April 10, 2002
The Honorable John W. Bissell
(1)
Chief Judge, United
States District Court for the District of New Jersey
----
Good evening everyone. It is a great honor to be asked to deliver the 20th annual Chief Justice Joseph Weintraub Lecture here at Rutgers Law School. When I accepted this assignment, Dean Deutsch sent to me a list of the prior speakers and the topics which they addressed. I must tell you, that list reads like a who's who of the bench and bar over the last two decades. I am both pleased and humbled to be now included among them.
In reading over the list of the lectures previously given, however, I was surprised to see that none of them focused on the Weintraub Court as such. Perhaps the presentation of former Justice Dan O'Hern comparing the judicial journeys of Chief Justice Weintraub and U.S. Supreme Court Justice William Brennan came closest. (2) As one who came to the bar in 1966, in the middle of the Weintraub era, I felt particularly moved to pay a tribute to the Weintraub Court by exploring the backgrounds and modus operandi of both its members and the court as an institution.;
When I use the term Weintraub Court here, I am focusing upon the time frame from 1960 to 1971 in which the same seven members served upon this New Jersey Supreme Court: Chief Justice Joseph Weintraub, Justice Nathan Jacobs, Justice John Francis, Justice Haydn Proctor, Justice Fred Hall, Justice Thomas Schettino and Justice Vincent Haneman. Interestingly enough, Justice Haneman was the last to join this group, succeeding Justice Burling, and the first to retire, replaced by Justice Worrall Mountain. While some of the materials employed here will include events from shortly before and shortly after the time period upon which I will focus, it will only be to confirm or explain events in the life of this Court of seven exceptional men who served together for eleven years.
Although it is difficult, I will try to avoid too much focus upon Chief Justice Weintraub himself. Undoubtedly, his intellect, organizational skills, genius as a consensus builder and respect for his colleagues (which was returned by them manyfold) as well as the mere fact of his position as Chief Justice, have all combined to make him the dominant figure. In getting acquainted with his colleagues, however, one gains even further respect for their contributions to the development of law in this State resulting from their collective efforts.
In undertaking this task, I focused my research in three areas. The first consists of published remarks by and about the Justices which emerged, in most cases, after their retirement, in law reviews, newspapers, memorials and obituaries. The second, and most fascinating for me, was the comments of several of my contemporaries and friends who served as clerks on the Weintraub Court. I chose a clerk from each of the seven Justices who served together from 1960 through 1971. Assuring each of these men that I was not out to recreate "The Brethren" and would preserve their anonymity if requested, I received some very informative responses from each of them. Now in their late 50s and early 60s, these clerks, not surprisingly, have themselves become the leaders of our bench and bar. I would like to thank them publicly at this time: Joseph A. Hayden, Jr.; David Samson, Attorney General of the State of New Jersey; his predecessor in that post John J. Degnan; the Honorable Stephen Skillman, J.A.D.; Michael R. Cole, Esq., and my colleagues on our U.S. District Court Joseph E. Irenas and Garrett E. Brown, Jr. A special thank you to Jack Francis, Jr. and Hugh Francis, the sons of Justice Francis, each of whom also clerked on the Weintraub Court, for spending an evening with me discussing so many facets of Court life at that time.
My third source of material has been the study of several selected opinions of the Court during the time period in question. I hasten to add that this talk is not going to focus on the jurisprudence which was developed by the Weintraub Court in so many significant areas. While some of these opinions will be mentioned, usually in the quoted comments of others, I leave to scholars more able than I any detailed analysis or comprehensive review of the Weintraub Court's decisions.
I will begin with biographical sketches of each of the seven Justices, in reverse order of seniority, punctuated by insights and anecdotes which tell us something about a justice and his contributions to the court as a whole. I will next endeavor to address some of the impressions which one garners about the Weintraub Court and, in particular, any philosophies or characteristics which define its legacy. Finally, I will focus upon three significant views and practices implemented by Justice Weintraub as the Court's leader.
Justice Vincent S.
Haneman
Justice Vincent S. Haneman was born in Brooklyn, New York in 1902. He was reared in East Orange, New Jersey. His father was a doctor of both medicine and dentistry.
Vincent Haneman received his law degree from Syracuse University in 1923. A year later he moved to Brigantine, New Jersey where he was appointed City Solicitor. In 1934 he was elected Mayor of Brigantine. While serving as Mayor, he was elected to the General Assembly where he served for seven years from 1938-1944. In 1940 he was chosen as counsel to the;
New Jersey Racing Commission and, four years later, at age 42, he was appointed Judge of the Court of Common Pleas in Atlantic County. In 1947 he became Vice Chancellor of the former Court of Chancery and, in 1948, pursuant to the newly adopted State Constitution, he was appointed Judge of the Superior Court, Chancery Division, presiding over the vicinages of Burlington, Camden and Gloucester Counties. In 1958 he went to the Appellate Division of the New Jersey Superior Court, and in 1960 he was elevated to the New Jersey Supreme Court where he served as an Associate Justice until his retirement in 1971. He then returned to Atlantic County where he presided in the Chancery Division of the Superior Court until 1973. He died on January 10, 1978 at the age of 76.
The Honorable Frank M. Lario, Jr., has penned the following comments about Justice Haneman, for whom he served as a law clerk.
"Justice Haneman was a loved and respected jurist and man. He was an imposing figure both in and out of the courtroom. Standing six feet three inches tall, he had a deep, booming voice that would admonish an irascible attorney to refrain from obfuscating the issues of a case; yet his appreciation of people and their sensitivities gave him the ability to calm instantly a nervous young attorney who was in court for the first time."(3) Another contributor to this lecture recalls an occasion when Justice Haneman employed his physical presence effectively. It seems that an attorney at oral argument had made a remark disrespectful to Chief Justice Weintraub, whereupon the Court's junior member reminded this advocate, "be mindful, sir, you are speaking about my Chief."
Judge Lario continues: "While serving as his law secretary, I came to know Justice Haneman as a kind, considerate and intellectually honest man. His code of ethics generated from childhood guided his lifestyle. In Justice Haneman's chambers, among his volumes of published opinions, he kept his personal judicial code of ethics which he had penned in 1953, and which he referred to as the nineteen commandments for judicial conduct. These commandments not only serve as a document of his own beliefs and practices, but they can be followed as a guide for all judges of the highest court to the lowest." (4)
Those commandments included the following which seem particularly material to the work of a Supreme Court Justice.
A Judge should remember:
"When I was offered the job, the Justice said that one of the requirements was a valid driver's license, because we drove from Atlantic City to Trenton every week for arguments and conferences. The drive up was largely silent, since the Justice spent his time reviewing briefs, trial records and memoranda. The trip home was a different matter as the Justice had an endless supply of jokes, anecdotes and legal war stories based upon his many years in practice and on the bench. This was one of the most rewarding aspects of the clerkship, a real practical education."(6)
Justice Thomas Schettino
Born September 9, 1906 in Newark, New Jersey, C. Thomas Schettino attended the East Orange High School and Rutgers University from which he graduated in 1930. He then enrolled in Columbia University Law School from which he graduated with his law degree in 1933. Punctuated by brief sojourns into private practice, during the ensuing fourteen years, Justice Schettino also took on several positions in public service. The first of these was his appointment to the legal staff of the Port of New York Authority as Chief New Jersey counsel. In 1941 Governor Edison ordered a probe of the New Jersey Highway Department. Mr. Schettino was selected to assist in that investigation. After completion of the probe, Governor Edison appointed Mr. Schettino Executive Clerk and Clerk of the Court of Pardons, also in 1941. Returning to private practice in 1944, where he joined John Budd and Samuel A. Larner in forming the firm Budd, Larner and Schettino, Justice Schettino accepted an appointment by Governor Driscoll to the Court of Errors and Appeals, the highest court of the State of New Jersey at that time. With the revamping of the court system under the new constitution of 1947, Justice Schettino became a member of the Superior Court of New Jersey where he served for twelve years prior to his appointment to the New Jersey Supreme Court in 1959. Despite being stricken with a debilitating illness (Parkinson's disease), and buoyed by his own courage and the support of his colleagues, Justice Schettino served on the Weintraub Court until his retirement in September 1972. He died on March 21, 1983 at the age of 76.
