Constitution, Rules in Conflict Over Way To Temporarily Fill Court Seat
Constitution, Rules in Conflict Over Way To Temporarily Fill Court Seat
New Jersey Law Journal
August 11, 2010
A month before the start of the new Supreme Court term, the seat once occupied by Justice John Wallace Jr. is empty, raising the question of who, if anyone, might fill it temporarily in light of the standoff between the governor and Senate over Wallace’s replacement.
And, if someone is to be named to the spot, who will do the choosing?
The state Constitution and court rules do not provide an easy answer.
The Constitution says the chief justice can assign a senior Superior Court judge for temporary service on the Court. But it is not clear whether that can be done for a purpose other than to meet the quorum requirement of five justices.
The court rules expressly allow it under a greater variety of circumstances, not just when needed for a quorum, but also “to replace a justice who is absent or unable to act, or to expedite the business of the court.”
The rules are also both broader and narrower than the Constitution concerning who can fill in on the high Court.
While the Constitution authorizes temporary stints by senior Superior Court judges — which presumably includes trial judges — Rule 2:13-2 narrows that to Appellate Division judges and allows retired Supreme Court justices who are not practicing law.
In addition, N.J.S.A. 43:6-A-13 authorizes the Court to recall retired justices.
Seton Hall Law School Professor Edward Hartnett, who teaches constitutional law, says that the rule, which would appear to allow Chief Justice Stuart Rabner to name a interim justice, is not valid because it goes beyond what the Constitution allows.
Instead, it is Gov. Chris Christie who has the constitutional power to fill the seat temporarily through a recess appointment, says Hartnett.
Christie chose Anne Patterson of Morristown’s Riker Danzig Scherer Hyland & Perretti to replace Wallace, but the nomination has been stalled by the refusal of Senate Majority Leader Stephen Sweeney, D-Gloucester, to hold confirmation hearings.
Christie’s decision not to reappoint Wallace to a tenured term was widely criticized as undermining judicial independence. Sweeney cited that reason when he announced on May 4 that he would not allow the Patterson nomination to move forward until March 2012, when Wallace would have reached the mandatory retirement age of 70.
If Hartnett is correct about recess appointments, Christie could circumvent the Legislature and place Patterson or someone else of his choosing on the Court before the new term begins on Sept. 13.
Hartnett points to Art. V, sec. 1, para. 13, which allows the governor to “fill any vacancy occurring in any office during a recess of the Legislature, appointment to which may be made by the Governor with the advice and consent of the Senate.”
The interim appointment is good until the end of “the next regular session of the Senate, unless a successor shall be sooner appointed and qualify.”
Thus, in Hartnett’s view, Christie could act as soon as this summer and certainly no later than the year-end recess, and the appointment would be good until the end of 2011.
Hartnett notes that federal recess appointments are not uncommon under constitutional language comparable to that of New Jersey. Art. II, sec. 2 of the U.S. Constitution reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Hartnett’s opinion that the Constitution does not allow Rabner to plug the vacancy is based in part on the history of the relevant provision, Art. VI, sec. 2, para. 1.
Adopted in 1947, it reads: “Five members of the court shall constitute a quorum. 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.”
As originally drafted, the paragraph specifically referred to using the power when necessary to make a quorum, and the paring of the quorum reference from the final version was a stylistic change, Hartnett says.
He also finds support in the evolution of R. 2:13-2, pointing out that the language about replacing absent justices and expediting Court business was not added until 1967, and the provision allowing appointment of retired justices did not appear until 1978.
Hartnett is not the only one who doubts Rabner’s authority to assign an interim justice.
Earl Maltz, a constitutional law professor at Rutgers Law School-Camden, agrees, based on the language of Article VI. It “doesn’t say if the seat is vacant for a while that the Chief Justice can appoint someone,” he notes.
To allow temporary assignments for nonquorum purposes, such as expediting Court business as the rule states, would give the chief justice “unfettered authority,” adds Maltz.
But he also finds it significant that the rule granting such authority has been around for decades and thus constitutes a longstanding gloss on the constitutional language that has apparently never been challenged and is thus entitled to some weight.
Taking a different stance is Frank Askin, director of Rutgers Law School-Newark’s Constitutional Litigation Clinic and an experienced litigant before the Court.
If the chief justice can bring someone up for a single case, “I don’t know that they can’t bring them up for all cases,” says Askin.
Another constitutional law professor, Robert Williams of Rutgers Law School-Camden, says that in the past, chief justices “have not considered themselves constrained” from making nonquorum-related assignments.
The current situation presents a “classic textbook case of separation of powers” with the three co-equal branches of government “staring each other down.” Without a seventh justice, the Court is more likely to deadlock 3-3, making the Appellate Division the final arbiter, Williams says.
Judiciary spokeswoman Winnie Comfort had no comment concerning the professors’ views, saying the Court does not do so in such matters. Christie spokesman Michael Drewniak did not comment by press time.
Through the years, Appellate Division judges have been asked to step in when a justice recused.
And chief justices have routinely recalled just-retired judges for a short while so they could help decide cases argued while they were still on the bench.
Most recently, Rabner recalled Wallace for that reason, and since the end of his term on May 20, Wallace has taken part in about 30 decisions and written seven or more majority opinions.
Rabner’s June 1 order recalling Wallace “for the limited purpose of participating in the final disposition of appeals argued or submitted” before May 20, does not cite the Constitution or the rule, only the statutory recall authority.
To the extent that Rabner decides to use the rule and add an interim justice, his choices are more circumscribed than it might appear.
Only a retired justice who is not practicing law is eligible.
That excludes everyone except Marie Garibaldi, who served from 1982 until 1990, and possibly Wallace.
Garibaldi declines comment on whether she would be willing to return after a 20-year hiatus, and it is not known whether Wallace, who could not be reached, is now practicing law and thus disqualified.
That leaves only Appellate Division judges, in the order of their seniority.
Comfort says Stephen Skillman, appointed in March 1981, is the longest-serving.
He faces mandatory retirement in December. Next in line is Edwin Stern, a judge since December 1981 who turns 70 next year.
The next most-senior judges are Sussex County Superior Court Judge Peter Conforti, who turns 70 in November 2013; Appellate Division Judge Ronald Graves, 70 in December 2013; and Hudson County Superior Court Judge Shirley Tolentino, 70 in February 2013.
Posted in Felonies | (0) Comments/Questions



