State v. James Buckner (074390) , 223 N.J. 1 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. James Buckner (A-22-14) (074390)
Argued April 28, 2015 -- Decided July 30, 2015
RABNER, C.J., writing for a majority of the Court.
In this appeal, the Court considers whether temporary recall service by retired judges violates the
mandatory retirement rule set forth in the Judicial Article of the State Constitution, which declares that “[t]he
Justices of the Supreme Court and the Judges of the Superior Court . . . shall be retired upon attaining the age of 70
years.” N.J. Const. art. VI, § 6, ¶ 3.
The constitutional question in this case arises out of defendant’s indictment and trial for counts of robbery,
aggravated assault, and related charges, all stemming from the March 2010 attack of a woman in a parking lot of the
Morris County Mall. The Honorable Salem Vincent Ahto, a retired Superior Court Judge, presided at defendant’s
trial. Judge Ahto was 73 years old at the time. He had been recalled to service by the Supreme Court three times by
orders dated June 24, 2008, June 29, 2010, and February 7, 2012.
Prior to trial, defendant moved to disqualify Judge Ahto, contending that (1) the Recall Statute, N.J.S.A.
43:6A-13 -- which allows retired judges to be recalled for temporary judicial service -- was unconstitutional, and (2)
Judge Ahto should not decide the disqualification motion because the $300 per diem stipend paid to recall judges
allegedly created a financial interest in the case. Judge Ahto denied both motions. After a three-day trial, a jury
found defendant guilty of second-degree robbery, third-degree aggravated assault, and attempted theft. Judge Ahto
sentenced defendant to nine years’ imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed, arguing both that the trial judge erred in denying the disqualification motions and that
his sentence was excessive. A divided Appellate Division panel affirmed defendant’s conviction. State v. Buckner,
437 N.J. Super. 8 (App. Div. 2014). The panel found that Judge Ahto properly declined to recuse himself based on a
purported financial interest in the case, and further upheld defendant’s sentence. Id. at 37-38. The panel divided
over the constitutionality of the Recall Statute. Evaluating defendant’s claim under the Judicial Article, the majority
upheld the constitutionality of the statute, finding “no language, express or even implied, banning the temporary
recall of retired judges.” Id. at 28. Among other conclusions, the majority rejected an argument raised by the
dissent, not the parties: that recall service is unconstitutional because it improperly encroaches upon the Executive’s
power of appointment and thus violates the separation of powers doctrine. The majority found that the Recall
Statute struck an appropriate compromise and maintained the balance among the three branches. Id. at 35.
The dissenting member of the panel concluded that the Recall Statute is unconstitutional. Id. at 39 (Harris,
J.A.D., dissenting). In the dissent’s view, the phrase “shall be retired upon attaining the age of 70 years” in the
Judicial Article “connotes (1) the compulsory abdication of a judicial office; (2) the surrender of judicial power”;
and (3) “the permanent loss of the ability to exercise -- for the benefit of the public -- the sovereign functions of
government that had previously been made possible by the Governor’s selection, with the advice and consent of the
Senate.” Id. at 42 (Harris, J.A.D., dissenting) (citation omitted).
Defendant appealed as of right under Rule 2:2-1(a)(2), based on the dissent in the Appellate Division.
HELD: Defendant has failed to show beyond a reasonable doubt that the Recall Statute is clearly repugnant to the
New Jersey Constitution. To the contrary, the current law, in effect since 1975, is consistent with both the language
and the history of the modern State Constitution, and does not violate the separation of powers doctrine.
1. A legislative act will not be declared void unless its repugnancy to the constitution is clear beyond a reasonable
doubt. Silence typically cannot satisfy a challenger’s heavy burden of proof. Unless prohibited by the Constitution
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expressly or by clear implication, the Legislature has the power to take any action or course reasonably necessary or
incidental to the operation of government. (pp. 16-18)
2. New Jersey has had three constitutions. The focus of this appeal is on the modern State Constitution, which was
ratified by the voters in 1947 and took effect in 1948. Before the trial court and the Appellate Division, defendant
relied exclusively on Article XI of the Constitution -- the Schedule Article. As the majority and the dissent in the
Appellate Division correctly noted, the Schedule Article has no bearing on this appeal because its provisions dealt
exclusively with the incumbent judges who held their judicial offices at the adoption of the 1947 Constitution.
Defendant’s reliance on the Schedule Article is therefore misplaced. (pp. 19-20)
3. The proper focus of this appeal is the Judicial Article of the modern Constitution, which provides “The Justices
of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of 7 years and
upon reappointment shall hold their offices during good behavior . . . . Such justices and judges shall be retired
upon attaining the age of 70 years. Provisions for the pensioning of the Justices of the Supreme Court and the
Judges of the Superior Court shall be made by law.” N.J. Const. art. VI, § 6, ¶ 3. The word “retired” is not
incompatible with recall service. In the context of Paragraph 3, “retire” means an end to a seven-year or tenured
term of service, and the start of “pensioning.” Temporary recall service, by comparison, does not reverse a judge’s
retirement. Nor does it restore judges to their former position. Recall judges serve at the pleasure of the Supreme
Court for two years, with duties often limited to participation in “special projects and programs.” Recall judges
remain retired and do not earn a judicial salary, but instead receive $300 per diem, not to exceed more than one-
quarter of a judicial salary in a year. The Appellate Division dissent submits that recall clashes with retirement
because “shall be retired” “connotes” the complete “surrender of judicial power” and “the permanent loss of the
ability to exercise” the functions of a judge. Buckner, supra, 437 N.J. Super. at 42 (Harris, J.A.D., dissenting). But
the dissent’s far-reaching connotation finds no support in the text of the Constitution. The Judicial Article does not
foreclose recall on a limited or temporary basis -- either expressly or by clear implication. (pp. 20-23)
4. The parties and the Appellate Division opinions also discuss the framers’ choice to use different language in the
Schedule and Judicial Articles. The difference in language reveals that the framers knew how to bar recall but chose
not to do so in the Judicial Article. The first phrase of the Schedule Article -- no judge “shall hold his office after
attaining the age of seventy years” -- banned recall, and the framers had to create an escape clause and expressly
permit judges to complete their unexpired terms during the transition from the old to the new Constitution. The
Judicial Article, by contrast, does not bar recall; it says that judges “shall be retired” at age seventy and subject to a
pension. Had the framers intended to ban recall, they could have repeated the text used in Article XI. (pp. 23-25)
5. Because the language of the Constitution does not rule out recall, there is no need to turn to extrinsic sources. A
close look at the constitutional proceedings, however, does not suggest that the framers wanted to restrict recall.
Rather, the history of the Judicial Article shows that the framers considered various options including restrictive
language in an early draft of the Constitution that barred recall, a revised draft that made recall mandatory, and
varied proposals raised at the Constitutional Convention. Also, multiple individuals at the Convention offered
positive comments about recall. The framers declined to act on the issue, opting instead to leave it to the
Legislature. Defendant maintains that the framers expressly barred recall -- even though the Constitution does not
say so, and nothing in the record of the proceedings suggests the framers had that in mind. The Constitution’s
silence is not a rejection of recall; instead it amounts to an appropriate delegation of authority to another branch of
government. The emphasis at the Convention on both simplicity of language and the need for flexibility in the court
system also supports the Court’s analysis. (pp. 25-40)
6. Having addressed the Judicial Article, the Court turns to the history and purpose of the Recall Statute. The
Legislature designed a pensioning system that today includes recall. Over time, the Legislature has acted on a
number of occasions to permit the recall of retired judges, including in 1973, when the Legislature enacted the
Judicial Retirement System Act (“JRSA”), N.J.S.A. 43:6A-1 to -46, leaving in place the recall provision enacted in a
prior law. The Legislature took action again in 1975, amending the Recall Statute to permit the recall of retired
judges older than seventy. N.J.S.A. 43:6A-13(b). Defendant suggests that the period from 1948 to 1973, when he
claims there was no recall legislation, is proof that the framers did not intend recall. The argument’s premise is
flawed. The Legislature first enacted a recall provision in 1964, and, even more importantly, defendant’s suspicion,
based on a period of legislative inaction, is not enough to show unmistakably that the Recall Statute runs afoul of the
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Constitution. If anything, the passage of time works against defendant’s claim. Defendant must surmount the well-
settled policy of our law not to invalidate a statute which has been in force without substantial challenge for many
years, unless its unconstitutionality is obvious. (pp. 40-48)
7. The Court observes that the fifty states have adopted various approaches to judicial retirement and recall, but
declines to rely upon the approaches taken by other states, noting that its obligation is to interpret the words and
meaning of the New Jersey Constitution and New Jersey statutory law in light of the State’s history. The
approaches taken by others do not offer insight into what the framers of New Jersey’s modern Constitution intended.
(pp. 48-51)
8. Although defendant did not preserve the issue, he adopts an argument raised by the Appellate Division dissent,
namely that the Recall Statute conflicts with the separation of powers doctrine. The Court concludes that the
argument lacks merit. The separation of powers clause of the Constitution directs that one branch of government
may not exercise powers that properly belong to another. As pertains to this appeal, the Constitution gives the
Governor the power to nominate and appoint judges, subject to the advice and consent of the Senate. Recall does
not limit or encroach on the Executive’s power. The moment a judge retires, the position becomes vacant, and the
Governor may appoint a new judge as a replacement. Because defendant cannot show that the Recall Statute clashes
with or usurps the Governor’s constitutional authority to appoint judges, the separation of powers argument fails.
(pp. 52-53)
9. In short, this appeal is governed by two fundamental principles: the strong presumption of validity that attaches
to every legislative enactment, and the Court’s obligation to act with “extreme self restraint” before it overrides the
Legislature and pronounces a law unconstitutional. Before a court can declare a law unconstitutional, it must find
proof beyond a reasonable doubt that the statute is clearly repugnant to the New Jersey Constitution. Defendant has
not met that burden. To the contrary, the Recall Statute is consistent with both the language and the history of the
modern State Constitution. (p. 54)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN, DISSENTING, expresses the view that the plain meaning of the Judicial Article --
including its declaration that “justices and judges shall be retired upon attaining the age of 70 years” -- does not
provide that justices and judges can be recalled to their offices beyond the age of seventy. Nor does it empower the
Legislature to make laws to recall justices and judges beyond that age. In Justice Albin’s view, if justices or judges
are to serve in office beyond the age of seventy, full time or on recall, the Constitution must be amended.
JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON, and JUDGE CUFF (temporarily
assigned) join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN filed a separate, dissenting
opinion. JUSTICE PATTERSON did not participate.
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SUPREME COURT OF NEW JERSEY
A-22 September Term 2014
074390
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES BUCKNER,
Defendant-Appellant.
Argued April 28, 2015 – Decided July 30, 2015
On appeal from the Superior Court, Appellate
Division.
Brian F. Plunkett, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Jeffrey P. Mongiello, Deputy Attorney
General, argued the cause for respondent
(John J. Hoffman, Acting Attorney General of
New Jersey, attorney).
Thomas H. Prol argued the cause for amicus
curiae New Jersey State Bar Association
(Paris P. Eliades, President, attorney; Mr.
Eliades, of counsel; Mr. Eliades, Mr. Prol,
Sandra T. Ayres, Robert B. Hille, and John
W. Kaveney, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
For the past half century, the Judiciary has been able to
recall retired judges to serve temporarily in our State’s court
system where they are needed most. To recall judges who are
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willing to serve, the Supreme Court has relied on statutes that
authorize recall and date back to 1964. Since then, hundreds of
retired judges have temporarily served on recall and resolved
hundreds of thousands of cases. Their efforts have not only
helped countless litigants on a timely basis but have also
enhanced the quality of justice in our State.
Until now, recall service has gone unchallenged. Today, as
the current Recall Statute -- N.J.S.A. 43:6A-13 -- turns forty,
defendant claims that his criminal conviction should be reversed
because it was unconstitutional for a retired judge to preside
over his jury trial. He claims that the existing recall law --
passed by the Legislature, signed by the Governor, and relied on
by the Judiciary for decades -- is unconstitutional. To make
that novel argument, defendant relies on language in the State
Constitution that says “judges shall be retired” when they turn
seventy, and “[p]rovisions for the pensioning” of those judges
“shall be made by law.” N.J. Const. art. VI, § 6, ¶ 3.
Constitutions generally offer a framework for government
but do not attempt to resolve all issues. See Reilly v. Ozzard,
33 N.J. 529, 539 (1960). What the Constitution does not bar,
either expressly or by clear implication, is left to the
Legislature to address. N.J. Sports & Exposition Auth. v.
McCrane, 61 N.J. 1, 18, appeal dismissed, 409 U.S. 943, 93 S.
Ct. 270, 34 L. Ed. 2d 215 (1972); Gangemi v. Berry, 25 N.J. 1,
2
11 (1957). In that spirit, the modern State Constitution of
1947 provides for mandatory retirement of judges, but the
document is silent on the subject of recall. Nowhere does the
plain language of the Constitution forbid recall. And the
mandatory retirement age in the Constitution, on which defendant
relies, does not conflict with temporary recall assignments
because the two concepts are distinct. One prevents lifelong
tenure; the other affords judges neither tenure nor a seven-year
term and does not reverse a judge’s retirement.
