Long Road To Justice
A shortage of judges is making many Bergen residents wait extra years to get their day in court.
Imagine that you bought a house in Bergen County with a finished basement and a grassy backyard for your kids. Let’s say neither the seller nor his agent disclosed the fact that the house was prone to flooding—and after you moved in, a series of floods quickly devastated the basement and killed off the grass in the backyard, leaving you with a layer of mud. Now imagine that you hired a lawyer to try to get you the considerable sum you need to waterproof the house, but four years later, not only haven’t you had your day in court, you have no idea when that day might come. That actual case and others like it represent the reality today in Bergen County, and indeed, throughout much of the state, for a vast number of civil litigants—those seeking legal redress for medical malpractice, personal injuries, intellectual property disputes and other noncriminal matters. There’s a larger-than-usual backlog of cases thanks to the effects of COVID and a severe shortage of judges that’s been ongoing for the past four years. The situation has plunged litigants seeking financial compensation, a divorce, or the resolution of a child custody case or landlord/tenant dispute into a frustrating legal limbo.
WHY THE WAIT?
The first blow was the pandemic, during which New Jersey’s courts were initially shut down and then gradually reopened, creating a severe judicial backlog from which we haven’t yet recovered. But even after the courts reopened, hope of clearing that backlog was dimmed by an extreme shortage of judges. In Bergen and elsewhere, the shortage hit civil cases particularly hard, as judges were transferred from the civil courts to the criminal division. “The judiciary has put a priority on handling cases involving incarcerated individuals, because individual freedoms are at stake,” explains Laura Sutnick, president-elect of the Bergen County Bar Association and a criminal attorney with the Hackensack firm of Sutnick & Sutnick. Bergen County’s full complement of judges is normally 41; in January of this year there were nine vacancies, all of them in the Civil Division.
The causes of the shortage are essentially twofold. One factor is simple attrition: Over the past several years, a relatively large number of judges in Bergen have retired, either for personal reasons or because they’ve reached the mandatory retirement age of 70. If those vacancies had been filled in a timely manner, we might be tackling the COVID backlog more efficiently. Unfortunately, the filling of those vacancies hasn’t been made a priority. In the early days of the pandemic, says Paul da Costa, a medical malpractice and personal injury attorney with the Hackensack firm Snyder Sarno D’Aniello Maceri & da Costa, “what you had was COVID almost masking the issue.” In other words, keeping the state running was, justifiably, more of a priority for the governor and the Legislature than appointing judges.
New Jersey is one of only eight states in which no judges are elected. Instead, judges for the so-called superior court—the judicial division in each county, including Bergen, that deals with criminal, civil and family law (also known as the trial court)—are nominated by the governor. After nomination, candidates must be confirmed by the Senate Judiciary Committee. Once they’ve been cleared by the committee, they must be confirmed by the full Senate. It’s a complicated process that’s complicated further by the unwritten rule of senatorial courtesy, which allows state senators to block a candidate from their own county without offering a reason.
Though the process is complex, it shouldn’t necessarily lead to a shortage of judges. Unfortunately, says Matthew Johnson, a family lawyer in Wyckoff with the firm Sherwood, Johnson & Poles, “the Legislature is not pushing enough judges through and getting them on the bench.” Sutnick offers a simple explanation for this: politics. In order to be nominated, candidates need first to be vetted by the state police and the Judicial and Prosecutorial Appointments Committee (JPAC), an arm of the New Jersey State Bar Association. “Getting those candidates vetted by the state police and JPAC and nominated by the governor takes time because the political process works its way through all those decisions,” she says.
JUSTICE DENIED
The shortage has had dire effects, especially on more complex civil cases, which can now take up to twice as long as they did before the shortage. “I used to tell my medical malpractice clients to figure on three to four years on average if their case ended up going to trial,” says da Costa. “Now I have to tell them it may be as much as five or six years or longer.” Johnson notes that, before the shortage, there were four judges in Bergen County working full time on matrimonial cases; at this writing there are effectively one-and-a-half—two individuals, one of whom works on matrimonial cases only half of the time. While virtually every civil case is taking longer to be heard, more complex cases have been hit hardest, as simpler cases have been prioritized in an effort to reduce the number of cases overall.
Litigants are paying an emotional toll. Though the lawyers we spoke with for this article were hesitant to allow their clients to speak publicly about ongoing cases, they all acknowledged the terrible frustration those clients are feeling. Every civil case is emotionally fraught, as litigants, often angry and in psychic (and sometimes physical) pain, wonder whether they’ll get the legal satisfaction they seek. Having to wait, often years, for a legal decision, and not knowing when that decision might come, only exacerbates that anger, pain and worry. “People go to the courthouse for really personal and important things in their lives—because they want to get divorced, because they want to figure out child custody, because they were hurt in an accident and they want to be compensated for the medical care their injuries have necessitated,” says Sutnick. “And these are things that impact people’s lives on a daily basis.”
Beyond the emotional damage, there are practical consequences as well: In order to avoid the wait, litigants may end up settling their cases for significantly less than they might receive through a trial. And cases suffer when memories and evidence are no longer fresh, underscoring the familiar legal maxim that “justice delayed is justice denied.”
LOOSENING THE LOGJAM
In May 2022, New Jersey’s chief justice, Stuart Rabner, issued a rare public warning about the effects of the judicial shortage: “For too many people who are unable to resolve their differences,” he said, “their lives are on indefinite hold.” His words may have had an effect. On Dec. 11, 2023, the state Senate approved 11 nominations to the superior court, and in early January, as the legislative session neared its close, it confirmed nine more. For Bergen, that translates to one new judge, Thomas Sarlo, confirmed by both the Senate Judiciary Committee and the full Senate, and six more still to be confirmed, which would bring down the number of vacancies to four.
That doesn’t, of course, clear up the vacancies completely, nor does it guarantee that a similar shortage won’t occur in the future. Even if those final six are confirmed, the effects of the backlog aren’t likely to be fully resolved for years to come. And we’ll need to be vigilant, and perhaps address problems in the system, if we don’t want another severe judicial shortage in the future. One way to help remedy the problem, says William Strasser, president of the Bergen County Bar Association and principal in the Paramus law firm of Strasser & Associates, would be to change the mandatory retirement age for judges. “I think the legislature has to look to extend the retirement age, because we’re losing very experienced jurists who would be a real complement and benefit to the judicial system,” he says. While we were unable to speak directly with judges—those we contacted declined to be interviewed, citing ethical restrictions— Strasser notes that “some of them don’t want to retire at 70.” He’d like to see the retirement age extended to 72 or even 74.
It may be unrealistic to think that the nomination process can ever be entirely free of the politics that has bogged it down in the past. (In fact, the decision to nominate, rather than elect, judges in New Jersey sprang from a desire to limit political influence on the process.) But many in the legal profession have suggested that getting rid of senatorial courtesy would be one way to de-politicize judicial nominations and break the logjam in the process. With or without senatorial courtesy, members of the judicial community (and perhaps the public and the press as well) will need to put continued pressure on the governor and the legislature to move the process along, if we truly desire to avoid justice delayed—and thus denied.
Meanwhile, the homeowner whose basement and backyard were decimated by flooding continues to dread every forecast of rain as he waits for the court date that could get him the money he needs to waterproof his home. Until that happens, his only recourse, it seems, is to pray for a long drought.