At memorial proceedings for Justice Schettino before the Supreme Court, his former colleague Justice Proctor offered the following remarks: "I was a member of the Supreme Court when he was appointed on March 20, 1959 and was still on the Court when he retired on September 9, 1972. During a great part of that time our chairs were next to each other. We became warm friends." (7) *** turning back the clock slightly to the period when then Judge Schettino sat in the Superior Court in Monmouth County, also the home of Justice Proctor, the latter continued: "Tom knew many prominent people and many who were far from prominent. He made everybody feel 'at home' whether he was a financier or a laborer. He seemed to have that quality of making the fellow he was talking to feel that his interests were Tom's interests. I am sure you all noticed that when you talked with him you felt that your concerns were his concerns. You never felt uncomfortable with him. He was the same when he was a member of this Court." (8) *** "Fortunately, the atmosphere in our Court has always been congenial. I firmly believe that Tom's friendliness, his tranquil spirit and his entire character contributed in a large way to that atmosphere and the work of the Court. He always added a cheerful note. Even during his last days on the Court, when he was not well, his cheerfulness did not wane. In short, he epitomized the gentleman who can disagree without becoming disagreeable."(9)
Like Justice Proctor, I happen to believe that every multi-judge court needs at least one member who is genuinely friendly, courteous and courageous, even in the face of personal adversity. By setting those examples for his colleagues, Justice Schettino performed a very important function in the life of the Weintraub Court.
Justice Fred Hall
Frederick W. Hall was born on February 22, 1908 in Pittsburgh, Pennsylvania. He matriculated at Rutgers College from which he graduated Phi Beta Kappa. He moved on to Harvard Law school, graduating cum laude in 1931. Coincidentally, his classmates at Harvard included Donald B. Kipp, eventually Senior Partner at Pitney, Hardin and Kipp, and my own personal mentor during my years as an associate and partner with that firm, and Justice William J. Brennan, Jr., also a partner at Pitney before embarking on his unparalleled career as a state and federal Supreme Court Justice. Like his other colleagues on the Weintraub Court, Justice Hall served on the Superior Court of New Jersey, in his case from 1953 to 1959, when Governor Meyner appointed him to the New Jersey Supreme Court, on which he served until 1975. Justice Hall died on July 7, 1984 at the age of 76.
Justice Hall was one of three members of the Court whose chambers were not located in the Mutual Benefit Building on Broad Street in Newark. His were in Somerville, and those of his colleagues Justices Haneman and Proctor were in Atlantic City and Asbury Park, respectively. The former clerks of the Court had varying views on the significance of having four Justices with adjacent chambers and a shared library in Newark, while their three colleagues were in scattered locations elsewhere in the State. It is clear, however, that no factionalism, based on geography or anything else, ever infected the Weintraub Court.
One of Justice Hall's former clerks writes: "Justice Hall's particular interest, perhaps derived from his background as a 'small town lawyer' (Somerville) and member of the School Board in Bound Brook, was municipal law generally and land use law in particular. He was rather protective of the statutory prerogatives of local officials, but at the same time wary of the misuse of local zoning powers, especially in the form of so-called snob zoning. That wariness culminated in his authorship of the Mount Laurel I decision." (10)
Richard H. Herold, Esq., offers the following expanded biographical sketch of Justice Hall, presented at his Supreme Court memorial:
"From the outset it's clear that his academic record was an accurate reflection of the quality within him. Fred Hall began school in Neshanic, New Jersey at the age of five and that sounds ordinary enough, but he began in the third grade and that was not so ordinary. Keeping up that pace, he completed grammar school in 1918 at the age of ten and he went on to a successful high school and college career. He graduated from Rutgers College second in his class of 160 and was elected to Phi Beta Kappa in his junior year. In 1928 the Justice entered Harvard Law School from which he was graduated cum laude in 1931.
"With his fine education and record it was no surprise that the new law graduate was accepted as a law clerk in the office of Arthur T. Vanderbilt. He honed his trial law skills in the future Chief Justice's office and also began there to accumulate his deep knowledge of municipal law." (11)
* * *
"During the years of his general practice the Justice also demonstrated his sense of responsibility to the larger community in which he resided. He served as a member of the Bound Brook School Board for fifteen years, a member of the Board of Managers of what was later known as the New Jersey Neuro-Psychiatric Institute, a trustee of the Bound Brook Presbyterian Church and President of the Somerset County YMCA. However, it is not easy to describe Frederick Hall anecdotally. He was a person of high and steady purpose, dignified but not pompous, serious but not falsely solemn. He was studious, lacking in artifice and seemingly free of those tendencies to self-aggrandizement which afflict the rest of us. Thus his integrity and consistent commitment to his fellow man are evidenced much more by the calm examples he gave them than by any colorful affectations or self-asserted claims to fame." (12)
His colleague and long-time friend Justice Mountain added these observations about Fred Hall's judicial contributions: "Justice Frederick W. Hall sat as a member of the Supreme Court of New Jersey from 1959 until 1975. Before his elevation to the Supreme Court he had served as a trial judge in the Superior Court for about six years. In those days the volume of litigation was not what it is today. At one time Fred Hall held the position of Assignment Judge simultaneously in five different counties extending from Sussex County in the north to Ocean County in the south. Today that would of course be impossible and even then it was difficult.
"A word should be said about his ability as an opinion writer. In the statement of analysis of facts and in the defining and delineation of issues he was truly outstanding. This was due, I believe, to two things: the clarity of his thinking and the meticulous and lucid manner in which he habitually expressed himself. As a trial judge he already manifested the great interest in and wide knowledge of zoning and planning law that later, as a Supreme Court Justice, brought him national fame. Also, he read extensively in this field and enjoyed discussing problems that land use law presented. I recall remarks in conversations with him in those days that clearly portended what he later articulated comprehensively in his brilliant opinion in Mount Laurel. Because I believe it to be so apt, permit me to repeat what I once before said about Justice Hall.
"Several hundred years ago Sir Edward Coke described the law as a jealous mistress. More recently Justice Holmes assured us that the law is a great calling when greatly pursued. Justice Hall was in and of that tradition. He gave his life to the law. During the sixteen years that Justice Hall sat on the Supreme Court of New Jersey it was considered one of the finest Courts in the land, as indeed it is today. His contributions to the law during that period were many. His great reputation in the field of land use law has tended to deflect attention from his important writings in other fields. He was completely at home in the entirely intricate field of municipal law; he wrote important opinions in the areas of torts, criminal law, constitutional law and many other subjects. Few judges possessed his extensive knowledge of procedure and the rules of court.