The history of the Constitutional Convention of 1947
reveals that the framers were very much aware of recall and
neither required nor rejected it. Among other options, they
turned away from restrictive language in a prior draft
Constitution which barred recall; they also declined to adopt a
proposal at the other end of the spectrum which made recall
mandatory. The framers instead opted for a streamlined approach
that selected a retirement age, required a pension system for
judges, and otherwise left the details to the Legislature.
Nothing in the historical record suggests the framers wanted to
ban recall.
At different times over the decades, the Legislature
accepted the framers’ invitation and included recall in the
judicial pension statute. That approach is consistent with the
aims of the Constitutional Convention: to develop an effective,
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flexible, and fair system of justice. The current system of
recall serves those very goals.
The legislative enactments of the past fifty years are
presumed constitutional. Only if a law is “repugnan[t] to the
constitution . . . beyond a reasonable doubt” can it be declared
void. Franklin v. N.J. Dep’t of Human Servs., 111 N.J. 1, 17
(1988) (quotation omitted).
Defendant cannot, and has not, overcome the strong
presumption of validity that underlies the Recall Statute. The
current recall law, in effect since 1975, violates neither the
plain language of the State Constitution, as defendant claims,
nor the separation of powers doctrine. For that reason, we
affirm the judgment of the Appellate Division, which upheld the
Recall Statute.
I.
At the heart of this appeal are two provisions of law:
part of the Judicial Article of the State Constitution, N.J.
Const. art. VI, § 6, ¶ 3, and the Recall Statute, N.J.S.A.
43:6A-13(b). We review them here to provide context for what
follows.
The Judicial Article outlines the basic structure of the
state court system and the powers of the Judiciary. Section 6,
Paragraph 3 of the Article discusses the appointment and
4
reappointment of judges, their retirement, and judicial
pensions. That section provides in pertinent part that
[t]he Justices of the Supreme Court and the
Judges of the Superior Court shall hold their
offices for initial terms of 7 years and upon
reappointment shall hold their offices during
good behavior . . . . Such justices and judges
shall be retired upon attaining the age of 70
years. Provisions for the pensioning of the
Justices of the Supreme Court and the Judges
of the Superior Court shall be made by law.
[N.J. Const. art. VI, § 6, ¶ 3.]
The provision thus requires that judges retire at age seventy.
It also directs the Legislature to create a judicial pension
system.
The Legislature responded on a number of occasions. In
1973, for example, Governor William T. Cahill signed into law
the Judicial Retirement System Act (“JRSA”), N.J.S.A. 43:6A-1 to
-46. All justices of the Supreme Court and judges of the
Superior Court are members of the judicial retirement system,
N.J.S.A. 43:6A-5, and, upon retirement, a judge is entitled to
the payment of retirement benefits, N.J.S.A. 43:6A-16.
One section of the JRSA -- referred to as the Recall
Statute -- allows retired judges to be recalled for temporary
judicial service. See N.J.S.A. 43:6A-13. Under the law, judges
can be recalled only if they have retired. The Recall Statute
now provides, in part, that “[s]ubject to rules of the Supreme
Court . . . any judge of the Superior Court . . . who has
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retired on pension or retirement allowance may, with his
consent, be recalled by the Supreme Court for temporary service
within the judicial system other than the Supreme Court.”
N.J.S.A. 43:6A-13(b).
The Recall Statute also details the conditions of recall
service:
Upon such recall the retired . . . judge shall
have all the powers of a . . . judge of the
court to which he is assigned and shall be
paid a per diem allowance fixed by the Supreme
Court in accordance with its rules, provided
however that in no event shall he receive a
salary which together with his pension or
retirement allowance exceeds the current
salary of a . . . judge of the court from which
he retired.
[N.J.S.A. 43:6A-13(c).]
Recall judges do not receive a salary; they instead get a per
diem stipend that the Supreme Court has set at $300.
Administrative Directive 12-01, “Policy Governing Recall for
Temporary Service within the Judicial System” (July 19, 2001),
https://www.judiciary.state.nj.us/directive/personnel/dir_12_01.
pdf. They do not work full-time but must be able to “serve for
at least 120 days per year.” Ibid. Recall judges receive
specific assignments within the court system -- often in areas
that “meet[] a significant need” or serve “a designated
statewide priority.” Ibid. And they serve “at the pleasure of
the Supreme Court” for two-year terms that are renewable -- also
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in the Court’s discretion -- until the retired judge reaches age
eighty. Ibid.
The terms of recall service are thus defined by statute and
Court directive. This appeal asks whether temporary recall
service violates the Judicial Article’s mandatory retirement
rule.
II.
The constitutional question in this case arises out of the
following events. On the afternoon of March 21, 2010, defendant
James Buckner attacked a woman as she returned to her car in the
parking lot of the Morris County Mall in Cedar Knolls. After
she placed a package in the back seat and opened the front
driver-side door, defendant grabbed her around the neck in a
choke-hold, brought her to her knees, and told her to give him
her purse. Even though the victim told him to take the purse,
he continued to choke her until she briefly passed out. When
defendant loosened his grip, the woman screamed and threw her
keys.
Others in the parking lot heard the screams and responded.
One passerby kicked defendant until he released the victim and
began to walk away. Another called the police and followed
defendant to a store in the mall. When the police arrived, the
latter witness told an officer where defendant had gone. Soon
after, the officer detained defendant. Minutes later, the
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victim and both witnesses identified defendant as the attacker,
while he sat in the back of a police car.
A grand jury in Morris County indicted defendant on six
counts: second-degree robbery, N.J.S.A. 2C:15-1(a)(1); third-
degree hindering, N.J.S.A. 2C:29-3(b)(4); third-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree
attempted theft, N.J.S.A. 2C:20-3(a); first-degree robbery,
N.J.S.A. 2C:15-1(a)(1); and second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1).
The Honorable Salem Vincent Ahto presided at defendant’s
trial. Judge Ahto is a retired Superior Court Judge. At the
time of the trial, he was 73 years old. This Court recalled him
to service three times by orders dated June 24, 2008, June 29,
2010, and February 7, 2012.
Prior to trial, defendant moved to disqualify Judge Ahto
for two reasons. First, defendant alleged that Judge Ahto could
not preside over the case because the Recall Statute -- the
basis for his temporary assignment -- was unconstitutional. For
support, defense counsel relied on arguments presented in a
different, recent case before the Judge. Second, defendant
asserted that Judge Ahto should not decide the disqualification
motion because he had a financial interest in the case -- the
$300 per diem.
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Judge Ahto relied on his decision in the prior case and
denied both motions. As to the first claim, he observed that he
was “ill-equipped” to declare orders of the Supreme Court
unconstitutional, that the Constitution does not bar recall
service, and that the Recall Statute was presumptively
valid. Judge Ahto relied on a memorandum from the Assignment
Judge to deny the second argument. The memo noted that the per
diem payment a recall judge receives is not the type of
financial interest that requires disqualification.
After a three-day trial in April 2012, the jury found
defendant guilty of second-degree robbery, third-degree
aggravated assault, and attempted theft, and acquitted him of
the remaining charges. Two months later, Judge Ahto sentenced
defendant to nine years’ imprisonment subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed. He argued that the trial judge erred
in denying the disqualification motions and claimed that his
sentence was excessive. A divided appellate panel affirmed
defendant’s conviction. State v. Buckner, 437 N.J. Super. 8
(App. Div. 2014). The panel found that the trial judge properly
declined to recuse himself based on a purported financial
interest in the case. Id. at 37. The panel also upheld
defendant’s sentence. Id. at 37-38.
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The panel divided over the constitutionality of the Recall
Statute. Defendant claimed that it violated Article XI, Section
IV, Paragraph 1 of the State Constitution (the “Schedule
Article”), which states that “[n]o Justice of the new Supreme
Court or Judge of the Superior Court shall hold his office after
attaining the age of seventy years.” N.J. Const. art. XI, § 4,
¶ 1. The majority explained that that language “applies
exclusively to ‘the incumbent judges who held their judicial
offices at the adoption of the Constitution,’ and therefore has
no bearing here.” Buckner, supra, 437 N.J. Super. at 25-26
(quoting Lloyd v. Vermeulen, 22 N.J. 200, 209 (1956)). The
dissent agreed. Id. at 40 n.3 (Harris, J.A.D., dissenting).
Both instead evaluated defendant’s claim under the Judicial
Article, which declares that “[t]he Justices of the Supreme
Court and the Judges of the Superior Court . . . shall be
retired upon attaining the age of 70 years.” N.J. Const. art.
VI, § 6, ¶ 3.
Judge Parrillo, writing for the majority, upheld the
constitutionality of the statute. Buckner, supra, 437 N.J.
Super. at 36. He began with an extensive review of the history
of the Judicial Article and the Recall Statute. Id. at 13-23.
Based on that analysis, the majority concluded that “the recall
of judges over age seventy was a concept about which the members
of the Convention were obviously aware” but “it was also one
10
which they chose not to consider, delegating that detail,
instead, to the Legislature.” Id. at 20.
In response, according to the majority, the Legislature
enacted the JRSA, which authorized the Supreme Court to recall
retired judges. Id. at 20-21, 32. Like all legislation, the
majority noted, the Recall Statute “is presumed to be
constitutional and will not be declared void unless it is
clearly repugnant to the Constitution.” Id. at 24 (quoting
Trautmann ex rel. Trautmann v. Christie, 211 N.J. 300, 307
(2012)).
To assess the law’s constitutionality, the majority
searched the text of the Judicial Article and found “no
language, express or even implied, banning the temporary recall
of retired judges.” Id. at 28. Unlike the proscriptive phrase
in the Schedule Article -- “shall [not] hold office” -- the
majority noted that the Judicial Article used the terms “shall
be retired.” Id. at 27-28. The majority found “nothing
intrinsic in the definition of ‘retire’ to suggest its
incompatibility with temporary recall service.” Id. at 28.
As further support for its conclusion, the majority pointed
to decisions by other state courts that found temporary post-
retirement service constitutional, id. at 28-31; observed that
the law achieved two overriding purposes of the Judicial
Article, “to create flexibility in the court system and to
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provide for prompt judicial relief,” id. at 32; and noted that
the statute had “been implemented without challenge or objection
for almost four decades,” id. at 33 (citing State v. Trump
Hotels & Casino Resorts, 160 N.J. 505, 527 (1999)).
The majority also rejected an argument raised by the
dissent, not the parties: that recall service is
unconstitutional because it improperly encroaches upon the
Executive’s power of appointment and thus violates the
separation of powers doctrine. Id. at 35. The majority found
that the Recall Statute struck an appropriate compromise and
maintained the balance among the three branches. Ibid.
Judge Harris, in dissent, concluded that the Recall Statute
is unconstitutional. Id. at 39 (Harris, J.A.D., dissenting).
He found that the retirement provision in the Judicial Article
“was intended by its framers and the people who adopted it in
1947 to not permit the Legislature to authorize reinstatement of
this state’s judicial power to pensioner judges.” Id. at 40
(Harris, J.A.D., dissenting). In the dissent’s view, the phrase
“shall be retired upon attaining the age of 70 years” in the
Judicial Article “connotes (1) the compulsory abdication of a
judicial office; (2) the surrender of judicial power”; and (3)
“the permanent loss of the ability to exercise -- for the
benefit of the public -- the sovereign functions of government
that had previously been made possible by the Governor’s
12
selection, with the advice and consent of the Senate.” Id. at
42 (Harris, J.A.D., dissenting) (citation omitted). The dissent
also stressed that “nothing in the Constitution authorizes”
recall. Id. at 41 (Harris, J.A.D., dissenting).
The dissent found the language in the Schedule Article to
be of little use because the term “office” “was clearly limited
and intended to punctuate the end of incumbency under the 1844
constitutional framework for those pre-modern-era judges who had
transitioned to the Superior Court.” Id. at 43 (Harris, J.A.D.,
dissenting). The dissent also challenged the majority’s
reliance on decisions from other states because the
constitutionality of New Jersey’s recall platform cannot be
measured from a “dissimilar foreign source.” Id. at 47-48
(Harris, J.A.D., dissenting).
The dissent examined the history of the 1947 Constitutional
Convention as well and concluded that the “excision” of the
recall provision “that had appeared in the failed 1944
Constitution was purposive” -- “even though there is no express
record of its rejection” at the 1947 Convention. Id. at 43-47
(Harris, J., dissenting). In the dissent’s view, “the twenty-
five-year span” from 1948 to 1973 “during which there was no
recall legislation” also weighs against the majority’s reading
of the Constitution. Id. at 43-44 (Harris, J.A.D., dissenting).
The dissent took “comfort in the recollection of Morris M.
13
Schnitzer,” an advisor to the 1947 Convention. Id. at 57
(Harris, J.A.D., dissenting). In an interview nearly a half
century later, he recalled that it was “[c]ertainly not
[contemplated]” that judges could be recalled. Ibid. (quoting
Conversations with Morris M. Schnitzer, 47 Rutgers L. Rev. 1391,
1401 (1995)).
Defendant appealed as of right under Rule 2:2-1(a)(2). Our
review is thus limited to the issues raised by the dissent.
See, e.g., State v. T.J.M., 220 N.J. 220, 228 (2015).
The Court granted the New Jersey State Bar Association
(NJSBA) leave to appear as amicus curiae.
III.
