*1 remanded far reversed and the cause judgment of a entry dismissing complaints. judgment For Justice Weintraub Justices reversal —Chief and Sullivan Judges Jacobs, Proctor, Mountain and Collester —7. Coneoru
For affirmance —None. A-92 BUSIK, PLAINTIFF-RESPONDENT, JOHN R. v. LEVINE, M.
JOSEPH DEFENDANT-APPELLANT. (BUSIK), PLAINTIFF-RESPONDENT,
GILMA GIRALDO LEVINE, JOSEPH M. DEFEND ANT-APPELLANT. A-93 FOLEY, DONALD F. FOLEY AND LILLIAN HUSBAND AND WIFE, PLAINTIFFS-RESPONDENTS, v. UNITED ENGI- CONSTRUCTORS, NEERS & INC. AND PUBLIC SERVICE CO., AND ELECTRIC GAS DEFENDANTS-APPELLANTS. Argued February 20, July 6, 1973 Decided 1973.
Mr. Richard J. Carroll the cause for appellant argued Gleeson, Messrs. counsel; J. Vantages, Levine Louis (Mr. es, and Pantag attorneys). Hansen F. cause for appellant
Mr. Donald Stevens argued Constructors, Beggans Inc. and (Messrs. United Engineers Stevens, attorneys). Mr. Dino D. Bliablias for intervenor the cause argued National Association of Insurers Independent (Mr, (A-92) McGuire, Stein, brief; Messrs. Bliablias Kenneth on the Goldman, attorneys). Mr. Robert Johnson for cause argued respondent Johnson, Giraldo Johnson and attorneys;. (Busik) (Messrs. Mr. Samuel John E. Chiaravalli for appeared respondent Busik).
Mr. Patricio D. Conaghan Foley appeared respondents D. (Mr. Donald on Campbell, the brief). was delivered opinion
The of the Court B. C. J. These cases involve the validity Weintraub, on December 1971 and 4:42-ll(b), effective on adopted 31, 1972, which authorizes January prejudgment here involved tort actions. The accidents occurred before the- was but the eases came trial after adopted, the effective rule. provided date of the Interest as the rule was in- in the We certified judgments. cluded defendants’ appeals were they argued Appellate before Division. principal charge is mat- law and “substantive” as such beyond
ter of the constitu- Supreme Court of the grant tional to “make * * * rules governing procedure” in all courts, VI, Hence, Art. 3. it is argued, trespassed we ¶ domain in rule, legislative adopting breach principle separation powers embodied in Art. *5 356
Ill, 1, of the Constitution. The is argument supplemented with the thereby that defendants were proposition deprived of the opportunity to be heard due required process law. J. Super.
The v. 120 N. Savary, rule was upheld Riley 331 Div. come to us (Law but that case did not 1972), review.
I on claims that it is said with to interest Although respect “in statutory origin,” country generally interest Commis Pension Fund Consolidated Police and Firemen’s Passaic, contrary sion v. N. J. 653 645, 23 City (1957), with usury; dealt is true our State. The has Legislature for which is, interest it has fixed the limit of the upper 1, A. but made, N. J. loan see ordinary may be 31:1— other obliga there no with interest upon statute dealing The con judgments. tions or claims or with interest upon See and remain judge-made. rules have been itrolling always & 349, 353-354 (E. 41 N. J. L. v. Jersey City O’Callaghan, 91, J. L. 92 Ct. (Sup. 11 N. Verree v. 1879); Hughes, A. Ackerson, 33, N. J. L. 36 Erie Co. v. 1829); Railway Paving Jersey Asphalt v. New Simon 1868); Ct. (Sup. Cohrs v. ‘Co., Igoe 1939); J. L. Ct. 123 N. (Sup. Brothers, Inc., Div. 1962). 448 (App. N. J. Super. courts of this which the the rules And, these are briefly, to¡ As developed: judgments, State rate, is, collection at the at rate “legal” permitted be contracted under the statute usury to which permitted interest, respect have referred. our we With interest, if demand law assessed was liquidated, courts on the assumption rate that the creditor “legal” same at the if his had obligor earned such him paid have could due, Jersey City O’Callaghan, supra, see what was to allow 354, but declined interest on L. claims N. J. at justice of limitation has unliquidated. were (cid:127).that *6 in a moment. Our courts develop we will bеen as questioned, as or fixed the rate or withheld interest allowed equity Schuncke, 415— 407, 42 N. J. v. dictated. See Small justice Education, Board v. Paterson 416 Co. Agnew (1964); N. J. o.b., 83 affirmed 49, 1914), 83 N. J. 67-70 (Ch. Eg. Estates, Donna Inc. v. Jardine A. 1914); 336 & Eg. (E. Div. 332, 340-341 42 N. J. Super. (App. Corp., Brooks Press, 543, N. J. 551- Super. Inc. v. 23 Phillips, Dial 1956); N. J. 248 denied, 12 (1953); 552 certif. 1952), Div. (App. Schultz, 505, N. J. 529-530 (Ch. Super. McGlynn Div. affirmed, 1967), N. J. Super. (App. 1966), Div. Development Brown v. Home J. 409 denied, 50 N. (1967); certif. ., 1941). 129 N. Eg. (Ch. Co R. 4:42-11 which reads: adopted In this we setting Judgments; in Tort Actions. Rate on “Interest: ( n ) payment Judgments, orders awards Rate. per money from the annum bear interest at taxed costs shall 6% except entry, the court. ordered as otherwise date of ( n ) Tort Actions. liability including products actions, ac- In tort per judgment tions, at shall in the the court include 6% institution date of the award from the annum on the amount tort, months after date or from date 6 the action attorney contingent shall not be fee of is later. The whichever judgment.” computed on the interest so included deals with It will be noted paragraph (a) rule with post-judgment We dealt in that upon judgments. usury had amended Legislature interest because the ordinary the rate statute, upon N. J. A. to permit 31:1— Banking if the Commissioner loans to as as go high 8% we (a), By adopting paragraph and Insurance so provides. judgments courts bar and the clerks advised the in ac- 6%, would continue to interest at rate of carry has not cordance with our That prior practice. paragraph fire, constitutional addressed although challenges drawn have they would be no if appropriate less paragraph (b) waited until raised the litigant substance. We could have some issue, sense and administration good but we it thought good
to inform all concerned the vehicle of a rule through in- in our rules civil corporated As we practice. said, have our so has not excited criticism. It is doing subparagraph (b), interest, is attacked. relating We statute; there repeat any there is no conflict with is no statute on the can be doubted that the subject. Nor Court has the power responsibility continuing change these law judge-made justice rules of require. In short, 'had the an proposition (b) been paragraph nounced in a B, case of A there could be no claim against that the Court lacked the or in any way transgressed the area contitutionally allotted to the Legislature. Thus it is not our power to act that is it is questioned; the method we chose to exercise that power.
But if we erred in adopting method will (we demonstrate in Point II below not), that we did this litiga tion would not end. Eor plaintiffs here are entitled to ask for the same result rule challenged provides. They cannot be denied their due because merely we ex mistakenly our pressed view in a court. The issue underlying is thus before us. The merits have been argued fully, and the litigants thus afforded a hearing. new, Nothing however, emerged. This is not for the surprising, new, is not and was a fully explored at public hearing before we adopted the rule.