"Those of us who knew Fred well will always remember him as a scholar of high attainments, a master of the law and a loyal and kind friend and colleague." (13)
Justice Haydn Proctor
Justice Haydn Proctor was born on June 10, 1903 in Asbury Park, New Jersey. After graduating from Neptune High School, he attended Lafayette College graduating in 1926. He then enrolled in the Yale University School of Law where he was the Associate Editor of the Yale Law Journal, graduating in 1929. He then entered into a career of virtually uninterrupted public service until his retirement from the Supreme Court of New Jersey in 1973. He served as the Magistrate of Ocean Grove, New Jersey from 1930 to 1943, a member of the New Jersey State Assembly representing Monmouth County from 1934 to 1936, a member of the New Jersey State Senate from 1937 to 1946. He was appointed a Circuit Court Judge under the former state court system in New Jersey, serving in that capacity from 1946 to 1948. A delegate to the New Jersey State Constitutional Convention, he became a Judge of the Superior Court of New Jersey from 1948 to 1957 after the enactment of the new constitution. During this time period he also served as President of the Monmouth County Bar Association from 1950 to 1951. He was elevated to the New Jersey Supreme Court in 1957 on which he served until his retirement in 1973. Justice Proctor survived his colleagues on the Weintraub Court for many years, until October 1996, when he died at the age of 93.
Not surprisingly, because of his longevity and the number of people he touched, the Supreme Court proceedings in memoriam for Justice Proctor were lengthy.
Here are some excerpts from the remarks of his longtime friend, former Judge Frank Crahay, who sat both in the Superior Court, Monmouth County, and in the Appellate Division.
"Justice Haydn Proctor touched so many people, so many judges, friends, the ordinary man. In checking, I found out that within a two-month period in 1957, he and Justice Francis joined this Court, and Justice Weintraub became its Chief Justice. He was literally a member of the Weintraub Court for all its years because again in June and August of 1973, he and Chief Justice Weintraub retired. (14)
"When he joined this Court in '57, I met him almost daily. We had lunch in Steinbach's Department Store in Asbury Park. If he wasn't sitting on the bench or doing something more important, lunches were there. Many of his old clerks from the very first through the most recent would be there with him, and these were great, great learning experiences.
"Then somebody got the idea that perhaps I should become a member of the judiciary. That was in 1960. Having been from Hudson, I ran into a little trouble because Monmouth is essentially a Republican County. One of the big character defects asserted against me, even editorially, was that I was not from the County. The good Justice suggested that maybe I get the word out that I wintered in Hudson County. And it seemed to work.
"But, again, these were happy times, and he would help. He just always wanted to help. You know, you'd go to the opera with him; I remember even before I went on the bench, we used to go to the old Metropolitan with Senator Eddie O'Mara from Hudson, just great people. And you sit there as a young guy and learn and learn.
"Even today, in Monmouth County, the courtroom I first sat in is now the Chancery Division. In the old days, it was grey and dark and dusty. They fixed it up now; it almost looks like a Morris County Courtroom; it's beautiful, beautiful. His portrait is there and it's a beautiful portrait.(15)
"I wasn't much for writing opinions in those days; county district court, you didn't do it. But I got my teeth into a case on quasi-contracts, and it's reported, 61 Super., Colanno v. somebody.; So I wrote this three-page letter opinion, and I showed it to him on the way back from Steinbach's because he was always interested in what you were doing. And he read it and he said, oh, good, good, persuasive, solid, pithy; he loved to say my opinions were pithy. Well, okay, I filed that opinion and gave judgment for plaintiff on a quasi-contract. It was appealed. The Appellate Division in its wisdom reversed it three-nothing. Uh-oh. Because I thought this was going to launch me on a judicial career beyond measure. So the respondent had the good sense to petition for certification. It came before this Court and certification was denied seven to nothing. Well, anyway, I went back to Steinbach's and I said, it was seven to nothing. He said, 'you know, that Appellate Division decision was very persuasive.' So we went on to other things. He was an intellectual imp, he was just wonderful that way." (16)
Believing as I do, that diverse hobbies are a valuable adjunct to the life of a jurist, I found interesting Frank Crahay's comments about Justice Proctor's extracurricular pursuits:
"Music. We all know of his love for music. Member of ASCAP. He used to say, dues-paying member of ASCAP. He wrote songs. The opera was one of his great, great favorites, and so many people, Henry Paterson, Secretary of the Senate, Senator O'Mara. The opera. Shakespeare, that was one of his real favorites. We would go with him because if a Justice of the Supreme Court suggested you do something on a given weekend, you did it. But we loved it. We'd go to Stratford in Connecticut." (17)
But Haydn Proctor also labored hard in the vineyards of the Supreme Court. Once again, in the words of Judge Crahay:
"He loved to work. You all know that, those of you who worked with him. He loved to write opinions, he wrote important opinions. I was going to do a little catalog of them, but you couldn't do it, just too much. They were well written. And he used to proudly say he never, ever wrote a 'far-reaching' opinion.
* * *
"What were his attributes and qualities? They were many, but just some come to mind. His wit has been mentioned. His intellect, his humanity, he was self-effacing, he was modest. He had the ability to love people and he had the ability to accept love. To me one of his greatest qualities was he never took himself too seriously. He had this great love of government and law and served it well. I was thinking the other day, putting these little thoughts together, that across these United States various bar associations and courts are creating committees on professionalism and gentility. To me, the whole thing could be done if all new lawyers and old ones were told, try to be a little bit like Haydn Proctor. I think that would work."(18)
Speaking at the same memorial, Virginia Fenton, a former law clerk observed:
"All of his clerks became familiar with his unique procedures for his handcrafted opinions.
* * *
"When I began my clerkship, my understanding of a traditional appellate clerkship was that the clerk spent many, many hours researching and writing alone in the library. Occasionally, there would be a brief, formal, intellectual discussion with the judge. Clerking with Haydn Proctor was an entirely different experience, sort of a one-on-one intellectual exploration seeking perfection in crafting the clearest, tightest opinions possible, always considering the human impact of the opinion on the real people who might be affected by it.
"The actual drafting began in his chambers where he dictated his thoughts and his clerk, yellow pad in hand, wrote patiently word by word. We stopped often to go back and test the progress. Were we achieving the ultimate clarity of expression which we sought? Frequently, Justice Proctor would head through the door to the library, grab a New Jersey Report. He always knew which one he wanted, and remarked, Justice so-and-so addressed this issue in such-and-such a case, let's look at it. He would turn to the opinion and we would read it aloud to each other, stopping here and there to analyze its import for the issue at hand. Almost every case he cited in an opinion had been subjected to this vocal inquiry.