Defendant argues that the Recall Statute violates the plain
language of the Constitution. Before this Court, he relies on
both the Schedule Article and the Judicial Article. Defendant
asserts that, when read together, the two provisions “divest
judges of their judicial power at age 70 without exception.”
The Recall Statute, according to defendant, directly conflicts
with those “clear constitutional provisions.”
Defendant contends that the differences in language between
the Schedule Article and the Judicial Article do not support the
constitutionality of the Recall Statute. He also submits that
the Constitution’s silence on the subject of recall does not
weigh in favor of the law. Because mandatory retirement is an
14
absolute bar to further service, defendant argues, there was no
reason for the framers to explicitly bar recall. Defendant
finds support for that proposition from the record of the 1947
Constitutional Convention and the period from 1948 to 1973,
during which he claims the Legislature did not enact a recall
provision.
Defendant also draws on the dissent in the Appellate
Division and argues that the Recall Statute violates the
separation of powers doctrine because it encroaches on the
appointment power of the Executive Branch.
The State, represented by the Attorney General, maintains
that the Recall Statute is constitutional. The State argues
that the Constitution permits the Legislature to authorize
temporary recall service. According to the State, a mandatory
retirement age does not affirmatively bar recall. Absent direct
evidence to the contrary, the State contends, the recall law --
which is presumed constitutional -- cannot be overturned.
The State asserts that defendant “confuses the concepts of
retirement and temporary recall assignments, which are related
but separately distinct and can co-exist without constitutional
infirmity,” and also “disregards the will of the people and the
spirit of the New Jersey Constitution.” In addition, the State
argues that the Constitution’s silence is not an affirmative ban
on recall; that the framers deliberately chose not to use clear
15
language that would have precluded recall service; that the
Constitution outlines broad principles of governance, not the
details; and that the Recall Statute aids the Judiciary in its
obligation to provide a fair, efficient, and functioning court
system, consistent with the intent of the modern Constitution.
The State submits that defendant’s separation of powers
argument is not properly before the Court and is meritless, in
any event. The State maintains that recall does not infringe on
the Executive’s authority to appoint judges and reflects a
cooperative system of shared power among the branches of
government.
The NJSBA does not take a position on the constitutionality
of the Recall Statute. Instead, the NJSBA requests that if the
Court declares the law unconstitutional, the ruling should be
applied prospectively.
IV.
Defendant must shoulder a “heavy burden” to prevail on his
claim that the Recall Statute is unconstitutional. Trump
Hotels, supra, 160 N.J. at 526. He must hurdle “[t]he strong
presumption of constitutionality that attaches” to this and
every other law. Hamilton Amusement Ctr. v. Verniero, 156 N.J.
254, 285 (1998). Indeed, “from the time of Chief Justice
Marshall,” case law has steadfastly held to “the principle that
16
every possible presumption favors the validity of an act of the
Legislature.” McCrane, supra, 61 N.J. at 8.
The foundation for that presumption is solid and clear:
the challenged law “represents the considered action of a body
composed of popularly elected representatives,” ibid., and, as
Justice Oliver Wendell Holmes admonished, “it must be remembered
that legislatures are ultimate guardians of the liberties and
welfare of the people in quite as great a degree as the courts,”
id. at 9 (quoting Mo., Kan. & Tex. Ry. Co. v. May, 194 U.S. 267,
270, 24 S. Ct. 638, 639, 48 L. Ed. 971, 973 (1904)). As a
result, courts exercise the power to invalidate a statute on
constitutional grounds with “extreme self restraint.” Id. at 8.
To overcome the strong presumption of validity and
“deference [due] to any legislative enactment,” the challenger
must demonstrate -- “unmistakably” -- that the law in question
“run[s] afoul of the Constitution.” Lewis v. Harris, 188 N.J.
415, 459 (2006) (citation omitted). This standard is also well-
settled: “a legislative act will not be declared void unless
its repugnancy to the constitution is clear beyond reasonable
doubt.” Gangemi, supra, 25 N.J. at 10 (emphasis added). When
reasonable people “might differ” about the constitutionality of
a law, courts must “defer[] to the will of the lawmakers.” N.J.
Ass’n on Corr. v. Lan, 80 N.J. 199, 220 (1979) (internal
quotation marks and citation omitted).
17
Silence typically cannot satisfy a challenger’s heavy
burden of proof. “[W]hen the framers of the constitution
intended that a subject should be placed beyond legislative
control they said so.” State v. De Lorenzo, 81 N.J.L. 613, 621
(E. & A. 1911); see also Humane Soc. of U.S., N.J. Branch, Inc.
v. N.J. State Fish & Game Council, 70 N.J. 565, 579 (1976)
(finding delegation of authority “is not in derogation of the
constitution where that document is silent as to the” issue
(citation omitted)). Viewed another way, “[t]he Legislature is
invested with all powers not forbidden.” Gangemi, supra, 25
N.J. at 11. Unless “prohibited by the Constitution expressly or
by clear implication,” “[t]he Legislature has the power to take
any action or course reasonably necessary or incidental to the
operation of government.” McCrane, supra, 61 N.J. at 18.
To understand the meaning and intent of a constitutional
provision, courts look first to the plain language the framers
used. Comm. to Recall Robert Menendez v. Wells, 204 N.J. 79,
105 (2010). If the language is straightforward, “the words used
must be given their plain meaning.” Trump Hotels, supra, 160
N.J. at 527. If the language is unclear or open to more than
one interpretation, courts may examine other sources for
guidance, including the document’s history and discussions at
the constitutional convention. Menendez, supra, 204 N.J. at
106; Trump Hotels, supra, 160 N.J. at 527-28.
18
V.
New Jersey has had three constitutions. Neither the
Constitution of 1776 nor the Constitution of 1844 contained a
mandatory retirement provision for judges. Buckner, supra, 437
N.J. Super. at 13. Our focus is on the modern State
Constitution, which was ratified by the voters in 1947 and took
effect in 1948.
A.
Defendant relied exclusively on Article XI of the
Constitution, the Schedule Article, before the trial court and
the Appellate Division. Article XI “contains various phase-in
provisions designed to facilitate the smooth transition to the
1947 constitution and several subsequent amendments.” Robert F.
Williams, The New Jersey State Constitution 197 (2d ed. 2012).
As the majority and the dissent in the Appellate Division
correctly noted, the Schedule Article has no bearing here
because the provisions in Article XI, Section 4, Paragraph 1
“dealt exclusively with the incumbent judges who held their
judicial offices at the adoption of the Constitution.” Lloyd,
supra, 22 N.J. at 209; see also Buckner, supra, 437 N.J. Super.
at 25-26.
The Schedule Article directs the Governor to appoint the
members of the new Supreme Court from among certain judges of
the outgoing court system. N.J. Const. art. XI, § 4, ¶ 1. The
19
provision also identifies which judicial officers would become
judges of the new Superior Court. Ibid. Finally, the paragraph
provides that
[t]he Justices of the new Supreme Court and
the Judges of the Superior Court so designated
shall hold office each for the period of his
term which remains unexpired at the time the
Constitution is adopted; and if reappointed he
shall hold office during good behavior. No
Justice of the new Supreme Court or Judge of
the Superior Court shall hold his office after
attaining the age of seventy years, except,
however, that such Justice or Judge may
complete the period of his term which remains
unexpired at the time the Constitution is
adopted.
[Ibid. (emphasis added).]
As with the rest of Paragraph 1, “the framers adequately
displayed that they were dealing with the incumbent judges who
held judicial offices at the adoption of the Constitution.”
Lloyd, supra, 22 N.J. at 210. Defendant’s reliance on the
Schedule Article is therefore misplaced.
B.
The proper focus of this case is the Judicial Article of
the modern Constitution -- Article VI, Section 6, Paragraph 3.
For ease of reference, we quote part of it again:
The Justices of the Supreme Court and the
Judges of the Superior Court shall hold their
offices for initial terms of 7 years and upon
reappointment shall hold their offices during
good behavior . . . . Such justices and judges
shall be retired upon attaining the age of 70
years. Provisions for the pensioning of the
20
Justices of the Supreme Court and the Judges
of the Superior Court shall be made by law.
[N.J. Const. art. VI, § 6, ¶ 3.]
The paragraph does not mention recall. It does not explicitly
bar recall. Nor does it say that all service of any type must
end at age seventy. As discussed earlier, the Constitution’s
silence does not help defendant; unless the Constitution
“expressly or by clear implication” forbids the political
branches from acting, they have the authority to proceed.
McCrane, supra, 61 N.J. at 18. That begs the question: is the
phrase “shall be retired” in the Judicial Article unmistakably
incompatible with temporary recall service? Does the language
clearly imply, beyond a reasonable doubt, that the Constitution
bars recall service?
The word “retired,” by itself, is not incompatible with
recall service. In the context of Paragraph 3, “retire” means
an end to a seven-year or tenured term of service, and the start
of “pensioning.” It marks a withdrawal from the office of
Superior Court Judge and paves the way for a successor to fill
that position.
At the time of the Constitutional Convention, “retired”
meant just that. Webster’s defined “to retire” as “[t]o
withdraw from a public station, or from business; as, having
made a large fortune, he retired.” Webster’s Revised Unabridged
21
Dictionary 1231 (1913), http://machaut.uchicago.edu/websters;
see also 2 Webster’s New International Dictionary 2128 (2d ed.
1949) (same). Retirement, thus, meant an end to lifelong
tenure, which the federal system permitted. U.S. Const. art.
III, § 1. The 1844 Constitution, as well, had no age limit for
judicial service. See N.J. Const. of 1844 art. VI, § 2; art.
VII, § 2.
Temporary recall service, by comparison, does not reverse a
judge’s retirement. It does not restore judges to their former
position. It does not invest them with a seven-year or tenured
term. Unlike a judge appointed under the Judicial Article,
recall judges serve for two years at the pleasure of the Supreme
Court. Administrative Directive 12-01, supra. Rather than sign
orders as a “Judge of the Superior Court,” they note that they
are “retired and temporarily on recall.” They do not earn a
judicial salary; recall judges instead receive $300 per diem and
can earn no more than one-quarter of a judicial salary in a
year. See id.; N.J.S.A. 43:6A-8(e). Also, the duties of recall
judges are often limited to participation in “special projects
and programs, so that judges on permanent assignment are not
diverted from their primary responsibilities.” Administrative
Directive 12-01, supra.
The law has recognized the significance of those basic
differences for well more than a century. See, e.g., United
22
States v. Hartwell, 73 U.S. (6 Wall.) 385, 393, 18 L. Ed. 830,
832 (1868) (noting that concept of office holder “embraces the
ideas of tenure, duration, emolument, and duties”). Those
differences also help demonstrate that temporary recall service
and service as a Judge of the Superior Court are distinct forms
of service that can co-exist. In short, recall judges remain
retired.
The Appellate Division dissent submits that recall clashes
with retirement because “shall be retired” “connotes” the
complete “surrender of judicial power” and “the permanent loss
of the ability to exercise” the functions of a judge. Buckner,
supra, 437 N.J. Super. at 42 (Harris, J.A.D., dissenting). If
that were true, retired judges could not provide temporary
recall service. By the same logic, no retired judge could be
recalled to swear in a public official, which routinely happens.
See N.J.S.A. 41:2-1; N.J.S.A. 41:2-10.
But the dissent’s far-reaching connotation finds no support
in the text of the Constitution, which simply says that judges
“shall be retired” and subject to “pensioning.” The Judicial
Article does not foreclose recall on a limited or temporary
basis -- either expressly or by clear implication.
The parties and the Appellate Division opinions also
discuss the framers’ choice to use different language in the
Schedule and Judicial Articles. The Schedule Article provides
23
that “[n]o Justice of the new Supreme Court or Judge of the
Superior Court shall hold his office after attaining the age of
seventy years, except, however, that such Justice or Judge may
complete the period of his term which remains unexpired at the
time the Constitution is adopted.” N.J. Const. art. XI, § 4, ¶
1.
As noted earlier, the Schedule Article was meant “to
provide for the transition” from the old to the new
Constitution. 2 Proceedings of the Constitutional Convention of
1947, 1195. The framers intended that the Article would “govern
incumbent judges until the expiration of their terms . . . and
make[] such other specific provisions as are necessary until the
new Judicial Article is completely in effect.” Ibid. The
language in the Schedule Article thus addressed a unique concern
about offices soon to be eliminated.
The difference in language reveals that the framers knew
how to bar recall but chose not to do so in the Judicial
Article. The first phrase of the Schedule Article -- no judge
“shall hold his office after attaining the age of seventy years”
-– banned recall. To undo its effect, the framers had to create
an escape clause and expressly permit judges to complete their
unexpired terms. The Judicial Article, once again, does not bar
recall; it says that judges “shall be retired” at age seventy
and subject to a pension. Had the framers intended to ban
24
recall, they could have repeated the text they used in the
Schedule Article. Their deliberate use of different language is
telling. See GE Solid State v. Dir., Div. of Taxation, 132 N.J.
298, 308 (1993) (citation omitted); Norman J. Singer & Shambie
Singer, 2A Sutherland Statutory Construction § 46:6, at 261-66
(7th ed. 2014).
C.
Because the language of the Constitution does not rule out
recall, there is no need to turn to extrinsic sources. Trump
Hotels, supra, 160 N.J. at 527. A close look at the
constitutional proceedings, however, does not suggest that the
framers wanted to restrict recall. Rather, the history of the
Judicial Article shows that the framers considered various
options and declined to act on any of them, opting instead to
leave the issue to the Legislature.
