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

, New Jersey Law Journal

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Justice Helen Hoens will likely be remembered as the greatest individual victim of the rift between Gov. Chris Christie and the Legislature over the composition of the New Jersey Supreme Court.

Denied tenure—to spare her from the savagery of a contested reappointment, Christie said—the 59-year-old jurist with almost 20 years on the bench stepped down on Oct. 25, less than a year before she would have been entitled to a full judicial pension. That cost her almost half of a nearly $140,000 pension and lopped 11 years off her judicial career, assuming she would have stayed until mandatory retirement at age 70.

During her last appearance at oral arguments before the court on Oct. 8, Hoens chose not to comment “on the roiling waters of politics that swamped the little boat of my judicial career.” She said she was “content to let history judge me by the body of work I have left behind.”

Her seven years as a justice indeed form a legacy. She authored 90 opinions, among them some of the court’s most consequential in areas of particular concern to lawyers—including drunken driving cases, remittitur of jury verdicts in personal injury actions and consumer fraud suits.

She spoke for a unanimous court in 2008 in State v. Chun, 194 N.J. 54, which held that the Alcotest, which measures blood alcohol level, is scientifically reliable and can be used in DWI cases subject to certain safeguards. Challenges to the Alcotest continued and on Sept. 18, the court in an order by Hoens refused to scrap the device, rejecting allegations by the defense bar that state law enforcement authorities purposefully failed to comply with the 2008 safeguards.

Hoens led a sharply fractured court in He v. Miller, 207 N.J. 230 (2011). The 3-2 ruling allowed trial judges to reduce jury verdicts based on comparable awards and their own “feel of the case” and laid out “essential principles” to guide them in the process.

The four justices who decided He split evenly, with the outcome determined by temporarily assigned Appellate Division Judge Dorothea Wefing, who lined up with Hoens and Justice Roberto Rivera-Soto to constitute the majority.

Justice Barry Albin’s dissent, joined by Chief Justice Stuart Rabner, accused the majority of “diminishing the right to a civil jury trial and breaking with the deferential principles of our remittitur jurisprudence.”

In the area of consumer protection, Hoens’ most significant opinion was Bosland v. Warnock-Dodge, 197 N.J. 543 (2009), holding that consumers need not demand a refund before they sue under the Consumer Fraud Act.

Her body of opinions shows Hoens was more likely to rule against civil plaintiffs.

A recent notable example was the March 12 decision in D.D. v. University of Medicine and Dentistry of New Jersey, 213 N.J. 130 (2013), where Hoens, backed by Rabner and Justice Anne Patterson, refused to allow a tort claim against the state for allegedly publicizing that the plaintiff had AIDS.

Dissenting Justices Albin and Jaynee LaVecchia agreed with two lower courts that would have extended the Tort Claims Act’s 90-day notice period because of the plaintiff’s medical problems and her attorney’s alleged inattentiveness.

To Hoens, however, allowing the suit “would create an entirely new rule that would permit wide latitude to claimants and counsel to circumvent the statute’s clear commands.”

She also sided with the state in the affordable housing and school funding cases, respectively, NAACP v. Mount Laurel and Abbott v. Burke, with which the court has been grappling for decades.

Christie cited those cases in declaring his intent to move the court in a more conservative direction. The purported first concrete step was denying reappointment to Justice John Wallace Jr. in 2010, even though he was widely deemed to be a centrist.

Hoens seemed to be the type of justice Christie wanted, as shown by two dissents in Mount Laurel matters during her last five months on the job.

One, joined by Patterson, parted company from a Sept. 26 decision that struck down the current round of affordable housing rules because they relied on growth-share methodology. And on July 10, she joined Patterson’s dissent from a ruling that Christie overstepped his authority when he tried to abolish the Council on Affordable Housing by way of an executive order.

In an Abbott case decided May 24, 2011, she and Rivera-Soto joined each other’s dissents from a decision on a motion to enforce litigants’ rights based on the state’s failure to fully fund poor school district as required by the School Funding Reform Act of 2008.

A 3-2 majority granted the relief but only for the 31 original Abbott districts and not the 187 other underfunded ones where students had also been found to be at risk. Hoens agreed with Rivera-Soto that four votes were needed to grant the relief motion and voiced her own view that it should have been denied because it “treads on the constitutional prerogatives of the Legislature and the Executive branch.”

On a challenge to legislation that increased the amount state employees, including judges, must contribute toward their pensions and benefits, Hoens once again sided with Christie.

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.

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.”

Foreseeing Crisis

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.

In a separate opinion designated “dubitante,” Hoens expressed doubts about both Rabner’s and Rivera-Soto’s views.

She warned of a “true constitutional crisis that is looming,” which would happen when an appeals judge swung the outcome in a case where the judge was not needed to form a quorum but only to help the court with its workload.

Hoens departure created another vacancy, though Christie’s nominee to replace her, Camden County Assignment Judge Faustino Fernandez-Vina, won approval from the Senate Judiciary Committee on Oct. 17. No date has yet been set for a Senate confirmation vote.

Many justices who leave continue for many months afterward to help decide appeals that were argued before them. Hoens will not be one of them.

According to judiciary spokeswoman Tammy Kendig, Hoens was done as of her last day and will not participate in any appeals, motions or any other matter in any fashion beyond what was filed as of Oct. 25.

Her final opinions were a pair of unanimous ones issued on Sept. 17 in Green v. Morgan Properties, 215 N.J. 431, and State v. Handy, 215 N.J. 334.

The Green ruling allowed Consumer Fraud Act and negligence claims against a corporate landlord based on lease provisions that imposed legal fees on evicted tenants in a fixed amount that was not tied to the actual cost of in-house counsel’s services for the eviction. Counsel could not be sued, however, because there was no attorney-client relationship, Hoens said.

The Handy decision overruled a 33-year-old precedent that bifurcated criminal trials where insanity was raised as a defense.

The last ruling in which she participated was State v. Hinton, on Oct. 24, where she joined Patterson and two others in upholding a warrantless police search of a public housing apartment in connection with an eviction.

Hoens has not announced her future plans nor did she respond to a request for an interview, relayed through the Administrative Office of the Courts.

Long, who retired last year and is now with Fox Rothschild in Princeton, served for six years alongside Hoens and calls her “everything that a judge or justice could possibly be. She’s hardworking, she’s brilliant, she’s compassionate and she has the ability to make accessible to the reader really complicated ideas, a great talent that everybody doesn’t have.”

She also describes Hoens as collegial, effective at bringing people together on an opinion and funny and great to be around. Long notes that Hoens has traveled to places like Haiti and Africa to try to improve people’s lives, and calls it “heartbreaking that she is lost to the court at this point.”

As for Hoens’ comment about history judging her work, Long says “history is going to treat her extremely favorably.”

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