State of New Jersey v. James Buckner , 437 N.J. Super. 8 ( 2014 )


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  •                   NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-0630-12T1
    STATE OF NEW JERSEY,
    APPROVED FOR PUBLICATION
    Plaintiff-Respondent,                   May 5, 2014
    v.                                       APPELLATE DIVISION
    JAMES BUCKNER,
    Defendant-Appellant.
    Argued January 27, 2014 - Decided May 5, 2014
    Before Judges Parrillo, Harris and Kennedy.
    On appeal from the Superior Court of New
    Jersey, Law Division, Morris County,
    Indictment No. 10-06-0697.
    Brian Plunkett, Assistant Deputy Public
    Defender, argued the cause for appellant
    (Joseph E. Krakora, Public Defender,
    attorney; Mr. Plunkett, of counsel and on
    the brief).
    Jeffrey P. Mongiello, Deputy Attorney
    General, argued the cause for respondent
    (John J. Hoffman, Acting Attorney General,
    attorney; Frank J. Ducoat, Deputy Attorney
    General, of counsel and on the brief;
    Kenneth A. Burden, Deputy Attorney General,
    on the brief).
    The opinion of the court was delivered by
    PARRILLO, P.J.A.D.
    In New Jersey, justices of the Supreme Court and judges of
    the Superior Court "hold their offices" for seven years, and
    upon reappointment by the Governor, "hold their offices during
    good behavior" until they reach the age of seventy.    N.J. Const.
    art. VI, § 6, ¶ 3.   Justices and judges "shall be retired upon
    reaching" their seventieth birthday.   
    Ibid. To that end,
    the
    Legislature has enacted the "Judicial Retirement System Act,"
    N.J.S.A. 43:6A-1 to -46, which governs judicial pensions, and,
    among other things, provides that justices and judges who have
    reached seventy years "shall be retired forthwith."    N.J.S.A.
    43:6A-7.
    This case presents a challenge to the constitutionality of
    N.J.S.A. 43:6A-13(b), which authorizes the New Jersey Supreme
    Court to recall retired judges for temporary service, including
    those who have reached age seventy, an issue of first impression
    in this State.   It is brought by defendant James Buckner, whose
    trial on robbery and aggravated assault charges was presided
    over by a seventy-three-year-old judge who had been recalled for
    temporary service by the Supreme Court and who had earlier
    denied defendant's pre-trial motions for disqualification and
    for recusal from the disqualification motion.
    Although the New Jersey Constitution contains two
    provisions pertaining to the compulsory retirement of judges and
    justices at age seventy, N.J. Const., art. VI, § 6, ¶ 3 (the
    2                           A-0630-12T1
    Judicial Article) and N.J. Const. art. XI, § 4, ¶ 1 (the
    Schedule Article), defendant relies only on the latter in
    support of his argument on appeal that he is entitled to a new
    trial because the presiding judge was constitutionally
    disqualified from serving as a Superior Court judge based solely
    on his age.   For the sake of completeness, however, we address
    both constitutional provisions in finding they do not conflict
    with the practice legislatively prescribed in N.J.S.A. 43:6A-
    13(b).
    I. Development of Constitutional Provision
    To place the issue in proper perspective, we first trace
    the development of these constitutional provisions.    To date,
    New Jersey has had three State Constitutions.     The first, the
    Constitution of 1776, N.J. Const. of 1776 art. XII, which
    preceded the Federal Constitution and was necessarily drawn in
    haste,1 and the second, the Constitution of 1844, N.J. Const. of
    1844 art. VII, which was ratified after adoption of the Federal
    1
    New Jersey was the third colony to adopt a Constitution. John
    Bebout, Introduction to Proceedings of the New Jersey State
    Constitutional Convention of 1844, at xvi (New Jersey Writers'
    Project ed., 1942), available at http://lawlibrary.
    rutgers.edu/cgi-bin/diglib.cgi?collect= njconst&file=
    1844_bebout&page=0001 (last visited on Mar. 6, 2014). The
    Constitution was ratified on July 2, 1776, only eight days after
    the appointment of the Constitutional Convention Committee.
    
    Ibid. "This haste may
    have been due partly to the arrival of
    the British Fleet off Sandy Hook." 
    Ibid. 3 A-0630-12T1 Constitution,2
    both contained provisions setting forth limited
    judicial terms of office, none of which exceeded seven years,
    and contained no provision for compulsory retirement.    See
    www.state.nj.us/njfacts/njdoc10.htm (last visited on Mar. 6,
    2014) (discussing the history surrounding the ratification of
    the 1776 Constitution); DePascale v. State, 
    211 N.J. 40
    , 48
    (2012) (discussing the history surrounding the ratification of
    the 1776 and 1844 Constitutions).
    By the 1940's there was wide agreement that our
    complicated, rigid court system, modeled after the discarded
    pre-colonial English legal tribunals, and "characterized by a
    multiplicity of courts, overlapping functions of judges, and
    lack of unified administrative direction," desperately needed
    reform.   4 Proceedings of the Constitutional Convention of 1947,
    at 595, 121 (1952) ("[O]ur court system[] was the most
    antiquated and intricate that exist[ed] in any considerable
    community of English-speaking people.");3 Symposium, The "New
    Judicial Federalism" and New Jersey Constitutional
    Interpretation, 7 Seton Hall Const. L.J. 823, 823 (1997) ("Prior
    2
    There is no mandatory retirement age for judges appointed under
    Article III, Section 1 of the Federal Constitution.
    3
    All five volumes of these proceedings are available at
    http://slic.njstatelib.org/new_jersey_ information/
    searchable_publications_0 (last visited on Mar. 6, 2014).
    4                           A-0630-12T1
    to the convention in 1947, New Jersey's judicial system was
    described as the worst in the country.").
    In 1941, in response to the escalating calls for reform,
    the Legislature appointed a Commission to study the revision of
    the State Constitution.   L. 1941, Joint Resolution No. 2 (Nov.
    18, 1941).   In its May 1942 report, the Commission, chaired by
    Senator Robert Hendrickson, recommended the adoption of an
    entirely new State Constitution, and submitted a draft of a
    revised constitution, which included sweeping changes to the
    court system.   Report of the Commission on Revision of the New
    Jersey Constitution, at 21-25 (May 1942).4    Pertinent for present
    purposes, the Commission recommended the appointment of judges
    for a trial term, and then, if reappointed, that they have
    tenure during good behavior.    
    Id. at 22.
      The Commission also
    recommended adoption of a compulsory retirement age, that is,
    that "[a]ll members of the judiciary shall retire upon reaching
    the age of seventy years."     
    Ibid. In accordance with
    its recommendations, the Commission's
    draft of the revised Constitution included a provision in the
    proposed Judicial Article that "[n]o justice or judge of any
    4
    Available at http://lawlibrary.rutgers.edu/cgi-bin/diglib.
    cgi?collect=njconst&file=1942_comm&page=0001 (last visited on
    Mar. 6, 2014). Reprinted in 4 Proceedings of the Constitutional
    Convention of 
    1947, supra, at 556-65
    .
    5                         A-0630-12T1
    court shall continue in office after he has attained the age of
    seventy years."   
    Id. at 48
    (proposed art. V, § 5, ¶ 3).    The
    draft also included a proposed Schedule Article to facilitate
    the Court's transition from the 1844 Constitution to the newly
    proposed constitution, including a provision for the appointment
    of the "justices" of the new Supreme and Superior Courts from
    the "persons then holding the offices[.]"   
    Id. at 56
    (proposed
    art. XI, § 4, ¶ 1) (emphasis added).   The proposed Schedule
    Article included a provision that "[n]othing in this section
    shall be construed, however, to permit any justice to continue
    in office after attaining the age of seventy years."   
    Ibid. (proposed art. XI,
    § 4, ¶ 1).
    In 1943, the Legislature was empowered to act as a limited
    constitutional convention.   See Revised Proposed Amendments of
    1944.5   The Legislature's draft of the Judicial Article to the
    proposed 1944 revised Constitution and the proposed Schedule
    Article closely followed the Commission's recommendations.
    Compare 4 Proceedings of the Constitutional Convention of 1947,
    at 560-65, with 
    id. at 566-74.
      However, in its proposed
    Judicial Article, the Legislature added a recall provision to
    5
    Available at http://lawlibrary.rutgers.edu/cgi-
    bin/diglib.cgi?collect=njconst&file=1944_rev&page=0001 (last
    visited on Mar. 6, 2014). Reprinted in 4 Proceedings of the
    Constitutional Convention of 
    1947, supra, at 566-74
    .
    6                          A-0630-12T1
    the Commission's draft proposal on compulsory retirement:
    No Justice of the Supreme Court or of the
    Superior Court shall continue in office
    after he has attained the age of seventy
    years; but, subject to law, he may be
    assigned by the Chief Justice to temporary
    service in the Supreme Court or in the
    Superior Court, as need appears.
    [L. 1944, c. 92 (emphasis added); (proposed
    N.J. Const. of 1944 art. V, § 5, ¶ 5).]
    The Legislature also changed the age under which existing
    justices and judges could be reappointed under the new
    Constitution from seventy years, as proposed by the Commission
    in its Schedule Article, to seventy-five years, and explicitly
    banned reappointment thereafter:
    No such Justice of the Superior Court who
    has been reappointed shall continue in
    office after he has attained the age of
    seventy-five years.
    [L. 1944, c. 92; (proposed N.J. Const. of
    1944 art. XI, § 4, ¶ 1).]
    However, the voters rejected the Legislature's proposed revised
    Constitution during the November 1944 election.    4 Proceedings
    of the Constitutional Convention of 
    1947, supra, at 566
    .
    Significantly, however, there is no indication in any of the
    historical sources, including the Proceedings on the
    Constitutional Convention of 1947, that the voters had objected
    to the recall of retired judges.
    On June 12, 1947, the State convened another
    7                            A-0630-12T1
    Constitutional Convention, as approved by the voters by
    referendum.   1 Proceedings of the Constitutional Convention of
    1947, at 1-2; 2 Proceedings of the Constitutional Convention of
    1947, at 946.   During his opening remarks, Governor Alfred E.
    Driscoll advised the delegates to limit the new State
    Constitution "to a statement of basic fundamental principles[,]"
    and to avoid the problems created under the State Constitution
    of 1844 by following the Federal Constitution's "ageless virtue
    of simplicity."   1 Proceedings of the Constitutional Convention
    of 
    1947, supra, at 7
    .
    During the open meetings and public hearings conducted in
    June and July 1947 by the Constitutional Convention's Committee
    on the Judiciary (the Committee charged with drafting the
    proposed articles on the judiciary), the issue of the adoption
    of a fixed compulsory retirement age for judges was a
    significant topic of discussion.    4 Proceedings of the
    Constitutional Convention of 
    1947, supra, at 37
    , 135, 167-68,
    190, 208, 330, 342, 429, 486.   Some commenters, including
    Governor Driscoll, argued in favor of compulsory retirement at
    age seventy, other commenters argued for voluntary retirement at
    age sixty-five and requiring mandatory retirement at age
    seventy, and others argued for voluntary retirement at age
    seventy and mandatory retirement at age seventy-five.      4
    8                              A-0630-12T1
    Proceedings of the Constitutional Convention of 
    1947, supra, at 429
    , 37, 342, 486; 
    id. at 166-68,
    190, 330, 486; 
    id. at 135-36,
    190, 208, 486.
    There was also some much more limited discussion on the
    question of whether a judge, who had retired at the compulsory
    retirement age, could be recalled.       For example, Vice-chairman
    Nathan L. Jacobs, who later became a New Jersey Supreme Court
    Justice, took note of the federal system under which a judge can
    retire, but be subject to recall by the Chief Justice.       
    Id. at 168.
      Jacobs said that Justice Van Devanter, after his
    retirement from the United States Supreme Court, had been
    permitted to sit as a trial judge which "carried with it the
    weight of a former Supreme Court Justice," and that was "the
    type of case, following Dean [Roscoe] Pound's suggestion of
    using retired judges in celebrated cases, where you might want
    the public to feel a respect greater than it might toward an
    ordinary trial judge in that one particular district."       