"At first I questioned the efficacy of this reading aloud together. It seemed a very slow process, but it was a very clever and thorough method of absorbing and testing what had gone before and discovering as we read its importance, if any, to the case at hand."(19)
My colleague, Judge Joe Irenas, a Proctor clerk from 1965 to 1966, echoes this practice:
"There was one unusual aspect to my clerkship. Justice Proctor believed that documents were better understood if heard aloud. Thus, every brief, memo and record which crossed the threshold of chambers was read aloud. We would alternate paragraphs as we read to each other. It was a time consuming process, but resulted in a continuous proximity between clerk and judge."(20) Indeed, the Justice's love of the spoken word extended into his musical pursuits as well. Once again in the words of Judge Irenas,
"Justice Proctor loved music, particularly opera. I believe he was a member of the New York Opera Club which attended the Met regularly in black tie. He once took me to see The Girl of the Golden West. He got hold of the libretto and insisted that we read the entire thing out loud on our way into New York." (21)
Haydn Proctor was equally admired by his successors on the New Jersey Supreme Court. At his memorial service, Justice Sidney Schreiber gives us a rare analysis of some of the Justice's significant opinions:
"Justice Proctor's opinions are clear, understandable, and persuasive. His opinions do not meander and are undecorated by adjectival flourishes. His opinions read simply and easily. Typical is Immer v. Risko,(22) the question in that case concerned the responsibility for injuries to one's spouse caused by the negligent operation of a motor vehicle. The lower courts had dismissed the suit following a 1958 Supreme Court opinion in Koplik v. C.P. Trucking Corp. (23); Koplik had been decided by a four-to-three vote with Justice Proctor in the majority. It was his change of position in Immer that led to the acceptance of the realistic proposition that interspousal suits in automobile accidents should be maintainable. He observed that, 'the passage of time has convinced me there must be a change.'
"Justice Proctor noted that one should not continue to support a doctrine he no longer believes in simply because he at one time had a contrary view. The opinion contained an historical review of the spousal immunity principle and a cogent explanation of why the immunity should not apply to claims arising out of motor vehicle accidents.
* * *
"Justice Proctor's functional approach to the law is exemplified in his opinion in Bexiga v. Havir Manufacturing Corp.,(24) an opinion which barred negligence as a defense in a strict liability action wherein the equipment manufacturer did not install certain safety devices on a machine. Justice Proctor put it clearly:
'The asserted negligence
of plaintiff placing his hand under the ram while at the same time depressing
the foot pedal was the very eventuality the safety devices were designed
to guard against. It would be anomalous to hold the defendant has a duty
to install safety devices, but a breach of that duty results in no liability
for the very injury the duty was meant to protect against.'"
(25)
In the similar words of Justice Daniel O'Hern on that same occasion:
"Justice Proctor, as we have heard, was our last link with the Weintraub Court, that extraordinary collection of seven Justices who between 1961 and 1973 reshaped the common law of New Jersey. His contributions to the work of that Court were enormous. He authored 199 majority opinions and 20 dissents. His opinions helped to weave the fabric of our law in the second half of this century. That fabric endures. We continue to cite his opinions. His opinion in Safeway Trails v. New Jersey (26) on the meaning of legislative intent, recently cited by this Court in three cases that I will not mention. In her own opinion on parental immunity, Foldi v. Jefferies,(27) Justice Garibaldi built on Justice Proctor's opinions in that field. In Medici v. BPR Company, (28) Justice Stein built on Justice Proctor's view of inherently beneficial land uses, expressed in Kohl v. Mayor of Fair Lawn. (29) On this day, by coincidence, we heard oral argument on the application of the principles of Kohl to the modern problem of siting a cellular phone tower.
"These are but a few of the many examples of his skill as a craftsman of the law that endure as models for a new generation of judges." (30)
Finally, I've come to learn something of the close personal friendship between Justices Proctor and Francis, in large part the result of time spent by the latter in Monmouth County during the summer. John Degnan, Esq., a former clerk to Justice Francis, wrote to me: "There was enormous affection and respect by Justice Francis of Justice Proctor whom I think he viewed both as a friend and as a simpatico presence on the Court." (31) This friendship surely helped maintain a strong bridge between the four Justices whose chambers were in Newark and their colleagues in the provinces of Monmouth, Somerset and Atlantic Counties.
This brings us to Justice Francis, the next rung on the ladder of seniority.
Justice John J. Francis
Justice John J. "Jack" Francis was born on June 19, 1903 in Orange, New Jersey. He obtained his LL.B. from Rutgers Law School in 1925. Remarkably, he returned to school much later in life, obtaining an LL.M. from New York university in 1947-1948. He also holds a doctorate of laws from Rutgers University conferred upon him in 1959. Like all of his colleagues, Justice Francis had prior judicial experience. He served as a Judge of the Essex County Court from 1948 to 1952 and on the Superior Court in the same County, from 1952 to 1957. He became an Associate Justice of the Supreme Court in 1957 where he served until 1972. He died on July 5, 1984, two days before his colleague Justice Hall. At the date of his death, Justice Francis had just turned 81.
Author of some of the Weintraub Court's most significant and innovative decisions, Justice John J. Francis was much more than just a legal craftsman.;
Justice Proctor's admiration for Justice Francis exceeded the boundaries of mere friendship. At the latter's memorial before the New Jersey Supreme Court in 1984, Proctor said:
"Justice Francis was an outstanding trial lawyer for many years before he was appointed to the bench. He was involved in a wide variety of litigation, civil and criminal, and he encountered all sorts of people in all kinds of situations. This rich trial experience as an active practitioner sharpened the sense of fairness that he was born with. This was evident in his judicial thinking and in the opinions he wrote. His background surely influenced the approach he took. He knew that we were living in a time of new demands upon the courts. Outworn judge-made law and concepts were overtaken by social, economic and political development. Greater protection for the average man was needed. His approach and his opinions exhibit the depth of his compassion and his fervent desire to see that the little fellow got justice.
"Justice Francis wrote many opinions that have indeed become classics in the literature of the law. His opinions are graceful and read easily. The language is never stuffy and the reason never obscured. His opinions have been cited widely by the courts of this country. Among them, are the Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, and the Santor (32) cases. These great opinions put a heart into the products liability law. They made New Jersey a leader in protecting individuals against harm from defective products. People were no longer frustrated by the lack of a practical remedy. The roadblocks built upon the then existing rule of privity were removed. Legislatures throughout the country followed the example of these cases. Laws protecting the consumer were enacted in most states. These laws were the natural outgrowth of the opinions Justice Francis wrote for the court."(33)
* * *
"Opinions are only one part of the many contributions Justice Francis made to the law. Other aspects of his judicial career are not so apparent to the bar and the public as they were to his colleagues. His opinions cannot show the preparation and insight he brought to our conferences. He meticulously marshalled the facts of each case so that the legal issues could be clearly defined. He inspired team work among us. He brought to the Court a strong feeling of right and wrong and fairness that went beyond the mechanical application of cold legal principles. He gave our discussions a sense of humaneness. His thoughts were helpful and persuasive. At times when the arguments in the conference room threatened to become a little too heated, his quick genial wit lowered the temperature, and often his gentle sense of humor relieved the tension in the courtroom.
