BY DUNCAN OSBORNE | Drawing criticism from New Jersey's leading gay rights group, Governor Jon Corzine has nominated a Municipal Court judge with an anti-gay record to become a judge in one of that state's workers' compensation courts.
“This nomination is akin to nominating Pee Wee Herman for the Nobel Prize in economics, it's patently obscene,” said Steven Goldstein, chairman of Garden State Equality, a New Jersey gay rights group. “Judge Zaben is not even fit to preside over 'The People's Court.'”
The nominee, Steven J. Zaben, has presided, since 1998, over the Municipal Court which has jurisdiction over the New Jersey portion of the Palisades Interstate Park stretching along the Hudson River from Fort Lee in New Jersey to Bear Mountain in New York.
According to Zaben, he has heard 200 public lewdness cases in the park. In examining more than 100 of those cases that involved men, Gay City News found that most ended in guilty pleas, with Zaben handing out harsh sentences that typically included a $1,000 fine, two years on probation, a two-year ban from the park including the highway that runs through it, and, in some cases, court-supervised psychiatric counseling.
Men arrested in the park say they briefly exposed themselves only after being urged to do so by another man who turned out to be a plainclothes police officer. Gay and civil liberties groups charged that Zaben gives harsh sentences to gay men who were arrested in the park and lighter sentences to heterosexuals, but the judge insisted that he had no animus toward gay men and lesbians.
“My guess is that it's perception versus reality,” Zaben said. “The reality is I'm not biased. In all the cases that I hear I don't take a position as to race, gender, or sexual orientation.”
In 2005, Zaben gave a heterosexual couple, charged with lewdness for having intercourse in a car in the parking lot of the park, a $750 fine each. The two were also charged with having an open liquor container in the car, for which they were fined $200 each. The man was fined an additional $54 for a parking violation. Both were banned from the park for two years, but not put on probation or sent for counseling.
Another 2005 case against a second heterosexual couple arrested for having sex in the park was dismissed after the conviction against the first couple was overturned on appeal.
Zaben said his sentences were similar in all the cases.
“It's not that significant,” he said. “They're both violative of the statute… [The fine is] based upon the circumstances.”
In a 2005 case against a gay man, one of the few that went to trial, Zaben concluded that because the defendant said he was gay that meant he was in the park “perhaps to have some type of encounter.”
The defendant testified he was in the park to have lunch and briefly exposed himself only after the arresting officer, Detective Thomas Rossi, repeatedly said, “Show me what you got… Take it out, show me what you got.”
In a stinging decision, that conviction was overturned in 2006 by a state appeals court that questioned Rossi's honesty and Zaben's legal reasoning.
“I think the issue that the appellate division really skirted around was whether or not they should defer to my trial court finding,” Zaben said.
Appeals courts usually decide if the law and legal procedures were followed correctly in a trial and avoid reaching conclusions on the facts in the case.
“I'm not saying their thinking was right or wrong, but I have to go along with that,” Zaben said. “I do believe that the way I ruled was fair and just based on the facts and witnesses that appeared before me.”
Municipal Court judgeships are part-time jobs, typically doled out as political favors, giving lawyers extra cash and allowing them to participate in the state's pension system.
A workers' compensation judgeship is a full-time job and comes with a hefty salary. Workers' compensation judges rule on worker injury cases.
The Corzine administration was aware of Zaben's record when the nomination was made in February.
“They were certainly aware of the controversy and… had reviewed the appellate division decision,” said Jim Gardner, a spokesman for the Democratic governor. “Their objection was not a matter of bias, it was a matter of weight. Under no circumstances would Governor Corzine advance an individual he believed was biased in regards to race or sexual orientation.”
The nomination raised “conflicted feelings,” Goldstein said.
“On the one hand, we are relieved to high heaven that a scourge on civil liberties like Steven Zaben is out of the Palisades Park area where he has worked to destroy the civil liberties of LGBT people,” he said. “On the other hand, it's absolutely astounding that this man could be considered for what amounts to a judicial promotion.”
Lawyers who represented men charged with lewdness in Zaben's court were also shocked by the nomination.
“I can't think of a worse choice for nomination to any court,” wrote William H. Lorentz, a former New Jersey deputy attorney general, in an email. “[H]e is among the most biased, prejudiced, and wrongheaded judges I have had the misfortune of encountering in some 40 years of practice.”
Diane E. Sammons, a partner at Nagel Rice, a Roseland, New Jersey firm, wrote, “Minimal due diligence in evaluating this judge's mishandling of cases involving gay men arrested in Palisades Interstate Park should result in discipline or termination rather than promotion. It is extremely disturbing.”
Zaben clearly wants the job.
“I'm really saddened that anybody or any organization would want to go against me,” he said. “In the 20 years that I've been sitting in Municipal Court I've never had any complaint against me… I'm really saddened that anybody would say don't push his name forward.”
Zaben was the subject of at least one complaint in 2005 made to New Jersey's Advisory Committee on Judicial Conduct (ACJC) related to the conviction that was overturned.
The complaint charged that Zaben made prejudicial comments and reached a guilty verdict because the defendant was gay. The committee found “no abuse of discretion” on Zaben's part. In a remark that calls into question the completeness of that ACJC inquiry, Zaben said he was unaware of the committee's investigation.
“I don't recall any inquiry or question of that nature,” he said.
Zaben is supported by Gerald Cardinale, a conservative Republican who has represented Bergen County, where the park is located, in the State Senate since 1982.
Zaben said he was more than qualified for the workers' compensation judgeship. “I'm capable of holding that position,” he said. “Workers' compensation, I've practiced in that for many years. I enjoy it, I find it very creative.”