    Ibid. Jacobs commented 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."    
    Id. at 169.6
    6
    Jacobs, although acknowledged as the "principal sponsor of
    mandatory retirement" by Morris M. Schnitzer, was also later the
    (continued)
    9                        A-0630-12T1
    Additionally, Justice Frederic R. Colie responded to a
    query as to whether the "situation of [judicial] overwork" might
    be alleviated by "drafting some of the very able and capable"
    judges who were forced to retire at age seventy-five, saying
    that:
    I think that judges who are retired, either
    voluntarily or because they have reached the
    age limit, should be kept on the roll, the
    state 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.]
    Significantly, several commentators, including Governor
    Driscoll, advised the Committee during the open sessions to
    leave the particular details of judicial retirement to the
    (continued)
    primary architect of creating the recall provisions at issue. 4
    Proceedings of the Constitutional Convention of 
    1947, supra, at 1
    ; Conversations with Morris M. Schnitzer, 47 Rutgers L. Rev.
    1391, 1401 (1995); see also post at 28-29. Justice Jacobs, by
    then serving on our Supreme Court, "promoted the idea as a way
    of dealing with emergencies and thereafter as a way of enlisting
    economical judicial service." Conversations with Morris M.
    
    Schnitzer, supra
    , 47 Rutgers L. Rev. at 1401-02. Thus, although
    Schnitzer, who served as the Technical Advisor to the Committee
    on the Judiciary, rejected the idea that recall of judges over
    age seventy was contemplated by that body, Justice Jacobs, who
    served as the Vice-chairman of the committee and was "the author
    of every draft of the Judicial Article," certainly saw no
    constitutional conflict between the mandatory retirement
    provision in the Constitution and the recall statute. 
    Id. at 1391,
    1393, 1401-02.
    10                        A-0630-12T1
    Legislature.   
    Id. at 429,
    211, 265.   For example, Dean Roscoe
    Pound, a distinguished legal scholar and former Dean of Harvard
    Law School, advised that:
    If 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 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. The framers of
    the Constitution of the United States did a
    very good job when they provided for just
    one court and left the rest to legislation
    . . . .
    [Id. at 113.]
    On July 24, 1947, the Committee published its first draft
    of the Judicial Article, which provided in relevant part that
    "[s]uch Justices and Judges shall be retired upon attaining the
    age of seventy years."   2 Proceedings of the Constitutional
    Convention of 
    1947, supra, at 1
    168.    There was no provision for
    the recall of retired judges for temporary service.   In the
    proposed Schedule Article, the Committee provided that "[n]o
    Justice of the new Supreme Court or Judge of the General Court
    shall, however, hold his office after attaining the age of
    11                         A-0630-12T1
    seventy years."   
    Id. at 1170.7
    The Committee presented the final draft of the proposed
    Judicial and Schedule Articles to the Convention on July 31,
    1947.   2 Proceedings of the Constitutional Convention of 
    1947, supra, at 1
    173.   The compulsory retirement provision in the
    Judicial Article remained unchanged.   
    Id. at 1175.
      The Schedule
    provisions were changed, and provided in relevant part: "No
    Justice of the new Supreme Court or Judge of the General 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."   
    Id. at 1176
    (emphasis added).
    In its report on its final draft, the Committee set forth
    that a noteworthy feature of the proposed Judicial Article is
    that "[e]xcept for incumbent judges, who will serve out their
    terms, Justices and Judges of the Supreme and Superior Courts
    must retire at 70, the Legislature to prescribe pensions."     
    Id. at 1181,
    1189.8   With regard to the proposed Schedule Article,
    7
    During the final open public session on July 30, 1947, several
    individuals expressed their views on the proposed compulsory
    retirement age of seventy. 4 Proceedings of the Constitutional
    Convention of 
    1947, supra, at 500
    , 515-16, 523-24, 531, 542-43.
    Additionally, Robert Carey, a former Hudson County Judge, argued
    that retired judges should be placed on an inactive list and
    subject to recall by the Chief Justice. 
    Id. at 543.
    8
    Our Court "has often relied on the Judiciary Committee Report
    (continued)
    12                        A-0630-12T1
    the Committee explained:
    The Schedule Article is intended to provide
    for the transition between the present and
    the new judicial branches of government. It
    will govern incumbent judges until the
    expiration of their terms, assigns the
    clerical personnel of existing state courts,
    transfers the files of pending litigation
    and makes such other specific provisions as
    are necessary until the new Judicial Article
    is completely in effect.
    [Id. at 1195 (emphasis added).]
    The Committee also explained that with regard to "the text
    and scope of the constitutional provisions governing the
    judiciary," it had observed the following two considerations:
    First: Constitutions should deal with
    fundamentals, not details. The organic law
    should establish the framework of
    government, leaving the body and content to
    be supplied by legislation.
    Second: The function of a Judicial Article
    in a Constitution is to create a system of
    courts, not to write or change the law which
    those courts will administer or enforce.
    The Committee was as concerned with avoiding
    revision of the substantive law, however
    urgent and necessary, as it was careful to
    preserve intact the right to trial by jury
    and the scope and extent of the judicial
    power.
    (continued)
    as an authoritative source" of constitutional intent. Henry v.
    N.J. Dep't of Human Servs., 
    204 N.J. 320
    , 349   n.4 (2010)
    (Rabner, C.J., concurring). But see Winberry v. Salisbury, 
    5 N.J. 240
    , 248 (criticizing reliance on the Committee report),
    cert. denied, 
    340 U.S. 877
    , 
    71 S. Ct. 123
    , 
    95 L. Ed. 638
    (1950).
    13                          A-0630-12T1
    [Id. at 1180-81.]
    Thus, although the recall of judges over age seventy was a
    concept about which members of the Convention were obviously
    aware if only by virtue of its inclusion in the 1944 proposed
    constitution, it was also one which they chose not to consider,
    delegating that detail, instead, to the Legislature.
    In November 1947, the voters ratified the Constitution
    adopted by the Constitutional Convention.   The Judicial Article
    provides in relevant part that:
    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.
    [N.J. Const. art. VI, § 6, ¶ 3 (emphasis
    added).]
    The Schedule Article provides in relevant part that:
    Subsequent to the adoption of this
    Constitution the Governor shall nominate and
    appoint, with the advice and consent of the
    Senate, a Chief Justice and six Associate
    Justices of the new Supreme Court from among
    the persons then being the Chancellor, the
    Chief Justice and Associate Justices of the
    old Supreme Court, the Vice Chancellors and
    Circuit Court Judges. The remaining
    judicial officers enumerated and such Judges
    of the Court of Errors and Appeals as have
    been admitted to the practice of law in this
    14                      A-0630-12T1
    State for at least ten years, and are in
    office on the adoption of the Constitution,
    shall constitute the Judges of the Superior
    Court. The 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.
    [N.J. Const. art. XI, § 4, ¶ 1 (emphasis
    added).]
    II. Legislation:   The Recall Statute
    Thus, the Legislature, in addition to the Senate's
    constitutional power to confirm gubernatorial nominations to the
    bench, N.J. Const. art. VI, § 6, ¶ 1; In re Mathesius, 
    188 N.J. 496
    , 522 (2006), also has the constitutional authority to set
    judicial salaries, N.J. Const. art. VI, § 6, ¶ 6 and to make
    provisions for pensions, N.J. Const. art. VI, § 6, ¶ 3.    To that
    end, in 1948 the Legislature carried out the constitutional
    mandate of providing pensions for justices and judges who were
    subject to mandatory retirement at age seventy.   L. 1948, c. 391
    (codified at N.J.S.A. 43:6-6.4 to -6.10 (now repealed)).   There
    was, however, no provision in the 1948 Act for the recall of
    retired judges.
    15                          A-0630-12T1
    In 1973, the Legislature enacted the "Judicial Retirement
    System Act," N.J.S.A. 43:6A-1 to -46.    L. 1973, c. 140.   The Act
    included a provision for mandatory retirement at age seventy,
    N.J.S.A. 43:6A-7, and provisions regarding the age at which a
    judge was eligible for voluntary retirement, N.J.S.A. 43:6A-8 to
    -11.    Significantly, N.J.S.A. 43:6A-13(b) (now amended) provided
    for the recall of judges who had not attained the age of
    seventy, as follows:
    [a]ny judge retired on pension, except a
    judge of 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 a retired justice of the
    Supreme Court, to sit in any court.
    [L. 1973, c. 140.]
    At the request of the Supreme Court, the Bar Institute and
    Law Center of New Jersey prepared a formal report on the
    constitutional issues concerning the recall of judges past the
    age of mandatory retirement; it recommended passage of
    legislation permitting same.    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 (October
    1974).    Its October 24, 1974 report was submitted to the Court
    at its November 12, 1974 Administrative Conference.    Shortly
    thereafter, in 1975, the Legislature amended N.J.S.A. 43:6A-
    16                         A-0630-12T1
    13(b)9 to remove the restriction against recalling judges over
    the age of seventy, as follows:
    Subject to rules of the Supreme Court[]
    . . . any judge of the superior court[]
    . . . who has retired on pension may, with
    his consent, be recalled by the Supreme
    Court for temporary service within the
    judicial system other than the Supreme
    Court.
    [L. 1975, c. 14.]
    The Sponsor's Statement to the bill explains that:
    This bill removes the restriction on the
    employment of retired judges who are 70
    years of age or older on special assignments
    by the Chief Justice in the same manner as
    retired judges under 70 years of age may
    presently be assigned.
    The 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.
    [Sponsor's Statement to Assembly Bill No.
    1419, at 2 (April 1, 1974).]
    9
    Similar statutory provisions were later enacted for the recall
    of retired Workers' Compensation judges, N.J.S.A. 34:15-49(a),
    and Administrative Law judges, N.J.S.A. 52:14F-4, who had not
    yet reached the age of eighty.
    17                      A-0630-12T1
    Thus, the Legislature has authorized the Supreme Court to
    recall retired judges, who were appointed in accordance with the
    Constitution, for temporary assignment - a practice that has
    been in existence since 1973, for judges younger than seventy,
    L. 1973, c. 140, and since 1975, for judges who had attained the
    age of seventy.   N.J.S.A. 43:6A-13(b).   Prior to this appeal,
    the recall statute, N.J.S.A. 43:6A-13, has never been
    challenged.10
    III.   Implementation of Statute by the Supreme Court
    Since 1975, our Supreme Court has, without challenge,
    recalled a great number of retired judges to temporarily serve
    at all levels of our court system.   Effective September 1, 2001,
    the Administrative Office of the Courts (AOC) established in
    Directive #12-01, the Judiciary's "Policy Governing Recall for
    Temporary Service Within the Judicial System", which, in its
    introductory passage, acknowledges the importance of the recall
    procedure in fulfilling the Court's constitutional mandate to
    "'see that the public interest is fully served by the proper
    functioning of this vital branch of our government[,]'" 
    Henry, supra
    , 204 N.J. at 353 (Rabner, C.J., concurring) (quoting
    10
    Minor revisions to N.J.S.A. 43:6A-13 were made by L. 1981, c.
    470, § 7, and L. 1990, c. 45, § 1, but no substantive changes
    were made to the authority of the Supreme Court to recall
    justices and judges.
    18                           A-0630-12T1
    Thurber v. City of Burlington, 
    191 N.J. 487
    , 499 (2007)
    (internal citations omitted)):
    Over the years, the Judiciary has benefited
    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.
    [AOC Directive #12-01.]
    The AOC policy establishes detailed and comprehensive
    procedures governing recall service pursuant to N.J.S.A. 43:6A-
    13, including, among other things, a screening and approval
    process; a limitation on compensation; a bar on service beyond a
    retired judge's eightieth birthday; and a complete severance
    from "of counsel" associations.    
    Ibid. In addition to
    requiring
    medical clearance, the policy enumerates other qualifications
    governing eligibility of candidates for recall service.