“The movement that culminated in the adoption of New
Jersey’s ‘model’ constitution of 1947 actually began in earnest
in 1940. From that date until 1947, a succession of three
governors made constitutional reform a high priority in their
administrations.” Williams, supra, at 22.
In 1941, the Legislature appointed a commission to study
constitutional reform. L. 1941, Joint Resolution No. 2 (Nov.
18, 1941). The following year, the Commission chaired by
Senator Robert Hendrickson submitted a draft constitution.
25
Among other significant changes, the 1942 draft included
extensive reform to the New Jersey court system. Proposed
Const. (1942), reprinted in 4 Proceedings, supra, at 556-65.
The draft provided in part that
[t]he Chief Justice and associate justices of
the Supreme Court shall be appointed to hold
office during good behavior. Justices of the
Superior Court shall hold office for a term of
seven years and if reappointed shall
thereafter hold office during good behavior.
. . . No justice or judge of any court shall
continue in office after he has attained the
age of seventy years.
[Proposed Revised Const. (1942) art. V, § 5,
¶ 3, reprinted in 4 Proceedings, supra, at
562 (emphasis added).]
The Legislature held hearings on the draft but did not submit it
to the voters, many of whom were away to fight in World War II.
Williams, supra, at 24. Certain legislators pressed forward in
the next session, and the voters ultimately authorized “the 1944
legislature to act as a limited constitutional convention.”
Ibid.
A joint legislative committee worked off of the 1942 draft
to create the Proposed Constitution of 1944. Id. at 25. The
1944 draft provided that
[n]o Justice of the Supreme Court or of the
Superior Court shall continue in office after
he has attained the age of seventy years.
Subject to law, the Chief Justice may assign
any such judicial officer who has attained the
age of seventy years to temporary service in
26
the Supreme Court or in the Superior Court, as
need appears.
[Proposed Revised Const. (1944) art. V., §
5, ¶ 5 (emphasis added).]
The 1944 draft thus barred judges from “continu[ing] in office”
after age seventy and added a recall provision.
The voters rejected the proposed constitution in November
1944 “amid heated partisan and other political controversy.”
Williams, supra, at 25. As defendant concedes, however, there
is no sign from the historical sources that the voters reacted
to the recall language in particular. See also Buckner, supra,
437 N.J. Super. at 16.
The movement to reform the Constitution advanced in the
next few years. In June 1947, the voters overwhelmingly
approved a constitutional convention and elected delegates to
attend. Williams, supra, at 26. The delegates met that summer
and produced what Professor Robert F. Williams, a recognized
scholar in the field, says “has been viewed as among the best of
the state constitutions.” Ibid.
A comprehensive record -- that fills five volumes -- exists
of the presentations and discussions at the 1947 Constitutional
Convention. The Committee on the Judiciary heard from dozens of
people at ten open meetings; it also met multiple times in
executive session to consider testimony and formulate a draft of
the Judicial Article. 4 Proceedings, supra, at iii. Testimony
27
at the open meetings and public hearing appears in the
historical record; no record was made of closed executive
sessions to foster discussion. Id. at iii-iv.
On July 24, 1947, the Committee on the Judiciary presented
a “Tentative Draft of [the] Judicial Article” to the Convention
and invited public comments. 2 Proceedings, supra, at 1166.
The final draft submitted to the voters -– with only slight
changes to the relevant provision -- provided in part as
follows:
The Justices of the Supreme Court and the
Judges of the Superior Court shall hold their
offices for initial terms of seven years and
upon reappointment shall hold their offices
during good behavior. Such Justices and
Judges shall be retired upon attaining the age
of seventy years. Provisions for the
pensioning of the Justices of the Supreme
Court and the Judges of the Superior Court
shall be made by law.
[Final Draft of the Const., art. VI, § 6, ¶
3, reprinted in 2 Proceedings, supra, at
1303.]
The Committee thus made three noteworthy changes from the
Proposed Constitution of 1944: (1) it replaced the phrase “[n]o
Justice of the Supreme Court or of the Superior Court shall
continue in office after he has attained the age of seventy
years” with “[s]uch Justices and Judges shall be retired upon
attaining the age of seventy years”; (2) it removed the recall
provision; and (3) it added the “pensioning” provision.
28
The first change is critical. Standing alone, the
declaration in the 1944 draft -- “No Justice . . . shall
continue in office” after age seventy -- would have barred
temporary recall service. The quoted language would not have
permitted recall judges to continue to wield the authority of
their prior office in any form of service. The 1942 draft,
which had only that language, therefore, would have barred
recall.
To counter the meaning of the quoted phrase, the drafters
had to provide for recall explicitly in the 1944 draft. They
did so by adding that judges who had reached seventy could be
recalled to temporary service “[s]ubject to law.” Proposed
Revised Const. (1944) art. V., § 5, ¶ 5.
The 1947 Constitution, by contrast, took a different
approach. It did not affirmatively bar judges from
“continu[ing] in office”; it instead stated that judges “shall
be retired” and pensioned at age seventy. Because the revised
language removed the bar to recall service, it was no longer
necessary to permit recall expressly.
The shift in language also marked a decision to leave the
question of recall to the Legislature. By comparison, the 1944
proposed Constitution would itself have allowed the Chief
Justice to recall retired judges. Because powers that are not
prohibited are vested in the Legislature, see Gangemi, supra, 25
29
N.J. at 11, the 1947 Constitution gave the Legislative Branch
the authority to decide whether, when, and how to allow for
recall. That implicit delegation of power is reinforced by the
paragraph’s last sentence, which directs the Legislature to
provide for “the pensioning” of judges. N.J. Const. art. VI, §
6, ¶ 3.
The framers settled on the final draft after they
considered and rejected alternate proposals -- including some
that directly addressed recall. Evelyn Seufert and John Bebout,
for example, presented a draft judicial article on June 24,
1947, on behalf of the New Jersey Committee for Constitutional
Revision. 4 Proceedings, supra, at 26-30; see also id. at 575-
83 (explanation of draft). Section 5, Paragraph 5 of the draft
provided that
[n]o justice or judge shall remain in
continuous service after he has attained the
age of seventy years; but the chief justice
may assign any such judicial officer who has
attained the age of 70 years before his term
has expired to temporary service in the
supreme court or in the general court, as need
appears.
[Id. at 28 (emphasis added).]
As in the 1944 draft, the introductory phrase of the proposal --
“No justice or judge shall remain in continuous service” --
would have barred recall. To alter the effect of that language,
the draft had to provide expressly for recall service for
30
retired judges over age seventy. The proposal also removed the
Legislature from the equation. Because the framers of the 1947
draft did not adopt the first part of the proposal, they did not
need to add language to authorize recall.
The framers likewise declined to adopt an amendment that
Chief Justice Thomas J. Brogan proposed:
Such Justices or Judges shall be eligible for
retirement at the age of seventy years, but
shall be retired at the age of seventy-five
years. Upon the retirement of any such
Justice or Judge he shall receive a pension
equal in amount to the salary which he is
receiving at that time. Such Justice or Judge
shall be required, if able so to do, to perform
such judicial duties and services as may be
required of him by designation or order of the
Court of Appeals . . . .
[2 Proceedings, supra, at 1207 (emphasis
added).]
That proposal, of course, would have changed the Judicial
Article in a number of ways and made recall service mandatory.
The League of Women Voters offered a different variation
for the Judicial Article, which was also not adopted. Their
recommendation mirrored part of the 1942 draft and would have
barred recall. See 4 Proceedings, supra, at 60, 596
(recommending that “[n]o justice shall continue in office after
he has attained the age of seventy years”).
At various times during the Convention, other individuals
offered positive comments about recall. For example, Justice
31
Nathan L. Jacobs, then the Vice-Chairman of the Committee on the
Judiciary, observed that “even if you do have a so-called
compulsory retirement age, you may make adequate provision for
allowing the court to use these retired judges to the extent of
their capacities.” 4 Proceedings, supra, at 169. At a later
session, Justice Frederic R. Colie addressed the question of
judicial “overwork” as follows:
I think that judges who are retired, either
voluntarily or because they have reached the
age limit, should be kept on the roll, the
roll of the judiciary, so that they can do as
they do in Connecticut. There they are sort
of referees, or masters, and may be called in
by the Chief Justice when the occasion arises,
to handle cases.
[Id. at 214.]
See also id. at 543 (“[A]fter [age] 75, retire [the judges].
And then put them on the inactive list subject to the call of
the Chief Justice . . . at all times.” (Judge Robert Carey)).
Whatever the merits of the various comments and proposals,
they reveal certain important points: the issue of recall was
squarely before the framers at the Convention, yet they did not
address the question in the text of the Constitution they
crafted. The framers, though, did not have to adopt a
particular approach to keep the possibility of recall alive. By
taking the course they chose -- neither embracing nor rejecting
recall expressly or by clear implication -- the framers
32
effectively left the issue to the Legislature. Gangemi, supra,
25 N.J. at 11.
To repeat, the historical record reveals that the framers
were well aware of recall when they drafted the Judicial
Article. They had multiple examples to consider: the 1942
draft against recall; the 1944 draft in favor; and the varied
proposals and comments raised at the Convention. Yet not a
single delegate or witness spoke out against temporary recall
service. Defendant maintains that the framers expressly barred
recall -- even though the Constitution does not say so, and
nothing in the record of the proceedings suggests the framers
had that in mind. The dissent in the Appellate Division
believes that the framers purposely omitted a recall provision,
Buckner, supra, 437 N.J. Super. at 46-47 (Harris, J.A.D.,
dissenting), but, again, nothing in the record supports that
view. The framers instead left it to the Legislature to decide
what, if anything, to do about recall.
By comparison, in Menendez, supra, this Court addressed an
attempt by a committee of voters who sought a recall election of
a sitting United States Senator. 204 N.J. at 85. The question
called for an examination of the text of the Federal
Constitution and relevant historical materials. Ibid. Although
the Federal Constitution does not directly address recall, id.
at 105-06, this Court observed that the right to recall elected
33
representatives from office was expressly “considered and
rejected” at the Federal Constitutional Convention in 1787, id.
at 107. The delegates, in fact, unanimously voted to strike
proposed language that would have allowed recall. Ibid. Many
delegates to the Convention and the state ratifying conventions
also “highlighted that recall was not part of the proposed new
Constitution. Some did so approvingly; others lamented that
recall did not exist.” Id. at 86. Relying in part on that
history, this Court concluded that the Federal Constitution
“do[es] not allow the states the power to recall U.S. Senators.”
Ibid.
No delegates to the 1947 State Constitutional Convention
voted down judicial recall service, and none declared that it
was not part of the new State Constitution.1 Viewed in isolation
or in context, the Constitution’s silence is not a rejection of
1 The dissent relies on an additional source: an interview that
Morris M. Schnitzer gave nearly forty years after the
Constitutional Convention. See post at (slip op. at 12).
Schnitzer was not among the framers of the 1947 Constitution but
was an esteemed member of the bar who testified at the
Convention. He also described his role at the Convention as a
co-technical advisor to the Judiciary Committee. Conversations,
supra, 47 Rutgers L. Rev. at 1392. Schnitzer believed that the
framers did not intend to permit recall. Id. at 1401.
No authority, however, suggests that a court can
reconstruct the meaning of a constitutional text by asking an
advisor what the framers meant decades after the fact. What
matters, of course, is the language of the Constitution itself
and the contemporaneous debates at the Convention.
34
recall. It amounts to an appropriate delegation of authority to
another branch of government.
D.
The emphasis at the Convention on both simplicity of
language and the need for flexibility in the court system also
supports the above analysis. Those and other themes repeatedly
surfaced during the debates, and they shed light on the changes
from the 1944 to the 1947 draft Constitutions.
The notion of simplicity animated the 1947 Convention from
the start. Governor Alfred E. Driscoll opened the Convention
and charged the delegates to “limit[] our State Constitution to
a statement of basic fundamental principles.” 1 Proceedings,
supra, at 7. He pointed to “the ageless virtue of simplicity”
of the Federal Constitution. Ibid. The Governor also stressed
that the State Constitution is a “basis for government” and
“should not be a series of legislative enactments.” Ibid.
Others highlighted the same concerns at meetings of the
Committee on the Judiciary. Harvard Law School Dean Roscoe
Pound cautioned that
[i]f there is anything that needs to be borne
in mind in the Constitution it is not to put
in too much. Robert Louis Stevenson said, the
difference between Homer and the ordinary poet
was that Homer knew what to leave out. The
difference between the man who writes a good
constitution and one who doesn’t is that the
former knows what to leave out. Amending a
constitution is a slow business, and the way
35
to achieve a thing that has to be achieved is
on the basis of experience by those who have
the experience. Don’t, therefore, lay down a
hard and fast elaborate scheme of courts,
their boundaries rigidly defined, and their
personnel rigidly defined.
[4 Proceedings, supra, at 113.]
Chief Justice Clarence E. Case similarly testified that “[t]here
were a number of things in [the] proposed Constitution of 1944
that I think should not be in a Constitution, not because they
are not good, wise and advisable, but because adequate
discretion is not left to the court in some instances and to the
Legislature in some instances.” Id. at 134.
