Front Page New Jersey; #337

The following is a production of New Jersey Network. One page New Jersey is made possible in part by a grant from the Geraldine R. Dodge Foundation. Welcome to another edition of Front Page New Jersey, I'm Michael Aaron, and on our Front Page this week, the Willens confirmation hearing.

Ever since Senator Peter Garibaldi started campaigning against the reappointment of Supreme Court Chief Justice Robert Willens, interest in the matter has been building, and it reached a crescendo this week before the Senate Judiciary Committee. What play highlights of the hearing for you, and at the end of the half hour we'll get some commentary from reporters for the Star Ledger and the New Jersey Law Journal. The hearing took place in what was the old Supreme Court Chamber in the State House annex. It began with a simple question, where do you live? Willens' answer was a long tale of two cities, New York and Perth Amboy, and of three children, all of whom were in school in New York or about to attend school in New York. It became apparent to both my wife and to me that if we wouldn't have any life with our children, we had better get ourselves a New York apart. We were not seeing Jim much at all, he was not seeing his sister or brother much at all, we were more and more seeing less and less of our daughter, and the prospect was that

we would soon be seeing less and less of our younger son. So we decided to try it and take a New York apartment, sell our house, because the thought was that the kids would then find themselves in New York as their place of living, and we would not need the kind of house that we had in Perth Amboy, which was large enough for all five of us. Willens explained that for the next eight years he spent his weeks in Perth Amboy in a small rented apartment, and his weekends in New York with his wife and family. In 1979, he was appointed to the highest judicial post in the state. In 1979, when I was appointed Chief Justice, the situation was as follows, Jim had finished medical school, he was now up in Boston on an internship or residency or one of those various things that people do when they get out of medical school.

Amy had gotten a job in New York, she worked for the Nation magazine. We had her own apartment by then in New York. Tom, I believe, was in his, one of his years at Columbia College, it may have been his last year, he had an apartment in New York. In other words, none of them lived with us at that point. Two of them still lived in New York, and my older son was in Boston. I think it might give you some idea of the extent to which this split residency affected my ties to New Jersey to tell you that all of my friends then and all of my friends now practically or practically without any exceptions are people that I've known from New Jersey. As a matter of fact, even the people I know in New York are people who I have met in New

Jersey down the shore in the summertime. Willenz told the committee that in 1980, his wife, Jackie, developed a lump in her breast that was diagnosed as cancer. He said he started spending more and more of his time in New York after that, and that during the next four years, his wife had ten operations. At the end of the tenth operation, it was discovered that there had been some metastasis. There was some growth where it should not have been. This is 1984 in October, and it was decided that by why I should get treatment of chemotherapy. At that point, I decided that given her concerns, given what I assumed and correctly obviously what is her state of mind, I was not going to leave her alone at night as I would leave

her as little as I possibly could. It became apparent to me that near the end of that year, that my Perth Amboi residents, in terms of tax laws, that I was staying more than 183 days that New York uses as its criterion. That became apparent to me near the end of 1984, at which time I paid the New York state income tax. I had of course been paying the New Jersey gross income tax as I continued to and along with my federal taxes, etc. In terms of what this means to the state, forgetting about one's point of view, about the mere fact that I am in New York that much at the present time, I get up early enough so

that when I am in New York, I leave my New York apartment between 6.15 and 6.30. I get back around 7.30 at night. I work in the car going from New York to Perth Amboi or to Trenton or wherever I'm going. I work in the car going back. I work all the time when I am in New Jersey and when I am back in New York and have dinner with my wife and I'm through with dinner, I work after dinner and I work on Saturday and I work on Sunday and I work when I'm in the hospital. I bring boxes around with me wherever I go, I don't think people see me anymore without me or someone else carrying a box or more than one box and I bring them up to the hospital. And unfortunately, at times, I take work with me when I go away on vacation, although

I try not to. I enjoy the work immensely. I don't mean to portray this as any kind of suffering. It is very challenging, it is engrossing, but the point is that in so far as the state of New Jersey is concerned, I am giving them as much as I can possibly give them. I think as much as anyone could possibly give them. The committee started questioning Molens about his split residency. There was talk of a statute that requires executive branch employees to live in New Jersey, but that was inconclusive. Senator Raymond Zayn agreed with Willens that the state constitution doesn't require judges to live in New Jersey. We all have personal opinions. You happen to have a personal opinion as to whether a sitting justice to the Supreme Court in the state should be the resident of the state of New Jersey. Obviously, you should.

