Hoens, Driven Early From Bench, Led N.J. Court in Critical Rulings
However, she and Long, a liberal, joined in a dissent in Davis v. Devereux Foundation, 209 N.J. 269 (2012), in which the majority held an institution harmless for a caretaker’s intentional act of pouring boiling water on an autistic resident because it was not within the scope of his employment.
Hoens wrote that “this Court finds ample room to protect property but not to protect people, leaving largely defenseless those among us who are the most vulnerable members of our population.” She also said the majority is “unmoved by the reality that there will be people...trying to perform work with a challenged person...who will act in ways that, while we need not condone them, nonetheless were actuated in part by service to their employer. Creating an impenetrable shield around the facility charged with the care of the profoundly disabled...hardly advances the cause of a just society.”
Hoens is herself the mother of an autistic son, and at her last court session she said raising him had forged in her qualities that lay at her core as a judge, “like patience and compassion and strength and courage.”
To cope with continual vacancies on the bench that began with Wallace’s departure in 2010, Rabner has been assigning senior Appellate Division judges based on a state constitutional provision that allows the chief justice to do so “when necessary.”
The propriety of Rabner’s action provoked a schism on the court in Henry v. New Jersey Department of Human Services, 204 N.J. 320 (2010).
The case resulted in four opinions, one of which addressed the merits of the discrimination suit and three debating whether Judge Edwin Stern, temporarily assigned, should have been part of it.
Stern wrote the majority opinion, which remanded to address a statute of limitations question. It was joined by five of the six justices remaining after Wallace’s departure.
The sixth, Rivera-Soto, abstained and wrote an opinion saying he would continue to abstain as long as the court remained “unconstitutionally constituted” based on his view that Rabner lacked the power to have appeals judges fill in, except when needed for a quorum.
Rabner filed a concurrence joined by Long, LaVecchia and Albin, justifying the temporary appointment.