The preference for broad-strokes draftsmanship with details
left to the Legislature, or to the Court’s rulemaking authority,
echoed throughout the Convention. See W. Brooke Graves, What
Should a Constitution Contain?, in 2 Proceedings, supra, at
1329-35; 4 Proceedings, supra, at 19, 34-35, 52-55, 113-14, 180,
189, 211, 264-65, 328, 429-31, 537.
The Committee on the Judiciary embraced the goal to keep
the Constitution simple. In its August 26, 1947 report to the
Convention, which accompanied the proposed draft Judicial
Article, the Committee stressed that “Constitutions should deal
with fundamentals, not details.” 2 Proceedings, supra, at 1181.
The Judicial Article, like the Constitution, provides a
framework but does not address all issues. See id. at 1180; see
36
also Reilly, supra, 33 N.J. at 539-40. It does include certain
mandates, but it omits discretionary details. For example, the
Chief Justice “shall appoint an Administrative Director to serve
at his pleasure,” N.J. Const. art. VI, § 7, ¶ 1 (emphasis
added), and “shall assign Judges of the Superior Court,” N.J.
Const. art. VI, § 7, ¶ 2 (emphasis added), whom he “may”
transfer, ibid. Similarly, “[t]he Clerk of the Supreme Court
and the Clerk of the Superior Court shall be appointed by the
Supreme Court.” N.J. Const. art. VI, § 7, ¶ 3 (emphasis added).
By contrast, discretionary details -- about recall and a host of
other matters -- were left out of the streamlined document.
In addition to simplicity of language, the Committee on the
Judiciary focused on “three fundamental requirements” of a
modern judicial system: “[u]nification of courts”;
“[f]lexibility of the court system”; and “[c]ontrol over
administration, practice and procedure by rules of court.” 2
Proceedings, supra, at 1180. Those “basic principles . . .
guided the Committee in framing the Judicial Article.” Ibid.
Those core principles reflected the desire for a new court
system that is fair, efficient, simple, and strong. As Chief
Justice Vanderbilt observed,
[t]here can be no doubt in the mind of anyone
familiar with the work of the Constitutional
Convention or with the ensuing election at
which the Constitution was adopted by the
people that . . . there was a clear intent to
37
establish a simple but fully integrated system
of courts and to give to the judiciary the
power and thus to impose on them the
responsibility for seeing that the judicial
system functioned effectively in the public
interest. Indeed, in the minds of many, if
not a majority, of our citizens this was the
primary reason for their desire for a new
constitution.
[Winberry v. Salisbury, 5 N.J. 240, 244
(1950).]
Without question, the framers’ goals responded to the much-
maligned prior court system, which was described in 1943 as
follows:
[I]f you want to see the old common law in all
its picturesque formality, with its fictions
and fads, its delays and uncertainties, the
place to look for them is not London, . . .
but in New Jersey. Dickens, or any other law
reformer of a century ago, would feel more at
home in Trenton than in London.
[Carla Vivian Bello & Arthur T. Vanderbilt,
New Jersey’s Judicial Revolution: A
Political Miracle 3 (1997) (quoting D. W.
Brogan, The English People (1943)).]
A series of additional, related concerns about mandatory
retirement -- voiced repeatedly at the Convention -- is also
noteworthy. The first addressed a serious and delicate subject:
that incapacitated judges not remain indefinitely on the bench.
See, e.g., 4 Proceedings, supra, at 167 (“The difficulty with
‘optional [retirement],’ as I see it, is that the men who are
really in a position where they should be retired are the last
ones to accept that option, because those men are the last to
38
acknowledge that they have reached the point where, perhaps,
they are letting go a little bit.” (Amos F. Dixon)); id. at 135
(“The lack of an age limit sometimes works to the disadvantage
of the court.” (Chief Justice Clarence E. Case, recommending
compulsory retirement at age seventy-five)); id. at 426 (noting
that an age limit could prevent judges from remaining on the
bench “after they have gotten to their dotage” (Judge Learned
Hand)).
Second, some commentators suggested that mandatory
retirement could attract new judges to the bench. See, e.g.,
id. at 36-37 (“[L]ife tenure . . . may promote stagnation on the
bench.” (Evelyn Seufert, recommending automatic retirement at
age seventy)); id. at 170 (“[I]f we retired the judges at a
reasonable age, . . . we would not have the situation where they
. . . [are] blocking the progress of a lot of very able men who
could step into those positions if they stepped out.” (Amos F.
Dixon)).
Third, others lamented that a fixed age when judges must
quit the bench could deprive the court system of gifted and
experienced judges still in their prime. See, e.g., id. at 484
(“[W]e have many, many judges throughout the State and the
country who are well above 70, who are alert, able and have over
a long period of years acquired a tremendous wealth of legal
thinking, wisdom and judgment.” (Judge Thomas Madden)); id. at
39
515-16 (“[S]ome of our most renowned jurists in the State of New
Jersey reached their greatest stature after the age of 70.”
(Morgan R. Seiffert, on behalf of the Law Reform Committee of
the New Jersey Bar Association)); id. at 542-43 (citing numerous
examples of judges who performed ably after reaching age
seventy, including Justice “Oliver Wendell Holmes [who] was over
90 years of age when he signed his last opinion as a United
States Supreme Court Justice” (Judge Robert Carey)).
Temporary recall service is consistent with both the
fundamental principles underlying the Judicial Article and
concerns about retirement raised at the Convention. Recall
enhances the efficiency of the new, unified court system through
resort to additional, temporary judicial resources, as needed.
Judges are retired from the bench at age seventy, yet the
Judiciary can benefit from experienced and able retired jurists
on recall. Meanwhile, the service of recall judges in no way
prevents attracting new judges to the bench because the office
of Superior Court Judge becomes vacant upon a judge’s
retirement.
We turn to the history and purpose of the Recall Statute to
explore those and other points more fully.
VI.
Governor Driscoll encouraged the members of the Committee
on the Judiciary to provide for a retirement age but not
40
incorporate “[t]he particular details with respect to retirement
. . . in the Constitution.” 4 Proceedings, supra, at 429. The
Committee followed his advice. The framers set the mandatory
retirement age at seventy and otherwise simply stated that
“[p]rovisions for the pensioning of the Justices of the Supreme
Court and the Judges of the Superior Court shall be made by
law.” N.J. Const. art. VI, § 6, ¶ 3. In response, the
Legislature designed a pensioning system that today includes
recall.
In 1948, the Legislature enacted a judicial pension system
that did not provide for recall. L. 1948, c. 391. The
Legislature amended the statute in 1964 to permit the Chief
Justice to assign retired judges to the Superior Court: “Any
person who retires under the provisions of this act may be
designated and assigned by the chief justice of the supreme
court to perform such duties as he shall be willing to
undertake.” L. 1964, c. 138 (codified at N.J.S.A. 43:6-6.16
(1964)). The law imposed no age restriction on recall and ruled
out compensation for recall service. Ibid.
The Legislature repealed the provision in 1968 and replaced
it with the following:
Any judge retired on pension, except a judge
of the municipal court, who has not attained
the age of 70 years, may, with his consent, be
assigned by the chief justice to sit in any
court but the supreme court, or in the case of
41
a retired justice of the supreme court, to sit
in any court.
Upon such assignment the retired judge shall
have all the powers of a judge or justice of
the court to which he is assigned and shall be
paid a per diem allowance to be fixed by the
chief justice at a rate which, for a court
year, together with his pension, shall not
exceed the current salary of the court from
which he retired.
[L. 1968, c. 232 (codified at N.J.S.A. 43:6-
6.39 to -.40 (1968)).]
Thus, as envisioned by the Constitution, the Legislature
exercised its authority to modify the judicial pension statute -
- here, by limiting the maximum age for judges on recall and
offering compensation.
In 1973, Governor Cahill signed the JRSA into law and
created a new Judicial Retirement System. L. 1973, c. 140
(codified at N.J.S.A. 43:6A-1 to -46). The new statute kept in
place the recall provision enacted five years earlier. L. 1973,
c. 140, § 13 (codified at N.J.S.A. 43:6A-13).
Calls for additional reform followed soon after. The New
Jersey Law Journal featured two editorials that encouraged the
recall of judges over the age of seventy and opined that such an
approach would be constitutional. Judicial Service for Judges
Retired at Age 70 Who Wish Such Service, 97 N.J.L.J. 188 (Mar.
21, 1974); Senior Judges, 97 N.J.L.J. 68 (Jan. 31, 1974).
42
The second editorial brought attention to an opinion of the
Supreme Judicial Court of Massachusetts, Opinion of Justices,
284 N.E.2d 908 (Mass. 1972). In that decision, the
Massachusetts court responded to questions posed by the State
Senate; the Senate had asked whether a proposed bill to allow
temporary recall service by certain retired judges would violate
a proposed amendment to the Massachusetts Constitution. The key
language of the amendment was similar to the wording of New
Jersey’s Judicial Article: “upon attaining seventy years of age
said judges shall be retired.” Id. at 910 (emphasis added). In
an advisory opinion, the Massachusetts court found “no conflict
between the precise language of the amendment and the bill.”
Id. at 912. The court explained that the meaning of the phrase
“shall be retired” “was not intended to rule out the possibility
of recall for temporary or restricted service.” Ibid.
The Bar Institute and Law Center of New Jersey also weighed
in on the issue of recall in October 1974, in response to a
request of the Supreme Court. See The Bar Institute and Law
Center of New Jersey, Recall of Judges Past the Age of Mandatory
Retirement: An Examination of the Pertinent Issues (Oct. 1974).
The group recommended “a recall provision for retired judges” so
that they could “return to the bench according to the needs of
our court system and according to their abilities to render such
service.” Id. at 14.
43
The Legislature took action in 1975 and amended the Recall
Statute. L. 1975, c. 14. The amendment removed the law’s age
restriction and permitted the recall of retired judges older
than seventy. Ibid. According to the Sponsor’s Statement,
[t]he New Jersey Constitution in Article VI,
Section VI, paragraph 3 requires that judges
retire at age 70. This mandatory retirement
does not however prevent the utilization of such
senior judges on a special assignment basis, if
they so desire, at the pleasure of the Chief
Justice.
Permitting the assignment of senior judges
would help speed the administration of justice
and, by securing the benefit of years of
judicial experience, increase the quality of
justice.
[Assemb. 1419 (Sponsor’s Statement), 196th
Leg. (N.J. Apr. 1, 1974).]
The 1975 amendment is codified at N.J.S.A. 43:6A-13(b).
The Recall Statute, which has since been amended twice in ways
that are not relevant to this appeal, now provides in part:
b. Subject to rules of the Supreme Court, any
justice of the Supreme Court who has retired
on pension or retirement allowance may, with
his consent, be recalled by the Supreme Court
for temporary service in the Supreme Court2 or
elsewhere within the judicial system, and any
judge of the Superior Court, juvenile and
domestic relations court, county district
court or tax court who has retired on pension
or retirement allowance may, with his consent,
be recalled by the Supreme Court for temporary
service within the judicial system other than
the Supreme Court.
2 We do not address recall to the Supreme Court because that part
of the statute is not raised by this appeal.
44
c. Upon such recall the retired justice or judge
shall have all the powers of a justice or judge
of the court to which he is assigned and shall
be paid a per diem allowance fixed by the Supreme
Court in accordance with its rules, provided
however that in no event shall he receive a
salary which together with his pension or
retirement allowance exceeds the current salary
of a justice or judge of the court from which he
retired. In addition the recalled justice or
judge shall be reimbursed for reasonable
expenses actually incurred by him in connection
with his assignment and shall be provided with
such facilities as may be required in the
performance of his duties. Such per diem
compensation and expenses shall be paid by the
State.
d. Payment for services and expenses shall be
made in the same manner as payment is made to
the justices or judges of the court from which
he retired.
e. The Supreme Court is empowered to adopt
such rules as it deems necessary or appropriate
for the prompt and efficient administration of
justice in furtherance of the purposes of this
act.
[N.J.S.A. 43:6A-13(b) – (e).]
Pursuant to subsection (e), the Court, through the Director
of the Administrative Office of the Courts (AOC), issued a
policy on recall in 2001. See Administrative Directive 12-01,
supra. The Directive establishes terms and conditions of recall
service, some of which are summarized above. Recall judges
serve for renewable two-year terms, at the pleasure of the
Supreme Court; cannot practice law or be associated with a law
firm while on recall; must undergo a full medical examination by
45
an independent doctor as a prerequisite to any recall order; may
not be recalled after age eighty; are bound by the ethical
restrictions applicable to all judges; and, receive $300 per
diem. Ibid. Priority is given to retired judges who are
willing to accept assignments that meet “a significant need” in
the court system. Ibid. The Directive also aptly notes that,
[o]ver the years, the Judiciary has benefitted
greatly from the willingness of retired judges
to be recalled for judicial service. Recall
judges provide stability and continuity for
the work of the Judiciary by accepting
assignments for special projects and programs,
so that judges on permanent assignment are not
diverted from their primary responsibilities.
[Ibid.]
Today, more than seventy judges provide invaluable help as
they serve on temporary recall assignments throughout the State
Judiciary. According to estimates by the AOC, they have
presided over hundreds of thousands of cases over the years,
large and small -- each of which involved parties seeking
justice from the courts. Recall judges serve for modest pay,
and many continue to work without any payment after they reach
the maximum number of days for which they can be compensated.
