Latest 2 Cases: S.C. v. New Jersey Department of Children and Families (Family Law), In the Matter of John F. Russo, Jr. (Government & ...

Before She Died, “Jane Roe” Said She Was Never Really Pro-Life: Does It Matter?

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the revelation that before she died, Norma McCorvey—the woman who was the plaintiff in Roe v. Wade and who had subsequently become a prominent spokesperson for overturning the decision—said she was never really pro-life after all. Using this example, Dorf explains why, in some ways, the individual plaintiff’s identity does not matter for the purpose of deciding an important legal issue, yet in other ways, the plaintiff’s underlying story can be very important for other reasons.

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S.C. v. New Jersey Department of Children and Families

Docket: a-57-18

Opinion Date: May 27, 2020

Judge: Jaynee LaVecchia

Areas of Law: Family Law, Government & Administrative Law

This appeal involved the investigation into a claim that a mother, S.C., abused her seven-year-old son by corporal punishment. The New Jersey Department of Children and Families (Department) concluded, after its investigation, that the claim of abuse was “not established.” Because the abuse allegation was deemed “not established” rather than “unfounded,” it was not eligible to be expunged. S.C. appealed the Department’s action, claiming: (1) a deprivation of her due process rights because she was not afforded a hearing; and (2) that the Department’s “not established” finding was arbitrary and capricious because the record was insufficient to support a finding that her son was harmed. S.C. did not raise a direct challenge to the validity of having a “not established” finding category in the Department’s regulations, although amici urged that the category be declared illegitimate and eliminated. The New Jersey Supreme Court reversed and remanded: (1) for the Department to provide improved notice of the basis on which its investigation has found credible evidence to support the allegation of harm; and (2) for S.C. to have an informal opportunity before the Department to rebut and/or supplement the record before the Department finalizes its finding. The Supreme Court rejected that due process considerations required the Department to conduct an adjudicative contested case proceeding either internally or at the Office of Administrative Law for a “not established” finding. That said, on the basis of the present record, the Supreme Court could not assess whether the “not established” finding in this instance was arbitrary or capricious. "It would be well worth the effort of the Department to revisit its regulatory language concerning the standard for making a 'not established' finding as well as its processes related to such findings. Our review of this matter brings to light shortcomings in fairness for parents and guardians involved in investigations that lead to such findings and which may require appellate review."

In the Matter of John F. Russo, Jr.

Docket: d-100-18

Opinion Date: May 26, 2020

Judge: Stuart Rabner

Areas of Law: Government & Administrative Law, Legal Ethics

A complaint issued by the Advisory Committee on Judicial Conduct (ACJC) alleged four counts of misconduct against a superior court judge, Respondent John Russo, Jr. The charges and findings related to four discrete instances of misconduct. Count I, the most serious matter, concerns Respondent’s conduct at a hearing on an application for a final restraining order. The misconduct charged related to his questioning of an alleged victim of domestic violence who testified that she had been sexually assaulted, as well as his comments to staff members in open court after the hearing. Count II addressed a personal guardianship matter in which Respondent allegedly asked a Judiciary employee to contact her counterpart in another vicinage and request that a hearing be rescheduled to accommodate Respondent. Count III asserted Respondent created the appearance of a conflict of interest when he presided over a matter in the Family Division in which he knew both parties since high school. Count IV related to Respondent’s ex parte communication with an unrepresented litigant. After it conducted a hearing, the ACJC found clear and convincing evidence to support all the charges. A panel of three Judges designated by the Supreme Court then conducted a separate, additional hearing and concluded that the evidence supported a finding beyond a reasonable doubt that Respondent violated the Canons of the Code of Judicial Conduct and the Rules cited in all four counts. The panel recommended that Respondent be removed from office. Based on its review of the extensive record, the New Jersey Supreme Court found beyond a reasonable doubt that there was cause for Respondent’s removal, and ordered such removal.