    Moreover, recall judges remain subject to strict judicial
    guidelines; are bound by the ethical restrictions on judges set
    forth in N.J.S.A. 52:13D-17; and must comply with all of the
    provisions of the Code of Judicial Conduct governing full-time
    judges, Code of Judicial Conduct, Canon 7.     See In re Dileo, 
    216 N.J. 449
    , 467 (2014) ("Every judge is duty bound to abide by and
    enforce the standards in the Code of Judicial Conduct.").
    19                        A-0630-12T1
    Depending on the staffing needs of the vicinages, the
    Supreme Court issues orders recalling judges, which are
    published in the New Jersey Law Journal and posted on the
    judiciary website.   By law, the Superior Court consists of 443
    judges.   N.J.S.A. 2B:2-1(a).    There are currently 398 active
    Superior Court judges, including four Tax Court judges assigned
    to the Superior Court, representing a vacancy rate of about
    thirteen percent.    As of April 1, 2014, seventy-three recalled
    judges are temporarily assigned to the Superior Court.11
    IV. Constitutionality of the Recall Statute
    A.   Principles of Review
    We consider defendant's constitutional challenge to
    N.J.S.A. 43:6A-13(b) in light of well-settled principles of
    review.   First and foremost, "'[a] statute is presumed to be
    11
    A review of the recall orders reveals that, as needed, some
    judges are recalled to specific assignments for short periods of
    time, and others serve on more general assignment for longer,
    albeit temporary terms. Thus, it is highly likely that some of
    the assignments might overlap, but that only one judge would be
    sitting in the position at any given time. We do not view these
    temporary assignments, as the dissent intimates, as unlawfully
    increasing the number of statutorily-authorized judicial
    positions, or extending their terms of office. Recall judges do
    not, by virtue of their assignment, "hold" an office that could
    become vacant upon termination of their powers either by death
    or operation of law. Indeed, it is only upon his or her recall
    in accordance with a statute as authorized by the Constitution
    that a judge may exercise any judicial power whatsoever, and
    this only during the period specified in the assignment and
    subject to whatever other conditions the Legislature sees fit to
    enact and the Supreme Court deems appropriate to impose.
    20                        A-0630-12T1
    constitutional and will not be declared void unless it is
    clearly repugnant to the Constitution.'"   Trautmann ex rel.
    Trautmann v. Christie, 
    211 N.J. 300
    , 307 (2012) (quoting Newark
    Superior Officers Ass'n. v. City of Newark, 
    98 N.J. 212
    , 222
    (1985)).   "The strong presumption of constitutionality that
    attaches to a statute can be rebutted only upon a showing that
    the statute's 'repugnancy to the Constitution is clear beyond a
    reasonable doubt.'"   Hamilton Amusement Ctr. v. Verniero, 
    156 N.J. 254
    , 285 (1998) (quoting Harvey v. Bd. of Chosen
    Freeholders, 
    30 N.J. 381
    , 388 (1959)), cert. denied, 
    527 U.S. 1021
    , 
    119 S. Ct. 2365
    , 
    144 L. Ed. 2d 770
    (1999).    The burden is
    on the party challenging the statute to demonstrate clearly that
    it violates a constitutional provision.    
    DePascale, supra
    , 211
    N.J. at 63; Bd. of Educ. v. Caffiero, 
    86 N.J. 308
    , 318, appeal
    dismissed, 
    454 U.S. 1025
    , 
    102 S. Ct. 560
    , 
    70 L. Ed. 2d 470
    (1981).
    "The Constitution is, above all, an embodiment of the will
    of the People, and this Court's responsibility as final
    expositor is to ascertain and enforce that mandate."     Gallenthin
    Realty Dev., Inc. v. Bor. of Paulsboro, 
    191 N.J. 344
    , 359
    (2007).    The constitution should be construed to "'achieve its
    dominating purpose'" and, in this regard, "'[i]ts words should
    be interpreted in the sense most obvious to the common
    21                         A-0630-12T1
    intelligence, because a matter proposed for public adoption must
    be understood by all entitled to vote.'"     Opinion of Justices,
    
    284 N.E.2d 908
    , 912 (Mass. 1972) (quoting Lincoln v. Sec. of
    Commonwealth, 
    93 N.E.2d 744
    , 747 (Mass. 1950)).     Policy and
    practical matters, though not reasons in themselves to control
    constitutional interpretations, nevertheless do bear on the
    interests and wishes of the people and, to that extent, should
    be taken into account.
    By the same token, in ascertaining the constitutionality of
    a statute, courts presume that "'the [L]egislature acted with
    existing constitutional law in mind and intended the [statute]
    to function in a constitutional manner.'"     Gallenthin Realty
    Dev., 
    Inc., supra
    , 191 N.J. at 359 (quoting State v. Profaci, 
    56 N.J. 346
    , 349 (1970)).     Principles of statutory construction
    obligate courts to interpret statutes to avoid unconstitutional
    applications.     N.J. Dep't of Envtl. Prot. v. Huber, 
    213 N.J. 338
    , 371 (2013).     It is thus the court's duty "to construe the
    statute as to render it constitutional if it is reasonably
    susceptible to such interpretation."     
    Profaci, supra
    , 56 N.J. at
    350.
    B.   Applicability of the Schedule Article
    In arguing that N.J.S.A. 43:6A-13(b) contravenes the
    Schedule Article of our State Constitution, defendant relies on
    22                          A-0630-12T1
    prohibitory language in the provision reciting that "no 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.    While such an express
    ban on "hold[ing] office" would otherwise be a compelling
    consideration in determining whether a recall statute is
    constitutional, see Edward A. Hartnett, Ties in the Supreme
    Court of New Jersey, 32 Seton Hall L. Rev. 735, 767-68 (2003),
    the cited language in our Schedule Article applies exclusively
    to "the incumbent judges who held their judicial offices at the
    adoption of the Constitution," and therefore has no bearing
    here.   Lloyd v. Vermeulen, 
    22 N.J. 200
    , 209 (1956).
    The conclusion that the provisions in the Schedule Article
    do not apply to current judges is overwhelmingly supported by
    the plain language, which contains phase-in provisions designed
    to facilitate a smooth transition to the new Constitution and
    applying only to incumbent judges in 1947.    As the Court in
    
    Lloyd, supra
    , 22 N.J. at 209-10,12 found, the provisions in the
    Schedule Article specifically provide that
    12
    Interestingly, several of the Justices in Lloyd, including
    Justice Jacobs, who wrote the opinion, and Chief Justice
    Vanderbilt, were well-qualified to discuss the framers' intent
    as they had been members of the Committee on the Judiciary or
    presenters during the Constitutional Convention.
    23                          A-0630-12T1
    the 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 shall hold office during good
    behavior. This sentence would appear to
    obliterate any lingering doubts, for its
    terminology was well chosen to effectuate
    the general understanding that in Art. XI,
    Sec. IV, par. 1, the framers were dealing
    with the terms and tenure of the incumbent
    judges (who held judicial offices at the
    adoption of the Constitution) and no others;
    indeed it seems to us that it is hardly
    susceptible of any other interpretation.
    The fourth and final sentence provides that
    no justice of the new Supreme Court or judge
    of the Superior Court shall hold his office
    after attaining the age of 70 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." Here, again, the
    framers adequately displayed that they were
    dealing with the incumbent judges who held
    judicial offices at the adoption of the
    Constitution.
    [Id. at 209-10 (quoting N.J. Const. art. XI,
    § 4, ¶ 1).]
    That interpretation is also overwhelmingly supported by the
    recorded intent of the framers who drafted the provision.       
    Id. at 206-07.
      Most notably, in its report on the final draft, the
    Committee specifically set forth that the Schedule Article "will
    govern incumbent judges until the expiration of their terms . .
    . and makes such other specific provisions as are necessary
    until the new Judicial Article is completely in effect."    2
    24                          A-0630-12T1
    Proceedings of the Constitutional Convention of 
    1947, supra, at 1
    195.    Once the incumbent judges' terms expired, the provisions
    in the Schedule Article became void.
    Therefore, in enacting N.J.S.A. 43:6A-13(b), the
    Legislature, as explained in the Sponsor's statement, properly
    considered whether the recall of retired judges who had attained
    the age of seventy would conflict with the mandatory retirement
    provision in the Judicial Article, which applies to current
    judges and justices, and did not consider the provisions in the
    Schedule Article, which does not.      Sponsor's Statement to
    Assembly Bill No. 
    1419, supra, at 2
    .     We therefore conclude the
    Schedule Article has no applicability here and, as such, affords
    no basis for defendant's constitutional attack on the recall
    statute.
    C.     The Judicial Article
    Although, as noted, neither raised nor briefed by
    defendant, see Nieder v. Royal Indem. Ins. Co., 
    62 N.J. 229
    , 234
    (1973), we next consider whether the recall of retired judges
    who have attained the age of seventy would conflict with
    compulsory retirement under the Judicial Article.
    First, to determine the meaning of a constitutional
    provision, courts look "to the precise language used by the
    drafters."    State v. Trump Hotels & Casino Resorts, Inc., 160
    25                            A-0630-12T1
    N.J. 505, 527 (1999).    The plain language of the Judicial
    Article simply provides that "[s]uch justices and judges shall
    be retired upon attaining the age of 70 years."    N.J. Const.
    art. VI, § 6, ¶ 3.    In pointed contrast to the prohibitory
    language in the Schedule Article, the phrase "shall be retired,"
    is mandatory, clearly requiring compulsory retirement from a
    permanent position.   However, it does not bar a retired judge
    from being recalled for temporary service.    See Gallenthin
    Realty Dev., 
    Inc., supra
    , 191 N.J. at 359 ("[T]he surest
    indicator of [] intent is a provision's plain language").
    We discern a clear, compelling distinction between the
    proscriptive language in the Schedule Article against "hold[ing]
    office" and the "shall be retired" terminology used in the
    Judicial Article.    For example, in an advisory opinion upholding
    the constitutionality of legislation authorizing the recall of
    retired judges, the Massachusetts Supreme Court found it was
    "significant" that the proposed constitutional amendment
    requiring compulsory retirement at age seventy did "not provide
    that a judge shall not hold office after reaching a certain
    age."   Opinion of 
    Justices, supra
    , 284 N.E.2d at 912-13.
    Similarly here, the compulsory retirement provision in the
    Judicial Article contains no language, express or even implied,
    banning the temporary recall of retired judges.    Indeed, it is
    26                           A-0630-12T1
    noteworthy that the Judicial Article deliberately avoids use of
    the proscriptive phrase ("shall [not] hold office") contained in
    the Schedule Article.   When the enacting body "has carefully
    employed a term in one place and excluded it in another, it
    should not be implied where excluded."   G.E. Solid State v.
    Dir., Div. of Tax'n, 
    132 N.J. 298
    , 308 (1993).
    There is nothing intrinsic in the definition of "retire" to
    suggest its incompatibility with temporary recall service.      On
    the contrary, in the dictionary definition then current at the
    drafting of the 1947 Constitution, "retire" means to "withdraw
    from office, a public station, business, or the like[.]"
    Merriam-Webster's New International Dictionary Unabridged 2128
    (2d ed. 1934).   Similarly, in the version of Black's Law
    Dictionary that most closely preceded the Constitution's
    adoption, "retire" means "to withdraw from active service as an
    officer of the army or navy; to separate, withdraw, or remove."
    Black's Law Dictionary, 1550 (3d ed. 1933).   In the next version
    of Black's Law Dictionary, published in 1957, the definition of
    "retire" remained the same.   Black's Law Dictionary 1479 (4th
    ed. 1957).   Thus, while the popular notion continues to date
    that a retiree is no longer "active" in his or her work or
    profession, and is ready for immediate annuity or pension, the
    term need not imply abandonment forever, as demonstrated by the
    27                          A-0630-12T1
    retention of title to the office.
    Stripped of its plumage, the dissent's contrary
    construction boils down to this: the plain language of the
    Judicial Retirement paragraph creates an irrevocable alienation
    of pensioner from title, a kind of sequestration, worse yet
    quarantine, rendering the judicial retiree incognito, isolated
    and idle, relegated to some sort of professional limbo, yet
    imprisoned by all the ethical restraints of a status and an
    office that somehow no longer exists.   Nothing in the language
    of the Judicial Article, or its intended purpose, however,
    compels this overly harsh result.
