A shortage of New Jersey judges is putting couples on hold in messy divorce cases

Despite the threat of kidnapping, the mother cannot obtain a court order to secure her child’s passport. Parents cannot enroll their children in schools due to custody battles. A woman is forced to live with her partner, who cuts off the electricity to her home and denies her access to any bank accounts.

These are some of the victims of a prolonged shortage of judges in New Jersey, which has a backlog of nearly 4,000 divorce lawsuits and about 4,700 other family law cases. Some counties are completely prohibited from holding any divorce trials because there are not enough judges to administer civil cases.

Lawyers say that while uncontested splits move in leaps and bounds, delays in fighting couples are measured in years, sometimes by more than a decade. The state court system says these cases are supposed to be resolved within 12 months of being filed.

“This is what kids grow up like: Mom and Dad are stuck in limbo, they don’t have nice things to say about each other — the whole family is walking on eggshells,” Geralyn L. Lawrence, a divorce and family law attorney who was president of the New Jersey State Bar from 2022 to May 2023. “This is the generation of kids we’re raising in New Jersey.”

Judicial vacancies persisted in New Jersey because it is the only state in the country where a senator can block the appointment of a judge in his home county in a process called comity, similar to the system of federal judicial nominations in the US Senate. Accelerated retirement processes have also exacerbated the problem.

Increasingly, lawyers are coming forward with stories of human tragedy in hopes that it will spur state senators to confirm more justices.

The current New Jersey State Bar President, Timothy F. McGowran, the situation as “ridiculous” because “children live in toxic environments” could be resolved by more appointments.

“There is nothing worse as a lawyer than having your clients ask, ‘When is my trial?'” And you say: I don’t know – never?

Related: Biden should focus on selecting judges this summer: legal insight

Statewide deadlock

First instance courts are the trenches in which civil litigants fight. Their bloodless weapons are procedural rules, used to secure evidence and deliver court rulings that can resolve legal disputes or provide leverage to strike deals.

And with no court dates or the ability to obtain judges’ orders to resolve smaller cases of building leverage, the result is a dead end.

There are 433 trial court judge positions in New Jersey, according to state statistics. The system can handle vacancies for up to 30 judges statewide before judges begin to prioritize emergencies and criminal matters over civil cases. New Jersey currently has nearly twice as many vacancies at 57, which weakens the legal system but is lower than the crippling record of 75 vacancies the courts saw last year.

“If a seat is left vacant for only a few months, the effect can be relatively modest. It is quite another matter if the judge’s position has been vacant for two, three or sometimes four years, as in a number of cases,” said New Jersey Chief Justice Stuart Rapner. parts of the state. Public remarks this spring. “In those cases, a single vacancy can lead to a delay of not just hundreds, but more than a thousand.”

New Jersey had a Backlog of 41,148 civil cases which court officials say should have been resolved by now. The lawsuits have become so compressed that Rapner has halted civil and matrimonial trials in several counties this year.

Those blocks are in Passaic, Somerset, Warren and Hunterdon counties, but the crisis is statewide because judges everywhere are overworked, said Lisa Crystal, a former Union County Family Division Chief who will retire in 2022 after 22 years on the job. Bench.

“Even in counties where trials are not suspended, it is almost impossible to hold a divorce trial or a civil trial,” she said.

On a typical day, Crystal saw eight family law cases in the morning, eight in the afternoon, dealt with constant interruptions from emergencies throughout the day, and there wasn’t a single night she didn’t bring the papers home.

“Sometimes I look back on it and really wonder how I did this job for 20 years,” said Crystal, who is now a consultant at mediation and arbitration firm Brach-Echler.

The backlog is increasing, not reversing, in many regions. In nine of New Jersey’s 21 counties, “clearance rates” — a calculation of whether courts dispose of more cases than they receive — are below par for civil matters. Two-thirds of the counties are seeing increasing dissolution regulations – divorce and separation -.

The shortage of judges has far-reaching implications beyond family law, with courts closed to other civil litigants mired in endless disputes. Failing to set court dates leads to dire consequences for the injured and the elderly, says Edward J. Rebenack, co-founder of Rebenack Aronow & Mascolo LLP.

“Often an insurance company doesn’t have to consider a serious settlement until after they have to fire it, when we pick a jury,” he said.

He urged the court, which would not grant his clients a trial date, to transfer the cases to another county. Hunterdon County Superior Court Judge Kevin M. Shanahan, that he did not have the authority to initiate the lawsuit, denied that request in six cases, including one brought by a 97-year-old plaintiff suing her bank.

Rebenak sees clients suing for injuries, being unable to pay bills, and falling prey to pre-settlement loan providers who charge as much as 30%-40% interest on their loans. Months or years would pass without a trial date being set, and interest would swallow up any compensation these plaintiffs might have received for their injuries.

“We are at a standstill,” he added. “It has become an absolute mess.”

Related: “Judges shopping” will only get easier if the rules are not changed

political obstacles

Law professors and litigators cite several factors contributing to the dearth of judges, but most are most critical of the “courtesy” appointment system that places the greatest power in the hands of state senators.

The COVID-19 pandemic has led to a backlog of cases as courts have adapted to remote procedures. Since then, overburdened judges have begun to retire earlier than previous generations. “Discretionary retirements” — that is, judges who leave their bench before the mandatory retirement age of 70 — have nearly doubled in recent years, according to state statistics.

But the “disturbing” problem of New Jersey Senate comity “has the potential to undermine public confidence in the judiciary,” said John J. Farmer, a professor at Rutgers Law School.

Farmer, who served as a senior adviser to Republican Gov. Kristen Todd Whitmer, said the Senate wields more power than it used to in an effort by Democratic and Republican politicians to tie some backroom deals to the judges’ nomination, covering anything from budget measures to other appointments.

Previous administrations have threatened senators with leaked blocs courtesy of the press in hopes of a lobbying campaign, Farmer said, but increased partisanship, weak local journalism and a state Supreme Court ruling favoring the process exacerbated the problem.

Depending on the county and where the candidate lives, Farmer said, five senators could unanimously sign on the nominee. That difficulty is compounded by the difficulty of scheduling part-time lawmakers in the same room as the governor’s team during a heated campaign season for the state legislature.

That means New Jerseyans will likely have to wait until November to see full judicial seats.

Both Gov. Phil Murphy (D-) and Senate President Nicholas Scutari (D-) praised in emailed remarks the number of justices who have been confirmed in recent years and said more nominations are in the pipeline.

The Senate confirmed the appointment of 71 lower court judges in the current legislative session, which ends in December, said Catherine Burnham, the Senate majority spokeswoman. Murphy spokeswoman Natalie Hamilton said Murphy confirmed 79 judge appointments in the past 18 months, well above historical averages. The governor’s office declined to comment when asked about any long-term plans to nominate and confirm more judges.

State Senator John M. Bramnick, the ranking Republican on the Senate Judiciary Committee, defended the courtesy process. He said obtaining the approval of senators increases scrutiny of candidates, which raises the quality of judges across the state.

However, he said New Jersey is facing a “judicial crisis” and the leadership should do more to resolve disputes over judicial assertions, though he acknowledged there was no simple solution.

“You have three engineers in the room and they can agree on a formula. That’s not the case with politicians,” he said. “New Jersey politics can be a little more complicated than rocket science.”