We turn then to the merits. Interest is not punitive, Hendrickson, Wilentz v. 135 N. J. 244, 255-256 Eq. (E. & A. 1944); here it is compensatory, to indemnify the claimant for the loss of what the moneys due him would presumably have earned if had payment been not delayed. We mentioned earlier the limitation judge-made intеrest should not be allowed if the claim was unliquidated. That limitation ap parently rested upon the view that a defendant should not be deemed in default when the amount of his liability has not been But adjudged. interest is a payable on liquidated claim when liability itself is denied, even in good faith, Kamens v. Fortugno, 108 N. J. Super. 544, 552-553 (Ch. in both the de- remains that situations 1970). Div. The fact use, not, of moneys has plaintiff has had the fendant finds suffered. damage plaintiff which the was judgment for a liability is liquidated This is true whether the contested reason, an Eor that for sum. concept unliquidated a strained find has often been basis a sum “liquidated” an award interest. a to allow now, in general, willingness
It is said there is dictate. 22 justice as on claims unliquidated 2d, In 181, upholding Am. Jur. 259-260. Damages, pp. a New York statute pro retrospective application unliquidated actions upon for interest contract viding Court observed that States Supreme the United damages, a allowance is for the purpose securing “The statutory amount commonly by adding adequate compensation more a sustained through as reasonable measure loss viewed a has been recognized and that “It payment,” delay cases of distinction, between respect, simply liqui in this a Funkh one.” is sound dated unliquidated damages, Co., 54 Ct. 163, 168, ouser v. B. Preston U. S. L. (1933). Ed. 243, allow in tort matters also, refusal
So v. Ami Moore-McCormack Lines See been criticized. has rault, It whether 1953). 202 F. Cir. is (1 questioned 2d to the suit. But done as between parties justice thereby interest, also stake public their there is beyond major demand litigation for tort controversy, *8 cases has of those system. Delay disposition the judicial wait turn, who for their an other impact litigants upon here there system. who the And the support taxpayers the claims for since delay, generally inducement special is and when de insurance, payment is liability covered by are of from a the portion the income carrier receives layed, a reserve for claims. pending hand set aside as on premiums Board, 55 N. J. 19 In re Insurance (1969). Rating See will induce hopefully prompt interest Hence prejudgment In possibilities. of that consideration settlement defense bears meaningful way, directly upon interest prejudgment the man- judicial machinery judicial the of problems It agement. facet, jus- is this added to the consideration tice between which that litigants, holding the warrants our be interest in these matters. payable
The we not proposition accept thus is ours. There uniquely are a number of States which so statute. See provide Ann., 41-2-1; Colorado: Rev Stats. Louisiana: § 13:4203; LSA-R. S. M. Michigan: 27A.6013, Stat. C. § 600.6013, L. A. New RSA Hampshire: 524:1-b (Supp.); § § New CLPR 5001(a) York: (damages North property); § 32-03-05; Dakota: Oklahoma: 12 Okla. Ann. St. § § Laws, Rhode Island: Gen. 27(2); add, 9-21-10. We parenthetically, that it is of moment prin no that there the ciple was established we Legislature. already As have noted, the on subject claims wholly rests case and, law in State, our we for assuming as do the moment that issue one substantive and re law, with sponsibility deal judiciary a statute absence of cannot be questioned. no
We see strength in assertion that the allowance of interest duplicates some element constitutes damage payment respect yet The damаges experienced. is not instructed to jury add interest to its verdict in tort cases. In any event instruction can jury obviate the risk. And with to the criticism respect verdict may suffered, embrace losses not answer yet is that a verdict necessarily future and the anticipates experience, interest fac- tor the value for simply covers award the period which the defendants had moneys the use of the during are be found to entitled. think plaintiffs We the equi- ties are met for when date commencement li- ability fixed set forth (b) paragraph R. 4:42-11 (the here under attack). arises whether our question holding pre interest be should
judgment paid imposed retrospectively. We see no reason not to the usual rule apply judge-
361
made law is
Under our
retrospective.
holding plaintiffs
merely
due,
receive what in justice is their
and defendants
are
turn
over a
required
gain they
plain
received at the
tiffs’
We
expense.
where
liability
note that
prejudgment
statute,
was established by
the statutes were held
to be “remedial” and hence
applicable
actions brought
date,
before the statute’s effective
and this notwithstanding
the usual
rule
statutes
v.
operate
Pepin
prospectively.
Beaulieu,
N. H. 84,
151 A.
230
2d
(Sup.
1959);
Ct.
Foster v.
I.
Quigley,
217,
R.
Finally add that we see no merit in the proposi tion advanced the intervenor, usual insurance which provides for policy, payment interest upon a judg ment, does cover interest and therefore we should not such impose liability. It enоugh say carrier’s obligation pay the judgment plainly includes obligation the constituent pay elements incor damage in that which, porated judgment, among course, is the item prejudgment interest.
II For the “I” given above, reasons whether question this Court exceeded its when it B. adopted 4:42-11 (b) is academic. The have merits been reached underlying and decided. Nonetheless we will state we believe the why adoption was consonant with proper judicial per- formance.
A Defendants out point the rule-making power granted Supreme Court Art. VI, relates to ¶ *10 and and from this defendants
“practice procedure,” grant would provision inferentially infer that constitutional make may dictates the mode the Court whereby Supreme “substantive” law. But constitutional is what the provision — a to “prac- to be with purports grant power respect of .sub- and It tice not to deal procedure.” purport does of a format for discharge stantive law or to the prescribe Limitations of topic. to that Court’s as responsibility arise, from cited seeton of exist, they course do but not of process from nature Constitution, judicial but of responsibility. and the Court’s of Nor, power matter, for that constitutional grant a that that mandate with respect procedure” and “practice a rule-making process. dealt with only be may law. in case of and Many practice procedure repose matters in a opinion judicial established procedures Sometimes of and pro- a formal rule practice will later be embodied aOr formal rule they may are not.2 Commonly cedure.1 for example, a as call for expressly case-by-case exposition, expressly of which relating process service 4:4-4(i) R. of service to “due process leaves the reaches outer substituted life, which valued rights upon of law.” Indeed most are em- are and depend “procedural” liberty, property and of the United States in the Constitutions of bedded are the courts procedural, Although rights this State. those way of a those particularize rights have chosen their are legion expound rule-making process. Cases Jersey Dept. procedure example, 1For in New outlineed contempt handling Roselle, (1961), Health v. N. J. for the incorporated rule, R. matters in the formal 1:10. In was thereafter problem Abbott, (1961), v. N. J. we dealt with the State 77-78 incorporated proof of offers of in criminal matters thereafter suggested practice in R. 1:7-3. example, Guido, (1963), 2For N. we State 199-200 problem suggested procedure recalcitrant to deal with the a witness. and the And, finally, meaning consequences infringement. matter administrative prescribed directive.3 constitutional grant rule-making power prac-
tice and it would be procedure simply grant power; a mistake to find in grant judicial restrictions upon for the exercise still techniques power, larger mistake to suppose grant of that impliedly area deprives judiciary flexibility called “sub- stantive” law.
