On August 3, 2022, Monmouth County Superior Court Assignment Judge Lisa P. Thornton reversed the DWI, marijuana possession, and other traffic complaints issued by the Holmdel Police in 2016 against the defendant, Nedal Elfar. https://patch.com/new-jersey/holmdel-hazlet/dwi-conviction-overturned-based-holmdel-police-procedures-court
Judge Thorton found that the Holmdel police violated the defendant’s constitutional rights against unreasonable searches and seizures. The court held that the police “had no probable cause to search the vehicle and seize … prescription bottles in the car or the trunk.” Because the search and seizure were unconstitutional, the evidence was suppressed.
The court also found that “the State failed to prove the defendant was intoxicated beyond a reasonable doubt.” Judge Thornton found that “multiple inconsistencies in the officers’ testimony create[d] reasonable doubt regarding whether the defendant was impaired.”
Defense counsel, Albert P. Mollo, Esq., who represented the defendant throughout the six-year odyssey, said that “[w]hat happened in this case was wrong, pure and simple… after six years, it has been made right.” Mollo said the case “also raises serious and legitimate questions about the systemic injustice that we see in the New Jersey municipal court system.”
In this case, the defendant endured six years of uncertainty and anxiety – of proverbial hell, until the Superior Court, as Mollo said, “made [it] right.” Alexander Hamilton’s Federalist Papers, 78, said that “courts of justice are to be considered as the bulwarks … against legislative encroachments” who must have an “independent spirit … essential to the faithful performance of so arduous a duty. Hamilton recognized that the “independence of the judges is equally requisite to guard the Constitution and the rights of individuals.” Monmouth County Superior Court Assignment Judge Lisa P. Thornton exemplifies the “independent spirit … essential to the faithful performance of so arduous a duty … to guard the Constitution and the rights of individuals.”
The larger question, systematic injustices in New Jersey Municipal Courts is well-recognized. The New Jersey Supreme Court Committee on Municipal Court Operations, Fines, and Fees, a 31-member Committee created by Chief Justice Stuart Rabner (https://www.njcourts.gov/courts/assets/supreme/reports/2018/sccmcoreport.pdf), concluded that “the obligation of the municipal courts and its judges to adjudicate justice fairly and impartially without regard to external influences must be restored to the municipal courts.” The Committee recognized that “there is a crisis in the municipal court system due to a lack of confidence in the independence and integrity of the Judiciary by members of the bar and the public … there is a perception by the public that municipal court judges are influenced by the police and favor the police over the defendant.”
While it is refreshing to see the County (Superior) Court carefully review the Municipal Court ruling to reach a just result comporting with constitutional protections, it is unfortunate, and I feel saddened that Mr. Elraf had to endure six years of uncertainty, stress, embarrassment, and shame to achieve the correct and just result.
The New Jersey Supreme Court Committee on Municipal Court Operations, Fines, and Fees, a 31-member Committee, was created by Chief Justice Stuart Rabner. The Committee found:
* “There is a crisis in the municipal court system due to a lack of confidence in the independence and integrity of the Judiciary by members of the bar and the public.”
* “It can be concluded that there is a perception by the public that municipal court judges are influenced by the police and favor the police over the defendant.”
* “There is a need for judicial independence in the municipal courts to ensure the integrity of the courts be free to make fair and just decisions without the need for undue influence from outside fiscal pressures of the municipalities to raise revenues.”
* “A common theme emerge[s] … both a reality and a perception that the municipal courts are dominated by two forces: the appointing entity and law enforcement. These forces can result in the need on the part of the appointing entity to rely upon revenues generated by the court system, and for law enforcement to use the power of arrest to generate revenue to support local Government.”
* “The pressures of budgetary needs of the municipality and the local governing body, and the overall need for revenue to be generated along with a pervasive bias towards the police, cannot continue to be the focus of the municipal courts and of judicial appointments in the municipal courts. The obligation of the municipal courts and its judges to adjudicate justice fairly and impartially without regard to external influences must be restored to the municipal courts.”
The subsequent 2019 Report of the Supreme Court Working Group on the Municipal Courts found:
* “The principles of equal access to the courts, fair justice for all, and judicial independence are the bedrock of the New Jersey Judiciary’s most recent endeavor to bring Municipal Court reform to the forefront of our judicial system. Ensuring that these principles are absolute for all Municipal Court users, including the most vulnerable, requires the Judiciary’s self-critical analysis of its Municipal Court system—identifying what the Judiciary as an independent branch of Government can do better and the resources needed to achieve meaningful reform.”
* “The Municipal Courts collect in excess of $400 million annually. Approximately $220 million of that total is distributed by Municipal Courts to municipalities, with the remainder being distributed to the State Treasurer, the local county, or to specific agencies (e.g., the Motor Vehicle Commission) or funds. All such distributions are made pursuant to statute. Most Municipal Courts generate revenue for the local municipality that far exceed the court’s operating budget.”