    In fact, and most significantly, defendant makes no claim
    that the retirement provision bars the recall of any retired
    judge other than one having attained the age of seventy.    Yet,
    if the term "retire" had any proscriptive intent, it would be
    interpreted as banning the temporary recall of any retired
    judge, regardless of age.   No one, however, has ever advocated
    this position other than our dissenting colleague who, in a
    footnote, finds himself tethered to that result — a captive of
    his own unforgiving reasoning.   We therefore conclude that
    retirement and temporary recall assignments are conceptually
    different and there is no constitutional conflict between
    mandatory retirement for age, under which retired judges receive
    28                         A-0630-12T1
    a pension allowance in accordance with N.J.S.A. 43:6A-8 to -11,
    not a salary, and are no longer members of the retirement
    system, N.J.S.A. 43:6A-5, and recalling a judge for temporary
    service, where they are paid a per diem rate, N.J.S.A. 43:6A-
    13(c).
    The recall of retired judges has been upheld by other state
    courts.    The Supreme Judicial Court of Massachusetts in 1972, in
    response to questions posed by the State Senate, answered that a
    proposed bill permitting the temporary service by certain
    retired justices and judges would not, if enacted, be in
    contravention of a proposed constitutional amendment almost
    identical to the provision of the New Jersey Constitution at
    issue here, providing for the compulsory retirement of all
    judges at age seventy.    Opinion of 
    Justices, supra
    , 284 N.E.2d
    at 908-12.    In rendering its advisory opinion finding no
    constitutional conflict, the Court emphasized that the language
    did not specifically require that the office become vacant and
    distinguished provisions in other state constitutions expressly
    prohibiting actual office holding by a person over the age of
    seventy.   
    Id. at 912.
    In Pickens v. Johnson, 
    267 P.2d 801
    (Cal. 1954), the
    Supreme Court of California held that the temporary assignment
    of a retired judge for recall service with consent does not
    29                          A-0630-12T1
    effectuate an extension of his or her term of office but rather
    merely vests in him or her the powers of a judge of the
    particular court for the term of the assignment.    
    Id. at 805.
    The Court held that the constitutional provision authorizing the
    Legislature to establish a judicial retirement system included
    the power to provide a system for retired judges to be subject
    to recall for judicial service:
    It would seem to be beyond question that the
    provision for the assignment and service of
    a retired judge in accordance with the
    statute bears a reasonable relationship to a
    system of judges' retirement. It is
    inherently connected with the problems of
    the administration of justice under which
    the state, in consideration for the
    retirement allowance, may invoke the
    assistance of retired personnel of the
    judicial department in emergencies found to
    exist by the chairman of the Judicial
    Council.
    [Ibid.]
    In a similar vein, the Supreme Court of Utah held in Nelson
    v. Miller, 
    480 P.2d 467
    (Utah 1971), that a statute providing
    for mandatory retirement of judges and justices was not in
    conflict with another statute authorizing the recall of a judge
    or justice back into service from retirement on a case to case
    basis.   
    Id. at 476.
      While there was no constitutional provision
    expressly providing a retirement age, the retirement statute
    derived from an expressed constitutional provision.   
    Id. at 476-
    30                       A-0630-12T1
    77.   See also Claremont Sch. Dist. v. Governor, 
    712 A.2d 612
    ,
    614-15 (N.H. 1998) (although the Legislature has "no prerogative
    to invest retired justices over age seventy with the panoply of
    powers associated with judicial office, it does have the
    constitutional authority to authorize limited temporary
    assignment of retired justices over age seventy to ensure the
    adequate and orderly administration of justice"); Werlein v.
    Calvert, 
    460 S.W.2d 398
    , 402 (Tex. 1970) (holding that in the
    face of a constitutional provision that the office of every
    judge and justice shall become vacant when the incumbent reaches
    the age of 75, such retired judge is not ineligible for
    temporary assignment to active duty on a case by case basis);
    State ex rel. New Wash. Oyster Co. v. Meakim, 
    208 P.2d 628
    , 632
    (Wash. 1949) (holding that although a recalled judge's powers
    were necessarily limited to those allowed by the Constitution,
    there was nevertheless no constitutional bar to a statute
    allowing such recall).13
    Moreover, as noted, the fact that the recall mechanism was
    considered at the Constitutional Convention, but not included in
    the 1947 Constitution, does not establish that the framers
    13
    Thirty-two states and the District of Columbia provide for
    mandatory retirement at a given age. Some of these states also
    have a constitutional provision for the recall of retired
    judges. See, e.g., The Arizona Constitution, Ariz Const. art.
    VI, § 20 (2013).
    31                          A-0630-12T1
    intended to prohibit the practice.    The Constitution does not
    "resolve all policy problems."   Reilly v. Ozzard, 
    33 N.J. 529
    ,
    539 (1960) ("What is left untouched remains within the
    jurisdiction of government.").
    Instead, a review of the record of the Convention
    demonstrates that the framers decided to limit the new
    Constitution to a statement of basic fundamental principles, as
    they were advised to do, and to leave the resolution of the
    details, including arguably judicial recall, to the Legislature.
    1 Proceedings of the Constitutional Convention of 
    1947, supra, at 7
    (Governor Driscoll's opening statement).   The Committee on
    the Judiciary specifically explained that, in drafting the
    judicial articles, it had observed that "Constitutions should
    deal with fundamentals, not details.   The organic law should
    establish the framework of government, leaving the body and
    content to be supplied by legislation."    2 Proceedings of the
    Constitutional Convention of 
    1947, supra, at 1
    181.
    In fact, the Constitution specifically conferred on the
    Legislature the power to establish a system for the retirement
    of judges.   N.J. Const. art. VI, § 6, ¶ 3, says: "[p]rovisions
    for the pensioning of the Justices of the Supreme Court and the
    Judges of the Superior Court shall be made by law."   In
    accordance with that mandate, the Legislature included in the
    32                        A-0630-12T1
    "Judicial Retirement System Act," N.J.S.A. 43:6A-1 to -46, some
    of the other provisions discussed during the convention, but not
    included in the Constitution.   For example, as discussed during
    the convention, N.J.S.A. 43:6A-8 to -11 provides for voluntary
    retirement at various ages, with various corresponding years of
    service, and then mandatory retirement at age seventy.
    4 Proceedings of the Constitutional Convention of 
    1947, supra, at 37
    , 135, 167-68, 190, 208, 330, 342, 429, 486.
    By the same token, there is a logical and rational
    explanation for placing the recall provision, N.J.S.A. 43:6A-
    13(b), in the pension statute — notably because only retired
    judges receiving a pension can be recalled.   Moreover, N.J.S.A.
    43:6A-13(a) specifically provides that "[n]o member of the
    retirement system shall, while receiving a pension or retirement
    allowance pursuant to this act, engage in the practice of law
    before any of the courts of this State."   In that regard,
    N.J.S.A. 43:6A-13(c) explains that judges who are receiving a
    pension can receive a per diem payment for a temporary recall
    assignment.   Thus, although conceptually distinct so as to avoid
    any constitutional conflict, nevertheless, as the California
    Supreme Court acknowledged in 
    Pickens, supra
    , recall bears a
    reasonable relationship to the system of retirement such that
    the former is properly contained in the pension statute.
    33                           A-0630-12T1
    In the absence of any conflict between N.J.S.A. 43:6A-13(b)
    and the Judicial Article, we also find that interpreting the
    recall statute as constitutional would serve to "effectuate
    fully and fairly[,]" Trump Hotels & Casino 
    Resorts, supra
    , 160
    N.J. at 527, two of the overriding purposes of the Judicial
    Article, which are to create flexibility in the court system and
    to provide for prompt judicial relief.     In its report on the
    final draft, the Committee stated that "[b]y assignment of
    judges according to ability, experience and need, and
    apportionment of judicial business among courts, divisions and
    parts according to the volume and type of cases, judicial
    resources can be fully utilized and litigation promptly
    decided."   2 Proceedings on the Constitutional Convention of
    
    1947, supra, at 1
    180.     That language, as the Attorney General
    points out, is very similar to the Sponsor's Statement
    accompanying N.J.S.A. 43:6A-13(b).     Sponsor's Statement to
    Assembly Bill No. 
    1419, supra, at 2
    .     Allowing the recall of
    retired judges gives the Court the flexibility to utilize
    experienced judges "to dispense justice expeditiously."     
    Henry, supra
    , 204 N.J. at 352 (Rabner, C.J., concurring) (discussing
    temporary assignments).
    Additionally, as noted, the recall system, governed by
    N.J.S.A. 43:6A-13(b) and AOC Directive #12-01, contains strict
    34                        A-0630-12T1
    requirements that serve to assure the citizens of New Jersey an
    effective and efficient judicial service.   The combination of a
    mandatory retirement system and a strictly designed temporary
    recall provision allows those judges who are performing at their
    full intellectual powers to continue to provide a valuable
    service to the Court, and to ensure the vigorous judiciary to
    which the public is entitled.
    Finally, although "historical practice alone rarely proves
    the correctness of a legal proposition[,]" 
    Henry, supra
    , 204
    N.J. at 345 (Rabner, C.J., concurring), the presumption that a
    statute is constitutional "is enhanced" because N.J.S.A. 43:6A-
    13(b) has been in effect and has been implemented without
    challenge or objection for almost four decades.   Trump Hotels &
    Casino 
    Resorts, supra
    , 160 N.J. at 527.
    In fact, hundreds of qualified judges have been temporarily
    assigned under this provision, and they have undoubtedly issued
    thousands of rulings, thereby providing the judiciary with a
    valuable service.   See, e.g., 
    Henry, 204 N.J. at 344
    (Rabner,
    C.J., concurring), similarly noting that "[i]n the hundreds of
    instances when Chief Justices have made temporary assignments to
    the Court, the practice has never been challenged."
    We therefore find that the strong presumption of the
    validity of N.J.S.A. 43:6A-13(b), which was enacted by the
    35                          A-0630-12T1
    Legislature, signed into law by the Governor, and implemented by
    the judiciary, has not been rebutted.
    In concluding otherwise, our dissenting colleague, while
    acknowledging the very weighty burden a constitutional
    challenger bears, ignores that burden when it comes to his own
    analysis. Instead of affording the legislation, "every possible
    presumption" favoring its validity, N.J. Sports & Exposition
    Auth. v. McCrane, 
    61 N.J. 1
    , 8 (1972), and construing the
    Constitution's language to achieve its dominating purpose,
    Gallenthin, 
    supra, 191 N.J. at 359
    -60, the dissent stretches its
    definition of "retire" far beyond its true contextual sense and
    commonly understood meaning to find a constitutional repugnancy
    "beyond a reasonable doubt."   Harvey v. Bd. of Chosen
    Freeholders of Essex Cnty., 
    30 N.J. 381
    , 388 (1959).     And
    instead of exercising the "extreme self-restraint" to which our
    judiciary is accustomed in reviewing legislative enactments for
    constitutional conflict, 
    McCrane, supra
    , 61 N.J. at 8, the
    dissent nails to the cathedral door its exegesis on politics,
    ageism, and the perceived benefits of youthful replenishment.
    In the process, the dissent violates the cardinal principle of
    making every effort to avoid striking down laws duly enacted by
    the elected branches of government.     In re Incorp. of the Vill.
    of Loch Arbour, 
    25 N.J. 258
    , 264-65 (1957).
    36                             A-0630-12T1
    Perhaps recognizing the limitations of its own grammatical
    reading, the dissent unleashes a "separation of powers"
    broadside against N.J.S.A. 43:6A-13.   See Mt. Laurel Twp. v.
    N.J. Dep't of Pub. Advocate, 
    83 N.J. 522
    , 530 (1980) (separation
    of powers doctrine is system of checks and balances on the three
    branches of government); In re Application of Plainfield-Union
    Water Co., 
    14 N.J. 296
    , 308 (1954) (doctrine forbids one branch
    of government from encroaching on powers of another branch).
