Hoens, Driven Early From Bench, Led N.J. Court in Critical Rulings

, New Jersey Law Journal

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The court ruled in DePascale v. State of New Jersey, 211 N.J. 40 (2012), that the law as applied to sitting judges violated a state constitutional prohibition on reducing judges’ salaries “during their term of appointment,” though it was overturned by constitutional amendment a few months later.

Hoens signed onto Patterson’s dissent, which said salary and benefits were not the same and the law did not attack judicial independence because it affected all employees.

Hoens was more mixed on another hot-button issue—same-sex marriage, which became legal in New Jersey last month after Christie dropped his appeal from a trial court ruling in favor of it.

Hoens joined the court one day after the decision in Lewis v. Harris, 188 N.J. 415 (2006), that gay and lesbian couples are entitled to the same rights as straight couples, but not necessarily to marriage.

When the plaintiffs returned in 2010 asking the court to enforce Lewis by allowing same-sex marriage because civil unions had proved unequal, Hoens, Rabner and Rivera-Soto said they had to file a new action and develop a trial-like record. An equal number of justices, Virginia Long, Jaynee LaVecchia and Barry Albin, wanted to hear oral argument and to avoid unnecessary delay, but the 3-3 deadlock meant the motion was not granted.

A new suit was filed, but after the judge ruled in favor of same-sex marriage, Hoens joined Rabner’s opinion refusing to stay it while Christie pursued an appeal.

Of Hoens’ 90 opinions, 66 were for a majority. She wrote for a unanimous court in 43 cases. Of the 23 split decisions in which she led the majority, she was the deciding vote in four.

Of her five concurrences, two came in 3-3 affirmances where the court wrote no majority opinion: In re T.J.S., 212 N.J. 334 (2012), which held an infertile wife had no right to be the legal mother of her husband’s biological child born to a gestational carrier, and Northvale Bd. of Ed. v. Northvale Ed. Association, 192 N.J. 501 (2007), which enjoined arbitration of a grievance by a nontenured school teacher fired in the middle of her contract.

Mixed Voice of Dissent

She dissented, at least in part, in 19 cases, usually joining fellow conservatives Rivera-Soto and later Patterson in two-justice minorities.

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