B law “Substantive” of estab regularly course no lished in cases But there is brought before the Court. what constitutional that a beyond mandate court may go a Whether an issuе will decide case at hand. necessary be dealt with calls for a narrowly judge’s or expansively evaluation of need for many the things, including guidance or for the bar the government or agencies general public. end, To that the Court doc express upon doubts may existing trines, thereby itself raise an issue inviting litigation, may Pontery, 457, (1955), 3In v. State N. 19 J. 468 it was said way prosecutor effectively of dictum that the could not the waive penalty proposi death and thus take that issue out of the case. That procedure, quite obviously tion affected and “substance” in terms too impact upon prepared of the the individual. We an administrative memorandum, In Penalty, re (1965), Waiver Death N. 45 J. 501 published Jersey which directed we to be both in the New Dane Jersey Reports Journal and in the official New for “the information bench, public,” 502) (p. bar and the in which we said : likely Supreme Since is not it that will Court have occasion litigated express in subject, Supreme case to itself on the Court, matter, after careful consideration of the has concluded that public expeditious interest and in the interest of the fair and justice judges by administration criminal should it advise all means of this administrative memorandum that it does not subscribe Pontery to the dictum case. thought step We obligation was sensible within the authority judiciary. interest, or may in the public thinks should resolved need not be when it decide issues which decided deliberately decide believes that is warranted. So court course moot, again issue even has become litigation though v. Hospital John F. Memorial Kennedy public interest. Education, East Board Heston, 576, 58 N. J. 579 (1971); Brunswick, J. 94, Brunswick 48 N. 109 (1966); v. East Tp. etc., International Org., Delaware River and Auth. v. Bay 514, N. J. 138, 45 N. Cooke v. 43 Tramburg, 142 (1965); 463, 516 1 37 N. J. 469 Perricone, n. v. State (1964); Ed. 189, Ct. 9 L. denied, 890, 371 U. 83 S. cert. (1962), 2d (1962). Winberry statement
Defendants refer to the U. S. denied, cert. 240, 5 N. J. Salisbury, (1950), “While the L. (1950), Ed. 638 S. Ct. de law through courts make new substantive necessarily them, are not to they before cision cases specific coming the exercise through make law wholesale substantive no can be There ours). rule-making power” (emphasis in passing note might but one with that quarrel proposition, deliberate decision of a example a classic Winberry is issue, respective powers involving far-reaching no doubt which Legislature, Court Supreme believed the majority avoided but could have been interest. *12 public should be decided then C And finaEy, it is simplistic to assume all law is di- that vided neatly between and “procedure.” “substance” A rule procedure may have upon result impact substantive and be no less rule of procedure on that account. Speaking proposition court rules promulgate law governing substantive rule-mak- exercise their Professors ing power, Levin and Amsterdam agreed “rational separation well-nigh impossible.” “Legislative Control over Judicial A Problem in Constitu- Eule-making: tional Revision,” 107 U. Pa. L. Rev. 1, 14-15 (1958). See Co., also State Otis Elevator 12 N. J. 1, 24 (1953) (Jac obs, J. dissenting). Plumer, As said in Hanna v. 380 U. S. 460, 471, 85 1136, S. Ct. 1144, 14 L. 8, Ed. 2d 16-17 (1965), “The line between ‘substance' and ‘procedure’ shifts as the context legal ‘Each changes. implies different variables de ” particular pending problem for which it is used.’ laws; One context is another is retrospective conflict ap statutes; аnd a plication third is law-making, at hand. laws,
As to the traditional conflict of was de- approach whether cide the issue was or “substantive” “procedural,” law of the forum to be if the matter was applied “pro- cedural.” Restatement Laws (1971), (2d) Conflict comment b discards that correctly approach ¶. law of goes whether the directly question forum should be to each sub- respect particular applied ject.4 issue, As to forum would prefer conflicts rules with to avoid the in- apply familiar, which it is thus herent to decide what of error when the forum tries margin 4The comment reads: — procedure dichotomy. traditionally Substance The courts have approached falling scope issues within the of the rule of this Sec- by determining particular ‘procedural’ tion whether the issue was to be decided in accordance with the forum’s local therefore rule, law or ‘substantive’ and to be decided reference therefore applicable characterizations, to the otherwise law. These while themselves, unthinking harmless in have led some courts into ad- precedents given ‘pro- herence to that have classified a as issue ‘substantive’, regardless purposes cedural’ or of what were involved Thus, example, classify- in the earlier classifications. a decision ing proof ‘procedural’ purposes, burden o-f for local law such determining constitutionality retroactively as in aof statute that burden, might mistakenly controlling shifted the question be held on proof ‘procedural’ whether burden of for choice-of-law purposes. encouraging sort, To avoid errors the rules stated Chapter attempt classify ‘procedural’ in this do not issues as they directly question ‘substantive’. Instead face whether the applied.
forum’s rule should be *13 hand, do. On other jurisdiction likely
another would the result is to turn the forum permitted upon if ultimate the selected, are the evils and injustices forum-shopping. there statute, of a application context is retrospective When the different, for then target are the involved values “vested” make it is so as to liability whether some right Becker, 457, N. J. Morin v. the rules. unjust to change Lines, Inc. v. Pennsylvania, Greyhound 464-471 (1951); Rosenthal, Rosenthal, In (1954). 14 N. 380-388 Law was applied Tortfeasors Contribution Joint was enacted but upon after made the statute payment said law, (¶. it was aptly which antedated that judgment 382): * * * by J., pointed Lehman, “changes It was out C. of form closely up changes substance,” bound are often “nice necessary,” the end “it
distinctions are often but in is in considerations good justice that solution must be found.” sense
And, finally, in context of other factors rule-making, be may may spurred come into Court the needs play. measured, only by in- judicial system private of all but also the interest of the litigants, public. terests mindful of Court, Or the and its problem exclusivity delicate relations impact among co-equal reluctant branches of to move or to government, may go far as if the retained the to dis- Legislature it would agree. illustrate,
To what is the statute of limitations? For con flict of it is purposes, usually laws said to be “procedural,” law meaning that the of the forum will be Marshall applied, Inc., Sons, & Geo. M. Brewster N. J. 176, 179-182 Restаtement see (1962); (2d) Laws (1971) of Conflict of even there course just be to although apply law of if another State were parties there throughout limitations and its the suit was after period brought *14 had period run.5 In the context retrospective application statute, of a there be no substantial reason to refuse may a a apply change in of limitations so period retrospectively as a barred or an long cause action revived thereby is not a cause of fair existing thereby action is not barred without context, sue. opportunity to But when we turn to the third whether the statute of rule- limitations is within the Court’s well We making power, may the considerations be different. need but far say thus it has not been suggested within the “procedural” matter is meaning hand, our provision. constitutional On the other time for a appeal, limitation, much resembles statute of may within confidently be said to come the Court’s rule-making R. 2 -A. power.
isWhat “evidence”? It arguably “procedural,” “sub- or a stantive” It hybrid. smacks “procedure” insofar as it controls what enter may mix, but it is “sub- quite stantive” as an ingredient end product, the judgment. Some rules of evidence, particularly those relating privi- leges, themselves be thought to or values rights generate of a “substantive” cast. In the context of laws, conflict of evidence would generally be for the forum. Restatement (2d) Laws (1971) adopts view, of Conflict of with, however, certain In the exceptions. context of retro- a spective application statute, it would likely again “procedural” most But respects. context, the third resрective powers of the legislative judicial branches, brings other view. values into
We participated a process a. whereby code of evidence was adopted “wholesale,” to use word in the quotation above from Winberry. The rules evidence were adopted by the- cooperatively three branches of government under the 5“Borrowing” statutes, adopted States, in some establish the ex ception just suggested to the just rule of the forum. We have reached the same conclusion as a matter of decisional law in Heavner v. Uni royal. Inc., 63 N. (1973). J. 130 Act, 52; c. A. N. (L.