    Waxing eloquently, albeit mistakenly, the dissent posits: given
    that the nomination and appointment of judges is an executive
    prerogative, and the Secretary of State signs the commissions
    and receives the resignations, how can the Legislature, who has
    only "advice and consent" authority, delegate the power to
    "appoint" recall judges to the judicial branch?
    Putting aside the fact that the issue was not raised below
    or on appeal, the Executive, whose authority the dissent insists
    has been "irreparably" arrogated, has never challenged the
    constitutionality of the recall statute, passed by the
    Legislature and signed into law by Governor Brendan Byrne on
    February 14, 1974, L. 1975, c. 14 (amending N.J.S.A. 43:6A-13),14
    14
    The Legislature has on at least two separate occasions amended
    other provisions of the recall statute, but left the language
    relevant here intact. See L. 1981, c. 470, § 7; L. 1970, c. 45,
    § 1.
    37                         A-0630-12T1
    and funded by a budget annually approved by each successive
    governor.    See 
    Henry, supra
    , 204 N.J. at 344 (Rabner, C.J.,
    concurring) (the parties did not object to the temporary
    assignment to the Supreme Court, nor present arguments as to the
    constitutionality for the Court to consider).    Certainly, if the
    Executive believed that N.J.S.A. 43:6A-13 transgressed its
    appointment power, we have no doubt it would have voiced that
    opinion.
    More to the point, gubernatorial authority in this area is
    neither exclusive nor absolute, but subject to the Senate's
    "advice and consent" responsibility.    N.J. Const., art. VI, § 6,
    ¶ 1.   As the dissent correctly notes, given that "[t]he
    compartmentalization of governmental powers . . . has never been
    watertight[,]" State v. Loftin, 
    157 N.J. 253
    , 284 (1999)
    (quoting In re Salaries for Prob. Officers of Bergen Cnty., 
    58 N.J. 422
    , 425 (1971)), the separation of powers doctrine
    "requires . . . a cooperative accommodation among the three
    branches of government[,]" Commc'ns Workers of Am. v. Florio,
    
    130 N.J. 439
    , 449-50 (1992).
    We believe that N.J.S.A. 43:6A-13 strikes the appropriate
    compromise by "maintain[ing] the balance [among] the three
    branches of government, preserv[ing] their respective
    independence and integrity, and prevent[ing] the concentration
    38                        A-0630-12T1
    of unchecked power in the hands of any one branch."    David v.
    Vesta Co., 
    45 N.J. 301
    , 326 (1965).    It also best effects the
    overriding purpose of the Constitution's Judicial Article, which
    is to empower the judiciary to "function[] effectively in the
    public interest."    Winberry v. Salisbury, 
    5 N.J. 240
    , 244, cert.
    denied, 
    340 U.S. 877
    , 
    71 S. Ct. 123
    , 
    95 L. Ed. 638
    (1950).
    For all these reasons, then, we deem N.J.S.A. 43:6A-13 in
    harmony with the Constitution's Judicial Article.    Clearly, in
    enacting the recall statute, it cannot be said, and certainly
    not beyond a reasonable doubt, that the Legislature violated the
    framers' intent and the will of the people as embodied in our
    Constitution.
    V.
    Defendant also argues that the judge erred in denying the
    motion to recuse himself from hearing the disqualification
    motion based on age, because the judge had a financial interest
    (his per diem payment of $300), in the outcome of the motion.
    We disagree.    Under the doctrine of judicial necessity, the
    judge correctly refused to recuse himself from deciding the
    disqualification motion.
    Rule 1:12-1(e) provides that "[t]he judge of any court
    shall be disqualified on the court's own motion and shall not
    sit in any matter, if the judge . . . is interested in the event
    39                        A-0630-12T1
    of the action[.]"    Similarly, N.J.S.A. 2A:15-49(d) provides that
    "[n]o judge of any court shall sit on the trial of or argument
    of any matter in controversy in a cause pending in his court,
    when he . . . [i]s interested in the event of such action."
    "The disposition of a motion for disqualification is 'entrusted
    to the sound discretion of the trial judge whose recusal is
    sought.'"     Chandok v. Chandok, 
    406 N.J. Super. 595
    , 603 (App.
    Div.) (quoting Panitch v. Panitch, 
    339 N.J. Super. 63
    , 66 (App.
    Div. 2001)) (internal quotation marks omitted), certif. denied,
    
    200 N.J. 207
    (2009).
    The resolution of defendant's disqualification affects not
    only the judge to whom it was addressed, but every other current
    judge or justice, including retired judges temporarily recalled,
    and judges who may decide to accept a recall assignment upon
    retirement.    Rule 1:12-1(e) "speaks to an individual judge's
    disqualification, not to the disqualification of an entire
    segment of the bench."    Pressler & Verniero, Current N.J. Court
    Rules, comment 7.3 on R. 1:12-1 (2014).    As a matter of judicial
    necessity, therefore, the judge was obliged to hear the
    disqualification motion based on age, which involved a pecuniary
    interest applicable to every current and retired judge or
    justice.    In In re P.L. 2001, Ch. 362, 
    186 N.J. 368
    , 393 (2006),
    the Court held that "[w]hen a statute interferes with the
    40                        A-0630-12T1
    administration of the judiciary, Superior Court judges and the
    Justices of this Court cannot escape their constitutional
    responsibility to decide the validity of the legislation."
    Additionally, in 
    DePascale, supra
    , 211 N.J. at 44, the Court
    noted that "[n]o party has objected to this Court deciding the
    constitutional issue before us, even though resolution of that
    issue involves a pecuniary interest touching members of this
    Court and most of the judiciary."     By judicial necessity, the
    judge was required to decide the motion for disqualification
    based on his age even though he had a pecuniary interest in the
    outcome, and therefore properly denied the motion to recuse
    himself.
    VI.
    Lastly, defendant argues that his sentence of nine years
    with an eighty-five percent parole disqualifier for second-
    degree robbery was excessive.   We disagree.
    In sentencing defendant, the court found three aggravating
    factors:   the risk that defendant will commit another offense;
    the extent of defendant's prior criminal record; and the need to
    deter defendant and others from violating the law.     N.J.S.A.
    2C:44-1(a) (3), (6) & (9).   In this regard, the court properly
    considered defendant's "long history of convictions for
    disorderly persons and indictable offenses, failed attempts at
    41                          A-0630-12T1
    rehabilitation and a violation of parole."   This was defendant's
    eighth indictable conviction, and his fourth for robbery — the
    very crime he was convicted of in this case.   In fact, the judge
    found that defendant's "recidivism alone warrants th[e]
    sentence."
    Moreover, the evidence overwhelmingly supported the jury's
    verdict, which is not contested on appeal, that defendant
    committed second-degree robbery, N.J.S.A. 2C:15-1(a)(1).    There
    was ample evidence that during the course of the robbery
    defendant inflicted bodily harm on the victim by placing her in
    a choke-hold, causing her to lose consciousness and control of
    her bladder and bowels.
    In contrast, the court found no mitigating factors, and
    determined that the aggravating factors outweighed the
    nonexistent mitigating factors.    While defendant argues that the
    court failed to apply one mitigating factor, N.J.S.A. 2C:44-
    1(b)(7), that he had led a law-abiding life for a substantial
    period of time before the present offense, the fact remains that
    in the ten years preceding this offense, defendant accumulated
    five municipal convictions, multiple arrests, and a bench
    warrant — behavior that requires a finding that he had not led a
    "law-abiding life."
    We therefore conclude that the court properly followed and
    42                        A-0630-12T1
    applied the sentencing guidelines and criteria, and that the
    sentence imposed in the higher end of the range, given the
    circumstances surrounding the crime and defendant's recidivism,
    is not manifestly excessive nor does it shock the judicial
    conscience.   State v. Ghertler, 
    114 N.J. 383
    , 387-89 (1989).
    Affirmed.
    43                        A-0630-12T1
    Harris, J.A.D., dissenting.
    I.
    Warning: the elegantly pragmatic approach of the able and
    well-researched opinion of my colleagues may seduce the reader
    into undiscerning agreement.    I urge caution and a willingness
    to disagree.
    The majority endorses the thirty-nine-year utilization of
    Section 13(b) of the Judicial Retirement System Act (the JRSA),
    N.J.S.A. 43:6A-1 to -47, as a proper source, and apt means, of
    conferring judicial power upon septuagenarians who once were
    Superior Court1 judges but "retired on pension or retirement
    allowance" and are then "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).    Those familiar with our
    publicly funded system of dispute resolution recognize that such
    recall judges "serve[] the people of New Jersey with skill,
    diligence and integrity."     DePascale v. State, 
    211 N.J. 40
    , 93
    (2012) (Patterson J., dissenting).     Alongside active judges,
    this grey-haired army of retiree jurists —— cloaked yet again
    with their former sovereign authority by N.J.S.A. 43:6A-13(b)
    1
    Because the present appeal involves the recall of a Superior
    Court judge, it is unnecessary to address Supreme Court justices
    and Tax Court judges.
    and -13(c) —— reliably deliver tangible benefits for "real
    parties and actual people who are trying to vindicate their
    rights as they await justice."    Henry v. N.J. Dep't of Human
    Servs., 
    204 N.J. 320
    , 340 (2010) (Rabner, C.J., concurring).
    The problem, however, is that the statute —— and, inescapably,
    the long-standing practice of deploying recall troops for
    temporary judicial service —— are both unconstitutional.2
    Accordingly, I dissent.
    II.
    A.
    The standard of review that governs this case is
    formidable: has defendant James Buckner demonstrated, beyond a
    reasonable doubt, see Gangemi v. Berry, 
    25 N.J. 1
    , 10 (1957),
    that Article VI, Section 6, Paragraph 3 of the New Jersey
    Constitution (the Judicial Retirement paragraph) 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
    2
    For this reason, I would vacate Buckner's conviction, and order
    a new trial.    I recognize that the venerable de facto officer
    doctrine, see Jersey City v. Dep't of Civil Serv., 57 N.J.
    Super. 13, 27 (App. Div. 1959), might counsel against this
    course of action.     However, in the interest of fairness and
    equity, this one litigant, who has successfully demonstrated
    that the trial judge was without judicial authority, is entitled
    to such a remedy.
    2                         A-0630-12T1
    judicial power to pensioner judges?3   Because the enabling
    legislation —— N.J.S.A. 43:6A-13(b) —— that purports to
    accomplish this (1) offends the plain "shall be retired upon
    attaining the age of 70 years" language of the Judicial
    Retirement paragraph, and (2) irreparably rends the
    Constitution's fabric of separation of powers by legislatively
    authorizing the Supreme Court —— rather than the Governor —— to
    make the selection decisions to implement recalls, the high
    threshold of presumptive constitutionality has been surmounted.
    Even with awareness of the admonition that it is the
    "policy of our law not to invalidate a statute which has been in
    force without substantial challenge for many years," I cannot
    stand mute when a statute's unconstitutionality is obvious.4      In
    re Loch Arbour, 
    25 N.J. 258
    , 265 (1957).   "It is a familiar rule
    3
    Buckner's reliance upon the schedule provisions of N.J. Const.
    art. XI, § 4, ¶ 1, is wholly unpersuasive. In light of (1) the
    majority's correct analysis of Lloyd v. Vermeulen, 
    22 N.J. 200
    (1956); (2) the history of the transitional plan from the 1844
    Constitution to the 1947 Constitution; and (3) the schedule
    provision's plain language, I fully subscribe to the majority's
    rejection   of  Buckner's   attack  using   this  constitutional
    justification.
    4
    Although being compared by the majority to Martin Luther may be
    flattering, ante at ___ (slip op. at 36) (constructively
    criticizing the dissent for "nail[ing] to the cathedral door its
    exegesis on politics, ageism, and the perceived benefits of
    youthful replenishment"), I prefer the role of the small child
    who exclaims that the Emperor has no clothes. Hans Christian
    Andersen, The Emperor's New Clothes (1837).
