In an order issued Monday, New Jersey Chief Justice Stuart Rabner temporarily appointed three Appellate Division presiding judges—Clarkson S. Fisher Jr., Jack M. Sabatino and Douglas M. Fasciale—to the high court.
“The Supreme Court today is comprised of four members who have been nominated by the Governor and confirmed by the Senate,” stated Rabner in the order. “There are three vacancies.”
“A judge of the Appellate Division, the Hon. Jose L. Fuentes, is temporarily assigned to the Court to fill one of those vacancies,” stated Rabner. “Jose Fuentes is scheduled to retire on September 1, 2022, which will leave the court without a quorum for the start of the 2022-2023 term.”
“Beyond that, a full complement of seven members is needed to address the work of the Court,” stated Rabner.
Rabner cited the New Jersey constitutional requirement of five members to constitute a quorum. Under Article VI, section II of the New Jersey Constitution, the chief justice is authorized to temporarily assign judges who are senior in service in the Appellate Division to the Supreme Court, according to the order. “At this time, the Honorable Carmen Messano, Chief Judge of the Appellate Division, waives that assignment,” stated Rabner.
“The chief justice’s extraordinary order is consistent with the design of the Supreme Court, which functions best when seven members are seated,” said former state Supreme Court Justice Peter G. Verniero.
“This temporary action, of course, does not resolve the judicial vacancy crisis in New Jersey but it will help in the short term,” stated Verniero, currently a member at Sills Cummis & Gross.
Rabner ordered that Fisher, Sabatino and Fasciale, presiding judges of the Appellate Division, be temporarily assigned to the Supreme Court to participate in new matters under consideration, effective Sept. 1.
“Those reassignments will have a significant effect on the Appellate Division,” stated Rabner.
“This is insane,” Jeralyn Lawrence, president of the New Jersey State Bar Association, said. “But a catastrophic situation calls for extraordinary measures. These are incredible jurists he has called up from the Appellate Division, but this is triage.”
“When the Legislature refuses to do their job and the governor fails to do his job, they put the chief in an unfair situation where he has to staff the court,” said Lawrence, managing partner and founder of Lawrence Law in Watchung. “It is not his job to staff the Supreme Court.”
“They have put Chief Justice Rabner in an incredibly difficult and unfortunate position. This is not what the Constitution contemplates,” stated Lawrence. “The public should call on the governor and the Legislature to do their jobs.”
“Gov. Murphy has vigorously worked to fill judicial vacancies since he took office in 2018,” stated Natalie Hamilton, a press assistant to the governor.
“Since then, the Senate has confirmed a total of 87 Superior Court judges nominated by the governor,” said Hamilton. “In calendar year 2022, 32 Superior Court judges have been confirmed and 11 judicial nominees await confirmation by the Senate. The governor nominated Rachel Wainer Apter to fill a vacant Supreme Court seat over 16 months ago and continues to await the Senate giving her a hearing and a vote.”