Evidence 2A:84A— et 'after con Supreme Legislature seq.) Court statutory arrange ducted their studies. Under the separate rules, those ment, notably embodying privileges, some rules, while other were fixed the statute prepared itself were Conference, at a Judicial after consideration Court become effective unless disap filed with the Legislature Governor. Thus joint resolution proved by signed “evi we did not deadlock the whether pursue question *15 therefore, and the dence-” was to according “procedural” dictum, of the Supreme the sole Court. Winberry province that, we the of the criticism spectre Nor were deterred “substantive,” it was for unseemly if “evidence” worse is in the “wholesale" the Court to participate promulgation was whether made single law. The it question substantive for administration of and provide justice, thus to the sense clear, we went ahead.6 We add the the answer that being Court, does not have a con Supreme United States as to rule-making power grant stitutional a similar pursuing project cooperation procedure, 3402, 3771, C. A. 18 3772 U. Congress. (1964); §§ 2072, A. 2075 (1958). 28 C. U. S. §§
D said, we have com- “interest”? As it What then is de- for represents “damages” as to parties pensatory a And constitute “Damages” “remedy.” lay in payment. 2d, 1 Jur. Am. “procedure.” connotes “remedy” promptly Actions, laws, 6, 546. But in the context of conflict of p. § substance, “damages'” to go view is majority involved to apply the values e., it would disserve i. May 24-25, agenda 1973 held on Judicial Conference 6The at voiceprint. thought subjects polygraph and We included the could, gather appropriate decid we without whatever information may action, any, ing take. which we such if format of
369 law of the forum rather than law of the place of the 22 Am. 2d, Damages, 3, Jur. wrong.7 pp. 15-16. The § Restatement (2d) Laws 145 (1971), §§ of Conflict of 171, espouses that view. interest Prejudgment deemed to be of the the initial part damages occasioned interest is although say remedy one that such wrong, might e., for a second i. the delay payment. Upon wrong, be the arguably latter view situs of that wrong might Laws forum. The Restatement (2d) (1971), Conflict 171, c, comment would apply de- basic with respect damages same rule applicable so, and, if can recover "whether the plaintiff termine of judgment rendition rate for prior at what period a tort.” damages part for prejudg the statutes approach, providing Upon ac cause of interest would not be applied foreign ment Electric Sylvania usually tion. This is the view taken. See Barker, 1956), v. F. 2d Cir. 842, Products 228 850-851 (1 Ed. 100 L. 854 denied, cert. S. Ct. U. S. Amiraull, v. supra, Moore-McCormack Lines (1956); Co., F. Ford 896-897; Supp. F. 2d at Motor Ryan v. Co. Casualty D. New Amsterdam Mich. 1971); (E. *16 Soileau, denied, 167 F. cert. 335 U. S. 2d 767 Cir. 1948), (5 Williams v. Pe Ed. 376 69 Ct. 93 L. 822, 45, (1948); S. Inc., 522 App. 234 So. 2d Ct. (La. troleum Helicopters, 371, 2d 501 Ct. La. 236 So. denied, (Sup. cert. 256 1970), Co., 1287, 458 F. 2d v. White Motor see Glick 1970); but when the context is 1972). n. 13A Cir. But (3 1293 statute, the statute is gen of such application retrospective and hence and "procedural” to be "remedial” deemed erally yet not reduced cause of action preexisting apply foreign may event concerns when he otherwise the answer 7But other than the State only citizens of States of the forum or citizens Co., 511, injury. J. 523-524 Trent Aluminum 55 N. v. See Pfau (1970). 370 referred already We have to decisions so hold
judgment.8
the citations for the convenience
repeat
ing
Beaulieu,
84,
102 N. H.
In the of the light cannot be said foregoing surely to have been palpably inappropriate think interest as a matter procedure the context of law-mak concern, was of ing. question general affecting many thousands of tort pending actions. The issue could have beеn raised in any those at the instance cases, litigant or on the court’s own motion. Had the issue been raised that all would way, have been bound the result litigants that were not heard the merits. notwithstanding they One of myth of the stubborn that courts consequences do not make law failure is the tech continuing develop all be heard are in a nique whereby may who interested legal proposition contribute to informed decision. might In this respect the rule-making approach clearly superior. Here all interests were heard at public meeting. Surely themselves lost in that And litigants process. nothing rule, when is added there fact while serv signal justice the cause of as between has ing litigants, equally objective cases, important expediting disposition welfare of all to advance the the wel thereby litigants who must we have taxpayers support system, fare doubt of the of the course we followed. The propriety no concerns the procedure courts the: rule notwithstanding view has any the dollar impact upon a “substantive” result. It made also invoke the such circum rule-making process sense exercise of our responsible It was responsibility. stances. *18 372 Marrero, v. 57 N.
In Crudwp J. 353 there was (1971), involved still another rule which, a although dollar having impact upon litigants, was nonetheless beamed toward the effective of the management judicial system. rule, R. et 4:58-1, seq., deals offers of judgment provides for interest and counsel fees on the basis the relationship between the verdict and a pretrial offer of settlement. The issue the case was whether the rule to the Unsatis applied fied Claim and Eund. In Judgment did, it we holding (p. 361) said : any rate, adoption At the factors described above stimulated Judgment Offer rules with which we now are concerned. It is a operation designed pro remedial measure on a test basis and early already out, pointed duce out-of-court As settlements. language any negligence unliquidated broad age does not exclude dam operation. Judgment case from their The Unsatisfied Claim and very a Fund has substantial number of such cases in the trial lists throughout Every it State. time tries could and case that fairly trial, disposition pending should be settled without of other actions, tried, delayed. Accordingly, some of which must be in our judgment, ordinary regarded situation the Fund must be subject Judgment the Offer of rules. “Interest” extent imposed that tory be under those within rules is Fund’s statu pay authorization to interest. But even if the statute contained grant authority, no such of interest under the rules is well within powers respect the inherent of this The same Court. is true with grant up procedural they of counsel fees As $750. sanction power, they are broad likewise within our constitutional and as such statutory provision Compare
are within the
for costs.
Red Devil
Tip Top
Co., Inc.,
563,
(1967) ; Vargas
v.
Tools
Brush
N.
50
J.
576
Steamship Co.,
293,
(1957),
H. Bull
v. A.
N.
25
J.
296
cert. den.
958,
545,
(1958).
S.
255 V. S.
Ct.
838, 73 S. Ct. 97 L. Ed. State Otis Ele (1952); *19 Co., vator 12 N. J. 1, 5 Alcoa 1 (1953); see No. Edgewater Carroll, Fed. Credit Union v. 44 N. J. 442 Red (1965), and Co., Inc., Devil Brush Tip Tools 50 N. J. Top 576 563, (1967).
It we is insisted cannot the rule uphold for prejudgment interest without also deciding whether the rule within comes the Winberry dictum that the Court’s authority as to prac- tice and see is exclusive. We no to meet procedure need The sole question issue. whether Court may treat aby rather a subject rule than judicial decision of the despite aspect subject. substantive The issue a exclusivity touchy involves matter, relations among three branches It will be government. time enough to talk exclusivity about when is an impasse there and no way around it.10 A coordinate branch should not invite a test of strength Our form of proclamation. works government best when all avoid out staking branches the boundaries which separate their powers.
Ill The final whether question is the rule denies because is limited tort equal protection actions. statutory expressly accept provisions 10In instances our rules some ; relating 4:27-2; 4:42-8(a) R. R. same See matters. 4:59-1; adoption 4:52-7; pre R. R.
R. 4:83-1. After judgment involved, Legislature rule here enacted the Jersey Act, seq., 59:1-1, pro Tort N. A. et New Claims J. S. which prior A. vides in N. S. :9-2a “No shall accrue judgment public public entry against entity employee.” a or approved an rule of We have amendment to our Court will except that situation. a actions are with, To tort begin no issue. We see serious a special impact of litigation distinctive class having volume. in terms of judicial system the administration insurance overall there is too insofar as They are distinctive invest for gain portions carriers to permitting coverage claims. for pending allocated to the reserve the premiums on stages be met this kind Purther, problems no Hence solid intensity. objection it is the basis or in rule, opinion announced judicial whether Jersey New Chap- as it See might. does not far court, go ter, Jersey New Planners v. State American Institute of Planners, 48 J. 581, N. 601-603 Board of Professional 19 L. dismissed, S. Ct. U. appeal (1967), of the rule does Pinally adoption Ed. (1967). 2d from claims contend- of other unliquidated foreclose holders like which attend their scene are so circumstances ing the interest should also be here involved that the circumstances allowed to them. Mr. Mr. Jacobs and are affirmed. Justice judgments join Proctor this opinion.