    3                           A-0630-12T1
    of construction that where phraseology is precise and
    unambiguous there is no room for judicial interpretation or for
    resort to extrinsic materials.   The language speaks for itself,
    and where found in our State Constitution the language is the
    voice of the people."   Vreeland v. Byrne, 
    72 N.J. 292
    , 302
    (1977); see also The Federalist No. 78 (Alexander Hamilton)
    ("[T]he Constitution ought to be preferred to the statute, the
    intention of the people to the intention of their agents.").      In
    the present case, I see nothing that permits the placement of
    executive powers within the orbit of our highest court.   The
    law, while arguably well-informed and foresighted from a policy
    standpoint, cannot withstand constitutional scrutiny, and we
    should say so, even after almost four decades of going
    unchallenged.5   See Marbury v. Madison, 5 U.S. (1 Cranch) 137,
    177, 
    2 L. Ed. 60
    , 73 (1803) ("It is emphatically the province
    and duty of the judicial department to say what the law is.").
    B.
    The majority observes that the Judicial Retirement
    paragraph licenses the practice of recalling post-age-seventy
    5
    See also McCutcheon v. FEC, ___ U.S. ___, 
    134 S. Ct. 1434
    , 
    188 L. Ed. 2d 468
    (2014) (demonstrating judicial resolve, even after
    almost thirty-eight years of a statute's service, in striking
    down the aggregate contribution limits imposed by the Federal
    Election Campaign Act Amendments of 1976, 2 U.S.C.A. 441a(a)(3),
    because they violate the First Amendment).
    4                        A-0630-12T1
    former judges because it "does not bar a retired judge from
    being recalled for temporary service."     Ante at ___ (slip op. at
    26).   However, nothing in the Constitution authorizes it.     Does
    the majority believe that, in the absence of enabling
    legislation, the Constitution's silence would permit,
    hypothetically, the implementation of an ad hoc recall-of-
    retired-judges system by, say, the Supreme Court on its own
    initiative, or the Governor through an Executive Order, or the
    Legislature by joint resolution?     I doubt it.   Thus, the essence
    of the present analysis focuses not just upon what is left
    unsaid by the Constitution, but also upon the question of
    whether the particular statute is a valid exercise of
    legislative power.
    I start with the language of the Constitution's Judicial
    Retirement paragraph, which, in pertinent part, states the
    following:
    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 (emphasis
    added).]
    5                           A-0630-12T1
    The plain language of the Judicial Retirement paragraph must be
    construed with thorough attention to the framers' choice of
    language, noting not only what they included, but also what they
    excluded from the document presented to, and approved by, the
    people in November 1947.   "The polestar of constitutional
    construction is always the intent and purpose of the particular
    provision."   State v. Apportionment Comm'n, 
    125 N.J. 375
    , 381
    (1991).   Although a literal reading of a constitutional
    declaration may be rejected when it is inconsistent with the
    spirit, policy, and true sense of the declaration, Lloyd v.
    Vermeulen, 
    22 N.J. 200
    , 205-06 (1956), "'the words employed [in
    the Constitution] have been carefully measured and weighed to
    convey a certain and definite meaning, with as little as
    possible left to implication . . . .'"   Apportionment 
    Comm'n, supra
    , 125 N.J. at 382 (citation omitted).
    The phrase "shall be retired upon attaining the age of 70
    years," simply connotes (1) the compulsory abdication of a
    judicial office; (2) the surrender of judicial power previously
    conferred by N.J. Const. art. VI, § 1, ¶ 1; 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
    6                            A-0630-12T1
    the advice and consent of the Senate.     See N.J. Const. art. VI,
    § 6, ¶ 1.
    To support its reading of the Judicial Retirement
    paragraph, the majority correctly quotes several vintage
    definitions of "retire."   Ante at ___ (slip op. at 27-28).     But
    the majority's chosen dictionary definitions still fail to
    illustrate the source of recall authority.    Absent express
    constitutional authorization, the definitional silence is a very
    thin reed indeed to support the awesome renewal of judicial
    power to those who formerly wielded it.
    I conclude that there is nothing about the plain language
    of the Judicial Retirement paragraph that supports the
    majority's view.   Alternatively, the majority "discern[s] a
    clear, compelling distinction between the proscriptive language
    in the Schedule Article against 'hold[ing] office' and the
    'shall be retired' terminology used in the Judicial [Retirement
    paragraph]."   Ante at ___ (slip op. at 26-27).    This is
    comparing apples to oranges.
    The majority favorably contrasts the proscriptive use of
    language in the Schedule Article —— "[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 —— with the mere mandatory retirement language
    7                            A-0630-12T1
    of the Judicial Retirement paragraph —— "[s]uch Justices and
    Judges shall be retired upon attaining the age of 70 years."
    N.J. Const. art. VI, § 6, ¶ 3.    Ante at ___ (slip op. at 26).
    In the former phrase, where the framers used the word "office,"
    it 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.   The latter phrase was intended to deal with the new
    regime, and cannot be seen as keeping the door open for
    temporary recall where its object was to strip judges of their
    judicial authority at midnight immediately preceding their
    seventieth birthday.
    Another reason why the majority discounts the significance
    of the absence of express recall authority in the Judicial
    Retirement paragraph is its interpretation of the provision's
    evolution.    I concede that the majority opinion accurately
    analyzes the 1947 proceedings of the Constitutional Convention,
    as far as it goes.   In my view, however, it does not go quite
    far enough.   The majority assumes that the Constitution's final-
    draft silence with respect to recalling retired judges on an as-
    needed basis was in accord with the generalized philosophy that
    a constitution should deal with fundamental principles, not
    details.   This is not only speculative, but also it is belied by
    8                         A-0630-12T1
    the twenty-five-year span (1948 to 1973) that immediately
    followed the Constitution's adoption, during which there was no
    recall legislation and no recall judges.
    During the constitutional sausage-making that took place in
    New Brunswick in the summer of 1947, the Constitutional
    Convention's Committee on the Judiciary participated in hours
    upon hours of spirited exchanges about court unification; the
    judicial selection process; trial periods for new judges and
    tenure; the appropriate age, if any, for a judge's compulsory
    retirement;6 and judicial pensions.   Yet, there were only a scant
    few minutes, best characterized as stray comments, devoted to
    conversations about the use of retired jurists as temporary
    judicial officers in the proposed new, unified court system.
    See 4 Proceedings of the Constitutional Convention of 1947 at
    168-69; 190; 214-15.   On July 30, 1947, one speaker, retired
    judge Robert Carey7 (also a Convention delegate and member of the
    Committee on Rights, Privileges, Amendments and Miscellaneous
    6
    Some commentators suggested that retirement should be imposed
    at ages seventy or seventy-five; others recommended life tenure,
    like federal judges, with no mandatory separation from the
    bench.
    7
    Carey prefaced his remarks by noting that he "expects to
    practice law for the next 25 years," and would be "in the midst
    of the celebration of [his] 75th birthday" seven weeks hence, on
    September 16, 1947. 4 Proceedings of the Constitutional
    Convention of 
    1947, supra, at 542
    .
    9                           A-0630-12T1
    Provisions), while constructively criticizing the Committee on
    the Judiciary's age-seventy retirement proposal, stated:
    Why, most men don't get high judicial
    positions until after they are 58 or 60, and
    they are 70 before they know it.      To put
    them on the shelf then, or to make them law
    loafers of the State, what a mistake that
    would be!    I'd say 75 at the lowest, and
    after 75 retire them. And then put them on
    the inactive list subject to the call of the
    Chief Justice, whoever he may be, at all
    times.
    [4   Proceedings   of   the  Constitutional
    Convention of 
    1947, supra, at 543
    (emphasis
    added).]
    Carey's suggested retirement age was not adopted, and I submit
    that his recall-equivalent "inactive list" proposal was likewise
    consigned to the constitutional trashbin.
    The framers' failure to devote much attention to a
    temporary recall provision is understandable; they were
    struggling with much larger and more complex issues at the time.
    Nevertheless, the subject of post-retirement judicial service
    was clearly known to them.   Among the sources of information
    made available to members of the Committee on the Judiciary
    during their seventeen days of meetings were fifty-five
    witnesses, plus "some two dozen persons" who presented their
    views on the Committee's tentative draft of the Judicial
    Article, together with a wealth of written reports, monographs,
    and position papers.   Among the writings are the proposal of the
    10                         A-0630-12T1
    New Jersey Committee for Constitutional Revision, which included
    a provision "for mandatory retirement at age 70, . . . subject
    to possible recall to temporary service as need may appear,"
    4 Proceedings of the Constitutional Convention of 
    1947, supra, at 580
    ; 28, and a small mention in a June 5, 1947 New Jersey Law
    Journal editorial.   See 
    id. at 677.
      Leaving a recall provision
    out of the Constitution was neither an inadvertent oversight nor
    a nod towards simplicity of draftsmanship.
    The majority accurately recounts the evolution of the
    Constitution's Judicial Article from the May 1942 report of the
    Commission on Revision of the New Jersey Constitution (the
    Hendrickson Commission) up to the Judicial Article's actual
    drafting in 1947.    Ante at ___ - ___ (slip op. at 4-7).   Also,
    the majority rightly notes that the 1944 Legislature modified
    and supplemented the Hendrickson Commission's recommended
    judicial retirement language from
    No justice or judge of any court shall
    continue in office after he has attained the
    age of seventy years.
    [4   Proceedings   of   the  Constitutional
    Convention of 
    1947, supra, at 562
    (proposed
    art. V, § 5, ¶ 3)]
    to
    No Justice of the Supreme Court or of the
    Superior Court shall continue in office
    after he has attained the age of seventy
    years; but, subject to law, he may be
    11                         A-0630-12T1
    assigned by the Chief Justice to temporary
    service in the Supreme Court or in the
    Superior Court, as need appears.
    [
    Id. at 56
    9 (emphasis added) (proposed N.J.
    Const. of 1944 art. V, § 5, ¶ 5).]
    However, after observing that the people soundly rejected the
    proposed 1944 Constitution at the polls, the majority deems it
    "[s]ignificant[]" that "there is no indication in any of the
    historical sources, including the Proceedings on the
    Constitutional Convention of 1947, that the voters had objected
    to the recall of retired judges."   Ante at ___ (slip op. at 7).
    What is significant is not the conjectural objection of
    putative voters, but rather, it is that the 1947 framers
    purposefully elected to omit the twenty-seven words8 that would
    have validated the present recall contrivance.   The majority
    chalks up the loss of this phrase to the principle of
    constitutional minimalism, but I fail to see how the addition of
    these utterly unassuming words would have violated Governor
    Driscoll's call for "limiting our State Constitution to a
    statement of basic fundamental principles."   1 Proceedings of
    the Constitutional Convention of 1947 at 7.   The framers, and
    the people, had no problem including detailed managerial
    8
    Those words are: "but, subject to law, he may be assigned by
    the Chief Justice to temporary service in the Supreme Court or
    in the Superior Court, as need appears."
    12                           A-0630-12T1
    features in the Judicial Article, such as the appointment of an
    Administrative Director to serve at the pleasure of the Chief
    Justice, see N.J. Const. art. VI, § 7, ¶ 1; provisions for the
    Chief Justice's assignment of judges to the various Divisions of
    the Superior Court, see N.J. Const. art. VI, § 7, ¶ 2; and
    authorization for the Supreme Court to appoint Clerks for the
    Supreme and Superior Courts.   See N.J. Const. art. VI, § 7, ¶ 3.
    If these provisions were deserving of inclusion in the
    Constitution, then a provision for recalling retired judges
    beyond seventy years of age was equally constitution-worthy.
    Accordingly, I conclude that the excision of recall-
    authorization language that had appeared in the failed 1944
    Constitution was purposive, even though there is no express
    record of its rejection in the public annals of the
    Committee on the Judiciary.9   Because the authority to recall
    retired judges never made it into the Constitution, it may not
    be invoked sub silentio, legislatively or otherwise.
