THE MOST FRUSTRATING ASPECT OF THE JUDICIARY IS:

THE FACT THAT:

ONLY A FEW JUDGES UNDERSTAND THE CONSTITUTION,

THANKFULLY JUDGE HARRIS IS ONE OF THOSE JUDGES

THE ISSUE:

RECALLING RETIRED JUDGES

IS UNCONSTITUTIONAL

(State of New Jersey v. James Buckner)

(LINK TO: FULL STATE V. BUCKNER DECISION)

The New Jersey Judiciary has granted itself the authority TO APPOINT RETIRED JUDGES BACK TO ACTIVE SERVICE, CONTRARY TO THE NEW JERSEY CONSTITUTION.

Unlike almost all other Judicial Appointments: These appointments occur without the oversight of the legislative or executive branch.

Worse these appointments allow Judges who retired in infamy to return to the bench as the result of political considerations within the judiciary, but without any recourse by the public or the other two “equally” powerful branches of the New Jersey Government.

This means: Judges in New Jersey can serve without consent of the citizens of this state by judicial fiat.

[As a result I HAVE FILED A LEGAL BRIEF IN SUPERIOR COURT AND REQUESTED MY ARGUMENT BE PRESENTED TO THE SUPREME COURT OF NEW JERSEY AS A CONSTITUTIONAL CHALLENGE TO THE USE OF A RETIRED JUDGE IN MY CASE – I DENY CONSENT FOR THE SAME.]

[HERE IS MY LEGAL BRIEF ON THIS TOPIC:

LEGAL BRIEF 2-2 – OPPOSING RECALL JUDGES

ENTER JUDGE JONATHAN HARRIS

A REAL AMERICAN HERO

PRESENTING:

JUDGE HARRIS, J.A.D. & HIS SCATHING DISSENT FROM HIS COLLEAGUES:

Harris, J.A.D., dissenting.

“I. [POINT ONE]”

“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 Court15 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) 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. Accordingly, I dissent.

[ROGER THAT JUDGE HARRIS:

THE SCALES ARE BURNING !!!

…JUDGE HARRIS CONTINUED

…FOR A LONG WHILE:]

[POINT TWO] 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 judicial power to pensioner judges?17 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.

18 In re Loch Arbour, 25 N.J. 258, 265 (1957). “It is a familiar rule 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.19 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 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).]

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 the advice and consent of the Senate. See N.J. Const. art. VI, 6, 1.

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.

[OUCH… HE JUST OWNED THE MAJORITY!]

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 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 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;20 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 Carey21 (also a Convention delegate and member of the Committee on Rights, Privileges, Amendments and Miscellaneous 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.

[In 1947 whe drafting the New Jersey Constitution] 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 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 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 words 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 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.

Because the authority to recall retired judges never made it into the Constitution, it may not be invoked sub silentio, legislatively or otherwise.

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.

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,24 proposed to 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). 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 [N.J.S.A.] 43:6-6.39[25] 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.]

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.26

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 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 the limited persuasive attributes of Opinion of Justices,27 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.]

The Legislature’s delegation to the Supreme Court of the authority to select recall judges directly contravenes this

provision.28 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”).29

I ask the following question: Would it be possible for the Legislature to bestow the power to recall retired judges upon, 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.30 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 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 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.31

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 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 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 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,32 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); 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 peak.” Ibid. If that is the way Schnitzer remembered it, who am I to disagree?

Accordingly, I dissent.

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.

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 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 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 Jacobs, although acknowledged as the “principal sponsor of mandatory retirement” by Morris M. Schnitzer, was also later the 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.

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 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).

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.

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.

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.

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.

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).

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.

15 Because the present appeal involves the recall of a Superior Court judge, it is unnecessary to address Supreme Court justices and Tax Court judges.

16 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.

17 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.

18 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).

19 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).

20 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.

21 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.

22 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.”

23 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.

24 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 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).

25 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.

26 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.]

27 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).

28 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.

29 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.

30
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.

31
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 S

upreme 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).

32
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.”

EH-HUM…. ENOUGH SAID

CASE CLOSED:

======================================

CONCLUSION:

======================================

THE NEW JERSEY COURTS:

VIOLATED THE CONSTITUTION &

REDUCED THE GOVERNOR, LEGISLATURE & CITIZENS

TO SERFDOM VIA JUDICIAL FIAT.

EDITS:

THE FORM AND CONTENT OF JUDGE HARRIS’S DISSENT HAS BEEN SLIGHTLY EDITED WITH INSERTED PARAGRAPH BREAKS AND THE REMOVAL OF NUMERICAL IDENTIFIERS WHICH IMPEDED FLUID READING OF OF THE OPINION.