Justice *20 J. in The matter result). (concurring Hall, one of those on judgment judgments on claims before and evidence, which has both areas, procedural rules of gray like be areas should called and Whether such aspects. substantive of the exercise of this or procedural purposes substantive on history well turn more may court’s power rule-making judicial and branches tradition, as between legislative on The field, legal analysis. than particular pedantic has never generally of this state acted Legislature area interest and the post-judgment pre-judgment My view is judiciary. matter has been lеft historically mat that, history, especially light aspects justifying ter of R. 4:42-11 has sufficient procedural first of it instance. adoption court’s me, It it would be more appropriate seems however, by the court in these over- proposed in the future for rules areas to be worked out in advance lapping cooperatively be tween the three branches as government, was done so suc in the case of cessfully the evidence rules. The court would still retain exclusive in those in which fields there can no reasonable contention that law pre substantive dominantly involved, as -well as, course, in areas of administration of the courts and admission to and regulation of the bar. L. N. Legislature, by c. A. S. 2A:84A-39.1 —39.6, has mechanism provided adaptable for this process by creating commis permanent legislative sion called the State Rules of Court Review Commission1 * * * “to study effect, and review or rule of court any proposed, the commission call for considers legis action lative to aid in the achievement of the intended pur pose, the solution of a amendatory, means of problem, by supplemental, or new N. J. A. 2A: revisory legislation.” 84A-39.3. Indeed, in the of the substantive light aspects R. 4:42-11, the Commission well might review consider it with the view recommendation court, making to the Legislature thereon. In this I particular situation would defer to ultimate In legislative meantime, action. the rule should stand.
The other opinions filed herein consider also the power of this court to make substantive law In view I by rule. have I expressed, do not reach this question beyоnd saying that, regardless any of the court to com- right change the mon law by mechanisms, various I presently believe at least inappropriate and unwise to do so out- by general rule side of the framework aof case before us. For ex- particular has ample, Legislature recently adopted comparative neg- contains, L. 1973, c. 146. ligence, (This statute procedural features, well as substantive but it is sub- predominantly *21 1My understanding presently opera is that this Commission is not by appoint members, reason of tive the failure to half of its promptly can and should be rectified.
stantive.) I am convinced would not for it have been fitting by court enacted it principle although to have rule, have might deciding appeal. done so properly I would affirm under review on the basis the judgments above. expresed
Justice Sullivan in this joins opinion. D., dissenting. P. A. Temporarily Assigned,
Conford, I strike the would in these cases to modify judgments reasons: for following items prejudgment 1. R. 4:42-11(b), providing nature, not cases, tort of a substantive is predominantly by procedure governable within the category YI, under Court Article Sec rules to be this promulgated II, 3 of 1947 Constitution. tion paragraph for the Court 2. is not an vehicle appropriate This appeal in the of the cited rule the substance employ adopt the com- change power exercise the court’s purported mon law by adjudicative process. adop
3. If for the court to consider appropriate it were R. nature of general 4:42-11(b) tion rule of the I its oppose adoption, primarily would appeal, course I any believe such mandatory, the rule is because with the trial court.1 discretionary be permissive should
I. the Con- is declared This Court’s rule-making follows: stitution as argument appeal court R. 4:42- Since has amended September 10, 1973, 11(b), effective to render consistent Act, Jersey c. effective Tort L. which became New Claims prior provides July 1, That act that “No interest shall accrue 1972. employee.” judgment against entity public public entry have rule as thus amended
N. J. A. 59:9-2a. The merits of the position it, argued appeal, hav not been and X take no on on the ing adopted. assigned been to the Court when the amendment was *22 governing Supreme administration the make rules The Court shall practice pro- and, subject law, and to the of all courts in the State ** VI, II, par. 3) (Art. *. in courts. cedure all such rule- On the of grant general face of that language the and pro- power only practice to the court extends1 making recovery the If, therefore, cedure. a rule ordaining allowance of tort shall be attended judgment of the judg- on award antecedent to the date of damages term “prac- acceptance ment is not within the common authority was without tice and the Court procedure”, it. promulgate sub- and procedure antonym practice general N. 247-248 Salisbury, law. In v. Winberry
stantive con- present latter term in the defined the (1950), court duties”, as and rights as that law “which defines our text and through from practice, distinguished “pleading con- By in courts”. and are enforced such duties rights dictum,, “subject the phrase, court declared that sidered did not mean that text law,” in the constitutional and procedure rules of practice could override Legislature rule- meant that the rather that it court but by the adopted field of the substantive invade the “must not power making that, It was observed 248). at (Id. law as such”. “[w]hile law make new substantive through necessarily the courts them, are not they before cases coming specific decision the exercise of the through law wholesale make substantive Ibid.2 rule-making power.” thought subject objective 2Many have students
majority Winberry 1947 Consti intent of the misread the actual in declaring Judiciary in on the and its Committee Convention tutional overriding rule-making of the court not pro practice Legislature and original in relation to action Legislature’s Kaplan Greene, Ju Relation to “The & cedure. See Winberry Salisbury", Rule-Making: Appraisal An dicial concurring opinion ; (1951) Justice and Harv. L. Rev. 234 255). Pound, (5 under Rules “Procedure But see S. J. at Case (1952). However, Jersey”, L. Rev. 28 New Harv. Court George holding Winberry into virtual was transmuted dictum These observations are not of mere historical the present framework. As the opinion plurality shows, the boundaries between procedure substantive law are often are not hazy the categories always easily compartmentalized. But the Constitution con- *23 templates that such and boundaries shall be recognized given heed time every the court a rule to promulgates purporting and regulate practice procedure. They surely must be staked out if a rule is subjected to constitutional as here. challenge, — IWhile am of view the that the subject instant matter — a prejudgment interest on tort award is in the area of and damages therefore on assimilable to principle clearly field of substantive rather right than procedure, plurality, while contrary, at least confesses its doubts holding *“* * on the subject: it surely cannot be said to have been palpably think inappropriate to as prejudgment a matter of in procedure the context of law-making.” (Em- If phasis doubt, there is added.) any court view my should take into consideration in resolving the constitu- tional of Winberry. terms consequences Those conse- are that a considered quences making determination, on here, as express challenge point, that an already field, is in the adopted procedural also auto- court matically perforce Winberry out the staking subject mat- ter own and exclusively as its oif-limits to the other branches In it would seem government. light, to me that unthink- the rule should be considered procedural, able that Ias can- Siegler Horton, 374, (1952), Co. v: 8 H. J. 381-382 and the Court position exclusivity has never since retreated from the in the practice procedure. Court over Co., and See v. Elevator also State Otis 1, ; Sattelberger (1953) Telep, 353, 12 N. J. v. N. J. 369- (1954) ; Haines, (1955). State