Do you feel that you are a resident of the state of New Jersey as opposed to being a resident of the state of New York? Senator, I just don't want to characterize it. I've told you all I can tell you. New Jersey is where I was born, where I grew up. It's where my heart is, it's where my work has been, it's been everything and anything about me. I am in New York on the times I'm there for the reasons I've given. I hope that makes me a New Jersey resident. I think it does, but I'll leave that to others to characterize. Senator Zayn has to be struggling with the fact that your claim of residency in New Jersey is based upon a mental state rather than your physical presence here in the state of New Jersey.

He's that basically with the lemma that this question is placed in in terms of your status. If it is a dilemma, so be it, Senator, it is more than a mental state. It is a pattern of behavior over the years that I've described and the years before. It is the continued contact with people of the state of New Jersey. It is the continued working in the state of New Jersey. It is the summer home in the state of New Jersey. It is everything and anything about me, not just a mental attitude. It is the simple truth that for the reasons that I've given, I am physically in New York during these past two years, during the times that I've said. I don't mean to say that even during those two years, I'm in New York the majority of time, in terms of time, I'm still in New Jersey the majority of my time. Next it was Senate President John Russo.

And for the highest judicial officer in the state, I would hope you've put the issue to doubt once and for all whether it be New Jersey, partly in boy, I would suggest Tom's river, but New Jersey, New Jersey, clearly and unequivocally, that's your home. It doesn't mean that summer home in Florida is the lower ski condo in Colorado or what have you once in a while. Summer home is as close as I get to Tom's river senator. We're seriously, you've heard the circumstances of my life and yeah, they are what they are. Yeah, but you see, the problem is concerning the illness to your wife. When you come after, I think if I follow your testimony, basically the New York connection call it that, is back in 1971, you know, there's something about the kids and so forth, but and no one, and again, I don't raise these comments in any way critically of what

you've done. I just, you know, would have hoped and who knows maybe you'd give it some thought because you are the chief justice, you know, you're not the municipal court judge and old bridge, you're the chief justice. And there's a question, there's a statute, and there's arguments raised and things that that sort, and I would think that it would go a long way towards easing the concerns of the people of this state, legislators and so forth, if it's made unequivocally clear that in fact you are reconfirmed as chief justice, a 10 year for life, that it's going to be clear so it can't be disputed your resident in New Jersey. And I just leave you with that thought for now, maybe we'll talk about it later. I do think that it should be made very clear that there is no truth whatsoever to the allegation I've heard that the reason you live in New York is because you want to be closer to Governor Kane.

And of course it doesn't require it. Senator, I know this is not what you want to hear, but I do not want to play any games with you or with this committee. I am not going to leave my wife in a position that will devastate her life, her personality, everything about her. I hope I've done enough for the state. I hope I've been a good enough chief justice to allow something that isn't quite what I would like. I don't mean to diminish it, or what you would like. But I am not going to do that to my wife. We'll be back in a minute with some of the other issues that came up in the hearing and then with our two guests, so stay with us.

Thank you very much. After the residency issue was batted around for 90 minutes, Senator Edward O'Connor, the committee chairman, turned to the second most explosive of Senator Garibaldi's charges,

namely that the Chief Justice had changed the venue of a criminal trial, that of Gilbert Nelson, the former law director of New Brunswick, in an effort to somehow protect the reputation of New Brunswick Mayor and State Senator John Lynch. Will Ants explain that he had moved the trial because the assignment judge in Middlesex County, Judge Brightcoff, had asked him to, and that in Brightcoff's opinion, no judge in Middlesex County would have been able to handle the case. I would like to tell the committee what Judge Brightcoff told me. I would like to tell the committee what his reasons were for requesting me to get that case out of the hands of any Middlesex County judge. I cannot do so. It would be grossly unfair and improper for me to do so. It will difficult to explain to the committee, but I simply cannot give the reasons that he gave me.