* “The unique partnership between municipalities and the courts can potentially put a strain on the delivery of justice, in some cases, by creating tension between upholding the rule of law by deciding cases on the merits alone without undue pressure to impose fines and fees.”
The reports highlight a fundamental structural shortcoming in the NJ Municipal Court system; the focus on money rather than where the focus should be, dispensing justice to citizens. I have been a New Jersey Municipal Court defense lawyer since 1991. Before law school, I was a reporter, covering local municipal court proceedings. In one of my first assignments as a reporter, while reviewing my notes at the end of a court session, I overheard the judge ask the court administrator, “how did we do tonight?” Then, I heard the clicking of a calculator (one of those bulky calculators with the ribbon that provided a paper printout); I looked up and heard the court administrator give the judge a final tally of the fine money collected, and the judge smiled with glee.
The reports and data/testimony reviewed were extensive, and the Committees made many suggested changes to bend the system’s arch toward justice. Injustice is defined (Merriam-Webster) as the “absence of justice … violation of [the] right or of the rights of another … UNFAIRNESS … an unjust act … WRONG.” Structural injustice can and does exist anywhere power exists, more aptly, where there is an imbalance of power.
The problems with the New Jersey Municipal Court system are vast, as the two Supreme Court Committees uncovered. One example from my experience that might seem minor but has a significant impact on the public is the Courts’ use and favoring of the offense of Unsafe Operation of a Motor Vehicle, N.J.S.A. 39:4-97.2. Prosecutors are permitted to plea-bargain most New Jersey moving violations to amend a charged offense to another less serious offense. Defendants faced with a complaint alleging a moving violation carrying New Jersey Motor Vehicle Commission (NJ MVC) points are most often given the option of pleading guilty to Unsafe Operation under N.J.S.A. 39:4-97.2, often a non-point offense. The offense, while no points, has significant monetary penalties; a $250 statutory surcharge, court costs ($33), and fines between $50 and $150 for a first offense and $100 to $250 for a second offense. There are other much less expensive non-point alternative violations that can be used for plea-bargains (plea-agreements). But, prosecutors and courts in many courts are instructed not to offer or use these alternatives. It would appear that these courts aim not for justice but for money.
Like most injustices, this unwritten policy (to favor the offense of N.J.S.A. 39:4-97.2) has a more significant negative impact on poor or working-class citizens. I was in court with a client who could afford the high fine and costs. He saw an unemployed single mother with her infant child explaining to the judge that she could not afford the fine ($433 in total); she asked for a payment plan. He turned to me and said, “Oh my God, this is so unfair … how do you do this all day!?” Another client told me that the long line of people in the court waiting to pay their fines looked like a line of lambs waiting to be slaughtered.
Another troubling example of inequity in New Jersey Municipal Courts is the costs assessed for public defenders. Municipal Courts must provide public defenders to defendants who qualify financially and face serious sentencing exposure, called a consequence of magnitude (e.g., jail or license loss). Under the statute, N.J.S.A. 2B:24-17, the court may charge for the services, curiously called an “application fee” of up to $200. The statute permits a court to waive the fee in whole or in part if the fee would be an “unreasonable burden” on the defendant. I have observed courts routinely assessing the statutory maximum fee, $200, without assessing the burden on the defendant, which is clearly unfair and inconsistent with the statute. Like many of the injustices in the NJ Municipal Court system, this anomaly has a disparate impact on the poor, marginalized and vulnerable population.
Niccolò Machiavel (1469-1527) was a well-known writer and philosopher who wrote The Prince, an essay that seeks to explain political power. He said, “Princes and governments are far more dangerous than other elements within society” He explained, “Politics have no relation to morals.” The primary concern of a politician is not morality but the maintenance of power. He said, “Let a Prince set about the task of conquering and maintaining his state.” The term Machiavellian suggests a “personality trait centered on manipulativeness, callousness, and indifference to morality” (https://en.wikipedia.org/wiki/Machiavellianism_(psychology)).
In many respects, the Municipal Court system often acts in a Machiavellian fashion, “maintaining [the] state.” I am, however, inspired as a Municipal Court lawyer by the judges and courts who aim toward justice and not a financial, narcissistic, Machiavellian self-interest. I am also inspired by the NJ Supreme Court Committees’ hard work, insight, reflection, and unpacking of the thorny issues that seek to structurally change the system to better serve the public. I nonetheless fluctuate between that feeling of hope and a feeling of hopelessness, hearing the echo of the words of French writer Jean-Baptiste Alphonse Karr; “plus ça change, plus c’est la même chose “– the more things change, the more they stay the same.