"One of my favorite recollections is of the time during an appeal when one side was being argued by a Queen's counsel from Ontario. Being in court in another country, he was naturally tense. In response to a question from one of the Justices he replied, 'Well, your Lordship.' He was interrupted by another Justice who said, 'You don't have to say that.' Then Justice Francis with his delightful Irish smile said softly, 'I kind of like it.' The tension was immediately broken." (34)
In addition to responding to my inquiry, John Degnan, Esq., who served as Justice Francis' law clerk for two years, also spoke of him at the Supreme Court memorial:
"Justice Francis' contributions to the jurisprudence of this State adhere fully to the maxim once articulated by Roscoe Pound: 'The law must be stable, but it must not stand still.' Stand still in Justice Francis' career most assuredly it did not. Certainly not in Henningsen v. Bloomfield Motors, which, as Justice Proctor has noted, was called by Dean Proser a spectacular decision that began an avalanche of reform in the areas of product liability and consumer protection. And not in the Reste Realty Corp. v . Cooper, 53 N.J. 444, 251 A.2d 268 case, which so fundamentally reordered the landlord-tenant relationship in our state by emphasizing the mutuality of obligations in such a relationship, thus spawning the covenant of habitability. And not again in the Ellsworth Dobbs, Inc. v. Johnson v. Iarussi, 50 N.J. 528, 236 A.2d 843 decision, which redefined the fiduciary relationship between a real estate broker and his or her principal by requiring that the law, notwithstanding substantial precedent to the contrary, reflect the common expectation of the parties in that relationship.
"Certainly to isolate only three of the Justice's many landmark decisions would be to understate seriously the quality and depth of his contributions to the body of law in both our state and our nation. On the other hand they do reflect, it seems to me, some consistent themes in his judicial career, in the memory of which we join here this morning, for they vividly portray what, in the 1970 Rutgers Law Review article, Professor Tom Lamberts said of Justice Francis:
'He is immune from the ancient admonition that judges should not sit like the figure on a silver coin, ever looking backward; rather they reveal the judge at his supreme function, accommodating change within a framework of continuity. So viewed they are part of the grand design. They take on something of the grandeur of the larger vision, recalling Justice Holmes' argument to the legal profession that one who stands aloof from the action and passion of his time does so at the peril of having been judged not to have lived.'
"Moreover, those three opinions and so many others fall within the category of judicial opinions characterized by Justice Cardozo as magisterial or imperative because they possessed an inherent dignity and power, and because in the course of deciding they persuade and instruct. In that context, what always amazed me was the Justice's method of authoring opinions. He wrote each one personally of course, I wish I could claim otherwise, in hand and with remarkably few interlineations or revisions. To achieve the degree of eloquence he so often did with so little apparent effort on finding the right words or style always suggested to me great gifts of clarity and insight both in thought and in communication. His opinions, long as they often were, were quite simply literary delights.
Finally, in honoring the memory of Justice Francis one cannot overlook his magnificent personal attributes of compassion and warmth, intelligence and common sense." (35)
Little can be added to the eloquence of Haydn Proctor and John Degnan in these fitting tributes to Justice Jack Francis.
Justice Nathan Jacobs
Born in Russia on February 28, 1905, Nathan Jacobs immigrated to this country at the age of 4 or 5. His family settled in Livingston, New Jersey. Nathan Jacobs eventually graduated from Harvard Law School in 1928, magna cum laude, where he served as Editor of the Law Review. He practiced law with Arthur T. Vanderbilt from 1928 to 1934. During that time he also returned to Harvard for one year to earn the degree of doctor of laws. He was a member of the law firm which he founded, Frazer, Stoffer and Jacobs from 1934 to 1948. However, even in that period he took on positions of public service. With the repeal of prohibition in 1934, Nathan Jacobs accepted the position of Deputy Commissioner and General Counsel of the newly-created Department of Alcoholic Beverage Control. In the words of his son-in-law, the Honorable Donald S. Coburn, J.A.D., delivered at the Supreme Court's memorial to Justice Jacobs, "Justice Jacobs extensively redrafted the original legislation, prepared the agency's rules and regulations, and firmly directed the day-to-day operations for five years until 1939. Three years later he returned to public life, this time with the assignment of organizing and then administering throughout World War II the New Jersey Division of the Federal Office of Price Administration."(36) His path would soon cross again with that of Arthur T. Vanderbilt when each was asked to contribute to the reformation of New Jersey's court system through the new constitution. As the late Chief Justice Wilentz characterized those efforts, at the same memorial service, "besides being a great jurist, he was in the forefront of the reform movement that changed our judiciary from the worst system in the country to the best." (37) Nathan Jacobs served as a delegate to the New Jersey State Constitutional Convention, presiding at all sessions of the Committee on the Judiciary, designed to reform that system. Once again, in the words of Judge Coburn, "He presided at all sessions of the Committee on the Judiciary. Ever the practical man, he ensured that of the eleven members, five were non-lawyers. He drafted the Committee's final report. Without denying the many important contributions of others, I think it is fair to say that the judicial article of the constitution of 1947, which governs us today, bears most assuredly the imprint of his mind and spirit." (38) His success and efforts did not go unnoticed. Governor Driscoll, his former Harvard classmate, appointed him briefly to the old Supreme Court to assist its members in concluding pending business. Judge Jacobs then accepted an appointment to the Appellate Division of the new Superior Court where he served from 1948 to 1952. In that year Governor Driscoll elevated him to the New Jersey Supreme Court on which he served until 1975. Thus, he was the only member of this Weintraub Court not appointed by Governor Meyner. Subsequent to his retirement, Nathan Jacobs' activities included a return to teaching at both Rutgers and Seton Hall Law Schools. He died on January 25, 1989, one month short of his 84th birthday.
A man of high intellect whose brilliance was approached perhaps only by that of Justices Weintraub and Hall, Nathan Jacobs, like his colleagues on the Weintraub Court, realized that the law must evolve in order to serve an ever-changing society. In the words of Judge Paul Levy, a former Jacobs clerk, also delivered at his memorial, "For us, our year with Justice Jacobs was a learning experience like a fourth year of law school, except this was the 'real world.' We learned over the course of that year that the law, that is, the common law, was not static but was meant to serve the common good based on fairness and justice. ... It was clear to each of us that Justice Jacobs had a passion for reconsidering any rule of law in light of society's changing needs if that law was creating an injustice. Even in his last opinion,; State v. Gregory, (39) decided the day before he retired, the principle was illustrated again." (40)
One of Justice Jacobs' habits enriched the experience not only of his own law clerks but of those who served the other Justices with chambers at the Mutual Benefit Life Building in Newark. There were five law clerks serving the four Justices at that location (Chief Justice Weintraub had two clerks), and each could be found in the common library working on their bench memoranda and other research projects. It is said that Justice Jacobs would often stroll into the library, jingle some coins in his pocket to gain the attention of the assembled law clerks, and then proceed to discuss with all of them a particular issue or case which he was considering. Needless to say, the law clerks welcomed this exchange, although few were able to match the scholarly input of the Justice himself.
Parenthetically, the law clerks in Asbury Park, Atlantic City and Somerville necessarily had a more solitary experience than did their peers located at the Mutual Benefit Life Building in Newark. However, each of the three who wrote to me felt that this heightened the one-on-one relationship that he enjoyed with his Justice. Further, as Judge Gary Brown noted, "The Supreme Court law clerks got together every week when the Court met in Trenton, and we all had lunch. We also had the opportunity to sit in on arguments of cases we had worked on. This was a great experience. The Justices treated all of us clerks as one big family and were very gracious." (41)
One cannot say whether his opinions ultimately reflected the results of his discussions with the Newark clerks; however, like those of Justice Francis, the opinions of Justice Jacobs were hand crafted, usually with little or no revision. Once again, as Judge Levy observed, "His opinions were models of clarity. At our last dinner with him a few years ago each of us [who had served as his clerk] recalled some experiences from our times with Justice Jacobs and each recalled one identical and unwavering fact of life: he wrote so well that none of us was ever able to change one word in an opinion once he began the drafting process." (42) Judge Coburn also added: "Mention must be briefly made of the Justice's role in the conferences of this Court. For that I turn to the words of his fond colleague Justice Haydn Proctor, who wrote:
I believe his greatest judicial
contribution has been his success in instilling among his colleagues that
same feeling of self-confidence which has enabled him to achieve so much
in the development of the law." (43)
As any jurist can tell you, confidence in a decision made and a result reached is essential to the effective functioning of a judge, on any court.
