The seven-member New Jersey Supreme Court will have just six Justices for the foreseeable future as a nominee by Gov. Phil Murphy continues to await confirmation by the state Senate amid the swirl of Jersey politics.
So what happens when a case with big implications splits the court with a 3-3 tie?
Unlike the NFL, no coin will be tossed to send the case into overtime and the first to make a convincing argument wins.
In New Jersey, a state Supreme Court tie means the Supreme Court makes no decision at all.
“If there is a 3-3 tie then the Appellate (Division) decision would stand,” said Judiciary spokesman Peter McAleer. “This has happened before in cases where one of the justices has to recuse themself.”
The highest profile case of a 3-3 Supreme Court deadlock came last year, when the court couldn’t agree on whether Michelle Lodzinski was guilty of murder in the death of her 5-year-old son, Timothy Wiltsey, more than 30 years ago. Chief Justice Stuart Rabner recused himself in the case, and an appeals court decision to upheld her conviction was allowed to stand.
However, in a rare and unexpected move, the justices agreed in October to reconsider the case, and called up Judge Jose L. Fuentes, a presiding appellate court judge, to give it seven members. Fuentes wound up being the tie-breaker and in late December the court overturned the conviction allowing Lodzinski, who had been serving a 30-year prison sentence without the possibility of parole, to be released from prison.
Other notable cases where a Supreme Court short one justice allowed appellate division decisions to stand include a 2020 case ordering NJ Transit to pay an employee’s medical benefits and lost wages under worker compensation; a 2019 case extending privacy protections for student records in the Camden School District; and a 2014 case where a defendant’s motion to suppress drugs he discarded in a police car after his arrest was turned down.
While those cases deadlocked when an individual justice didn’t participate because of a potential conflict of interest, the court now finds itself a justice short because of politics.
It’s happened before. The court was down one member for an extended period of time when former Gov. Chris Christie got into a political spat with former Senate President Stephen Sweeney, D-Gloucester, over Christie’s refusal to renominate Justice John Wallace, Jr.
A long tug-of-war ensued as the Senate would not confirm Christie nominees amid squabbles over the political balance of the court.
The vacancy on the court back then led to at least one split decision in a high profile case. In a 3-3 vote, the court declined to hear a case in which six same-sex couples asked for the right to marry.
The three members with lifetime tenure voted to hear the case, while the three who had to be renominated voted against it, leading to speculation by Democrats that Christie’s decision not to renominate Wallace had a chilling effect on the justices.
That case was ultimately decided by a trial court after the state dropped an appeal before the New Jersey Supreme Court. The trial court decided in 2013 that the couples could get married.
During the political stalemate between Christie and Sweeney over Wallace’s renomination, which lasted until Anne Patterson was confirmed in September 2011, the court beefed up to seven by calling up Judge Edwin Stern, then the top judge in the Appellate Division, to serve as Interim Justice.
Fast forward to 2022, and some may see political déjà vu. This time, the court is down two justices — but just one appellate court judge has been called up as a fill-in.
Former Justice Faustino Fernandez-Vina, a Republican nominated by Christie in 2013, retired Feb. 15 upon turning 70 – the mandatory retirement age for state judges and Justices.
Fernandez-Vina retired just a month and half after former Justice Jaynee LaVecchia, an independent, stepped down on Dec. 31.
Jose L. Fuentes, a presiding appellate court judge, was tapped to fill retired Justice Jaynee LaVecchia's seat on the New Jersey Supreme Court while Gov. Murphy's nominee awaits Senate confirmation. Fuentes has served as Acting Justice since early January 2022.
Fuentes was once again called up from the appellate division to fill in while Murphy’s nominee to replace LaVecchia, fellow Democrat and civil rights attorney Rachel Wainer Apter, awaits Senate confirmation.
But Rabner announced he would not name an immediate replacement for Fernandez-Vina, leaving the current court at six Justices since Feb. 16.
Rabner noted that since New Jersey adopted a new state Constitution in 1947, governors have followed a tradition of having no more than four members of the court affiliated with a single political party.
“In keeping with that valued tradition, I am not assigning an additional member of the Appellate Division to fill the vacancy created by Justice Fernandez-Vina’s mandatory retirement,” Rabner said in a statement.
It’s been nearly a year since Murphy first announced Wainer Apter’s nomination. The governor nominated her a second time earlier this year after time ran out to get her confirmed before the two-year legislative session expired in early January.
The holdup has been the approval of state Sen. Holly Schepisi, R-Bergen, who has not yet agreed to sign off on Murphy’s nomination.
Under the unwritten rule of senatorial courtesy, a state Senator can indefinitely block consideration of a nomination by the governor for a gubernatorial nominee from the Senator’s home county, without being required to provide an explanation. Schepisi represents parts of Wainer Apter’s home county.
If confirmed, Wainer Apter would shift the makeup of the court to four Democrats and three Republicans.
Some political observers say it’s possible if Murphy nominates a Republican to replace Fernandez-Vina, that could lead to a deal to confirm Wainer Apter.
In addition to the two current vacancies on the Supreme Court, Justice Barry Albin, a Democrat, will hit retirement age on July 7 and Justice Lee Solomon, a Republican, will reach the age in August 2024 – leaving the door open for Murphy to name nominees to replace them.
Judiciary spokesman McAleer said this week that no cases have reached a tie since Feb. 16 when the court became just six Justices.
In the meantime, Fernandez-Vina and LaVecchia have both moved on.
LaVecchia joined McCarter English on Jan. 31 as a partner, and it was announced on Tuesday that Fernandez-Vina has joined Parker McCay to work out of the firm’s Mt. Laurel and Camden offices.
“Faustino J. Fernandez-Vina is a pillar of New Jersey’s legal and professional community and is a titan in New Jersey legal practice,” said Philip A. Norcross, Chief Executive Officer of Parker McCay and brother of South Jersey Democratic power boss George Norcross 3d.
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Suzette Parmley may be reached at sparmley@njadvancemedia.com or follow her on Twitter: @SuzParmley