    9
    At the conclusion of the Committee on the Judiciary's open
    sessions, it held five closed executive sessions to consider the
    testimony and formulate a tentative draft of the Judicial
    Article.   4 Proceedings of the Constitutional Convention of
    
    1947, supra, at iii
    .    No stenographic record was made of the
    executive   sessions   "to   [e]nsure   the   fullest   possible
    discussion," and to allow a "free exchange of views."     
    Id. at iv.
    As a result, there is no official record of several of the
    Committee's discussions surrounding the adoption of the draft
    Judicial and Schedule Articles.
    13                          A-0630-12T1
    This conscious decision to omit a provision for the recall
    of judges is bolstered by the Constitutional Convention's
    rejection of a proposed amendment to the Committee's final draft
    of the Judicial Article, its so-called Proposal No. 4-1, which
    included a recall provision.   That failed amendment, introduced
    by Committee member, retired Chief Justice Thomas J. Brogan,
    contained among its myriad adjustments, in pertinent part, the
    following:
    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   of  the   Constitutional
    Convention of 1947 at 1207 (emphasis added)
    (Amendment No. 1 to Committee Proposal No.
    4-1, § VII, ¶ 6).]
    Based upon what went into the task of constitution-making
    at the beginning, and what came out at the end, I cannot agree
    with the majority that the Judicial Retirement paragraph is
    fluid enough to embrace the recall of judges who outlive their
    seventieth birthdays.
    14                          A-0630-12T1
    C.
    Unlike the majority, I take no comfort in the exposition of
    the temporary recall provisions in other states.   Ante at ___ -
    ___ (slip op. at 29-32).   In fact, the leading case, Opinion of
    Justices, 
    284 N.E.2d 908
    (Mass. 1972), while validating proposed
    legislation authorizing the temporary recall of retired judges
    of "the several courts of the commonwealth," 
    id. at 908,
    did so
    within a governmental framework entirely distinguishable from
    New Jersey's.   The Massachusetts recall paradigm, completely
    contrary to New Jersey's open-ended provision,10 proposed to
    10
    I call it an open-ended system because it contains no express
    limits and few guidelines.         For example, N.J.S.A. 2B:2-1
    authorizes 443 Superior Court judges. As of April 1, 2014, there
    were 398 active-service Superior Court judges (including four Tax
    Court   judges    assigned   to    the   Superior   Court),    see
    http://www.judiciary.state.nj.us/directory/judgebiographies.pdf
    (last visited April 7, 2014), plus at least seventy-three
    temporary recall judges assigned to the Superior Court, see 2012-
    2014 Notices to the Bar, http://www.judiciary.state.nj.us/
    notices/index.htm (last visited April 7, 2014), for a total of at
    least 471 persons exercising judicial authority in the Superior
    Court, which is more than legislatively approved.      From these
    data, it is impossible to compute how many full-time-equivalent
    judges are deployed.    But even if some of the temporary recall
    judges merely serve on a part-time or as-needed basis, there are
    still more persons holding judicial power in the Superior Court
    than are authorized by the statutory numerical limit of N.J.S.A.
    2B:2-1.   Moreover, there is nothing in the recall statute to
    prevent the recall of dozens, perhaps even hundreds, of
    additional retired jurists, subject only to the qualifications of
    the Policy Governing Recall for Temporary Service Within the
    Judicial System, Administrative Directive #12-01 (July 19, 2001),
    and budgetary constraints.    Finally, there is no assurance that
    the choosing of recall judges follows the "most distinctive
    (continued)
    15                        A-0630-12T1
    operate from a list of available jurists, vetted by the
    Massachusetts Governor with the advice and consent of that
    state's elected Executive Council (roughly analogous to New
    Jersey's Senate in its advice and consent modality).    
    Id. at 909.
      We cannot measure the constitutionality of our recall
    platform from this dissimilar foreign source.
    As it turns out, Opinion of Justices appears to have played
    an important, albeit misleading, role in changing the once
    accepted view that recall judges were not authorized by the
    Constitution, and which led to the adoption of N.J.S.A. 43:6A-
    13(b)'s predecessor statute in 1973.    Once again, the majority's
    canvass of the legislative history is accurate.    See ante at
    ___-___ (slip op. at 16-18) (reflecting that before 1975 there
    was no statutory provision that permitted the recall of a
    retired judge or justice over the age of seventy years).
    (continued)
    institution of our judicial system —— the bipartisan selection of
    judges." Hon. Arthur T. Vanderbilt, C.J., Famous Firsts in Jersey
    Jurisprudence: An Acknowledgement of Indebtedness, The Inaugural
    Lecture of the Harvard Law School Ass'n of N.J. Annual Lecture
    Series,   22-26  (Feb.   23,   1956)   (discussing  New   Jersey's
    "distressing experiences" of the breakdown of the judicial
    appointive   process   following   the   adoption  of   the   1844
    Constitution, and the evolutionary response of bipartisan
    appointments, culminating in the "unwritten tradition" of
    ensuring a nonpartisan judiciary through the bipartisan selection
    of judges).
    16                         A-0630-12T1
    However, some additional history may illuminate how the Supreme
    Judicial Court of Massachusetts helped get us to this point.
    Opinion of Justices was decided on June 29, 1972.      Eleven
    months later, on May 22, 1973, the JRSA became effective.      L.
    1973, c. 140.   Among the many features of the new pension
    statute was the first authorization for the "assignment" —— not
    recall —— of retired judges, but only for those judges who had
    not attained the age of seventy:
    Any judge retired on pension, except a judge
    of a 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 a retired justice of the Supreme
    Court, to sit in any court.
    [L. 1973, c. 140, § 13; N.J.S.A. 43:6A-13(b)
    (later amended by L. 1975, c. 14) (emphasis
    added).]
    A few months later, in a January 31, 1974 New Jersey Law
    Journal editorial, the Law Journal Board noted that, unlike the
    senior judge system of the federal courts, "[i]n the New Jersey
    system no such practice exists."      Senior Judges, 97 N.J.L.J. 68
    (Jan. 31, 1974).   The editorial opined that the Constitution
    does not prohibit "the rendering of service by . . . retired
    jurists comparable to that performed by Senior Judges in the
    federal system."   
    Ibid. Consequently, it "urge[ed]
    that
    17                          A-0630-12T1
    [N.J.S.A.] 43:6-6.39[11] be amended so as to permit the Chief
    Justice to assign 'retired' judges, whether they retire over or
    under the age of 70, to sit in any court other than the Supreme
    Court and to assign a retired Justice of the Supreme Court to
    sit in any court."   
    Ibid. Two months later,
    another editorial confessed,
    We have just had our attention called to
    Opinion of the Justices of the Supreme
    Judicial   Court    of   Massachusetts,   284
    [N.E.2d] 908 (1972), wherein that Court
    advised the Massachusetts Senate that a bill
    relating to service by retired judges would
    not contravene the proposed Massachusetts
    constitutional   amendment,   which  provided
    that "upon attaining seventy years of age
    said Judges shall be retired."
    [Judicial Service For Judges Retired At Age
    70 Who Wish Such Service, 97 N.J.L.J. 118
    (March 21, 1974).]
    In light of this decisional law, which supposedly fortified the
    Law Journal Board's January 31 commentary, the editorial opined:
    Here is a non-controversial proposal in
    which all can join for bringing back into
    the judicial system some of our most-
    experienced judges who are at the peak of
    their power.
    [Ibid.]
    11
    This statute had been repealed in May 1973 as part of the
    adoption of the JRSA.     See L. 1973, c. 140, § 45; N.J.S.A.
    43:6A-45(q). Inexplicably, the Law Journal Board was unaware of
    the repeal and contemporaneous adoption of N.J.S.A. 43:6A-13(b),
    which allowed for limited assignment of retired judges.
    18                         A-0630-12T1
    Less than two weeks later, Assemblyman William J. Bate (an
    attorney and later Passaic County Surrogate) introduced what
    became Assembly Bill No. 1419, which ultimately was adopted as
    the present version of N.J.S.A. 43:6A-13(b).   The misguided hand
    of Opinion of Justices indubitably played a role in changing our
    law.12
    As I have indicated, Opinion of Justices is not a proper
    vehicle to interpret our Constitution, even if the language of
    the judicial retirement provisions of the Massachusetts and New
    Jersey Constitutions are nearly identical.   At the time the
    Massachusetts justices grappled with the issue, the
    Massachusetts Constitution had not yet even provided for
    compulsory judicial retirement upon reaching seventy years of
    12
    Another source for this conclusion comes from a 1995 interview
    with Morris M. Schnitzer, once "the dean of the New Jersey Bar,"
    and a Technical Advisor to the Committee on the Judiciary.
    Conversations with Morris M. Schnitzer, 47 Rutgers L. Rev. 1391
    (1995). In explaining how retired judges in New Jersey came to
    be subject to recall, Schnitzer stated:
    [T]he   Massachusetts  Constitution   had   a
    mandatory retirement provision much like the
    1947 New Jersey Constitution.       Once the
    Massachusetts Supreme Judicial Court decided
    that retired judges could be recalled,
    Nat[han] Jacobs, by then on the New Jersey
    Supreme Court, promoted the idea as a way of
    dealing with emergencies and thereafter as a
    way   of    enlisting  economical    judicial
    service.
    [Id. at 1401-02.]
    19                          A-0630-12T1
    age.   Opinion of 
    Justices, supra
    , 284 N.E.2d at 911.   The court
    noted that the proposed constitutional amendment, if adopted,
    "would require the immediate retirement of almost one-fifth of
    the present justices of the general trial courts of the
    Commonwealth."    
    Ibid. (quotation marks omitted).
      In its
    practical opinion validating the recall of retired judges, the
    court was rightly concerned that, without the ability to recall
    judges,
    approval of the proposed amendment would
    cause   the   immediate   retirement   of   a
    substantial number of experienced judges.
    This   would    undoubtedly   create    great
    confusion and possible chaos throughout our
    entire judicial system . . . . To hold that
    the Legislature would be prevented from
    recalling retired judges to active service
    by the proposed amendment would greatly
    diminish the quality of justice for all.
    [Id. at 913.]
    However laudatory this urge to save the Massachusetts
    judicial system for the benefit of the people it served may be,
    exigency and pragmatism are insufficient impulses to either
    suspend our Constitution or fill a power vacuum with a novel
    solution.    See Janouneau v. Harner, 
    16 N.J. 500
    , 514 (1954)
    (emergencies do not create or enlarge power); see also Commc'ns
    Workers of Am., AFL-CIO v. Christie, 
    413 N.J. Super. 229
    , 260
    (App. Div. 2010) (citing Youngstown Sheet & Tube Co. v. Sawyer,
    
    343 U.S. 579
    , 
    72 S. Ct. 863
    , 
    96 L. Ed. 1153
    (1952)).    I eschew
    20                           A-0630-12T1
    the limited persuasive attributes of Opinion of Justices,13 and
    disagree with the majority that it, and any of the other states
    that have weighed in on the issue, got it right.
    D.
    I further differ with the majority because I believe that
    N.J.S.A. 43:6A-13(b) arrogates exclusive gubernatorial
    authority, impairs the essential integrity of the Chief
    Executive, and revokes senatorial prerogative, all of which
    violate separation of powers doctrine.   In particular, N.J.S.A.
    43:6A-13(b) does violence to the Constitution's complementary
    goals of (1) ensuring a strong Chief Executive and (2) investing
    the Governor with the solitary, plenary power —— subject only to
    the advice and consent of the Senate —— of making judicial
    appointments:
    The Governor shall nominate and appoint,
    with the advice and consent of the Senate,
    the Chief Justice and associate justices of
    the Supreme Court, the Judges of the
    Superior Court, and the judges of the
    inferior courts with jurisdiction extending
    to more than one municipality . . . .     No
    nomination to such an office shall be sent
    to the Senate for confirmation until after 7
    days' public notice by the Governor.
    [N.J. Const. art. VI, § 6, ¶ 1.]
    13
    Ironically, the Massachusetts recall statute parsed by Opinion
    of Justices, with its features of gubernatorial and Executive
    Council involvement, might actually survive separation-of-powers
    scrutiny, unlike N.J.S.A. 43:6A-13(b).