In bringing the Jacobs memorial proceedings to a close, the late Chief Justice Wilentz stated, "We are always in awe of the legendary giants who shaped this Court, but how much more so when this kind, unassuming person sat with us and acted as if we were his equal.
"Unpretentious, with no guile,
no manipulating, no ulterior motive, he said precisely what he thought
- moderating it only if it might hurt someone. His integrity, his basic
honesty, was so enveloping as to squelch without argument even the slightest
tendency of lesser mortals to compromise principle. It was fun to be with
him. Few people have the total self-confidence that he had to express themselves
directly, forthrightly, all the time. In most, that rare quality comes
from an assurance that sometimes borders on arrogance. In precious few,
it comes from true humility, and that was Nat Jacobs."
(44) What more could be said of this extraordinary Justice.
Chief Justice Joseph
Weintraub
Joseph Weintraub was born on March 5, 1908 in Cranford, New Jersey. He attended Barringer High School in Newark where, interestingly, he was a classmate of future Supreme Court Justice William J. Brennan, Jr. Weintraub graduated from Barringer High School in 1924 at the age of 16 and matriculated at Cornell University where he earned his A.B. Phi Beta Kappa in 1928. Having already enrolled in a special seven-year arts-law program, he continued at Cornell Law School. He was selected Editor-in-Chief of the Cornell Law Quarterly and graduated first in his class in 1930. After his admission to the bar that same year, he commenced approximately thirteen years of the practice of law with a focus on trial work, including a wide variety of cases. Joseph Weintraub practiced at this time with the law firm of Stein, McGlynn & Hannock, a natural succession for one who had previously served as a law clerk and office boy to one of its name partners, Edward R. McGlynn.
Joseph Weintraub was inducted into the army as a private in March 1943, eventually earning a commission at the Judge Advocate's school and leaving the service in 1946 as a Captain. Returning to private practice, his major focus was on appellate work. However, in 1954 he served concurrently as counsel to the governor and as the New Jersey member on the Bi-State Waterfront Commission. Appointed to the Superior Court in May of 1956, only six months later, at the age or 48, he became an Associate Justice of the Supreme Court. On August 19, 1957, Governor Meyner, who also had made his previous appointments, elevated Joseph Weintraub to the position of Chief Justice of the Supreme Court of New Jersey, succeeding its first Chief, Arthur T. Vanderbilt. Shortly after his retirement from the bench in 1973, Joseph Weintraub died on February 5, 1977 at the age of 68.
As did most of his colleagues, Chief Justice Weintraub hand wrote his own opinions. In the words of Justice Francis, writing for the Cornell Law Review, "All of his opinions were written in longhand, and although his two law secretaries may have furnished additional research at his request after the oral argument, no law secretary ever wrote any part of the ultimate opinion. However, when the draft was circulated for consideration by his colleagues, and then taken up at the next court conference, he offered no stiff-backed resistance to suggestions which some of the parties thought might add clarification, or which might limit the principle espoused to the needs of the case, especially if that principle represented a change or revision of a common-law doctrine. But this amenability was more than matched by a sturdy reluctance to depart from or qualify the statement of legal principle made necessary in his judgment by the demands of justice in the case." (45) Justice Weintraub favored brief opinions, written clearly, in language that was readily comprehensible to the lower courts, to the bar, to the parties and to the public. They are pictures of clarity which most certainly served as a guide and inspiration to his colleagues in the crafting of opinions assigned to them.
THE WEINTRAUB COURT
We garner from these glimpses of each of the Justices numerous similarities. All were born in the first decade of the 20th century, indeed within the six-year span from 1902 to 1908. With the exception of Justice Jacobs, appointed by Governor Driscoll in 1952, all were appointed by Governor Meyner in the period 1956 to 1960. Each brought to the Supreme Court a substantial career in public service, including that as a judge. Their years at the bar had spanned the Great Depression, World War II and the Korean Conflict. And each, with the exception of Justice Schettino, drafted his own opinions, from scratch and by hand.
Keeping in mind both these
similarities and the differences inherent in the personalities of highly
intelligent, able jurists, let us now focus upon three attributes of the
Weintraub Court which explain in large measure why it functioned so well
in the development of the law in our State. These are: first, the understanding
of the roles of the legislature and the State's highest court in the making
of law; second, the techniques employed, particularly in conference and
in the assignment of opinions, designed to achieve substantial if not complete
agreement in the resulting majority opinion; and third, the appreciation
of the function of concurring and dissenting opinions in the decisions
of the Court. On these three topics, I am particularly indebted to the
former law clerks on the Weintraub Court who responded to my inquiries
as well as to the late Justice Francis who gives us a real insight into
these topics in his article for the Cornell Law Review,
(46) cited a moment ago, and in his other tributes to his friend
and colleague Chief Justice Weintraub.
I. Early in his tenure, in 1958, the Chief Justice, in a statement that at first appears unduly activist, but really is not, stated the following regarding the roles of the judiciary and the legislature in making law: "The law must be stable so that the citizen may act with assurance. Yet the law may not be static. It must move with events; else it will petrify and burden the society it is meant to serve.
* * *
"Granted, what I believe all will concede, that the law must remain current and must reflect changing mores and values, must be adequate to resolve new problems with minimum disappointment to fair-minded men, the question remains whether the task is properly the sole responsibility of the legislative branch of government. I say 'properly' of the legislative branch because I have no doubt the state judiciary labors in that vineyard and hence to me the question is whether there is a trespass.
* * *
"We may as well concede that the judiciary makes law and changes judge-made law and deny a trespass on the basis that the constitutional framers could not have intended what would otherwise be a sterile and futile system of law.
* * *
"Litigants want justice now and for themselves. The legislature alone cannot satisfy that reasonable demand.
"There of course are restraints upon this judicial role. Foremost, is the duty of the judiciary to respect the paramount authority of the legislature when the legislature does act. There is no justification whatever for judicial resistance to the legislative decision. The ultimate arbiter of public policy (apart from constitutional limitations) must be the popular branch of government.
"A court should make law only in response to a case before it. The legislature alone is authorized to notice and deal with problems on its own initiative.
* * *
"Long-standing case-law should not be overturned merely because of mild disagreement with it; the injustice should be clear and compelling. Consideration should be given to the extent of reasonable reliance by the public upon prior decisions, because the unfairness to those who relied may outweigh the benefit of the change, especially if there is also present an overriding social need for stability. Thus a court should be loathe to reconsider, for example, the basic law of real property. On the other hand, the element of reliance in the field of tort is small (failure to insure is just about it) and hence in that area there is more leeway for conciliation with common sense. So also, the retroactive impact of judicial action suggests a slow, evolutionary accommodation. Dramatic thrusts into new areas must be left for the legislature." (47)
Speaking at the Supreme Court's 1977 memorial for Chief Justice Weintraub, Justice Francis echoed his Chief's analysis of the roles of the judicial and legislative branches.