v. 18 N. J. I 556-557 there posited purposes fore think that view must be as correct for of this jurisdiction procedure practice case. Were the court’s over and not exclusive, possibly inter-branch tension I foresee as incident decision, infra, Legislature the instant see would be lessened. If the always rule, pro knew it had the last word as to a court whether substantive, likely cedural or it would be less to be concerned over might overreaching by given what seem to it the court in a area. under democratic system conceive our any justification not government for a view branch legislative ex whether to what would ever be ordain powerless to a (or, should be added tort tent prejudgment have contract) award. That recent matter, legislatures as their beyond purview clearly regarded not 59:9-2, A. subd. a. See note supra. N. evidenced such making opinion plurality purports Court, exclusivity jurisdiction determination But determina matter.” “touchy issue as describing the already been rules has tion of as exclusivity court Co. Winberry George Siegler for this State in made Norton, to indicate that been no evidence there has supra; Winberry overturning Court contemplates the general future, contrary; indeed to the foreseeable are entitled to of government and the other branches public taken Winberry, together, Part II of this decision view in legislating doctrine constituting That prospect, of the Court. preserve terest is the exclusive *24 of general misgiv with the me, portent to is rife it seems ad of later the alternative avoided as against better ings, if still deemed desir of the principle, judicative adoption can so that Legislature by rule-making, rather able, than it.3 word on have the last assuredly noted in the foregoing, plural-
In the fact light a few cases that have held interest ity prejudgment opinion that, has in the sense where rule therefor been “remedial” it not unfair it has been adopted, thought apply legally point in text not less 3The made is rendered relevant Legislature aspect has one of circumstance subject acted on prejudgment 59:9-2(a) S. interest in Section N. J. A. Jersey supra) (see Tort Claims Act note 1 the court New or 4:42-11(b) R. deference has amended to accord therewith. Court Winberry derogate legislation in from selected instances does not exclusivity; advisability persist; tension inter-branch judicial rule-making an is from in so substantive area abstention lessened. 380
to actions before begun adoption, should bear little weight in whether deciding such interest procedural rather than substantive for of a purposes of state principle constitutional dimension to be as requiring categorized one or the other. More consonant with the' considera policy tions mentioned above inherent the Judicial Article and its interpretation Winberry such a choice concerning the line of cited in the for the authority plurality opinion principle that is substantive in damages interest) (including So, too, relation to rules of of law. choice is the precept is substantive for state purposes application rather J. than federal law cases. See C. S. diversity “Federal Courts” New Amsterdam p. (1960); 189(8), Soileau, 767, Co. Casualty (5 v. 167 F. 2d 771—772 Cir. 45, 93 L. Ed. 1948), cert. den. 335 U. 69 S. Ct. recovery well would (1948). right The measure as as the the substance of clearly to the appear pertain litigants their Even recent example rights privileges. prior contained on initiative legislative our own supra), the New Jersey Tort Claims Act note (see control by decisions had the traditional strongly suggested &c., Police, Consolidated over interest. See legislature Passaic, 651-652, 23 N. Pension Fund Commn. re conjointly have Thus court (1957). legislature substantive. garded basically It is of ~Winberry course evident that even aside from court does not under the Constitution have promul- rules other for than and adminis- practice, procedure gate tration of the courts. But the subsistence Winberry argues judicial moderation in matter for selecting subject rule- with an toward areas making, eye avoiding heavily laden *25 with such substantive interlaced aspects, deeply with per- by vasive as are the public policy, presented subject here of concern.
For all the reasons stated I would strike R. 4:42-11(b) beyond as the constitutional rule-making power the Court.
II I I to consideration of Part of the pass plurality opinion, which, Ias understand it, concludes that arguendo assuming the that rule in question is substantive therefore should not have been a of court, as rule the court promulgated should nevertheless judicial its merit in the court’s appraise law. I capacity, extends to alteration of substantive do know extent, if of the any, to which resolution to take that alterna- plurality course be its by influenced decision, tive in Part II thei expressed opinion, rule is sufficiently to have its procedural justified promulga- a tion as rule of court. concluded the my part, having Eor should case stricken, rule he I would from abstain consideration of its as a of the common merits modification law to avoid even inference or the by parties remоte the result a ratification of the im- public basically case, if rule. I would await fresh properly adopted any, such in which desirability might general principle advanced as incident to prosecution litigation, cases, basically as contrasted with these where the issue pre- vel non validity sented the trial courts was the rule. promulgation specific
This like may seem marching the soldiers the hill and up them down marching again battle, without doing but the philosophical implications of matter If go further. here
course taken is then the acceptable, fundamental prin cannot make ciple courts substantive law “wholesale’’ (Winberry, supra, 5 N. J. rule-making at is sus 248) since, of erosion ceptible any case of like future chal ato rule substantive, court as lenge the court might employ the instant and, decision as precedent here, adopt the substance of thereby “judicially”, effectively albeit unintentionally circumventing the constitutional proscrip tion. distinction between a court as a law-making quasi-
legislature (rule-making) law-making by court in the *26 funda- is of causes between adjudication parties course of and to our science Anglo-American political mental elided. Our Con- should not lightly Judicial Article. It in the com- change the accepts stitution course implicitly not, change Such is judicial process. mon law through but rather the however, process an avowed objective the decisions of concrete controversies residue of incidental in the dissenting as developed between litigants, cogently business Mountain. The prime of Justice opinion viеw, is to decide the case rather in appeal, my court on law. The court’s or considera- change than to formulate in and like re- cases justice particular whether doing tion formulation the old or the of new sub- in change quires Culver, 23 N. J. doctrine, see Slate stantive crucible subjected ordinarily opposing (1957), whose is affected purse aby specific litigant argument factor, judicial addition This change. proposed acceptance judge-made public long-range sense that on the dependent gradualness law is largely changes Soc., Co. v. Middlesex Medical Falcone changes, such cf. Jacobs, I is, believe, J.), (1961) (per integral N. J. through law-making adjudicative survival to the system. political in our process on court, of rules of law-making by promulgation Judicial and hand, avowed purposeful policy-making the other from the in nature essentially distinguishable gross, use- body. It is legislative highly of the elected functioning and procedure and relation ful appropriate our in- unacceptable repugnant courts. It is area. The relative efficiency in the substantive stitutions compared inefficiency law-making promulgation I is, discussed in the plurality opinion, with adjudication, constitutional underlying irrelevant think, quite implicated. questions political would me to build impel prophy
These considerations R. herein that necessary adjudication wall between lactic em- the'unnecessary rule-making is invalid 4:42-11(b) barkation in on this particular appeal whether we inquiry “judicially” should adopt substance of the rule. I would refrain from the lаtter.
