New Jersey’s nagging judicial vacancy crisis has driven many litigants to find alternatives to settle their disputes.
One common option has been the hiring of discovery masters — or private third parties — to hear discovery arguments. Discovery masters are typically used voluntarily in complicated cases in which there are disputes about the exchange evidence in discovery. Discovery masters can also be assigned by courts in extraordinary circumstances when judges may be unable to quickly settle disputes.
But there’s one major difference between going to court and using a discovery master to help mediate a dispute: Money. Discovery masters aren’t employed by the state court system and have the right to charge hourly fees to handle cases.
A Somerset County attorney thinks that should be the state’s problem — and not his client’s. Why? The discovery master in his client’s case was hired because of the judicial vacancies plaguing New Jersey’s courts.
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What does the attorney want?
attorney Jon Green, of the firm Green Savits, filed a motion calling for a judge to order New Jersey to pay those discovery master fees. The case in question, a whistleblower civil suit, was before Superior Court Judge Robert Ballard in June.
According to the motion, Ballard assigned a discovery master to handle upcoming motions. After further negotiation, retired Judge Alan Lesnewich was assigned to handle the case for a rate of $600 an hour.
“We’re contending that the party should not have to suffer. The discovery master’s fees should be paid by the state,” Green said. “When you have all the judicial vacancies, they have these salaries that are not being utilized or underutilized monies.”
Green told NorthJersey.com and The Record that, during case management conferences, Ballard told the attorneys in the matter he was one of only two civil judges currently sitting in Somerset and Warren counties. Those two judges, Green said, are handling all of the chancery, landlord-tenant and special civil cases in those two counties.
Green said that there’s also still a backlog from the pandemic shutdowns so judges like Ballard don’t “have the time” and are “incredibly stressed.”
The idea to call for the state to pay wasn’t Green’s, he said, crediting his partner, Laura LoGiudice, who he said came up with the idea.
“This is a situation where the discovery master is being treated like a judge,” Green said. “Our citizens pay taxes to support the court system in order to have judges decide legal disputes. We’re not getting that benefit because the Legislature and the governor are not nominating and confirming judges on a timely basis.”
A spokesperson for the governor’s office said that it had no comment on pending litigation. The state’s Treasury Department also declined to comment.
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How bad is NJ’s judicial vacancy crisis?
While headway was made in June to address judicial vacancy issues — 15 Superior Court judges and a new member of the state Supreme Court were appointed — nothing more has been done since.
No special sessions were called during the summer and with 120 seats in Trenton on the ballot in November, lawmakers may not be back until after that.
There are 18 nominees waiting for a Senate Judiciary Committee hearing. There have been 34 confirmed this year and 79 since the beginning of 2022.
State Supreme Court Justice Stuart Rabner has been sounding the alarm about the state of the judiciary for years.
Trials in civil and marital cases in Hunterdon, Passaic, Somerset and Warren counties are suspended.
Of those 18 pending nominees, there are enough to fill three of the five vacant seats in Somerset County and one for the vacant seat in Warren County, as well as two to fill empty seats in Passaic County.
“The judiciary’s goal is to serve the public by providing a place to resolve disputes fairly and expeditiously,” Rabner said. “In order to do so in every vicinage, we respectfully ask the executive and legislative branches to continue to address the critical issue of judicial vacancies in a timely manner.”
Rabner suspended civil and divorce cases in Cumberland and Gloucester counties earlier this year but reopened them in July.
According to the Administrative Office of the Courts, there currently are 58 judicial vacancies with three more expected each in September and October, another in November and another in December.
“Litigants are waiting for decisions,” Green said. “Justice delayed is justice denied.”
Katie Sobko covers the New Jersey Statehouse. Email: sobko@northjersey.com
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