"Throughout his years on the Court, he remained acutely aware of the line of demarcation between the judicial and legislative branches of government, and of the duty of the judicial branch to refrain from encroaching on the area of operation of the legislative branch. So if a statutory rule or doctrine were in question before the Court, even if it appeared to be inadequate to serve the needs of the times, he would declare that the remedy was in the hands of the legislature, and the courts should not interfere. But, if a common law doctrine were involved and it was out of tune with the needs of modern society, he was quite ready to advocate change so as to adapt it to existing needs and ideals, without waiting for legislative action. He believed, and I know all of you men know, realize it, that the common law is not a compendium of mechanical rules but a living organism which must grow and move in response to the larger and fuller development of the nation. He felt that the common law's capacity to discover and apply remedies for acknowledged wrongs without waiting for legislation was one of its cardinal virtues." (48)
Thus we see that the pronouncements
of a new Chief Justice in 1958 were indeed put into practice and endorsed
by his colleagues during the years when he led the Court.
II. The conference technique employed by the Weintraub Court was well calculated to ensure maximum input by each of the Justices. The Court heard oral arguments, in Trenton, on every other Monday and Tuesday. On each intervening Tuesday, the Court would hold a conference, in Trenton or Newark, to discuss the cases heard the previous week. At this point, each Justice was afforded the opportunity to express his views on any case. The opinion had not yet been assigned (although the Chief had already reflected upon that decision) so a high level of preparation by each Justice on each case, was expected. The law clerks were not present in these Tuesday conferences of the Justices, although on a rare occasion the clerk who had written the Court's bench memo for the case might be called in. At this point in the process, as Justice Francis describes it:
"When the Justices assembled for the Tuesday conference, no one of them knew until the Chief Justice called on him to discuss a particular case that he would write the opinion if the views he expressed received the support of the majority. Consequently, each Justice came prepared to discuss each case to be decided. Obviously, this method of operation tended to produce maximum preparation for conference discussion.
"After the Justice called upon reviewed the appeal and announced his feelings about the desirable result, Chief Justice Weintraub continued the discussion, suggesting his own views. Each of his colleagues then set forth his opinion, normally in order of seniority, until a majority decision was reached. Generally, the exchange of viewpoints was a keen intellectual exercise; occasionally, as might be imagined, it was not easy to reconcile disparate opinions of strong-minded men as to the just result or the basis on which the result should be reached or expressed. When the discussion became heated, Chief Justice Weintraub's talent as a moderator was at its best. If there was a majority for a result but sharply differing opinions as to the rationale supporting the result, he had an uncanny knack for blending the arguments into an agreeable common approach or achieving acceptance of a single basis of decision by persuading the protagonists of the differing viewpoints to hold for another day grounds which were not essential to the result, or if neither course was acceptable, then saving the day by the alternative means of a concurring opinion.
* * *
It was understood that the result agreed upon at conference, even if unanimous, was tentative. If the holder of the opinion found, upon closer scrutiny or additional research, that it 'would not write,' he was privileged to write the opinion the other way and circulate it with an explanatory note, or to request that the case be taken up again at the next conference. On occasion, although not very frequently, one or the other of these courses was followed and, perhaps surprisingly, the new view carried the day. If it did not, the changed conclusion was voiced in a dissent, and Chief Justice Weintraub chose a new writer for the majority." (49)
Michael Cole, law clerk for Justice Schettino in 1970-'71, in responding to my inquiry, lauds this process and the consensus it usually achieved:
"The Court's ability to be more unanimous had more to do with the fact that they were together as a group for such a long time, genuinely liked one another, listened to each others' viewpoints and incorporated those viewpoints into their work product. The Court developed a construct for decision making that encouraged this coming together of ideas. They also had a remarkable leader, who is recognized by many - myself included - to have been perhaps the finest legal mind this State has ever produced.;
"The Court's opinions reflect the views of each of the members. The Court was a collegial body. The Court's opinions, although authored by individual members (except in the case of per curiams), reflected the positions of the majority of the Court and their input. Opinions were assigned by the Chief Justice after the case was conferenced a week or so following oral argument. Drafts of opinions were circulated among members including proposed dissents and concurrences. Modifications were frequently made in an effort to achieve unanimity. The draft opinions were debated at conferences and again changes were made, if warranted. In this way, the Weintraub Court's opinions reflect the scholarship of Justices Francis and Jacobs, the humanness and basic decency of Justices Proctor and Schettino, the good sense and insight of Justice Haneman and the thoroughness and attention to detail of Justice Hall. Justice Hall was the Court's defense against a missed or mistaken citation to authority. Justice Hall researched every case independently and worked tirelessly to insure the quality of the Court's work. Most of all, however, the opinions reflect the leadership and genius of the Chief Justice.
"The Chief Justice had strong views as to how the Court should approach the writing of its opinions, yet he was sensitive to the ego of the Justices and the need to be diplomatic. He believed firstly that there should be joint responsibility for those who join in opinions. He did not believe it was fair to the trial bench, the bar and the public to "go along" with an opinion while harboring a reservation as to some position of it. 'Every sentence is gospel on the firing line,' he would say. The Chief Justice's insistence on joint responsibility for opinions encouraged the genteel debate and ultimately the unanimity of views that characterized the Court's work.
* * *
"The Chief Justice knew how to sharpen the debate at conference so that the Court's views were crystal clear. He knew who to select to write the opinion so that view could be expressed with certainty. He knew the strengths and weaknesses of the Court and how to divide the work so that all of the Justices were - and more importantly, felt they were - true contributors to the work of the Weintraub Court...." (50)
Thus we see a confluence
of many positive factors, fired in the crucible of the Court's conferences,
that made the work product of the Weintraub Court so extraordinary.
III. Writing for the New Jersey Law Journal, early in his tenure as Chief Justice, Joseph Weintraub included a discussion of his views on the roles of dissenting and concurring opinions.
"The dissenting opinion is a wholesome instrument. For one thing, especially when the Court is closely divided, the written dissent may carry the day notwithstanding the same views stated orally were unpersuasive at conference. Further, a dissent may point the way for development of the law and indeed one day prevail on the precise issue. Moreover, the dissent may lead to improvement within the majority opinion itself, either by deterring expansive expressions or by sharpening the thinking it embodies. Finally, the dissent assures the bar that each Judge is thinking. Chronic unanimity upon issues which are inherently divisive may be suspect.
"A concurring opinion should not be written merely to restate the majority view, it should contribute something of its own. If a Judge cannot accept the basis of the opinion of the Court, of course he may appropriately express his views including reservations he may have with respect to portions of the majority opinion. The concurring opinion may also serve the same wholesome end of a dissent and further may be a convenient vehicle to alert the bar to future changes in the law.
"I offer two suggestions
with respect to the minority opinion, one as to substance and the other
as to form. As to substance, there is danger of free-wheeling. The writer
for the majority has the responsibility for decision and hence the caution
and restraint which responsibility evokes. The minority speaker, not thus
burdened, may write to extremes and thereby hinder a worthy idea. As to
form, he may resort to forceful expression, but he should not write angrily."
(51)
One need only read the Chief's own minority opinions near the end of his tenure to see that he remained true to his own principles. See for example his concurring opinions in State v. Funicello, 60 N.J. 60, 69 (1972) (concurring with a per curiam majority opinion in which the Chief addressed critical principles of federalism regarding state and federal courts), and In the Matter of the Adoption of E., 59 N.J. 36, 57 (1971) (concurring specially in a unanimous decision in which the Chief condemned even more strongly the consideration of religious beliefs - or their absence - in adoption decisions).
