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Judge pays for court's record

Gov. Christie sees the state Supreme Court as activist, but Justice John Wallace's work there defied labels.

As a New Jersey Supreme Court justice, John Wallace voted in 2007 to block Paulsboro's attempt to acquire a property by eminent domain for a redevelopment project.

The year before, he voted in favor of Mount Laurel when it wanted to acquire a builder's tract by eminent domain for use as open space, though a trial judge had found the township's real purpose was to limit residential development.

Wallace bucked the court's history of favoring First Amendment rights inside privately run institutions, such as universities and shopping malls, by ruling in 2007 against dissident residents in a homeowners' association. Two years later, he upheld a union's right to display a supersized inflatable rat, writing that Lawrence Township had violated the First Amendment by fining the union under a sign ordinance.

Legal experts and observers of the court say Wallace has been tough to categorize on a court - alternately derided as activist and praised as progressive - that has moved from its traditionally liberal bent toward a more moderate position during the last decade.

It is the activist label that cost Wallace his job this month, however, after Gov. Christie took the unprecedented step of not reappointing him because of concerns that the seven-member court legislates from the bench.

Robert Williams, a constitutional law professor at Rutgers University-Camden, said Wallace was in the wrong place at the wrong time. The seven-year term served by Wallace, a Gloucester County Democrat, ended Thursday.

"This particular court for the last six or seven years has been to some extent less assertive, maybe less active than earlier courts," Williams said.

Alan Zegas, a criminal-defense lawyer in Chatham, N.J., said the conservative shift on the U.S. Supreme Court might make New Jersey's top court appear more liberal by comparison, "but anybody fairly analyzing cases would say its decisions are middle of the road."

Christie and other critics of the court have largely pointed to decisions made before Wallace's appointment in 2003. The effects of those rulings continue to frustrate many in New Jersey at a time when the state can barely balance its budget and residents worry they can't afford to live here anymore.

In the 1970s, U.S. Supreme Court Justice William Brennan urged state Supreme Courts to go beyond the federal constitution in protecting individual liberties. The New Jersey Supreme Court, where Brennan had served as a justice, was already charting a course in that direction with its first landmark ruling on affordable housing in 1973.

Today, critics complain that the ruling - that every town has a constitutional obligation to provide affordable housing - and decisions that the state's neediest school districts should receive funding on par with wealthy suburbs are expensive examples of judicial activism. Suburbanites in particular have been resentful as their property taxes have risen to pay for it all.

"It's very polarizing," said Chris Norman, solicitor for Mount Laurel, a defendant in the affordable-housing cases. "They're all policies . . . that benefit urban areas at the expense of the taxpayers that live in the suburbs."

Enter Christie, who was propelled to office by suburban voters and wants to make good on his campaign promise to remake the court.

The court's historic decisions on state borrowing also sting as New Jersey, awash in debt, faces a fiscal crisis. Nearly a decade ago, in cases brought by future Republican gubernatorial candidate Steve Lonegan, the court sanctioned borrowing by state authorities without voter approval.

Those rulings were followed by New Jersey's school-construction scandal, in which the newly created state School Construction Corp. blew through billions of dollars in borrowed money in just a few years. The state inspector general uncovered waste and possible fraud in the program. In 2007, the Legislature created a new authority in its place.

"The state Supreme Court of New Jersey is responsible for some of the worst governmental policy in the country - they call it progressive - and that's resulted in the nation's highest property taxes," Lonegan said.

Last week, he led a protest to the West Deptford office of Democratic Senate President Stephen M. Sweeney, demanding that Sweeney reverse his stance not to hold hearings on Anne Patterson, Christie's nominee to replace Wallace.

Sweeney said in an interview that he knew people were angry about earlier court rulings, but "how do you take it out on somebody that had nothing to do with it?"

"I think the New Jersey Supreme Court could probably vie for the title, at least fairly recently, for being the most well-known and well-respected Supreme Court in the country," said Ronald Chen, who served as public advocate under Gov. Jon S. Corzine and is now a vice dean at the Rutgers Law School in Newark, N.J.

Chen said the court had been largely deferential to the Legislature over the last 10 or 15 years. The problem, he said, is that the Legislature really prefers that the court go out on a limb, saving elected officials "from the dirty work, even though it has to be done."

Consider the court's decision on a challenge by gay couples seeking the right to marry. A majority, including Wallace, decided in 2006 that same-sex couples must be afforded "the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes," but deferred to the Legislature on whether those rights should be provided under marriage.

Legislators rapidly approved a law making New Jersey the third state to authorize civil unions.

One of Wallace's first controversial decisions came in 2004 when he joined the majority in ruling that it was unconstitutional for Gov. Jim McGreevey, who had appointed him, to balance the state budget with $1.9 billion in borrowed money. But the Supreme Court said its ruling would apply only to future fiscal years because barring the bond sales at that time might require a disruptive overhaul of the budget.

At other times, Wallace has made rulings that a fiscal conservative would appreciate.

In 2008, he wrote a decision reversing a trial judge's and an appellate court's approval of a petition from the Cape May County Prosecutor's Office for extra money denied by the freeholders. The money was to go toward 6 and 9 percent raises for some employees, bringing their salaries in line with those in other counties but exceeding contractual increases.

Citing the "plain language" of the statutes, Wallace wrote that the trial judge had erred in approving the prosecutor's request, given that the judge had determined that the prosecutor failed to establish that the raises were "reasonably necessary."

But it's the court's interpretation of more open-ended language that riles conservatives most. Rulings in the long-running Abbott v. Burke cases established that needy school districts should receive generous funding to comply with the state constitution's mandate that all children receive a "thorough and efficient education."

Last year, Wallace joined the court in upholding the Legislature's revised school-funding formula that abolished the 31 Abbott districts in favor of a system that distributes aid to more districts based on their number of needy students. Critics complained that this expanded a flawed system, though in many ways the court's hands were tied by precedents that predated Wallace.

Williams said a lot of the big questions had already been answered, either by the court or the Legislature. It was the legislature, not the court, that moved to abolish the death penalty in 2007.

Wallace's record on that, too, varied. He wrote a dissenting opinion earlier that year in a 4-2 decision upholding the death penalty for Brian Wakefield, who pleaded guilty to killing a couple and setting them on fire. Wallace wrote that many errors in the case had deprived Wakefield of a fair trial.

Yet he joined in a dissenting opinion to the court's 4-3 ruling in 2006 to vacate the death sentence in favor of a life term for murderer Anthony DiFrisco.

And after ruling that police can't conduct a warrantless search of a car after arresting a driver or passenger, Wallace decided this year that school officials could search a student's car on school property if they suspected illegal activity. He noted in his opinion the need for school officials to maintain safety and order.

Of the school ruling, Zegas said, "Clearly, many would regard that as a highly conservative decision," adding: "It is impossible to pigeonhole him ideologically."