a written order... instead instructing my clients and I to wait outside the court room while she had the court daycare personnel release the child to the other parent and tell them (ex parte) to leave the State as the likelyhood of the appellate division stepping in on an emergent basis was a lot lower if the child was gone.

   4.  A judge who was presented with 100% on-point NJ SCT case law and said "Mr. Davis, we're not in the Supreme Court here, are we?"

There needs to be a process to remove tenured judges who consistently demonstrate that they are not up to the job.  If the judiciary can do this itself, great.  If not, I think it's the Bar's duty to address some resolution to the issue.   For example.... why do we only get the "judicial performance" questionnaires as to nontenured judges?  Wouldn't they be a great place for someone to see red flags... if almost every attorney is giving a judge an "F"?  Shouldn't that have some repercussions?  Perhaps we need to better define what constitutes "bad behavior" necessary under the Constitution to remove a judge - nothing in the text of the Constitution says this is limited to being indicted (as it seems to have been interpreted).  I submit that, in the context of the trust and power we place in judges, consistent, overwhelming poor performance reviews and disturbingly high reversal rates should qualify as "bad behavior" sufficient to issue walking papers.


I'm planning to testify before the Committee and raise the above issue.  I hope others, and the NJSBA, will do likewise (risking earning the ire of some in the honest hope of improving our system for all).

I'd love to hear others' thoughts on this issue.

-------------------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
-------------------------------------------

Doing away with judicial tenure would require amending the State Constitution (see http://en.wikisource.org/wiki/New_Jersey_Constitution_of_1947 ).  I don't see that happening.

Article VI, Section VI, paragraph 3 states that judges "shall hold their offices for initial terms of 7 years and upon reappointment shall hold their offices during good behavior...."

The phrase "good behavior" isn't defined.  My point is that we can and should define it to include more than just being convicted of a crime (as it seems to have been generally interpreted).  While there are excellent judges who are sometimes reversed on appeal, the judges with astronomical reversal rates (as I said, there was one where nearly 80% of all decisions were reversed), and who lack an appropriate demeanor (etc.)   I believe that, when filling out the judicial surveys we receive regarding non-tenured judges, attorneys are able to distinguish between an occasional error or oversight and someone who doesn't belong on the bench.

They are rare.  I'd say 1-2%?  But anyone who has practiced law for any period of time (in fact, there are judges who have commented on this issue off the record) can attest that they are out there and that they are essentially impossible to get rid of - to the tremendous detriment of the public and the bar.  No one would drive a car that had a 1-2% chance of suddenly losing it's steering.  We need to fix the system on this issue just as one would have a car repaired with a 1-2% failure rate.

Rather than adopting a kowtowing stance about how important it is to maintain judicial independence, I hope the NJSBA would address this issue.  Both issues are of tremendous importance (although addressing accountability obviously involves a level of backbone that addressing independence doesn't).  The two are obviously related and should be addressed at the same time.

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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
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