Strongly objecting to fee shifting, inequitable pay structures that punish media outlets, and other public interest obstacles snuck into S-2930, transparency activists today tried to prevail on the state Senate Budget Committee to kill the bill.

Attorney C.J. Griffin, partner and director of the Stein Public Interest Center, zeroed in on the bill’s delicate use of language to shift the financial burden – and the burden of proof – for an OPRA request onto the public. “This flips the burden, saying we have to go to court and somehow convince the judge it’s unreasonable when we don’t have access to the information,” said Griffin. “It’s a way to deny access without being honest and saying, ‘we’re denying access’.” The bill provides government with ammunition to bog down in court – and legal costs – an individual or entity seeking public records.

Backers of the bill tried to describe it as a balancing act of transparency and efficiency: protections for public access, and protections for clerks who are sometimes overloaded with OPRA requests or harassed by opportunists.

But New Jersey Press Association Attorney Tom Cafferty told the committee, “Despite the amendments, the bill remains deeply flawed. …Generally, the arc in this state has been toward transparency. If this bill passes that arc will be reversed.”

Public servants in clerks’ offices besieged by OPRA requests need relief, the bill’s supporters argued, referring to “hundreds of never-ending requests.” The bill, said Plainfield Mayor Adrian Mapp, “is a step in the right direction to establish order.”

Those on the other side of the issue promptly countered. Melissa Marks of the League of Women Voters said, “This is about transparency. Our core issues are not addressed in the amendments.” Marks cited the bill’s “guts to fee shifting. Fee shifting needs to stay strongly intact.”

“The core concerns we laid out have become worse [in the current iteration of the bill,” said Dena Mottola, executive director of New Jersey Citizen Action. “The amendments do nothing about the concern that commercial entity requests are overusing the OPRA Law. This bill targets the public.”

Joe Johnson, policy counsel for the ACLU, derided the bill as an attack on New Jerseyans. “It is an honor to address the three senators here,” deadpanned Johnson, observing the inevitable insidious passage of the bill.

Veteran state Senator Paul Sarlo (D-36) (pictured, above) chaired the hearing, presiding over a mostly civil debate between the contending sides, ultimately unsatisfying for the champions of public interest.

From the ACLU, following the bill’s passage out of the Senate Budget Committee:

The ACLU of New Jersey, Salvation and Social Justice, and League of Women Voters of New Jersey, today sent a letter, signed by dozens of advocacy groups from across the state, to Senate President Nicholas Scutari to express extreme concern about a proposed constitutional amendment that would fundamentally alter the functioning of New Jersey’s judiciary and transfer vast power over the courts to the political branches of government. The groups are calling on lawmakers to ensure any process to consider changing the current system for judicial appointments is transparent and includes public input.

“New Jersey’s method for selecting judges has created a judicial system that is admired nationwide for its quality and independence, still reasonable people can disagree about the best way to select appellate judges. Such a dramatic change in our constitutional structure implicates significant questions about diversity, vacancies, competence, and politicization. The Senate should not move forward with a proposed amendment until there has been an open, robust discussion about the critical questions implicated by such a radical change to the foundations of our state’s checks and balances,” said ACLU-NJ Policy Director Sarah Fajardo.

Under the current system, the Chief Justice has the constitutional authority to assign judges of the Superior Court to any court in the state. This means the Chief Justice may make geographic assignments, determine whether a judge sits in family, criminal or civil court, and, critically, decide which trial judges should be assigned to the Appellate Division. The proposed constitutional amendment would strip the Chief Justice of that assignment power and allow the Governor to name people directly, subject to Senate confirmation, to a “Court of Appeals” that would have the same powers as the Appellate Division.

“New Jersey has the worst racial disparities in the rates of sentencing and incarceration of Black and white residents in the nation, and so I am deeply concerned about the proposed changes to the appellate judge selection process. The proposed changes have the potential to jeopardize the independence and integrity of the judiciary and undermine the trust and confidence of the public in the administration of justice. The current system ensures that qualified and impartial judges are elevated to the appellate courts, without political interference or favoritism. I urge the legislature to reconsider this plan and preserve the merit-based selection process that has served our state well for decades,” said Rev. Dr. Charles F. Boyer, Executive Director and Co-Founder of Salvation and Social Justice, Pastor of Greater Mount Zion AME Church in Trenton.

For seven of the last 11 years – across multiple gubernatorial administrations – the average number of judicial vacancies has amounted to 50 or more. This has had a catastrophic effect on the provision of justice. The Appellate Division has been largely insulated from this problem as the Chief Justice has diligently tended to the composition of the appellate bench, while the trial courts, which can be filled only by political actors, have suffered. As such, the Appellate Division has gender parity and political balance. There are more people of color serving on that court now than ever before. But as written, the constitutional amendment fails to account for the need for diversity in the Appellate Division and would put total power over its judicial staffing into the same hands that have long mismanaged the process of filling the lower courts.

“The League of Women Voters of New Jersey is deeply troubled by the pace of this proposed amendment,” said Jesse Burns, Executive Director of the League of Women Voters of New Jersey. “This change could have significant impacts on our judicial system and deserves more thorough discussion and debate.”

In New Jersey, trial and appellate judges serve for seven years and then must be again appointed by the Governor and confirmed by the Senate. This allows New Jersey judges to focus on making decisions that are correct, rather than those that are popular. If the proposed constitutional amendment were to pass, it would politicize court decisions as judges seeking to be appointed to the appellate court would have to gain approval from the Governor and the entire Senate.