Transparency on Trial in the Senate Budget Committee

Strongly objecting to fee shifting, inequitable pay structures that punish media outlets, and other public interest obstacles snuck into S-2930, transparency activists today tried to prevail on the state Senate Budget Committee to kill the bill.

Attorney C.J. Griffin, partner and director of the Stein Public Interest Center, zeroed in on the bill’s delicate use of language to shift the financial burden – and the burden of proof – for an OPRA request onto the public. “This flips the burden, saying we have to go to court and somehow convince the judge it’s unreasonable when we don’t have access to the information,” said Griffin. “It’s a way to deny access without being honest and saying, ‘we’re denying access’.” The bill provides government with ammunition to bog down in court – and legal costs – an individual or entity seeking public records.

Backers of the bill tried to describe it as a balancing act of transparency and efficiency: protections for public access, and protections for clerks who are sometimes overloaded with OPRA requests or harassed by opportunists.

But New Jersey Press Association Attorney Tom Cafferty told the committee, “Despite the amendments, the bill remains deeply flawed. …Generally, the arc in this state has been toward transparency. If this bill passes that arc will be reversed.”

Public servants in clerks’ offices besieged by OPRA requests need relief, the bill’s supporters argued, referring to “hundreds of never-ending requests.” The bill, said Plainfield Mayor Adrian Mapp, “is a step in the right direction to establish order.”

Those on the other side of the issue promptly countered. Melissa Marks of the League of Women Voters said, “This is about transparency. Our core issues are not addressed in the amendments.” Marks cited the bill’s “guts to fee shifting. Fee shifting needs to stay strongly intact.”

“The core concerns we laid out have become worse [in the current iteration of the bill,” said Dena Mottola, executive director of New Jersey Citizen Action. “The amendments do nothing about the concern that commercial entity requests are overusing the OPRA Law. This bill targets the public.”

Joe Johnson, policy counsel for the ACLU, derided the bill as an attack on New Jerseyans. “It is an honor to address the three senators here,” deadpanned Johnson, observing the inevitable insidious passage of the bill.

Veteran state Senator Paul Sarlo (D-36) (pictured, above) chaired the hearing, presiding over a mostly civil debate between the contending sides, ultimately unsatisfying for the champions of public interest.

From the ACLU, following the bill’s passage out of the Senate Budget Committee:

The ACLU of New Jersey, Salvation and Social Justice, and League of Women Voters of New Jersey, today sent a letter, signed by dozens of advocacy groups from across the state, to Senate President Nicholas Scutari to express extreme concern about a proposed constitutional amendment that would fundamentally alter the functioning of New Jersey’s judiciary and transfer vast power over the courts to the political branches of government. The groups are calling on lawmakers to ensure any process to consider changing the current system for judicial appointments is transparent and includes public input.

“New Jersey’s method for selecting judges has created a judicial system that is admired nationwide for its quality and independence, still reasonable people can disagree about the best way to select appellate judges. Such a dramatic change in our constitutional structure implicates significant questions about diversity, vacancies, competence, and politicization. The Senate should not move forward with a proposed amendment until there has been an open, robust discussion about the critical questions implicated by such a radical change to the foundations of our state’s checks and balances,” said ACLU-NJ Policy Director Sarah Fajardo.

Under the current system, the Chief Justice has the constitutional authority to assign judges of the Superior Court to any court in the state. This means the Chief Justice may make geographic assignments, determine whether a judge sits in family, criminal or civil court, and, critically, decide which trial judges should be assigned to the Appellate Division. The proposed constitutional amendment would strip the Chief Justice of that assignment power and allow the Governor to name people directly, subject to Senate confirmation, to a “Court of Appeals” that would have the same powers as the Appellate Division.

“New Jersey has the worst racial disparities in the rates of sentencing and incarceration of Black and white residents in the nation, and so I am deeply concerned about the proposed changes to the appellate judge selection process. The proposed changes have the potential to jeopardize the independence and integrity of the judiciary and undermine the trust and confidence of the public in the administration of justice. The current system ensures that qualified and impartial judges are elevated to the appellate courts, without political interference or favoritism. I urge the legislature to reconsider this plan and preserve the merit-based selection process that has served our state well for decades,” said Rev. Dr. Charles F. Boyer, Executive Director and Co-Founder of Salvation and Social Justice, Pastor of Greater Mount Zion AME Church in Trenton.

