Today, I had the pleasure of arguing an important case involving choice of law, statute of limitations, and federal preemption issues before the Court. But only one Justice, Justice Lavecchia, was present. The Chief Justice and Justices Long, Albin, Hoens and Patterson all recused themselves. As a result, Justice Lavecchia was joined on the bench by Judge Wefing, who was promoted to the Supreme Court after Judge Stern retired, and Appellate Division Presiding Judges Rodriguez, Cuff and Fuentes.
To my knowledge, this may be the first time that Justices have been outnumbered on the Court. Some quick research reveals that there have been some occasions where three Justices were joined by two Appellate Division judges, e.g., In re Provision of Basic Generation Service, 205 N.J. 339 (2011); Cooper University Hosp. v. Jacobs, 191 N.J. 125 (2007); Trantino v. New Jersey State Parole Bd., 166 N.J. 113 (2001), and a number of times when four Justices and three Appellate Division judges decided cases, e.g., E. Dickerson & Son, Inc. v. Ernst & Young, LLP, 179 N.J. 500 (2004); Petition of Casino Licensees, 138 N.J. 1 (1993); Village of Ridgewood v. Bolger Foundation, 104 N.J. 337 (1986).
In fact, in the 1970’s, when there were two vacancies on the Court, there were some cases in which three Justices and three Appellate Division judges comprised the Court. E.g., State v. Miscavage, 62 N.J. 294 (1973); In re Sports Complex Hackensack Meadowlands, 62 N.J. 248 (1973); Brooks v. City of Orange, 61 N.J. 576 (1972). But, seemingly, this is the first time that one Justice and four Appellate Division judges have constituted the Court.
All this is not to say that the oral argument was anything less in quality and vigor than any of my six other arguments before the Court. The jurists are all highly knowledgeable and experienced, and they were fully engaged at the high level that is typical of Supreme Court arguments. Regardless of the outcome, though, the Court’s decision will make history as the first occasion on which Appellate Division judges outnumbered Justices (or, rather, the one Justice) on the Court.
My thanks to our firm’s law clerk, Alvaro Hasani, for his assistance with some of the research that is included in this post.