They do so to help provide prompt justice to the people of our
State.
Those realities, of course, cannot drive this Court’s
decision. If the Constitution prohibited recall, that would end
46
the discussion, no matter how great the benefits of any recall
system. But the Constitution does not forbid recall. It is
silent. It leaves the issue of recall to legislators whose
response -- the Recall Statute -- dovetails with the overarching
concerns of the Constitutional Convention: to help transform an
inefficient court system that had been the subject of widespread
criticism into a more effective system of justice.
As discussed earlier, the Recall Statute, like all
legislative enactments, is entitled to a strong presumption of
validity. In an effort to overcome that presumption, defendant
suggests that the twenty-five-year period from 1948 to 1973,
when he claims there was no recall legislation, is proof that
the framers did not intend recall.
The argument’s premise is flawed. The Legislature first
enacted a recall provision in 1964 and modified it in 1968. The
Recall Statute of 1973 essentially adopted the 1968 law. Even
more important, the argument turns the accepted analysis on its
head. The recall law is presumptively valid, and defendant, who
challenges it, must show “unmistakably” that the law “run[s]
afoul of the Constitution.” Lewis, supra, 188 N.J. at 459
(citation omitted). Defendant’s suspicion, based on a period of
legislative inaction, is not enough to hurdle the high threshold
he faces.
47
If anything, the passage of time works against defendant’s
claim. No one challenged the 1964 or 1968 recall laws. Since
the Legislature amended N.J.S.A. 43:6A-13 four decades ago,
hundreds of recall judges have served and overseen countless
matters. Until very recently, no one challenged that practice
either. Defendant’s claim, thus, must also surmount the well-
settled “policy of our law not to invalidate a statute which has
been in force without substantial challenge for many years,
unless its unconstitutionality is obvious.” In re Incorporation
of Loch Arbour, 25 N.J. 258, 265 (1957) (citation omitted); see
also Trump Hotels, supra, 160 N.J. at 527 (“The presumption that
a statute is constitutional is enhanced when that statute has
been in effect and implemented without challenge over an
extended period.”).
VII.
As part of its analysis, the dissent points to other state
constitutions. The fifty states have taken nearly as many
different approaches to judicial retirement. Nineteen states
have no mandatory retirement age. See Wisconsin Briefs from the
Legislative Reference Bureau, Brief No. 15-5 (Feb. 2015),
http://legis.wisconsin.gov/lrb/pubs/wb/15wb5.pdf. States that
require retirement set the retirement age at seventy to seventy-
five except for Vermont, which calls for retirement at age
ninety. Ibid.
48
The states’ approaches to recall vary as well. The dissent
notes that some states provide for recall when the state’s
constitution is silent. See post at (slip op. at 15-16).
Two variations follow.
The Massachusetts Constitution, like New Jersey’s, declares
that all judges “shall be retired” at age seventy and “shall be
subject to any provisions made by law as to pensions . . . .”
Mass. Const. pt. 2, ch. 3, art. I. In an advisory opinion
discussed earlier, Opinion of Justices, supra, 284 N.E.2d at
913, the Supreme Judicial Court of Massachusetts opined that the
quoted language allowed for recall. The legislature later
adopted a series of statutes that empower the chief justice to
place a retired judge on a list for recall to the supreme
judicial court, the appeals court, or the trial court, depending
on the judge’s prior service; the respective heads of those
courts can then recall the retired judge. See Mass. Gen. Laws
Ann. ch. 32, § 65E & ch. 211, § 24 (Supreme Judicial Court); ch.
32 § 65F & § ch. 211A, § 16 (Appeals Court); ch. 32, § 65G & ch.
211B, § 14 (Trial Court).
New Hampshire’s Constitution provides that “[n]o person
shall hold the office of judge of any court . . . after he has
attained the age of seventy years.” N.H. Const. pt. 2, art. 78.
The State Supreme Court, nonetheless, found a recall statute
constitutional because of the legislature’s implicit authority
49
to authorize the assignment of retired justices. Claremont Sch.
Dist. v. Governor, 712 A.2d 612, 615 (N.H. 1998). The court
held that “[a]n integral part of this authority is the
legislature’s ability to enable a retired justice to exercise
authority as a judicial officer on a temporary basis” and
thereby “increase[] judicial manpower by making available a
greater number of experienced justices.” Ibid.
The dissent also points to other state constitutions that
expressly provide for recall. See post at , (slip op. at
4-5, 13 n.1).
We do not rely on any of the above examples for a number of
reasons. First, our obligation is to interpret the words and
meaning of the New Jersey Constitution and New Jersey statutory
law in light of our State’s history. When other states consider
recall, they act likewise. Their approaches are grounded in the
language and history of their respective state constitutions and
laws and tell us little about our own. See Buckner, supra, 437
N.J. Super. at 48 (Harris, J.A.D., dissenting) (“We cannot
measure the constitutionality of our recall platform from [a]
dissimilar foreign source.”).
Second, there is minimal evidence that the framers
considered how other states treated recall when they crafted the
Judicial Article. In fact, no mention can be found in the
record of the Constitutional Convention except for a passing
50
reference that Connecticut allows retired judges to serve as
“referees, or masters.” 4 Proceedings, supra, at 214. That is
not surprising. All of the recall provisions in the state
constitutions cited by the dissent post-date New Jersey’s 1947
Constitutional Convention,3 and two states, Alaska and Hawaii,4
had not yet attained statehood status.
3 Recall provisions were first included in the constitutions of
the respective states in the following years: Alabama-1973, see
Johnson v. Bd. of Control of the Emps.’ Ret. Sys. of Ala., 740
So. 2d 999, 1003-05 (Ala. 1999); Arizona-1958, see John D. Leshy,
The Arizona State Constitution 203-04 (2d ed. 2013); Colorado-
1967, see State v. Sherrod, 204 P.3d 466, 470 (Colo. 2009);
Connecticut-1965, see Fla. Hill Rd. Corp. v. Comm’r of Agric.,
321 A.2d 856, 857 (Conn. 1973); Florida-1972, see Fla. Const.
art. V, §§ 2, 8; Louisiana-1956, see 1956 La. Acts 1073-74 [Act
No. 588] & La. Legis. Council, Amendments to the Constitution of
1921 6; Maryland-1976, see Dan Friedman, The Maryland State
Constitution 221-22 (2011); Michigan-1963, see Susan P. Fino,
The Michigan State Constitution 142 (2011); Missouri-1976, see
Mo. Const. art. V, § 26(3); New York-1962, see Marro v.
Bartlett, 389 N.E.2d 808, 813 (N.Y. 1979) (Fuchsberg, J.,
dissenting); Ohio-1968, see Steven H. Steinglass & Gino J.
Scarselli, The Ohio State Constitution 203-04 (2011); Oregon-
1958, see Carey v. Lincoln Loan Co., 157 P.3d 775, 779 (Or.
2007); Pennsylvania-1968, see Pa. Const. of 1968,
http://www.duq.edu/academics/gumberg-library/pa-constitution/
texts-of-the-constitution/1968; Texas-1948, see Werlein v.
Calvert, 460 S.W.2d 398, 398 (Tex. 1970); Washington-1962, see
Wash. Const. art. IV, § 2(a).
4 The Hawaii Constitution has a mandatory retirement age and
also allows for recall “[a]s provided by law,” Haw. Const. art.
VI, §§ 2, 3, yet the State recently considered a ballot question
about recall to amend the constitution, Report of the Special
Committee on the Mandatory Retirement Age of State Judges, 18
Hawaii B.J. 4, 7 (2014). We are ill-equipped to explain why
Hawaii followed that course, rather than pass a law. Cf. post
at __ (slip op. at 15).
51
The approaches taken by others, thus, do not offer insight
into what the framers of New Jersey’s modern Constitution
intended. We note, as well, that the parties place little
reliance on the law from other states.
VIII.
Defendant also argues for the first time that the Recall
Statute conflicts with the separation of powers doctrine.
Defendant did not properly preserve this issue and, in essence,
adopts an argument raised by the Appellate Division dissent.
Buckner, supra, 437 N.J. Super. at 51-55 (Harris, J.A.D.,
dissenting). We briefly address the question and conclude that
it lacks merit.
The separation of powers clause of the Constitution directs
that one branch of government may not exercise powers that
properly belong to another. N.J. Const. art. III, ¶ 1. The
doctrine is intended to prevent the concentration of power in
one branch at the expense of the other two co-equal branches.
See In re P.L. 2001, Chapter 362, 186 N.J. 368, 378 (2006); Gen.
Assembly v. Byrne, 90 N.J. 376, 381-83 (1982); David v. Vesta
Co., 45 N.J. 301, 326 (1965). Under the Constitution, no single
branch can “claim[] or receiv[e] inordinate power.” Brown v.
Heymann, 62 N.J. 1, 11 (1972).
At the same time, the concept recognizes that the branches
of government are interdependent, not watertight. In re
52
Advisory Comm. on Prof’l Ethics Op. 705, 192 N.J. 46, 54 (2007);
In re Salaries for Prob. Officers of Bergen Cty., 58 N.J. 422,
425 (1971). “[T]he doctrine requires not an absolute division
of power but a cooperative accommodation among the three
branches . . . .” Commc’ns Workers of Am. v. Florio, 130 N.J.
439, 449 (1992).
We measure the Recall Statute in light of those principles.
The Constitution gives the Governor the power to nominate and
appoint judges, subject to the advice and consent of the Senate.
N.J. Const. art. VI, § 6, ¶ 1. N.J.S.A. 2B:2-1(a), in turn,
empowers the Governor to appoint 443 judges to the Superior
Court.
Recall does not limit or encroach on the Executive’s power.
The moment a judge retires, the position becomes vacant, and the
Governor may appoint a new judge as a replacement. That is true
even if a newly retired judge is recalled, because recall judges
do not hold the office of a Superior Court Judge. They are
retired, on pension, and serve under the Recall Statute.
Recall is no obstacle to filling any vacancies in the
Superior Court. Because defendant cannot show that the Recall
Statute clashes with or usurps the Governor’s constitutional
authority to appoint judges, defendant’s separation of powers
argument fails.
53
IX.
In the end, we return to two fundamental principles: the
strong presumption of validity that attaches to every
legislative enactment, Hamilton, supra, 156 N.J. at 285; and the
Court’s obligation to act with “extreme self restraint” before
it overrides the Legislature and pronounces a law
unconstitutional, McCrane, supra, 61 N.J. at 8. Before a court
can declare a law unconstitutional, it must find proof beyond a
reasonable doubt that the statute is clearly repugnant to the
New Jersey Constitution. Franklin, supra, 111 N.J. at 17.
Defendant has not met that burden -- because there is no
such proof. To the contrary, we find ample evidence that the
Recall Statute is consistent with both the language and the
history of the modern State Constitution.
For the reasons stated above, the judgment of the Appellate
Division is affirmed.
JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON, and JUDGE
CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s
opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
JUSTICE PATTERSON did not participate.
54
SUPREME COURT OF NEW JERSEY
A-22 September Term 2014
074390
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES BUCKNER,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
The New Jersey Constitution provides that “justices and
judges shall be retired upon attaining the age of 70 years.”
N.J. Const. art. VI, § 6, ¶ 3. It does not provide that
justices and judges can be recalled to their offices beyond the
age of seventy. It does not empower the Legislature to make
laws to recall justices and judges beyond that age.
The drafters declined to include in the Judicial Article a
number of proposed recall provisions presented at the
Constitutional Convention. The drafters were keenly aware that
three years earlier the people of New Jersey rejected a proposed
Constitution that provided for the recall of judges.
Undoubtedly, the eminent and able drafters of the 1947 New
Jersey Constitution knew how to write a recall provision.
Nevertheless, the majority conjures a hidden meaning in the
1
simple, clear, and declarative words, “judges shall be retired
upon attaining the age of 70 years” -- a meaning authorizing the
Legislature to pass a law that allows the New Jersey Supreme
Court to recall judges without any age limit. By the majority’s
thinking, after setting an age for the end of judicial service,
the drafters, by their silence, left open a future scenario that
allowed for the Supreme Court to recall judges even at the age
of 100.
That strained interpretation of our Constitution cannot be
justified by the plain words of the Judicial Article, by the
context of those words in relationship to other provisions of
the Constitution, by the history that led to the drafting of the
Judicial Article, by the debates at the Constitutional
Convention, by the absence of any contemporaneous recall
legislation after the Constitution’s ratification, and by
comparison to sister states with similar constitutional
retirement provisions that provide for recall of judges in their
constitutions.
To be sure, the recall of a talented cadre of retired
judges serves an important policy of ensuring the prompt and
efficient delivery of justice in a system beset with chronic
judicial vacancies due to a dysfunctional political process.
There is no legitimate excuse for the Executive and Legislative
branches leaving vacancies on the bench of more than ten percent
2
year after year. But the answer to the problem cannot be to
ignore the clear dictates of the Constitution for expedient or
other seemingly good reasons. There is a right way and wrong
way to achieve a worthy end. The Legislature cannot arrogate to
itself a power denied to it by the Constitution, and likewise it
cannot gift to the Supreme Court a power inconsistent with the
Constitution.
