State of New Jersey v. James Buckner

NOT FOR PUBLICATION WITHOUT THE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 1168. 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 1173. 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
1195. 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 1181.
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 1180. 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 569 (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 170 (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