Ill Were necessary it to decide whether the of substance the rule should be embraced by the Court as matter judicially of I law, substantive would conclude in the at least negative, as to the rule as drawn.4 The primary objection to it its -is nature. be mandatory There would no objection serious to of the principle prejudgment interest if its application were discretion the of the trial court in particular the case, as continues to be in the rule in on equity relation to in unliquidated contract damages cases. See Schuncke, Small N. J. 415-416 Con (1964); Police, &c., Passaic, solidated Pension Fund Commn. v. 23 N. 655. The supra, justice at of the making defendant the claimant pay for use the money declared due during pendency of the action is as or pertinent the contract as to obligor the tort Yet equitable obligor. the sanction of interest remains discretionary the former instances. And for reason! good Experience teaches that many situations of a the winner award money is nevertheless denied costs the court because the other equities way. Why disarm trial judge deny, discretion or allow only partial tort cases when a comparable balance equities points that direction? As one of numerous illustrations which be might afforded, there be might appeals intervening between institution ac- final tion and judgment, inordinately protracting interest- rule, under payment period yet where the occasion for the not was attributable to acts of appeal the defendant but to trial court of plaintiff. those Defendant.may even 1, supra. 4See note
have be neverthe such Must interest prevailed appeals. on entirety for the inexorably less awarded the plaintiff final without the tem before intervening period judgment Or the defendant suppose discretion of pering judge? which the plaintiff at the outset settlement offer tenders ir framed this is unreasonably refuses. Under the rule as R. 4:58-3. relevant the accrual the interest. Cf. merely The main for rule is rationale advanced defendant or his in- transfers to the interest which plaintiff was theoretically on due drawing money surer was action in- the moment the tort took plaintiff place insured; are many But not all tort defendants are stituted. award; and many, than subsantially insured less the trial insured, may who not insured at all or are insufficiently are auto- only Torts relatively impecunious. encompass cases, defamation, malicious but product liability mobile *28 with economic house- opportunity, interference prosecution, of action hold and miscellaneous other causes negligence non-existent, well or inade- may spotty where insurance be faith. In defenses be advanced in may good where quate, actually defendant not have earned may such instances the or on intervening the award the period, interest during on award, and allowance of prejudgment the total amount on the whole award could well or operate oppressively interest in the reposed discretion should be trial unfairly. Surely all to control the matter. court in cases resist that the impression impelling It difficult to of for of the rule was clearance trial adoption motivation kindred by in automobile and insured-tort situations dockets coercive on insurance pressure companies settle imposing observation that others early. beyond cases But above rule, may penalized by than insurers be does seem assume, rule, or only as does defendants their fair to of are unreasonable failures responsible litigants insurers at settlements. well pretrial operate to arrive The recalcitrance on the unreasonable some encourage part It is a objects blunderbuss strikes its indis- plaintiffs. and without criminately necessary justice its regard In not, drawn, effect in cases. view it does particular my or justice subserve the interests calendar control promote is, moreover, in a manner. It justifiable in- potentially R. consistent with the 4:58-3 offer of policy (settlement not a claimant). party I J., myself find unable to dissenting. agree
Mountain, and with certain of majority the result reached the views in the I expressed plurality opinion. shall address first to the conclusion the mat- myself majority ter of subject properly exercise this Court of its rule making power.
R. tort actions there shall 4:42-11(b)1 provides 6% included at annum on judgment, per of the award from the date of the commence the amount ment of the suit from date months after the date tort, whichever is later. The concludes that majority of this this exercise Court’s represents proper rule-making hand, the other am convinced that it I, on transcends power. not he allowed to stand as ongoing should power, rule of court. rulеs of of this Court’s promulgate
The source court in our Constitution.2 appears governing Supreme the administration Court shall make rules law, pro and, all courts in the State VI, 2, par. 3] [N. all J. Const. Art. such courts. cedure opinion. fully plurality
1Set out *29 power. only rule-making of is not source 2The Constitution practice governing right adopt rules inherent to have the Courts particular manner in which court and the to be followed before argued, how do not understand it to tried. I shall there be cases right, upon being placed or this inherent ever, is here that reliance thought any way constitutional to exceed the in latter is history power exercise grant brief of the above. For a of cited rule-making country power pursuant England of and in this in courts Pound, in right, New Rules Court Procedure Under inherent see of 28, (1952). Jersey, L. Rev. 35-36 Harv. 66 is power carefully confined to the ad judicial areas ministration and of practice and the several procedure courts of the State. It no further. goes law, Substantive or anything law, substantive is clearly excluded. That touching the exclusion is not explicitly stated is understandable. quite It simply did not' occur to the draftsmen of the Constitution claim would ever be made that the Supreme Court could, rule, its own effect in the substantive law.3 change
Our constitutional grant of
was defin
rule-making power
itively
v.
interpreted Winberry
240,
5 N. J.
Salisbury,
cert. den. 340
(1950),
877,
123,
U. S.
S. Ct.
95 L. Ed.
638 (1950).
words,
This Court there held that
“subject
law,”
were to be
interpreted
to “substantive
referring
law as
from
distinguished
and
5 N. J.
pleading
practice,”
247,
at
and that as so
“the
interpreted
rule-making power
having
any
prior
3Nor do I know of the claim
beеn made at
time
adoption
leading
of the rule here under
In a
discussion.
article
subject,
quoted
plurality opinion,
and
this
cited
in the
say:
authors
have
Nothing could be
than
clearer
the fact that courts in the exercise
rule-making power
competence
promulgate
have no
rules
governing
Legislative
Amsterdam,
[Levin
substantive law.
Rule-Making:
Control Over Judicial
A Problem in Constitutional
Revision,
1,
(1958)]
Pa. L. Rev.
107 U.
experience
I-Iere the
in a sister state is instructive. The Constitu-
provides
tion of
Florida
the State of
practice
procedure
governed by
[t]he
of all courts shall be
adopted by
Supreme
Const.,
V,
rules
[Fla.
Art.
Court.
A.]
F. S.
explicit
inAs
our Constitution there
no
statement that the
Supreme
does not extend
area
substantive
law. But
implicit
Court of Florida has held that
there
the constitutional
grant
abridge, enlarge modify
a limitation that rules must not
rights
any litigant.
so,
pointed out,
substantive
To do
the court
ignore
separation
powers
would be to
the doctrine of the
and to
trespass upon ground exclusively
legislative
reserved for
action. State
Furen, Fla.,
(1960).
v.
387 but legislation, to overriding Court Supreme as and administration practice, procedure is confined to 5 N. J. 255. The. left this Court as decision such.” at of and pro final arbiter to matters respect practice A such matter would any rule of court as prevail cedure. Norton, Co. v. George Siegler over enactment. legislative out, N. J. But it was and carefully pointed 374 (1952). understood, well that this was certainly judicial pre-eminence and judicial ad procedure confined to matters of practice, in the field of substan Legislative supremacy ministration. are not law “[T]hey
tive stood unchallenged. courts] [the the exercise law wholesale through to make substantive Salisbury, supra, v. rule-making Winberry power.” and important 248. most Winberry N. J. at was one p. this discussed decisions widely one the most certainly uni time, at the not, It Court has ever handed down. was Power: Sub Note, Rule-Making The versally accepted. See to Law? 5 L. Rev. 376 It criti ject Rutgers (1951). was Greene, and ture’s academically. Kaplan Legisla cized Rule-Making: Relation Judicial An Win Appraisal of 65 Harv. L. berry Rev. 234 It was Salisbury, (1951). Pound, Rules defended. Procedure Under equally strongly in New Court Harv. L. Rev. Jersey, supra, (1952). view of My Winberry own is that has stood the the matter stead. It has to de good permitted judiciary State rules of that are as uniform as velop procedure courts flexible not to among the various and so possible case, just any particular result impede reaching rules that facilitate administration in the interest judicial and that are con generally being litigants public to meet demands stantly readily scrutinized changed altered conditions or unforeseen problems. It is no criti Legislature express cism of doubt that so much could done I can have been there. But find nothing Winberry what Court has done here. justify On the Ias contrary, forth, endeavor set lines demarcation shall between what is proper to do Court and what should be solely *31 matter of concern legislative have been and to a ignored considerable extent obliterated. We have trespassed field of substantive law in a of purported exercise the rule- and making power that, at in view, least we my have no right to do.
