More clarity on Rabner recusal

N.J. Supreme Court Chief Justice Stuart Rabner saw the judicial pension case coming and tried to stop it, which is part of the reason that he’s not participating. The other part: he made recommendations on how the lawsuit should proceed.

As reported yesterday on PolitickerNJ, Rabner is recusing himself from the state’s appeal of Mercer County Assignment Judge Linda Feinberg’s decision to overturn the pension and healthcare reform provision requiring sitting judges to pay more for their benefits.

As executive leader of the Judiciary, Rabner lobbied the Executive and Legislative branches to amend the provision to sidestep a Constitutional challenge before it was passed into law. As such, Rabner has now conflicted himself from the case, in his opinion, a source knowledgeable with the inner working of the Judiciary said yesterday.

Two sources have confirmed that Rabner met with both state Sen. President Steve Sweeney (D-3) and Gov. Chris Christie directly regarding the judicial provision of the pension and benefits reform before it was passed.

Representatives for both officials were not available for comment today, a state holiday, but asked yesterday about any meeting, spokesmen for both officials said they were not aware of any interactions with Rabner about the reform provision.

The second reason the chief justice is stepping aside, another source said yesterday, is because Rabner made recommendations to members of the top courts about participation in a lawsuit against the state.

Rabner did not completely recommend against judges joining a lawsuit against the state, a third source clarified today. Rather, the chief justice specifically recommended that no non-tenured judge, appellate judge, assignment judge, or tenured judge who is presiding over a division enter into the lawsuit.

The distinction is, according to the source, that Rabner wasn’t shying judges away from challenging the constitutionality of the reform provision; he was shying judges who are not shielded from political retribution away from exposing themselves in a lawsuit.

Contrary to our account that plaintiff Hudson County Superior Court Judge Paul DePascale ignored Rabner’s recommendation, DePascale in fact was following the recommendation exactly. DePascale is a low-profile judge in a highly Democratic area who would be an unlikely candidate for any sort of political reprisal, the third source explained.

Also, a source told PolitickerNJ today that a few trial judges are still contemplating filing a complaint with the state Bar Association regarding Christie’s comments about Feinberg’s decision in the case.

The Bar Association holds that attorneys – even if they are the chief executive of New Jersey – cannot disparage sitting judges with “reckless disregard,” the source said.

The judges, according to the source, are zoning in on Christie’s claim that Feinberg presiding over the case was a “conflict of interest.”

Feinberg in her decision states the commonplace legal guideline that applies: If there’s no one else to hear the case, you have to hear it, and that unavoidable duty removes any presumption of conflict.

More clarity on Rabner recusal