WILSON v CORZINE & KATZ: IS GOV. MENACING JUDICIAL INDEPENDENCE?

This post has three purposes concerning the Corzine-Katz emails. The first is to recognize that by all appearances the Judge has done his best governing the case. The second purpose is to recognize a unique confluence of events that, intentional or not, may open the door for an increasingly unpopular Governor to silently exert an inappropriate influence on the decision in Wilson v. Corzine & Katz. The third, and ultimate purpose, is to let Governor Corzine know we know what he knows and thus he should forget about it.


BACKGROUND

For Hamilton, Jefferson and Jay the ability of either the Executive or Legislative branch to exercise any power over judicial decision making is incompatible with a democratic republic: "`Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.'" Federalist Papers, No. 47.


The founding fathers sought to protect the judiciary from both Executive and Legislative encroachment by memorializing what is likened to lifetime tenure and permanent compensation in Article III, Section 1 of the Constitution. They reasoned;


“The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. ... it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.” Federalist Papers, No.78. “NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, A POWER OVER A MAN’S SUBSISTENCE AMOUNTS TO A POWER OVER HIS WILL.” Federalist Papers, No. 79.


INFLUENCE


The issue of Executive influence takes two forms in Corzine – Katz. The first is somewhat subtle and indirect – The matter of another judicial pay increase is to be decided during the November lame duck session of the legislature. The second is direct and obvious – the Judge deciding Corzine- Katz does not have life tenure and is thus dependent on favorable near term action by the Governor to obtain it.


First, Corzine – Katz is being tried by a bench trial in the Mercer County Superior Court, Trenton, N.J. It also appears the Judge may live in the Mercer County. This is important because on September 25, 2007, ten days before the most recent hearing in Corzine-Katz, the article about judicial pay increases suddenly appears in the Trenton Times. Reporter Linda Stein writes that “Two months after getting their first pay raise in five years, Superior Court judges are seeking another increase, officials confirmed on Tuesday.” Stein goes on to write:


“Tammy Kendig, a spokeswoman for the state judiciary, said the administrative Office of the Courts will ask the legislature to consider another salary boost for the Judges in November after the election.” The next hearing date concerning the Corzine- Katz emails is scheduled for November 15, 2007.


Furthermore, since the first article, numerous news stories concerning a judicial pay raise are published. The following news report list is meant to be representative rather than inclusive. Moreover, it is not to suggest a press conspiracy. Rather, it is a statement that another pay increase is news and good news distribution includes frequency and reach.


“Shame on Judges for Salary Whining” - Asbury Park Press, 09/30/07

“Judges Don’t Need Another Pay Bump” – Courier Post, 09/30/07

“Chief Justice Says State Judges Deserve Another Raise” – Press of Atlantic City, 10/11/07

“Judges have No Case for Another Pay Raise” – Home News Tribune, 10/11/07

“N.J. Chief Justice Calls judges Underpaid” – Asbury Park Press, 10/12/07


Now, at first glance, the Governor’s power to determine whether or not the State’s judges get a pay raise may appear to make no difference in Corzine-Katz. Each and every New Jersey Superior Court Judge would face the same outside pressure as Judge Inness. Moreover, there is no plan to lower judicial pay. The purpose is more subtle. Objectively, both the timing and detail of these stories is to matter-of-factly catch the attention of all the Judges in general, and the attention of Judge Innes in particular. Peer pressure.


Accordingly, Judge Innes faces the carrot and the stick. He faces Governor Corzine’s informal power to push the legislature for or against a raise, as well as the Governor’s real power to approve or veto any lame duck November legislation that raises judicial pay.


Second, Judge Inness does not have life tenure (tenure during good behavior). The Judge was appointed for a seven year term in 2002. Governor Corzine was elected in 2006 and his term expires in 2010. Thus, Judge Inness must again be nominated by Governor Corzine and confirmed by the Senate in 2009 before his tenure can be permanent. The decision as to whether the Judge continues on the bench rests first and therefore solely, with whether Governor Corzine chooses to nominate him. If not, he will no longer be a judge.


It would therefore seem prudent to remember ;


The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress. Federalist papers, No. 78.