    21                         A-0630-12T1
    The Legislature's delegation to the Supreme Court of the
    authority to select recall judges directly contravenes this
    provision.14   It is no answer to suggest that in order to qualify
    as a recall judge, one had to have already run the nomination-
    appointment-and-confirmation gauntlet twice.   That may be true,
    but upon retirement, a judge not only steps aside from and gives
    up his or her judicial power, but also expressly resigns his or
    her judicial office.   See N.J.S.A. 43:6A-7 (requiring that, as
    part of the application for benefits under the Judicial
    Retirement System, the judge submit "a copy of the [judge's]
    resignation from his [or her] judicial office which he [or she]
    has filed in the office of the Secretary of State").15
    I ask the following question: Would it be possible for the
    Legislature to bestow the power to recall retired judges upon,
    14
    Legislative involvement in the appointive process under the
    1844 Constitution was seen as a chief evil sought to be
    eradicated in the 1947 Constitution.    See, e.g., 4 Proceedings
    of the Constitutional Convention of 
    1947, supra, at 671-75
    .
    15
    Analogously, when a lawyer resigns without prejudice from the
    New Jersey bar, "the membership in the bar of this state shall
    cease," R. 1:20-22(c), and "any subsequent application for
    membership shall be in accordance with the provisions of New
    Jersey Court Rules 1:24 and 1:25, including passing the bar
    examination."    See http://www.judiciary.state.nj.us/oae/faqs/
    reswoprej.pdf (last visited April 7, 2014). Resignation has
    consequences.
    22                        A-0630-12T1
    say, the President of the Senate, or a committee comprised of
    the deans of New Jersey's law schools, or the Chief Justice
    individually?   I think not.16   Although there is logic and
    practicality to making the Supreme Court the arbiter of those in
    the ranks of retired judges who are recalled to active duty,
    there is not a constitutional whiff, much less one word, of such
    authority residing within the judiciary itself.
    "The doctrine of separation of powers is fundamental to our
    State government."   Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower
    Project, L.P., 
    154 N.J. 141
    , 150 (1998).    The Constitution
    provides that "[t]he legislative power shall be vested in a
    16
    If the Legislature had chosen the Chief Justice alone as the
    instrument of recalling retired judges, there would, at least,
    be a plausible argument to support that choice. See N.J. Const.
    art. VI, § 7, ¶ 2 ("The Chief Justice of the Supreme Court shall
    assign Judges of the Superior Court . . ., and may from time to
    time transfer Judges from one assignment to another, as need
    appears."); cf. In re P.L. 2001, Chapter 362, 
    186 N.J. 368
    , 381-
    82 (2006) (Constitution gives Court exclusive authority over
    State judiciary); In re Judges of Passaic Cnty., 
    100 N.J. 352
    ,
    367 (1985) (per curiam) (recognizing Court's constitutional
    responsibility   for   effective   functioning   of   judiciary).
    However, the power to assign judges is quite unlike the power to
    select judges.     The Chief Justice plays no role in the
    Governor's nomination-and-appointment and Senate's advice-and-
    consent processes. As the judiciary's leader, the Chief Justice
    is limited to the assignment of personnel that are provided by
    the political branches of government, much like a hockey coach
    who makes do with players selected by the team's general manager
    and owner.   Unlike the dynamics of a professional sports team,
    the Chief Justice, as administrative head of the judiciary, N.J.
    Const. art. VI, § 7, ¶ 1, cannot burnish the quality of the team
    by requesting a judge's trade, or demotion to the minor leagues.
    23                           A-0630-12T1
    Senate and General Assembly," N.J. Const. art. IV, § 1, ¶ 1, and
    "[t]he executive power shall be vested in a Governor."       
    Id. at art.
    V, § 1, ¶ 1.    By these provisions, our Constitution
    prohibits any one branch of government from exercising powers
    assigned to a coordinate branch.      The separation of powers
    doctrine was designed to "maintain the balance between the three
    branches of government, preserve their respective independence
    and integrity, and prevent the concentration of unchecked power
    in the hands of any one branch."      David v. Vesta Co., 
    45 N.J. 301
    , 326 (1965) (footnote and emphasis omitted).
    "Despite the explicit constitutional mandate that
    'contemplates that each branch of government will exercise fully
    its own powers without transgressing upon powers rightfully
    belonging to a cognate branch,'" the judiciary has "always
    recognized that the doctrine requires not an absolute division
    of power but a cooperative accommodation among the three
    branches of government."    Commc'ns Workers of Am. v. Florio, 
    130 N.J. 439
    , 449-50 (1992) (quoting Knight v. Margate, 
    86 N.J. 374
    ,
    388 (1981)).    Moreover, it has been "long recognized that '[t]he
    compartmentalization of governmental powers . . . has never been
    watertight.'"   State v. Loftin, 
    157 N.J. 253
    , 284 (1999)
    (quoting In re Salaries for Prob. Officers of Bergen Cnty., 
    58 N.J. 422
    , 425 (1971)).    Additionally, a flexible approach to
    24                           A-0630-12T1
    separation of powers issues is employed in cases that have been
    brought to the Court.   
    Ibid. Notwithstanding this practical
    and collaborative approach
    to government, "[t]he Governor (Executive) is authorized to
    nominate and appoint.   The Senate (Legislative) is to advise
    and, before the appointment may be finally made, to consent."
    Passaic Cnty. Bar Ass'n v. Hughes, 
    108 N.J. Super. 161
    , 173 (Ch.
    Div. 1969).   "Missing from the Constitution is any role for the
    judiciary."   De Vesa v. Dorsey, 
    134 N.J. 420
    , 430 (1993).      Thus,
    the legislative delegation of a mechanism to reinstate judicial
    power in a retired judge is unconstitutional.17
    A related separation of powers concern is the unintended
    inertial effect that N.J.S.A. 43:6A-13(b) has upon the
    replacement of retiring judges.    When judges retire (at age
    seventy or earlier), vacancies are created that need to be
    promptly filled by executive and senatorial action.    See
    17
    As an aside, N.J.S.A. 43:6A-13(b)'s provision permitting a
    retired Supreme Court Justice to be "recalled by the Supreme
    Court for temporary service in the Supreme Court" is undoubtedly
    unconstitutional because N.J. Const. art. VI, § 2, ¶ 1 expressly
    limits temporary assignments to the Supreme Court as follows:
    "When necessary, the Chief Justice shall assign the Judge or
    Judges of the Superior Court, senior in service, as provided by
    rules of the Supreme Court, to serve temporarily in the Supreme
    Court."    I decline any further comment in light of the
    concurring, abstaining, and dubitante opinions in 
    Henry, supra
    ,
    204 N.J. at 340, 354, 525 (2010) (Rabner, C.J., concurring;
    Rivera-Soto, J., abstaining; Hoens, J., dubitante).
    25                         A-0630-12T1
    N.J.S.A. 2B:2-1.2 (requiring "the Administrative Office of the
    Courts [to] notify the Legislature as vacancies occur").   It is
    probable that the intangible political dynamics that affect why
    such prompt action does not often take place are not directly
    influenced by the recall statute.    Nevertheless, the Supreme
    Court's ability to insert its collective thumb —— through the
    enlistment of retired judicial elders —— in the levee of a
    never-ending caseload removes an incentive to appoint
    replacement judges.   Although the effect of N.J.S.A. 43:6A-13(b)
    is hard to measure, with at least seventy-three retired judges
    —— more than sixteen percent of the total complement of
    authorized Superior Court judges —— toiling in the vicinages and
    on special assignments, there is an obvious disincentive to seed
    the judiciary with a fresh crop of judges.    The recall statute
    creates an artificial supply of judges that satisfies an
    incessant and inevitable demand as active judges age or
    otherwise opt out of their judicial offices.
    This is not a classic separation of powers phenomenon, but
    it is one that implicates a significant concern of the framers.
    Not only does the use of over-age-seventy jurists arithmetically
    drive up the average age of the institution, making it less
    representative of the people it serves, but also it constrains
    the institution's ability to profit from the energy and fresh
    26                         A-0630-12T1
    outlook of younger jurists.   Cf. 4 Proceedings of the
    Constitutional Convention of 
    1947, supra, at 1
    70 (memorializing
    the discussion between Judge Daniel J. Brennan and delegate Amos
    F. Dixon regarding the retirement of judges at a reasonable age
    to avoid "blocking the progress of a lot of very able men who
    could step into those positions if they stepped out").    If we
    were faithful to the Constitution, and no temporary assignments
    were possible, it is likely that public outcry would summon the
    political machinery necessary to swiftly invoke the nomination,
    appointment, advice, and consent processes to fill vacancies,
    and thereby fulfill the expectations of the framers for the
    benefit of the people.
    E.
    A fundamental disagreement between my views and the
    majority's lies in the separateness of judicial power and the
    persons who may be authorized to exercise it.   The challenged
    legislation —— indeed, all judicial recall legislation that does
    not follow a constitutionally-authorized appointment process ——
    operates on the unspoken assumption that "once a judge, always a
    judge."   This view necessarily must acknowledge that retired
    judges —— after resigning and qualifying for a judicial pension
    (which qualification is, among other things, a prerequisite for
    recall) —— retain latent embers of judicial authority that can
    27                         A-0630-12T1
    be reanimated by Supreme Court recall orders.      See N.J.S.A.
    43:6A-13(c) ("Upon such recall the retired . . . judge shall
    have all the powers of a . . . judge of the court to which he is
    assigned      . . . .").    The Constitution leaves no room for such
    restorative powers once a judge turns seventy years old,18 and I
    am loath to declare the discovery of such hidden potential in
    the face of the obstacles I have outlined.
    Furthermore, retired judges have no essential need for this
    intangible spark because they are clearly not, as the majority
    attributes to me, trapped in some "irrevocable alienation of
    pensioner from title, a kind of sequestration, worse yet
    quarantine, rendering the judicial retiree incognito, isolated
    and idle, relegated to some sort of professional limbo, yet
    imprisoned by all the ethical restraints of a status and an
    office that somehow no longer exist."      Ante at ___ (slip op. at
    28).   Life after a judicial career may be either professionally
    robust or crabbed, but it is not dependent upon being available
    for temporary recall.      And the ethical contours that guide
    judges' conduct in retirement, see, e.g., N.J.S.A. 43:6A-13(a);
    18
    Although it is not part of the present appeal, I also believe
    that an early-retired judge under the age of seventy years, see
    N.J.S.A. 43:6A-8(a) and -8(b), cannot be recalled for temporary
    service under the Constitution because upon that judge's
    resignation, he or she ceases to possess any judicial authority,
    and neither the Legislature nor the Supreme Court has any power
    to restore it.
    28                        A-0630-12T1
    Guidelines on the Practice of Law by Retired Judges,
    Administrative Directive #5-08 (March 24, 2008), are proper
    constraints that ensure the judiciary's hallmark of
    independence, integrity, fairness, and quality service.   After a
    public service career, a retired judge owes the institution at
    least that much.
    F.
    Notwithstanding its salutary purposes and practical
    success, N.J.S.A. 43:6A-13(b) cannot be justified when taking
    bearings from the Constitution.    Historical acceptance cannot
    establish the statute's bona fides, see 
    Henry, supra
    , 204 N.J.
    at 345 (Rabner, C.J., concurring) (noting that "historical
    practice alone rarely proves the correctness of a legal
    proposition"), and historical patterns cannot save an
    unconstitutional practice.
    I take final comfort in the recollection of Morris M.
    Schnitzer, who was asked in 1995, "Was it contemplated that
    judges, once retired at age 70, could be recalled?"
    Conversations with Morris M. 
    Schnitzer, supra
    , 47 Rutgers L.
    Rev. at 1401.   Schnitzer —— who was present during the
    Constitution's conception, gestation, and birth —— unequivocally
    responded: "Certainly not, since that would have resurrected the
    example of Justice Parker and others who sat long after their
    29                       A-0630-12T1
    peak."   
    Ibid. If that is
    the way Schnitzer remembered it, who
    am I to disagree?
    Accordingly, I dissent.
    30                        A-0630-12T1