N.j. Senate Narrowly Confirms Wilentz As Chief Justice

Posted: August 01, 1986

TRENTON — The New Jersey Senate narrowly confirmed Chief Justice Robert N. Wilentz last night for tenure on the state Supreme Court, but only after Wilentz made an unprecedented agreement to establish a New Jersey residence under the legislature's terms or resign from the court.

After three hours of closed-door discussions and phone calls from Gov. Kean, who was vacationing in New York state, Senate President John F. Russo related the agreement to the hushed Senate. Behind him, an unfinished vote tally stood one "yea" vote shy of confirmation for the chief justice.

Russo said Wilentz told the governor he would either abide by a special residency bill now pending in the Senate, if it was found to be constitutional, or resign.

Alternatively, said Russo, Wilentz agreed that as soon as his wife's medical condition improves after her six-year bout with cancer, he would ''move back to the state."

Only Sen. Lee B. Laskin, a Camden County Republican known for his political independence, had not voted. After speaking with Kean, he registered a positive vote, granting the Wilentz confirmation, 21-19.

Laskin said later that he had agreed, albeit reluctantly, to approve Wilentz's appointment after the justice agreed to live in New Jersey "like the rest of us" or resign the post he was appointed to seven years ago.

Wilentz, 59, could remain on the court until the mandatory retirement age of 70 if he decides to continue as a justice.

Republican senators who had opposed Wilentz derisively labeled the eleventh-hour agreement a "deal" and a "charade."

Kean, in a written statement from his office, said he was "very pleased" with the outcome.

The residency legislation would require high state officials and judges, including Supreme Court justices, to be bona fide, full-time residents. Laskin said it would be up to the legislature to determine precisely the conditions that would meet such a requirement.

The Wilentz reappointment came down to a cliff-hanging initial tally at 5:40 p.m. after sober floor debate on the issue of his legal residence.

All 40 senators were present. Eighteen senators voted against the nomination and 20 voted in favor. With 21 votes needed for confirmation, senators of both parties crouched at the desks of the two holdouts, Democrat Catherine A. Costa of Burlington County and Laskin.

Seventeen minutes later, Costa cast a "no" vote, making the tally 20-19. All eyes focused on Laskin, his head alternately shifting straight down to his uncluttered desk or back to the tote board, which was aglow with red and green lights signifying the historic stalemate. After speaking with Kean, he cast the deciding vote.

Tuesday's vote approving Wilentz in the Senate Judiciary Committee had given no indication of yesterday's dilemma for the full Senate. The committee voted 9-2 in favor of Wilentz, with three Republicans, including Laskin, backing the chief justice.

After Costa's negative vote, the Senate broke into private party caucuses in an effort to sway Laskin or move Democratic senators to switch their votes.

Kean, a Republican, renominated Wilentz in May and defended the reappointment Monday, saying he believed that the "extraordinary circumstance" of Wilentz's wife's bout with cancer justified the chief justice's having a home in New York City.

More than one senator yesterday noted the irony that Wilentz's "honesty" and "candor" before the Judiciary Committee had fueled deep concern over his residency.

During two days of testimony, Wilentz said he had maintained a "peculiar split residence" since 1971, when he and his wife sold their Perth Amboy home and bought a cooperative apartment in Manhattan to be close to their three children, who were in school or were living there.

Wilentz said he continued to spend several nights a week in a small apartment in Perth Amboy and on other nights commuted to Manhattan in a state car after becoming chief justice in 1979. His court office is in Perth Amboy.

Wilentz testified that in 1980, his wife, Jacqueline, was found to have breast cancer, that she had undergone 10 operations, that by late 1984 signs of the cancer had returned and that she had begun chemotherapy. In late 1984, he said, he found he was spending more than half the year in New York and began paying New York state income taxes in addition to New Jersey income taxes.

He now spends fewer than 12 nights a year in Perth Amboy, although he and his wife stay each summer at their beach home in Deal, N.J., Wilentz said. He votes in New Jersey and has a New Jersey driver's license, he said.

"As my wife recovers, I would expect to resume my New Jersey residency," the chief justice told the committee. "I will live in New Jersey all week, just as I did before, and she would join me, perhaps even more than she did before."

He added: "I do not intend to get rid of my New York apartment."

Wilentz repeatedly told the committee that he considered himself a New Jersey resident, that his "alliance" was New Jersey, that his work was in New Jersey, his friends, his "home." He is a former Democratic state assemblyman and the son of a New Jersey attorney general.

Although the chief justice declined to offer a judgment on whether he was ''legally" a resident of New Jersey, he made clear that he considered his domicile to be New Jersey. Domicile is a legal term meaning the one true place a person intends to make his permanent home. Under New Jersey law, domicile usually defines residence, according to attorneys for the legislature.

But many senators were not convinced by the legalism and preferred what one termed the "common sense" view that a person's residence is where he or she actually "lives" and goes home to the spouse and children. Others labeled the small Perth Amboy apartment a "fiction" and a "subterfuge."

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