NJ Judge Under Fire Responds to Anti-Gay Charge

BY DUNCAN OSBORNE | A New Jersey Municipal Court judge who is said to have an anti-gay record and was recently nominated for a judgeship in a higher court by Governor Jon Corzine said he had no animus toward gay men and lesbians.

“My guess is that it's perception versus reality,” said Steven J. Zaben. “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.”

Zaben has presided over the Municipal Court that has jurisdiction over the New Jersey portion of the Palisades Interstate Park, which stretches along the Hudson River from Fort Lee in New Jersey to Bear Mountain in New York, since 1998. He also held that position from 1986 until 1992.

Zaben said he has heard 200 public lewdness cases in the court and that most resulted in guilty pleas. 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.

Those men usually exposed themselves briefly after being urged to do so by another man who turned out to be a plainclothes police officer. A typical sentence included fines totaling $1,000, two years on probation, a two-year ban from the park including using the highway that runs through it, and, in some cases, court-supervised psychiatric counseling.

In 2005, Zaben gave a heterosexual couple who were charged with lewdness for having sex in the park a $750 fine each. The two were also charged with drinking alcohol in the park, for which they were fined $200 each, and the man was fined $54 for a parking violation. Both were banned from the park for two years. 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 stinging decision, a state appeals court overturned a 2005 Zaben conviction against one gay man charged with lewdness. The appeals court questioned the arresting officer's honesty and Zaben's legal reasoning.

“I think 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, that give lawyers some extra cash and allow them to participate in the state's pension system. Municipal Courts hear low level offenses.

Corzine, a Democrat, nominated Zaben for a workers' compensation judgeship. That is a full-time job and comes with a hefty salary. Workers' compensation judges rule on worker injury cases. 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, since 1982 after serving one two-year term in the state's Assembly. 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.”

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