Court Cases

NJ Supreme Court to decide abortion case

High court caseload to fuel debate, controversy
Rulings include abortion, retrial of NBA star, DNA

Monday, September 11, 2006
BY ROBERT SCHWANEBERG
Star-Ledger Staff

The retrial of Jayson Williams, abortion, DNA testing of convicted criminals and the rights of 1.2 million New Jerseyans governed by homeowners' associations are among the issues the state Supreme Court will address in the new term that begins in earnest today.
But the court's most anticipated decision will be in a case it heard last February. Seven same-sex couples claim the state's refusal to allow them to marry violates their right to equal treatment under the New Jersey Constitution.
"I can't remember in my memory a more eagerly awaited decision from the court," said Newark lawyer Lawrence Lustberg, who co-authored the written arguments in support of same-sex marriage with lawyers from the gay rights organization Lambda Legal.
A ruling in their favor would make New Jersey the second state, after Massachusetts, to allow people of the same sex to marry each other. Opponents say that would build momentum for an amendment to the U.S. Constitution defining marriage as the union of one man and one woman.
"New Jersey may be the tipping point in the national debate," said the Rev. Samuel Rodriguez Jr., president of the National Hispanic Christian Leadership Conference, which defends the traditional definition of marriage. "There is no other way than a federal amendment."
The gay marriage case is one of nine the justices heard last term but have yet to decide. They are under no deadline, but Lustberg said he expects a decision before Oct. 26, when Chief Justice Deborah Poritz reaches the mandatory retirement age of 70.
The new court term officially began Sept. 1, but the justices will hear their first arguments today in cases involving employment law and juvenile sex offenders. The justices typically hear about 100 cases per term and so far have agreed to take 66.
One that has attracted national attention asks whether the 1.2 million New Jerseyans who live in communities governed by homeowners' associations signed away their constitutional rights when they bought property there. A trial judge said they did, but an appeals court ruled certain rights protected by the state constitution -- notably its protection of free speech and the posting of political signs -- trump association rules. It was the first ruling of its kind in the nation.
"It's extraordinarily important -- not just for New Jersey but as a beacon for the country," said Frank Askin, founder of the Constitutional Litigation Clinic at Rutgers Law School in Newark. He argued the case for a handful of residents of Twin Rivers, a community of 10,000 in Mercer County, who are challenging the power of their association.
Another closely watched case will set the ground rules for the retrial of former NBA star Jayson Williams on charges of reckless manslaughter for the death of limousine driver Costas "Gus" Christofi. He died after being struck by a blast from a shotgun that Williams snapped shut.
The first jury to hear the case convicted Williams of tampering with witnesses and evidence in an effort to make Christofi's death appear a suicide, but deadlocked on the reckless manslaughter count. The state is appealing a trial judge's ruling preventing the state from presenting evidence at Williams' retrial that he orchestrated a "cover-up."
Lawyers for both Williams and the state have been gagged. Lustberg, who plans to file a friend-of-the-court brief for the Association of Criminal Defense Lawyers of New Jersey, said it is not Williams' celebrity but two "very important legal issues" that got the case to the state's highest court.
They are "whether evidence of so-called 'consciousness of guilt' is allowable in a case about recklessness" and when higher courts should resort to "second-guessing trial judges on evidentiary questions," Lustberg said. "The Supreme Court doesn't hear cases just because it's a high-profile defendant."
A case involving abortion has drawn the attention of activists on both sides of the issue.
In 1996, Rosa Acuna, then a 29-year-old mother of two with a kidney disorder, had an abortion on her doctor's advice. She claims that when she asked whether her 7-week-old fetus was "a baby," her doctor replied: "Don't be stupid. It's just some blood."
The question for the justices is whether Acuna is entitled to have a jury determine whether that reply was adequate for her to make an informed decision.
"This is an issue that definitely has merit," said Marie Tasy, executive director of New Jersey Right to Life. "Vulnerable women experiencing crisis pregnancies are not being given accurate information by the abortion doctors."
Ed Barocas, legal director of the state chapter of the American Civil Liberties Union, said it is unfair to ask physicians to make "moral" decisions about the beginnings of life that should be left to the patient and her religious adviser.
"It's not a judgment a doctor should be required to make in order to avoid liability," Barocas said.
Robert Schwaneberg covers legal issues. He may be reached at rschwaneberg@starledger.com or (609) 989-0324.

 

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