Justice Robert L. Clifford (1924-2014)

Justice Robert L. Clifford died on Saturday, November 29.  He was 89 years old. 

Justice Clifford served on the Supreme Court for twenty one years, from 1973 to 1994.  During that time, he authored hundreds of majority, concurring, and dissenting opinions.  Any listing of his most influential or important opinions would be an incomplete one.  But some of those opinions would include Service Armament Co. v. Hyland, 70 N.J. 550 (1976) (for many years, one of the leading opinions regarding statutory interpretation); Hill v. Yaskin, 75 N.J. 139 (1977) (tort duties and foreseeability); Karlin v. Weinberg, 77 N.J. 408 (1978) (restrictive employment covenants); Jewish Center of Sussex Cty. v. Whale, 86 N.J. 619 (1981) (equitable fraud); Ramirez v. Amsted Industries, Inc., 86 N.J. 332 (1981) (successor liability); Evers v. Dollinger, 95 N.J. 399 (1984) (the “loss of a chance” theory of tort liability); Fischer v. Johns-Manville Corp., 103 N.J. 643 (1986) (strict liability and punitive damages), Grunwald v. Bronkesh, 131 N.J. 483 (1993) (statute of limitations for legal malpractice); and Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994) (consumer fraud).  Many of those and his other decisions are still cited today.  Justice Clifford’s name also featured prominently in a case that he hated to see cited, Avant v. Clifford, 67 N.J. 496 (1975), which arose out of his service as Commissioner of Institutions and Agencies under Governor Cahill.

Justice Clifford was born in Passaic, New Jersey and graduated from Montclair Academy.  He got his undergraduate degree from Lehigh University and his law degree from Duke University.  After clerking for Justice Wachenfeld on the Supreme Court of New Jersey, Justice Clifford was in private practice with several different firms.  In 1970, Governor Cahill named him as Commissioner of the New Jersey Department of Banking and Insurance.  Later, Justice Clifford served as Commissioner of Insurance and then Commissioner of Institutions and Agencies, all under Governor Cahill.  In 1973, Governor Cahill appointed Justice Clifford to the Supreme Court.  After retiring from the Court in 1994, Justice Clifford became counsel to the firm now known as McElroy, Deutsch, Mulvaney & Carpenter LLP.

During his time on the Court, Justice Clifford was well-known as the Court’s grammarian and its most stylish writer.  Justice O’Hern, in his article titled “A Tribute to an Indispensable Justice,” 47 Rutgers L. Rev. 1 (1994), described some of Justice Clifford’s “contributions to the law as literature,” noting his “extraordinary command of the English language.”  That article contains a number of amusing anecdotes about Justice Clifford’s writing and his scrupulous editing of the opinions of other Justices.  Those of us who clerked at the Court during Justice Clifford’s tenure also got good lessons in writing and grammar.  (For example, I owe my own understanding of the difference between “that” and “which” entirely to Justice Clifford). 

Justice Clifford had a knack for finding the best quotes from others to use in his own opinions.  Two of my favorites are these. 

First, in In re Opinion 662 of the Advisory Comm. on Professional Ethics, 133 N.J. 22 (1993), Justice Clifford filed a concurring opinion in which he decried the use of footnotes in judicial decisions.  He deplored the need to “drop the eyes” from the text to a footnote, “and then to return, without skipping a beat, to the point of departure on the upper part of the page.  The whole irritating process points up the soundness of John Barrymore’s observation that ‘[reading footnotes is] like having to run downstairs to answer the doorbell during the first night of the honeymoon.'”   

Second, concurring in Tretina v. Fitzpatrick & Assocs., 135 N.J. 349 (1994), a case in which the Court overruled a two-year old decision regarding standards for reviewing arbitration awards, Justice Clifford explained his change of viewpoint by quoting “that reassuring old turkey, ‘The matter does not appear to me now as it appears to have appeared to me then.'”  Andrews v. Styrap, 26 L.T.R. (n.s.) 704, 706 (Ex. 1872) (Bramwell, B.).  Justice Clifford had quoted that British dictum in a dissenting opinion in Moraca v. Ford Motor Co., 66 N.J. 454 (1975), nearly twenty years earlier, as he noted in Tretina

But my favorite original opinion by Justice Clifford is his concurrence in Cogliati v. Ecco High Frequency Corp., 92 N.J. 402 (1983).  That was one of several cases during Justice Clifford’s tenure in which the Court abrogated a prior rule and liberalized the ability of persons who fall on a sidewalk to sue for their injuries.  Justice Clifford vigorously disagreed with those decisions.  Reluctantly concurring in Cogliati, however, Justice Clifford wrote an opinion that repurposed the language of the Gettysburg Address.  His concurrence began with “Four score and six years ago our judicial forefathers brought forth upon the jurisprudence of this state a principle of law, conceived in good sense and dedicated to the proposition that all nuisance-maintainers are created equal.”  Then, “Now we are engaged in a great judicial debate, testing whether that proposition or any other proposition of sidewalk law can long endure.”  And, finally, “The world may little note nor long remember what we say here, but it is adjured to forget what our predecessors did in formulating our sidewalk law.  It is for us to be dedicated to the task remaining before us– applying the new rules of law.”

Justice Clifford was unique (not “very unique” since, as he would have been quick to point out, “very unique” is an improper usage).  Those who had the privilege to know him were fortunate.  Those who read, or will read, his opinions will always learn something from them.