For seven of the last 11 years – across multiple gubernatorial administrations – the average number of judicial vacancies has amounted to 50 or more. This has had a catastrophic effect on the provision of justice. The Appellate Division has been largely insulated from this problem as the Chief Justice has diligently tended to the composition of the appellate bench, while the trial courts, which can be filled only by political actors, have suffered. As such, the Appellate Division has gender parity and political balance. There are more people of color serving on that court now than ever before. But as written, the constitutional amendment fails to account for the need for diversity in the Appellate Division and would put total power over its judicial staffing into the same hands that have long mismanaged the process of filling the lower courts.

“The League of Women Voters of New Jersey is deeply troubled by the pace of this proposed amendment,” said Jesse Burns, Executive Director of the League of Women Voters of New Jersey. “This change could have significant impacts on our judicial system and deserves more thorough discussion and debate.”

In New Jersey, trial and appellate judges serve for seven years and then must be again appointed by the Governor and confirmed by the Senate. This allows New Jersey judges to focus on making decisions that are correct, rather than those that are popular. If the proposed constitutional amendment were to pass, it would politicize court decisions as judges seeking to be appointed to the appellate court would have to gain approval from the Governor and the entire Senate.

(Visited 967 times, 1 visits today)

3 responses to “Transparency on Trial in the Senate Budget Committee”

  1. Typical New Jersey politics at work. Attorney-Politicians, like Sarlo (who looks like Al Capone in the picture) pass laws out to screw the public, yet protect themselves from public scrutiny of their corruption, bribery and extortion that goes on, on a daily basis in the N.J. Halls of Just Us (Used to be called Halls of Justice).

    For the life of me, can’t understand why politicians want to keep information secret from the public. It’s not a NATIONAL SECURITY ISSUE! It’s not a privacy issue! The public has a right to know when and if corruption, bribery, blackmail and extortion is going on in New Jersey politics, whether local, county or state. Once again, we see self-serving New Jersey Democrat-Communists out to protect themselves and their own pockets at the expense of the rights of the public. When NJ Democrat-Communists pass laws like this, you can bet that they’re covering up and hiding their dirty deeds.

    The lame argument that public servants in clerk’s offices are “overwhelmed” with OPRA requests is NO EXCUSE to pass laws infringing on the public’s rights!!!!!! If the public servant cannot or will not do the OPRA requests, either fire them or get competent, efficient people that can do the work, or hire extra help and cut some of the deadwood in local, county and/or state government somewhere else. The public should not have to pay for fees, or threaten attorneys with loss of fees for seeking OPRA litigation. The government is obligated to pay for all OPRA requests. The government has the burden of proof. And, the government usually has the deep pockets.

  2. As for the Senate wanting to take away power from the Judiciary, I think the better legislation would be to eliminate ALL judicial immunity. Judges have too much power. I have seen judges in court, especially in Family Court, say they are “Gods in the Family Court”, or “The U.S. Constitution does not apply in Family Court” (there are YouTube videos on NJ judges saying this). I have observed drunk family court judges, or judges high on the bench. I have observed videos of judges giving sheriff’s officers in court the authority to beat up matrimonial litigants in Family Court, when the litigants challenge the judge’s ridiculous orders, or won’t issue an order at all, yet want the litigant to perform “unreal expectations” under the guise of judicial authority–with no written order that can be appealed. Complaints to the Advisory Committee on Judicial Conduct fall on deaf ears. Complaints to the NJ Administrative Office of the Courts fall on deaf ears. Complaints to bring indictments against judges, prosecutors, lawyers and malefactor litigants fall on deaf ears. The Appellate Division only overturns less than 20% of all cases appealed, and won’t even look at cases against judges. The Appellate Division was put into place so litigants wouldn’t sue judges, but had an opportunity to correct errors. The Appellate courts have made the appeal process so complicated, labyrinthine and expensive, litigants cannot afford justice through the appellate division. And, most often are denied rights based on some ridiculous technicalities by appellate judges who shouldn’t even be sitting in the appellate courts. 6

    So, given that judges cannot or willfully will not do their jobs, as per their Constitutional Oaths of Office, then ALL judges should be stripped of judicial immunity!!!!

    The time has come to get rid of this 500 year-old doctrine that was started during the Star-Chamber proceedings in Old England. It’s not even American law; it’s Old English law. Therefore, the doctrine of judicial immunity is a fake, phoney and a fraud to screw the public. Time to rid ourselves of this institution and make judges accountable for violating the rights of litigants in their courtrooms.

  3. From my experience, many of these frivolous OPRA Requests are designed to harrass with a political motive or agenda. Almost every OPRA Request I’ve come across asks for information that is already published on government websites. Therefore the intended purpose is clearly to inconvenience and harrass the recipients. I commend our lawmakers for addressing this and finding a fair balance that addresses everyone’s concerns.

Leave a Reply

Your email address will not be published.

News From Around the Web

The Political Landscape