If justices or judges are to serve in office beyond the age
of seventy, full time or on recall, then the Constitution must
be amended. No reasonable interpretation of the Constitution
warrants the current recall system. Although I would strike
down as unconstitutional the legislation permitting recall of a
judge over the age of seventy, I would not upset any judgment
rendered by a recall judge based on the de facto officer
doctrine. To forestall a short-term catastrophic impact on the
judicial process on which the constitutional rights of so many
depend, I also would keep the present system in place for a
period not to exceed six months to allow the Legislature to pass
a conforming amendment, to increase the number of judgeship
positions, and/or to fill the multitude of judicial vacancies.
I therefore respectfully dissent.
I.
A.
Article VI -- known also as the Judicial Article --
3
provides: “[J]ustices and judges shall be retired upon
attaining the age of 70 years. Provisions for the pensioning of
the Justices of the Supreme Court and the Judges of the Superior
Court shall be made by law.” N.J. Const. art. VI, § 6, ¶ 3.
Had the drafters of the Constitution -- who were skilled
wordsmiths -- intended to authorize the Legislature to enact a
recall system Paragraph 3 would have read: “[J]ustices and
judges shall be retired upon attaining the age of 70 years.
Provisions for the recall and pensioning of the Justices of the
Supreme Court and the Judges of the Superior Court shall be made
by law.” That easy word fix would not have been lost on the
drafters.
Other state constitutions with similarly worded mandatory-
retirement-age provisions specifically provide for the temporary
recall of justices and judges. See, e.g., Alaska Const. art.
IV, § 11 (“Justices and judges shall be retired at the age of
seventy except as provided in this article.”); Mo. Const. art.
V, § 26 (“All judges other than municipal judges shall retire at
the age of seventy years, except as provided in the schedule to
this article . . . .”); Or. Const. art. VII, § 1a (“[A] judge of
any court shall retire from judicial office at the end of the
calendar year in which he attains the age of 75 years. The
Legislative Assembly or the people may by law . . . [p]rovide
for recalling retired judges to temporary active service.”); Pa.
4
Const. art. V, § 16 (“Justices, judges and justices of the peace
shall be retired on the last day of the calendar year in which
they attain the age of 70 years. . . . A former or retired
justice or judge may, with his consent, be assigned by the
Supreme Court on temporary judicial service . . . .”); Wash.
Const. art. IV, §§ 2a, 3a (“A judge of the supreme court or the
superior court shall retire from judicial office . . . [when] he
attains the age of seventy-five years. . . . [A] majority of
the Supreme Court is empowered to authorize . . . retired judges
. . . to perform, temporarily, judicial duties . . . .”).
Those examples suggest that the word “retire” is not so
elastic that it can be imbued with contradictory meanings. To
retire does not mean to ascend again. At the time of the 1947
Constitution, “to retire” had distinct definitions: “[t]o
withdraw from a public station, or from business; as, having
made a large fortune, he retired.” Webster’s Revised Unabridged
Dictionary 1231 (1913); see also The Century Dictionary 5124
(1913) (defining “retire” as “[t]o withdraw from business or
active life”); A New English Dictionary 571-72 (1933) (defining
“retire” as “[t]o withdraw from office or an official position;
to give up one’s business or occupation in order to enjoy more
leisure or freedom (esp. after having made a competence or
earned a pension)”). The magical interpretation that the
majority gives to the word “retire” does not conform to the
5
plain meaning of that word as understood by the Constitution’s
drafters in their time.
The absence of any language about recall in the New Jersey
Constitution could end the constitutional analysis. However, if
we look further, every other sign evidences that the drafters
did not intend to undermine the constitutional age limit on
judicial service with a system that allowed the Supreme Court to
appoint recall judges without any age limitation.
B.
Another provision of the Constitution clearly shows that
the drafters knew how to allow for judges to hold office beyond
the age of seventy. At the time of the Constitutional
Convention, justices and judges were not restricted from service
on the bench on the basis of age and were serving a previously
set term of years in office. To cause the least disruption to
the judicial system, the new Constitution provided for a
conversion period rather than the abrupt dismissal of justices
and judges who already were seventy years of age or older. This
was accomplished through the Schedule Article -- Article XI,
Section 4, Paragraph 1 of the Constitution. See Robert F.
Williams, The New Jersey State Constitution 197 (2d ed. 2012)
(noting that Schedule Article “contains various phase-in
provisions designed to facilitate the smooth transition to the
1947 constitution”). The Schedule Article allowed justices and
6
judges over the age of seventy to continue in service for a
temporary period. That Article provides: “No Justice of the
new Supreme Court or Judge of the Superior Court shall hold his
office after attaining the age of seventy years, except,
however, that such Justice or Judge may complete the period of
his term which remains unexpired at the time the Constitution is
adopted.” N.J. Const. art. XI, § 4, ¶ 1.
Thus, the drafters knew how to and did write into the
Constitution a provision that allowed for judicial service
beyond the age of seventy. They knew how to write into the
Constitution a recall system, but pointedly did not do so.
C.
Certain clauses of the Constitution, such as the “‘great
ordinances’ are flexible pronouncements constantly evolving
responsively to the felt needs of the times.” Vreeland v.
Byrne, 72 N.J. 292, 304 (1977). Fitting into that category are
the “due process clause, the equal protection clause, [and] the
free speech clause.” Ibid. Other clauses simply frame the
“details of governmental administration.” Id. at 304-05.
There, “a literal adherence to the words of the clause is the
only way that the expressed will of the people can be assured
fulfillment.” Id. at 305. In that category, for example, falls
the provision that “‘the Governor shall be not less than thirty
years of age.’” Ibid. (quoting N.J. Const. art. V, § 1, ¶ 2).
7
The gubernatorial age limit is a peremptory directive not
subject to an evolving interpretation over time. The same must
be said of the provision that “justices and judges shall be
retired upon attaining the age of 70 years.” N.J. Const. art.
VI, § 6, ¶ 3. Scrupulous adherence should be given to the clear
meaning of those words to fulfill the drafters’ intent.
II.
If there were any lingering doubt concerning the meaning of
the mandatory-retirement language in the Judicial Article, the
history leading up to the adoption of the 1947 Constitution and
the debates during the Constitutional Convention dispel it.
The proposed Constitution of 1944, which was not ratified
by the people, included a provision that allowed for judges over
the mandatory-retirement age of seventy to be recalled for
temporary service. That provision read:
No Justice of the Supreme Court or of the
Superior Court shall continue in office after
he has attained the age of seventy years.
Subject to law, the Chief Justice may assign
any such judicial officer who has attained the
age of seventy years to temporary service in
the Supreme Court or in the Superior Court, as
need appears.
[Proposed Revised Constitution (1944), art. V,
§ 5, ¶ 5.]
The delegates to the 1947 Constitutional Convention had for
their consideration the 1944 recall provision in the “Summary of
Proposals for Revision of Judicial Article” prepared for the
8
Judiciary Committee. 4 Proceedings of the Constitutional
Convention of 1947, at 749.
That, moreover, was not the only proposal for the temporary
recall of retired judges before the Convention’s delegates. On
behalf of the New Jersey Committee for Constitutional Revision,
Evelyn M. Seufert and John Bebout submitted to the Judiciary
Committee a draft judicial article containing a provision for
the temporary recall of retired judges and justices. That
recall proposal provided:
No justice or judge shall remain in continuous
service after he has attained the age of
seventy years; but the chief justice may
assign any such judicial officer who has
attained the age of 70 years before his term
has expired to temporary service in the
supreme court or in the general court, as need
appears.
[4 Proceedings, supra, at 28.]
In addition, in commentary to the Judiciary Committee, Seufert
stated that the “provision for mandatory retirement at age 70”
of judges should be “subject to possible recall to temporary
service as need may appear.” 4 Proceedings, supra, at 580.
There was yet another recall proposal submitted to the
Judiciary Committee, one by former Chief Justice Thomas J.
Brogan. The provision stated:
Upon the retirement of any such Justice or
Judge he shall receive a pension equal in
amount to the salary which he is receiving at
that time. Such Justice or Judge shall be
9
required, if able so to do, to perform such
judicial duties and services as may be
required of him by designation or order of the
Court of Appeals . . . .
[2 Proceedings, supra, at 1207 (emphasis
added).]
This recall proposal and the others before the Judiciary
Committee were rejected and not made part of the final Judicial
Article.
Whether to have a judicial retirement age and, if so,
setting a retirement age was debated over nine days and thirteen
separate sessions in the Judiciary Committee. See, e.g., 4
Proceedings, supra, at 500, 523-24, 540, 557. In ultimately
deciding on seventy as the age for mandatory retirement, the
drafters balanced a number of factors. One factor was the
wisdom and knowledge that experienced judges bring to the bench.
4 Proceedings, supra, at 484 (noting judges over age of seventy
“who are alert, able and have over a long period of years
acquired a tremendous wealth of legal thinking, wisdom and
judgment” (Judge Thomas Madden)); 4 Proceedings, supra, at 135-
36 (“We all remember, doubtless, some instances in which men did
some of their best work on the court when they were past 75 years
of age.” (Chief Justice Clarence E. Case)). Another factor was
the concern about incapacity that afflicts older judges. 4
Proceedings, supra, at 24 (noting observations of Vice-Chairman
Nathan L. Jacobs that mandatory-retirement age of seventy would
10
reduce frequency of incapacitated judges). The debates on the
Judicial Article included discussions about the option of a
system of recalling retired judges to service. See, e.g., 4
Proceedings, supra, at 543 (noting suggestions of Judge Robert
Carey that mandatory-retirement age be set at seventy-five and
that retired judges be placed on “inactive list” subject to
recall); 4 Proceedings, supra, at 168 (noting Wayne D.
McMurray’s remarks that retired judges could be subject to
recall).
Despite the proposed recall provisions and discussions
before the Judiciary Committee, the drafters did not write
recall into the Constitution or give the Legislature the
authority to do so.
This is not the first time that this Court has construed
the import of the absence of a provision in a Constitution. In
Committee to Recall Robert Menendez from the Office of U.S.
Senator v. Wells, 204 N.J. 79, 86-87 (2010), we held that New
Jersey’s constitutional provision allowing for a recall election
of a United States Senator, N.J. Const. art. I, ¶ 2, subject to
a six-year term of office, violated the Federal Constitution.
In reaching that conclusion, we emphasized that the United
States Constitution did not have a recall provision whereas the
prior Articles of Confederation did. Id. at 85-86. We also
noted that a proposal to include a recall provision in the new
11
Constitution was voted down. Id. at 86. From that record, we
reasoned that “the Framers rejected a recall provision and
denied the states the power to recall U.S. Senators.” Ibid.
The result the majority reaches in this case does not
square with that interpretative analysis. The drafters did not
incorporate into the 1947 Constitution the judicial recall
provision in the proposed 1944 Constitution. They also
evidently rejected the recall proposals advanced at the
Constitutional Convention. The obvious conclusion should be
that legislation permitting the recall of judges over the age of
seventy runs afoul of the Constitution.
That conclusion is supported by a retrospective interview
of Morris M. Schnitzer, the Technical Advisor to the Judiciary
Committee of the 1947 Convention. Conversations with Morris M.
Schnitzer, 47 Rutgers L. Rev. 1391 (1995). During the
interview, Schnitzer observed that the judicial retirement age
was adopted to banish the spectacle of aged and mentally
incapacitated judges presiding over cases. Id. at 1400-01.
When asked whether “it [was] contemplated that judges, once
retired at age 70, could be recalled” for temporary service,
Schnitzer replied, “Certainly not, since that would have
resurrected the example of [judges] who sat long after their
peak.” Id. at 1401.
III.
12
The majority’s reading into our Constitution a legislative
right to authorize the recall of retired judges over the age of
seventy is contrary to the approach taken by most other states
with a constitutional mandatory-retirement provision. Nineteen
state constitutions set a mandatory-retirement age for judges.
Sixteen of those state constitutions also specifically provide
for the recall of retired judges who have aged out.1 Those
1 See Ala. Const. art. VI, § 155 (“[A] judge over the age of
seventy may be appointed to the office of supernumerary judge if
he is not eligible to receive state judicial retirement
benefits.”); Alaska Const. art. IV, § 11 (“Retired judges shall
render no further service on the bench except for special
assignments as provided by court rule.”); Ariz. Const. art. VI,
§ 20 (“A retired judge who is temporarily called back to the
active duties of a judge . . . .”); Colo. Const. art. VI, § 5
(“Whenever the chief justice deems assignment of a judge
necessary to the prompt disposition of judicial business, he may
. . . assign any . . . retired justice or district, probate, or
juvenile judge who consents, temporarily to perform judicial
duties in any court.”); Conn. Const. art. V, § 6 (providing that
supreme court, superior court, and common pleas judges who have
attained age of seventy years may serve as state referees with
powers of judicial office); Fla. Const. art. V, § 8 (“No justice
or judge shall serve after attaining the age of seventy years
except upon temporary assignment or to complete a term, one-half
of which has been served.”); La. Const. art. V, § 5 (“The
supreme court . . . may assign a sitting or retired judge to any
court.”); Md. Const. art. IV, § 3a (providing that, with
approval of Court of Appeals, former judges may serve
“temporarily in any court of this State, except an Orphans’
Court”); Mich. Const. art. VI, § 23 (“The supreme court may
authorize [certain former] judges to perform judicial duties for
limited periods or specific assignments.”); Mo. Const. art. V, §
26 (“Any retired judge . . . may be assigned by the supreme
court as a senior judge to any court in this state . . . .”); N.
