State of New Jersey v. James Buckner

96 A.3d 261, 437 N.J. Super. 8

• Court: New Jersey Superior Court Appellate Division
• Decided: May 5, 2014
• Docket: A-0630-12
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

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

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

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.

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

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?

30 A-0630-12T1