Pubdate: Thu, 20 Nov 2014
Source: Trentonian, The (NJ)
Column: NJ Weedman's Passing the Joint
Copyright: 2014 The Trentonian
Contact: http://www.trentonian.com
Details: http://www.mapinc.org/media/1006
Author: Ed Weedman Forchion
Page: 5
TIME TO RETIRE THE RETIRED JUDGES
A case currently before the NJ Supreme Court (State v. Buckner)
challenges the legality of judges age 70+ presiding over cases of
life, death, and liberty. The onset of Alzheimer's disease and
senility often strikes around 70. Nonetheless, there are dozens of
septuagenarian judges sitting on the bench, arguably in contravention
of the NJ Constitution. I, along with many defendants across the
state, am watching this Buckner case with keen interest.
Hopefully most of us will reach old age, but the older we get some
things simply don't work as they did in our youth. I can say my sex
life, my physical ability to play ball or run has been limited by my
age, yet I am only 50. My mind is sharp (probably sharper than when I
was 21), but I know from life experiences (watching my grandparents)
that minds slow down with age. It happens to most people - including
judges. Memories, complicated issues, and complex decision-making are
greatly compromised by advanced age.
The writers of the NJ Constitution considered this fact of life when
they mandated judges must retire at age 70. Article VI, Section 6,
Paragraph 3 of the NJ Constitution (judicial retirement paragraph)
was intended by its framers and the legislature (who adopted it in
1947) to prevent future judicial power to pensioner judges.
Despite this quietly/illegally N.J.S.A. 43:6A-13(b) was passed, which
purportedly authorizes the NJ Supreme Court to recall retired judges
for temporary service, including those who've reached the age of 70
and retired under scrutiny. This directly contravenes the NJ Constitution.
In 2012 I went on trial twice with "retired" Judge Charles Delehey.
He was a respected Mercer County judge for decades and presided over
some of the most public of cases, including the Ambrose Harris case.
However, he was "removed" under a cloud of scrutiny for an "ex parte"
violation in State v. Nemes a few months before his 70th birthday
(and then ceremoniously retired upon reaching 70).
Judge Delehey (who retired on February 1, 2009, after 21 years on the
bench) had spoken to C. Matthew Nemes, the brother of defendant
Jeffrey Nemes, in his courthouse chambers after a hearing in 2007.
Jeffrey, a former Hamilton police sergeant, then lodged a complaint
against Delehey alleging that the conversation was improper: "It was
clearly inappropriate for Delehey to speak to my brother. It is more
egregious that he discussed a pending case with him and, in effect,
tried to 'broker' a deal for the office of the prosecutor." In
publicly reprimanding Delehey, the NJ Supreme Court agreed with this
assessment.
Like the Catholic Church's practice of reassigning pedophile priests,
NJ's courts reassign scrutinized judges. Thanks to N.J.S.A.
43:6A-13(b), Judge Delehey was unconstitutionally un-retired and sent
to Burlington County, where he took on new cases, including mine. I
had a right to a jurist in good standing.
I was convicted of possession and I've appealed. Among the issues
raised: I'm entitled to a new trial since Judge Delehey was
constitutionally disqualified from serving as judge based on his age
- - 74 at time of my trial(s), which deprived me of my due process
right to a fair trial. Due process was violated by the practice of
the NJ Supreme Court of "re-instating retired judges" without
legislative approval they're no longer valid sitting judges by
mandate of the NJ Constitution.
My attorney, John Vincent Saykanic, Esq., got irritated with me for
constantly referring to Judge Delehey as "Judge Dementia," as we put
together my appeal but from my point of view it's an accurate description.
Several times in my case again Judge Delehey engaged in "ex parte"
communications (as in the Nemes case for which he was publicly
reprimanded); these issues have been presented to the NJ Appeals
Court in my pending appeal, State v. Forchion.
A few months ago I noticed State v. Buckner, a case containing the
same constitutional challenge as in my appeal, Buckner is now before
the NJ Supreme Court. Defendant Buckner challenged the very
constitutionality of N.J.S.A. 43:6A-13(b), which fraudulently
authorizes the NJ Supreme Court to recall retired judges for
temporary service, including those who've reached 70 and retired
under scrutiny in violation of the NJ Constitution. If Buckner
prevails, everyone who's been convicted in a court proceeding
presided over by a "retired septuagenarian judge" should get a new trial.
It's clear that established American common law also does not support
the NJ Supreme Court's practice of establishing an alternative route
and/or alternative qualifications for judicial assignments via the
recall of disgraced or retired judges. Like the Catholic Church's
transferring of abusive priests, I believe this practice should
immediately be ended; however, the pressing issue is what happens to
all the cases that were presided over by unconstitutionally assigned
"retired judges"?
I also take issue with the NJ Supreme Court presiding over Buckner's
case, as it is that very court which has allowed this
unconstitutional practice. This is akin to allowing the police to
investigate themselves or to relying on thieves to prosecute themselves.
As the Roman poet Juvenal wrote in his Satires: "Quis custodiet ipsos
custodes?" ("Who will guard the guardians?")
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MAP posted-by: Jay Bergstrom