Y. Const. art. VI, § 25 (“A retired judge or justice shall serve
no longer than . . . the year in which he or she reaches the age
of seventy-six.”); Ohio Const. art. IV, § 6 (“Any voluntarily
retired judge, or any judge who is retired under this section,
13
sixteen states apparently concluded that such judicial-recall
clauses were necessary in light of the mandatory-retirement-age
provisions in their constitutions.
Three other state constitutions include a mandatory-
retirement age but no provision for the recall of judges who
have reached mandatory retirement. See Haw. Const. art. VI, § 3
(“Justices and judges shall be retired upon attaining the age of
seventy years.”); N.H. Const. pt. 2, art. 78 (“No person shall
hold the office of judge of any court, or judge of probate, or
sheriff of any county, after he has attained the age of seventy
years.”); Mass. Const. pt. 2, ch. 3, art. I (“[T]hat upon
attaining seventy years of age said judges shall be retired.”).
The Hawaii Constitution has a mandatory-retirement age for
judges, Haw. Const. art. VI, § 3 (“Justices and judges shall be
retired upon attaining the age of seventy years.”), as well as a
may be assigned with his consent . . . to active duty as a judge
. . . .”); Or. Const. art. VII, § 1a (“The Legislative Assembly
or the people may by law . . . [p]rovide for recalling retired
judges to temporary active service on the court from which they
are retired . . . .”); Pa. Const. art. V, § 16 (“A former or
retired justice or judge may, with his consent, be assigned by
the Supreme Court on temporary judicial service as may be
prescribed by rule of the Supreme Court.”); Tex. Const. art. V,
§ 1-a (providing “reassignment to active duty [of retired
judges] where and when needed”); Wash. Const. art IV, §§ 2a, 3a
(“When necessary for the prompt and orderly administration of
justice a majority of the Supreme Court is empowered to
authorize judges or retired judges . . . to perform,
temporarily, judicial duties . . . .”).
14
provision allowing for the recall of retired judges, Haw. Const.
art. VI, § 2 (“[A]t the request of the chief justice, retired
justices of the supreme court also may serve temporarily on
the supreme court, and retired judges . . . may serve
temporarily on the [lower courts] . . . .”). The recall
provision evidently has not been construed to permit the recall
of judges over the age of seventy. The Hawaii Judiciary
expressed its support for a constitutional amendment, stating
that “the knowledge and experience of such judges are recognized
as valuable resources not only as judicial mentors but also to
help provide fair and timely disposition of cases.” Hearing on
S.B. 650 Before the Haw. S. Judiciary & Labor Comm., 26th Leg.
(Feb. 14, 2012) (statement of Rodney A. Maile, Admin. Dir. of
the Courts). In 2012, a constitutional amendment was placed
before the voters that would have allowed the state’s chief
justice to appoint retired judges over the age of seventy as
“emeritus judges” to temporarily serve for no longer than three
months. Haw. S.B. 650, 26th Leg. (2011). The amendment was
voted down.
Only two states with a mandatory-retirement provision and
no recall clause in their state constitutions -- New Hampshire
and Massachusetts -- have permitted retired judges to be
temporarily assigned for service based on legislative
authorization. Claremont Sch. Dist. v. Governor, 712 A.2d 612
15
(N.H. 1998); Opinion of Justices, 284 N.E.2d 908 (Mass. 1972).
The New Hampshire Supreme Court concluded that the state
legislature has “the constitutional authority to authorize
limited temporary assignment of retired justices over age
seventy to ensure the adequate and orderly administration of
justice,” but that those “retired justices over age seventy [are
not invested] with the panoply of powers associated with
judicial office.” Claremont, supra, 712 A.2d at 615.
The Supreme Judicial Court of Massachusetts held in an
advisory opinion to the Massachusetts Senate, Opinion of
Justices, supra, 284 N.E.2d at 913, that the temporary recall of
judges and justices by legislation would be permitted despite a
proposed constitutional amendment, which stated that “upon
attaining seventy years of age . . . judges shall be retired.”
Without the legislation, which was similar to the Schedule
Article in the New Jersey Constitution, N.J. Const. art. XI, §
4, ¶ 1, then-serving judges over the age of seventy under the
then-existing system (nearly twenty percent of the judiciary)
would have been removed immediately upon the ratification of the
constitutional amendment, causing a severe and abrupt disruption
of the judicial system. Id. at 911-13. In reaching its
decision, the Massachusetts high court gave “great weight” to
the “unusual and pragmatic considerations” involved as well as
to “public policy considerations.” Id. at 913. The advisory
16
opinion does not explain why “pragmatic” and “public policy
considerations” were compelling reasons for bypassing the
amendment process.
Even accounting for the New Hampshire and Massachusetts
experiences, the majority’s approach is an outlier.
IV.
For more than a quarter century after ratification of the
New Jersey Constitution, this State had no judicial recall
system. The initial Judicial Retirement System Act, L. 1973, c.
140, passed in 1973, only allowed for the recall of judges who
had not yet attained the age of seventy, L. 1973, c. 140, § 13.
Setting a mandatory-age limit for recall presumably reflected
the Legislature’s understanding that the recall of judges over
the age of seventy was prohibited by the Judicial Article.
In 1975, the Legislature passed into law the present
judicial recall system, which allows retired justices and judges
over the age of seventy to be recalled for temporary service.
L. 1975, c. 14. The Recall Statute provides that “[s]ubject to
rules of the Supreme Court,” retired Supreme Court justices over
the age of seventy may “be recalled by the Supreme Court for
temporary service in the Supreme Court or elsewhere within the
judicial system” and that Superior Court judges over the age of
seventy may be recalled “for temporary service within the
judicial system other than the Supreme Court.” N.J.S.A. 43:6A-
17
13(b). The Recall Statute also endows the retired justice or
judge with “all the powers of a justice or judge of the court to
which he is assigned.” N.J.S.A. 43:6A-13(c).
The legislation limits the Supreme Court only to its own
rules. Thus, per the Recall Statute, the Supreme Court could,
if it wished, promulgate a rule that permits the temporary
recall of justices and judges who do not exceed the age of 100 -
- and, according to the majority, that would be consistent with
the Constitution’s mandatory-retirement age.2 Additionally, the
Recall Statute invests the Supreme Court with the power to
recall retired justices to fill temporary vacancies on the
Supreme Court, despite the clear conflict with Article VI,
Section 2, Paragraph 1 of the State Constitution. That
constitutional provision allows for the Chief Justice only to
“assign the Judge or Judges of the Superior Court, senior in
service . . . to serve temporarily in the Supreme Court.” N.J.
Const. art. VI, § 2, ¶ 1. Thus, the Recall Statute unlawfully
authorizes the Supreme Court to bypass our Constitution’s
prescribed method for filling vacancies on this Court.
2 Pursuant to the Recall Statute, N.J.S.A. 43:6A-13, the Court
has promulgated Directive 12-01, “Policy Governing Recall for
Temporary Service Within the Judicial System” (effective Sept.
1, 2001). The Directive states that “[n]o retired justice or
judge shall serve on recall beyond his or her eightieth
birthday.” That Directive is simply the Court’s own policy
determination.
18
The recall legislation is clearly laudatory, but it is not
constitutional. Before the passage of the current statute in
1975, the New Jersey Supreme Court requested the views of the
Bar “with respect to questions concerning the retirement of
judges who have reached the age of 70 years.” The majority
references the 1974 report of the Bar Institute and Law Center
of New Jersey submitted to the Court and two New Jersey Law
Journal editorials published that year. The Bar Institute’s
report “conclude[d] that our retired judges should be permitted
to return to the bench according to the needs of our court
system and according to their abilities to render such service.”
The Bar Institute and Law Center of New Jersey, Recall of Judges
Past the Age of Mandatory Retirement: An Examination of the
Pertinent Issues 14 (Oct. 1974). The report did not conclude
that enactment of a statute would pass muster under the
Constitution. The 1974 Law Journal editorials calling for the
amending of the 1973 Recall Statute to allow for retired judges
over the age of seventy to be returned to temporary judicial
service contained no meaningful constitutional analysis, and
cited no authority other than the Massachusetts advisory
opinion. Senior Judges, 97 N.J.L.J. 68 (Jan. 31, 1974);
Judicial Service for Judges Retired at Age 70 Who Wish Such
Service, 97 N.J.L.J. 188 (Mar. 21, 1974). The 1974 Law Journal
editorials endorsing a recall statute, and the more recent Law
19
Journal editorials claiming that the Recall Statute is
unconstitutional, cannot guide our decision-making process.
Recalling the Recalled Judges, 216 N.J.L.J. 470 (May 19, 2014);
Judges We Can’t Recall, 206 N.J.L.J. 742 (Nov. 28, 2011); 70 and
Out, 194 N.J.L.J. 962 (Dec. 15, 2008).
In the end, this Court is the final arbiter of the
Constitution. Although the Legislature’s policy reasons for
enacting the Recall Statute are praiseworthy (to “help speed the
administration of justice and, by securing the benefit of years
of judicial experience, increase the quality of justice,”
Statement to A. No. 1419 (Apr. 1, 1974)), those reasons do not
render the Statute constitutional. Moreover, a law’s
constitutionality does not turn on public opinion or how it
favors the Bar or even the judicial process. The Constitution
must be followed even if a true interpretation leads to a result
that is not consonant with the immediate interests of the
judiciary as an institution.
That is a lesson passed on to us from the landmark case of
Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803), which stands
for the bedrock principle of judicial review and the primacy of
the Constitution over legislation. The issue in Marbury bears a
noticeable similarity to the one before us, however different
the facts of the two cases may be. The outgoing President, John
Adams, appointed William Marbury a justice of the peace, but
20
Marbury’s commission had not been physically delivered to him
before the administration’s final day. Id. at 155, 2 L. Ed. at
66. Marbury sought a writ of mandamus from the Supreme Court
ordering the new administration’s Secretary of State, James
Madison, to give him his commission. Id. at 153-54, 2 L. Ed. at
66. The Judiciary Act of 1789 conferred on the United States
Supreme Court original jurisdiction to issue writs of mandamus.
Id. at 173, 2 L. Ed. at 72. In an opinion written by Chief
Justice Marshall, the Supreme Court held that it did not have
jurisdiction to issue the writ because the Judiciary Act
unconstitutionally expanded the Court’s original jurisdiction.
Id. at 176, 2 L. Ed. at 73. The Supreme Court struck down that
portion of the Judiciary Act that arrogated to the Court a power
not vested in it by the Constitution. Id. at 180, 2 L. Ed. at
74.
Here, the Recall Statute arrogates to the New Jersey
Supreme Court a power not vested in it by the Constitution --
the power to assign retired judges over the age of seventy to
active, temporary service in the judiciary in violation of the
Judicial Article.
V.
Although I would declare the Recall Statute
unconstitutional as it applies to those retired judges over the
age of seventy, no judgment rendered by a recall judge would
21
have been threatened. Under the de facto officer doctrine, a
judge’s acts “undertaken in good faith and prior to a judicial
declaration of nullity have the force and effect of law
notwithstanding a constitutional defect in the enabling
legislation.” State v. Celmer, 80 N.J. 405, 418 (1979). Thus,
had my view prevailed, the ruling would not have applied
retroactively, except to the defendant who brought the issue
before this Court. Additionally, I would have delayed
implementation of the decision for 180 days to allow the
Executive and Legislative branches time to remedy the
constitutional infirmity. See Lewis v. Harris, 188 N.J. 415,
463 (2006) (giving Legislature 180 days to amend marriage
statutes or enact alternative legislation to provide equal
rights to same-sex couples). During that time, the Legislature
would have had a number of options. It could have begun the
process of amending the Constitution to allow for the recall of
retired judges or to extend the retirement age of judges to,
say, seventy-five. It could have created more judgeship
positions or, at the very least, filled the many vacancies that
so limit the judiciary’s ability to fulfill its mission. It
still can.
Justice suffers when the judiciary is understaffed. The
oft-heard refrain, “Justice delayed is justice denied,” is true.
Cases that are not heard timely compromise the rights of
22
litigants. As of July 1, 2015, there were forty-six vacancies
among the 443 Superior Court judgeships authorized by statute,
N.J.S.A. 2B:2-1, with seventy-two judges serving on recall,
fifty-five of whom are above the mandatory age of retirement.
By failing to timely fill the many judicial vacancies, the
political branches have created the urgent need for and the
judiciary’s dependency on the recall system. However effective
the recall system may be, politically created exigencies and
pragmatic considerations cannot excuse the use of
unconstitutional means to achieve a desirable end.
VI.
Recall judges have served ably and with distinction, and
for little compensation. They are to be commended for their
selfless service. However, the Recall Statute is in conflict
with our State Constitution. Today, by upholding that Statute,
the majority gives to the Supreme Court a power not conferred to
it by the Judicial Article of the New Jersey Constitution.
I therefore respectfully dissent.
23
SUPREME COURT OF NEW JERSEY
NO. A-22 SEPTEMBER TERM 2014
ON APPEAL FROM Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES BUCKNER,
Defendant-Appellant.
DECIDED July 30, 2015
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice Albin
CHECKLIST AFFIRM DISSENT
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON -------------------- --------------------
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5 1