Rabner exhorts governor, legislature to address Supreme Court vacancies

With one seat on the seven-member New Jersey Supreme Court vacant, another occupied by a temporary replacement judge, and a third held by a permanent justice who will hit the mandatory retirement age in seven weeks, Chief Justice Stuart Rabner made an unusually direct appeal today for the governor and legislature to solve the high court’s vacancy problem.

“The New Jersey Supreme Court regularly grapples with some of the most challenging and significant issues that our state faces,” Rabner said at his 2022 State of the Judiciary address. “I urge the legislative and executive branches to come together to resolve this problem before it gets even more challenging.”

The legislature and governor have both shown very little urgency about the looming possibility of a four-member Supreme Court, a possibility which Rabner said was a striking departure from the intent of the state constitution.

“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,” he said. “Nowhere in the debates over the judicial branch did they contemplate a vacancy level of more than 40% for the state’s highest court.”

Former state Supreme Court Justice Peter Verniero concurred with Rabner in a statement sent to the New Jersey Globe, saying that three potential vacancies was an “extraordinary number.”

“By constitutional design, our state Supreme Court functions best when it has seven confirmed, independent members,” he said. “As someone who cares deeply about the judiciary as an institution, I hope that these vacancies will be filled soon, and that the court will be restored to its full membership.”

The court’s vacancy problem began more than a year ago, when Justice Jaynee LaVecchia unexpectedly announced her early retirement from the court in March 2021. Gov. Phil Murphy quickly nominated New Jersey Division of Civil Rights director Rachel Wainer Apter to her seat, but Wainer Apter’s nomination quickly hit the wall of State Sen. Holly Schepisi (R-River Vale)’s senatorial courtesy and has remained in limbo ever since.

When LaVecchia officially stepped down from the court on the last day of 2021, she was replaced by Superior Court Judge Jose Fuentes in a temporary capacity. The court didn’t stay at seven members for long, however, because Justice Faustino Fernandez-Vina hit the mandatory retirement age of 70 in February; Rabner, seeking to maintain the partisan balance of the court, did not elevate another Superior Court judge to replace him.

Justice Barry Albin will hit that same milestone in July, but neither the governor nor legislative leadership has made any obvious moves to fill the court’s existing openings. Murphy said last month that there’s still “no news to report” on getting Wainer Apter confirmed or even nominating someone to fill Fernandez-Vina’s seat.

In the meantime, the court’s reduced membership has already had a concrete impact on rulings. On May 10, the court ordered the release on parole of Sundiata Acoli, the former Black Panther convicted in 1974 of killing State Trooper Werner Foerster, with Fuentes serving as the tiebreaking vote in a 3-2 opinion.

Rabner’s address today also focused on a similar problem in the state’s Superior Court system, where a large set of vacancies and a major court backlog have hampered the judiciary’s ability to address cases in a timely manner.

“Today, there are 75 vacancies on a trial court bench,” Rabner said. “75 out of 433 trial court positions – the highest level in the history of the state’s judiciary… For the past two-and-a-half years, we have averaged 50 or more vacancies every month. That number should be no higher than 25 to 30 in order for the judiciary to best be able to serve the public.”

Unlike with the Supreme Court, however, the legislature and governor have shown a clear interest in addressing Superior Court vacancies. The Senate Judiciary Committee advanced 11 Superior Court nominees yesterday, while another 14 have been nominated and are awaiting posting to committee.

This story was updated at 12:50 p.m. with a statement from former Justice Peter Verniero.