Whatever the reasons are, they are not to do a favor for Senator Lynch. The judge who suggested the transfer while I'm sure he knows Senator Lynch because Senator Lynch is a very active practitioner in Middlesex doesn't have the same kind of political stripes that I apparently have. And as the Senator was quoted as saying, you don't do a favor for someone who was the head of the Judiciary Committee and the majority leader by taking a case out of the hands of the judges who know him best and who presumably like him best. After that, Willenz was quizzed extensively about his contacts with legislators over the years, particularly during the Sylvia Pressler affair of 1983 when her reappointment to the Appellate Bench was being blocked by senatorial courtesy. At the time, Willenz held a rare news conference, held it in the governor's office, no less,

and Senator Russo apparently found that appalling. I somehow just assumed that where that situation will rise again in the future, in no way would you react the way you did, and I'm not so sure now from what you just said, but that you might not. And I think the issue of senatorial courtesy, with all the respect Mr. Chief Justice and I've never been a proponent of it, is none of the business of the Judiciary. I think the independence of the Judiciary is very much the business of the Judiciary. It is very much my business, and I tell you, Senator, as long as I think, and I've made it quite clear, I'm talking about reappointment and not about appointment, as long as I think that kind of action has the potential impact of diminishing the independence of non-tenured judges, not that particular judge, but the entire system I'm going to speak up on it. Senator Raymond Zane called Willence Aragon for that, and asked what Willence would do if

one of his assignment judges got involved in a reappointment fight. I would tell that assignment judge, you better never do that again, and I would ask that assignment judge how come you did that, because if there's anything that is clear, it's that this kind of extremely difficult decision is one for me to make, and for no one else, and that assignment judge cannot get involved in that at all. And therefore, you're saying that the same action, because I think the scenario I just portrayed is very similar, you're saying you're above that, and that to me, that to me is Aragon. Senator, I'm terribly sorry that I appear Aragon to you. I'm saying what I'm trying to say, it's not that I'm above it, but that I'm the one who's responsible, the way that Judiciary in this- In all due respect, Chief Justice, you are not responsible, you are not responsible for who sits on the court in this state, and show me where in the Constitution of Provide that you are in fact responsible, and God knows I'm sure you know the Constitution

far better than I will ever know it, but where does it show it? And I'll tell you where it shows that the Governor, the Chief Executive and the Legislative branches are responsible for all of the appointments. It went on like that, eventually the Senators voted unanimously to ask Willence to produce his tax returns, and when the hearing resumes this Tuesday, presumably the Chief Justice will have them with him. And when we resume, we'll ask two reporters for their impressions of the hearing so far. With me here in Trenton is Robert G. Sidenstein, who covers the Supreme Court for the Star

Ledger, and in our Newark studio, Jerry Campion of the New Jersey Law Journal, that's the weekly trade paper for New Jersey's legal community, and in fact, Chief Justice Willence was once an editor of it as he told us during that hearing, or told the committee, Jerry, I found it a fairly tough grilling of the Chief Justice, perhaps tougher than I would have anticipated. What was your impression? I thought it was tough, I expected it would be tough. Among the problems the lawyers have is, is it appropriate for a Chief Justice to live in another state? You can't get around that question. He had a pretty good reason for living in another state, his wife has cancer, and requires medical treatment. Why do you think that wasn't good enough for the Senators on that committee, or it seemed not to be good enough at any rate?