Chief Justice Weintraub's early pronouncements on minority opinions remained constant and influenced his colleagues as well. Writing for the Cornell Law Review in his article cited previously, Justice Francis stated:
"The views of Chief Justice Weintraub on concurring and dissenting opinions were well known to his associates. He had said forcefully that a concurring opinion should not be written merely to restate the majority view; it should not be written just to pick or carp at the majority opinion, or to demonstrate a greater writing facility than its author, or because of personal dislike for him. If the concurrence did not contribute something of its own, it should not be written, and even then, in the interest of solidarity, he felt that an effort should be made to bring the additional view within the ambit of the majority opinion. He constantly endeavored to achieve that result, because in his eyes the greatness of a court is more important than that of an individual.
"But the Chief Justice did agree that concurring opinions have a beneficial place in the operation of appellate courts. If a Judge finds the result just but cannot accept the majority's basis for the decision, it is entirely fitting that he should express his own views on the subject. Such a course is preferable to simply saying, 'I concur in the result,' which rarely satisfies the trial court or the bar. Moreover, a proper concurring opinion may have its greatest value in expressing different and perhaps newer approaches to the issue in the case for future consideration. In performing that function it may well be the forerunner of a change in the law, and it will alert the bar to the possibility that the majority opinion may not be or should not be the eternal solution of the issue.
"In the day-to-day operations of a court of last resort the unanimous opinion is a desirable objective. But as has been said by some writers, chronic unanimity is inconsistent with man's nature, especially in these troublesome times when social, economic, and governmental theories are in a swirl. Throughout his tenure, Chief Justice Weintraub's view has been that dissenting opinions are wholesome instruments and not, as some argue, 'crabgrass in the jurisprudential lawn.' Chief Justice Hughes described the dissent in a court of last resort as 'an appeal to the brooding spirit of the law.' Chief Justice Weintraub preferred the pragmatic and hopeful spirit of Justice Holmes, who felt that dissent frequently led not only to a sharpening of the thinking embodied in the majority opinion and to curtailment of expansive expressions there, but also to a statement of the law of the future. As Holmes put it:
Law is the business to which
my life is devoted, and I should show less than devotion if I did not do
what in me lies to improve it, and, when I perceive what seems to me the
ideal of its future, if I hesitated to point it out and to press toward
it with all my heart.
"Chief Justice Weintraub expressed his feelings to his colleagues in more earthy terms. He would say that no Judge should ever set aside his conviction simply to achieve unanimity; his duty is to present his views to his brethren at conference, try with all his might to have them accepted, and, if unsuccessful, to express them in dissent. He may then rightfully hope that what he has written will point the way for development of the law of the future." (52)
Indeed, because the Weintraub
Court broke new ground in so many areas, it might be said of that Court,
"The future is now." But surely the opinions of the Weintraub Court did
point the way for even further development of the law in our State in the
three decades that have followed.
CLOSING
In writing to each of the
seven former clerks for help in exploring the workings of the Weintraub
Court and in gaining some insight into the Justice whom he served, I reassured
him that "I come to praise this Court not to bury it under gossip or trivia."
Revering that Court as I do, and realizing how it subtly shaped my own
views as a jurist, I sincerely hope that I have accomplished that goal.
Once again, thank you very much for honoring me with this opportunity.
1. The author wishes to express special thanks to his Law Secretaries Rachel Ehrlich and Christine Schessler for their extensive research and other assistance in the preparation of this presentation.
2. Hon. Daniel J. O'Hern, The Twelfth Annual Chief Justice Joseph Weintraub Lecture: Brennan and Weintraub Two Stars to Guide Us, Some Reflections on the Roots of the Differing Judicial Philosophies of William J. Brennan, Jr. and Joseph Weintraub, 46 Rutgers L. Rev. 1049 (1994).
3. Memorandum from Hon. Frank M. Lario, Jr., J.S.C., to Hon. John W. Bissell, U.S.D.J., 2 (Feb. 15, 2002) (on file with author).
4. Id. at 2-3.
5. Id. at 4-6.
6. E:mail from Hon. Garrett E. Brown, Jr., U.S.D.J., to Hon. John W. Bissell, U.S.D.J. (Apr. 4, 2002) (on file with author).
7. In Memoriam, 95 N.J. XXIX (1983).
8. Id. at XXX.
9. Id. at XXXI.
10. Letter to Hon. John W. Bissell, U.S.D.J., 2 (Mar. 12, 2002) (on file with author).
11. In Memoriam, 98 N.J. XIX, XXVI (1984).
12.Id. at XXVII.
13.Id. at XXIV-XXV.
14.In Memoriam, 156 N.J. XLV, LII (1998).
15.Id. at LIII.
16.Id. at LIV.
17.Id. at LV.
18.Id. at LVI.
19.Id. at LVII-LVIII.
20. Memorandum from Hon. Joseph E. Irenas, U.S.D.J., to Hon. John W. Bissell, U.S.D.J., 2 (Mar. 7, 2002) (on file with author).
21.Id.
22. 56 N.J. 482 (1970).
23. 27 N.J. 1 (1958)
24. 60 N.J. 402 (1972).
25.In Memoriam, 156 N.J. at LXIV-LXV.
26.Safeway Trails, Inc. v. Furman, 41 N.J. 467 (1964).
27. 93 N.J. 533 (1983).
28. 107 N.J. 1 (1987).
29. 50 N.J. 268 (1967).
30.In Memoriam, 156 N.J. at LXIX.
31. Memorandum from John J. Degnan, Esq. to Hon. John W. Bissell, U.S.D.J., (Mar. 11, 2002)(on file with author).
32.Santor v. A & M Kargheusian, Inc., 44 N.J. 52 (1965).
33.In Memoriam, 98 N.J. XIX, XX (1984).
34.Id. at XXI.
35.Id. at XXII-XXIV.
36.In Memoriam, 117 N.J. XLIX, LV (1989).
37.Id. at LVII.
38.Id. at LV.
39. 66 N.J. 510 (1975).
40.Id. at LI-LII.
41. E-mail from Hon. Garrett E. Brown, Jr., U.S.D.J., to Hon. John W. Bissell, U.S.D.J. (Apr. 4, 2002) (on file with author).
42.In Memoriam, 117 N.J. at LII.
43.Id. at LVII.
44.Id. at LVII-LVIII.
45. Hon. John J. Francis,Joseph Weintraub - a Judge for all Seasons, 59 Cornell L. Rev. 186, 187 (1974).
46.Id.
47. Chief Justice Joseph Weintraub, Judicial Legislation, 81 N.J.L.J. 545, 549 (1958).
48.In Memoriam, 72 N.J. XIX, XXVIII-XXIX (1977).
49. Francis,supra note 45 at 189-90.
50. Letter from Michael R. Cole, Esq., to Hon. John W. Bissell, U.S.D.J., 4-6 (Mar. 8, 2002) (on file with author).
51. Chief Justice Joseph Weintraub, Writing, Consideration and Adoption of Opinions, 83 N.J.L.J. 477, 479 (1960).
52. Francis,supra
note 45 at 191-92 (internal citations omitted).