Well, if you took Senator Russo's position, it was essentially this. When things get better, will you move back to New Jersey? He almost got to the point of begging the Chief to say, yes, I will. And the Chief was unwilling to do that. Essentially what the Chief said was, I am saying in New York, because my wife wants to stay in New York. When things get better, I will resume what I did before, move back to New Jersey during the week and be there on weekends. That was not good enough. It seemed to me for Senator Russo. Bob, your impression of the hearing? Well, it was a painful hearing to sit through. The Chief Justice put himself in the position of having to discuss a lot of fairly intimate details about his family life. But then again, the key is that he put himself in that position. He started the ball rolling in 1971 when he took his New York City apartment. From there, maybe it had a snowballing effect. But now, as Jerry says, residency is a real issue. And there can be opposition to the Chief Justice beyond opposition based on court decisions

that somebody might disagree with. Court decisions haven't even come up in this hearing so far, and I don't know if they're going to come up at all. I suspect that they will be discussed at great length on Tuesday. Do either of you think that this reappointment is in trouble at this point? I think it could be in doubt, but for a residency, it would be a show-in. Bob? I can't really evaluate that right now. I suspect that some of the senators are grappling with that issue this weekend. I do agree, though, that it would be hard to base opposition solely on the fact that you don't like court decisions. Sitting through the full day, as we all did, I don't think the Chief Justice tripped at all. I don't think he misspoke himself or got caught in any traps. And either of you agree with that, disagree with that? No, I thought there were no questions that you could call traps.

He stood his ground, he stated what he felt, he was very forthright. If anything came across there, I think he might have drawn some sympathy because he came across as a very good, caring husband. That might sway a few votes. People who will understand, he's got some problems that are unique. I feel that the sympathy factor may be at work to some extent, but to a lot of New Jerseyans, it somewhat bothers him that they have a Chief Justice who has at best the dual residency and at worst, a residency of another state. Well, the governor has a residency in New York, but we're not here to debate that. Jerry, the statute that we referred to briefly, or we heard a little about, you've done some thinking about, does the statute apply to judges that, apparently, from what I'm told, it's in a statute book where the heading is executive departments? Well, the Republican staff position is that it does apply to judges.

They say, don't missile is where your home is. And when you're dealing with appointments, or pardon me, executive office positions or any positions in the state, residency equals domicile, and you have to be a resident to hold a state position. Well, that's the Republican staff. What has to happen for somebody to enforce that? We have a court fight over the meaning of that statute. It would be something if the courts ended up interpreting the Chief Justice's residence. I've thought about that, and that could be a difficult position. Clearly, the Chief would have to excuse himself from any hearing on it. I think what would, I don't think it's going to reach that position. I think the Republicans, Democrats, are apt to come up with a position if they want to support him. It says, residency doesn't matter all that much here. I think residency, from the legal point of view, is less important than residency from the political point of view here. I agree with that, or also, I'd like to make a point about some of the other issues that were discussed at the hearing. There are no blockbusters there.

They've all been out in the open, I view them pretty much as non-issues. The Chief Justice. You're talking about the contacts with legislators and meetings and so on. Yes, exactly. The Chief Justice has been in office for seven years. That's a long time. And in seven years, there's bound to be a misstep along the way. There's bound to be a contact with a legislator along the way. I think, as we've been doing here, the focus will be on residency. And possibly on Tuesday, get into the matter of his judicial philosophy as well. If the public or these legislators were basically sympathetic to the Chief Justice, don't you think that they would forgive him his dual residency, particularly given the circumstances? Is there something about the Chief Justice that arouses the iron or the envy or gets under the skin somehow of these legislators and a segment of New Jersey? We have about one minute left, Jerry.

I think for some people, they will be upset with Mount Laurel, for example. Is it appropriate for a judge to say where poor people should live if he lives in Manhattan? Bob? I'm not sure he has a great sympathy factor working for him. His court decisions have upset a lot of people, and that will come out. Well, the fact that there's been no death penalty ruling from this court come out on Tuesday. It seems as if the court is withholding its death penalty ruling. It's been sitting on it for 18 months, waiting for its chief to get reappointed first. I don't think that will sway anyone who hasn't been swayed already by other issues. And I think that the residency factor can shore up opposition to Willens, but it doesn't necessarily mean that those who are in favor of him will change their votes. We have 15 seconds left. What are the Las Vegas odds on the reappointment of Chief Justice Willens? I'm hard pressed to predict, and I would say it's pretty well even now though. Bob?

I'd say he has a slight advantage. Okay, Jerry Campion, Bob Sidonstein, thanks very much for joining us. That's it for this week. Kent Manahan will be here next week. From all of us here at Front Page, New Jersey, thanks for watching.