That the of imposition is a substantive law seems It a entirely clear. effects in change the law of and a damages this is field of substantive and not procedural law. More importantly, the law of forms damages part the law of remedies. The award of damages is the remedy most in commonly courts of law. applied af- Equity — a fords greater variety remedies reformation, rescission, specific performance, injunction, to name a but few. Surely the body of rules to these and other respect like remedial devices is substantive law. To illustrate the difference be- tween substance and procedure applied to a particular remedy, Dean in Pound observed his in article defense Winberry, injunctions may granted Cases in which be are matter of sub procedure seeking, granting
stantive law. The details of in and dis solving province them are within [66 L. the courts. Harv. 46] Rev. at Our has Legislature forbidden injunctions courts issue cases labor A. involving disputes. 2A:15-51, N. et seq. Yet this check legislative free upon the use of remedy by way of injunction has not any called forth that it challenge usurps this Court’s power to deal with matters of procedure. And it is highly unlikely that it will. with the other So remedies mentioned. When and under what circumstances they are to be matter applied is of substantive law. Professor in a Lynch, recent article germane the issue be us, fore has said. seriously argue surchage power, No one would for a
specific enjoin pro- sum or the is a matter of and surcharge injunction accomplish cedure. The are devices to justice. They specific [Lynch, Jersey ends The New are remedies. Supreme Court and the Counsel Fees Rule: Procedure or Substance Remedy? L. (1972) Seton Hall Rev. ] A remedy by way surcharge essentially the same as a remedy award of damages. And the imposition pre- judgment directly affects the amount of plaintiff’s award. Clearly rule has law. changed substantive
Or point may approached differently. be It is said cases that many duties, laws which fix establish rights create liabilities are substantive while those character, which merely prescribe the manner in which rights may ex- ercised and' liabilities enforced are court procedural.
The rule we considering certainly are a new creates liability.
Viewed in well, light as is substantive in nature.
At the of threshold consideration of any the proper exercise by the of judiciary its rule-making power is the need de- termine the appropriate philosophical viewpoint which should an characterize such exercise. As the opinion plurality very correctly states, there is often no clear line between what is substantive and what procedural. When faced such a what problem, should be the of posture the courts? They should, my in if opinion, defer the legislature the matter under consideration can clear any way in be deemed to affect law. a substantive There should be studied deference to what I to be a believe all legislative such supremacy matters.
While I recognize “compartmentalization that strict of triadic lines”4 can along probably be achieved the only by theorist an of the of political exposition doctrine the of yet that, it does remain clear separation powers, while work of of courts share the the nature defining substantive liabilities when law and determined in the rights exercise of the such definition adjudicatory process, not lies at only heart very legislative process, of the but is an area of where the has the legislature clearly last word. governance 4Landis, (1938) The Administrative Process 2. con consistently to have been in other states seem Courts — n — conscious overly and perhaps
scious in some instances legislative maintaining protecting of importance law im against any field of substantive supremacy rule-making exercise by judicial intrusion proper legis of Florida deferred to Supreme Thus the Court power. a rule of court superseding lation as conflicting a on agency from procedure appeal matter of form Furen, Court of In Appellate supra, Slate court, a view that statute diana adopted enumerating a rule of court trial over precedence new took grounds said, court subject; prescribing same upon the “[t]he not matter of procedure, involve these does grounds this statute.” Farmers modify or rule can no court decision Ind. Wolfe, Co. v. App. Mutuals Insurance While these seеm holdings N. E. 692 (1968). 2d pre of the and would rule-making power restrictive unduly New do nonetheless Jersey, they be followed in sumably importance legislation deference evince more to the present recognition. Perhaps significant merits Michael, A. 750, 237 2 Md. App. case of State v. issue is the Md. It was 1968). sug there 2d 782 (Ct. Spec. App. be altered might limitations on actions gested vigorously rejected court rule-making process. judicial saying the proposal, making power grant Appeals . . . Court of
Maryland by Maryland 18A of IV Section Article Constitution *33 purpose regulating procedure.” “practice is for We know authority a of no that statute of limitations within a comes such grant. 785] A. [237 2d at Although limitations, statute as the plurality opinion out, is sometimes points considered procedural, notably conflict of laws it has so purposes, many substantive features that the by Maryland decisive taken court position seems Bull, correct. A. eminently State v. Finally, 2d (Me. Judicial Court of 1969) Supreme Maine was called to resolve conflict apparent between a rule of court and a statute form of an in- touching proper dictment. While the rule the court finding prevailed, was nevertheless moved to say, argues Supreme promul- The defendant Judicial Court
gating procedure authority rules of change criminal has no to alter agree substantive criminal rule-making law. We hasten to power is so [249 limited. A. 2d 884] at A frank recognition legislative supremacy the field law, substantive taken together the limitations upon our rule-making power that are fixed by the Constitution and carefully explicated in Winberry should induce Court to refrain from any exercise of judicial rule-making that may clearly affect substantive law.
This brings me further important ground upon which I disagree with the views which here prevail. Throughout much of Part II of the plurality opinion is woven the thread that because argument could be adopted any case before coming the Court where the issue was raised identified, or could be it therefore fol- lows that it may be the matter of a rule of court. This I argument, submit, most respectfully inextricably con- entirely fuses two disparate processes from stemming two and distinct quite separate grants power. (cid:127) — n limited as it is to matters rule-making touching administration of the courts and to those of — practice and procedure is, exercise, in its akin very legislative In process. court, formulation of rule of ideally and often actually, consulted, experts are committees study proposal submit are reports, various views at Judicial sought Conferences as well as elsewhere. Finally the rule is adopted. Experience dictate later revision. may In event any the end product rule which will apply with undifferentiated force to of an indefinite number any of situations that later be found fall within am- its bit. The power to undertake this non-adjudicative process *34 II, VI,
of stems from Artielei 3 of the rule-making par. Constitution, which is set forth above. of an a form of non-ad- advisory
The is rendering opinion akin in to the judicative judicial many lawmaking respects fac- of a rule. Consider the critical following promulgation advisory as the suggested characterizing tors have been which in rele-' greater degree each of less is also opinion, of the in which a court en- vant the consideration process rule, formulation a were it of gages especially substantive law. trench upon (a) multiplication The sheer of matters to which attention must directed, resulting dispersion thought, legal of a when proposition being abstract; formulated judicial (c) importance, development law, The of a con- legal crete set of facts as an aid to the accurate formulation of the — weight, words, issue to be decided in other which should be given maxim, oritur; ex ius facto (d) importance adversary presentation The of an of evidence as an aid to the accurate determination of facts out of
legal arises; issue importance (e) adversary presentation argument The of an legal issue; the formulation and decision of the (f) importance limiting scope The concrete set of facts in legal interpreta- an aid determination to its accurate ; tion scope play personal (g) The diminished convictions or preferences respect public policy when decision is focused legal facts; definite issue derived from concrete set of (h) having organs of The value of courts function as the sober already taken, thought community appraising second action governmental rather than as line of advisers at the front action at stage decision; initial importance (i) maximizing of all the factors enumerated in acceptable acceptability decisions, importance decisions. and the [Ha Wechsler, The Federal Courts and The Federal' rt System (2nd ) 67.] ed. 1973 factors, Attention is drawn indicative of to these handicaps under which labor when seek to rules they propound courts lawof other than in the course of the adjudicative process, — much to demonstrate that exist al- handicaps not so — fact irrelevant as to demonstrate the though *35 real and in that are truly processes differences significant the of disparate types followed in exercise of the two quite the judicial law-making.
How from the of process making different strikingly a concrete set of facts is adjudicative is the Here process.5 In this by specific to court identified presented litigants. the The varied effects is delineated. precisely context issue the court law before litigants of rules of competing and are presented Evidence argument bcome apparent. Precedents are studied as adversary system. through A law from such soundness and rule of pertinence. emerging birth, a of with the evidences its context carries vel when consideration its especially applicability important for de- non facts is later before court different set of law undertake of process making cision. The power cases stems from Article course of actual adjudicating Constitution, which reads as follows: YI, 1 of the par. judicial power Supreme Superior Court, The shall be vested in a County Court, jurisdiction. Courts and inferior courts of limited The jurisdiction may inferior courts and their from time to es- time be tablished, altered or abolished law. It is courts, this allocation of judicial to the includ- power ing Court, the Supreme that carries with it the power make law in new the exercise of the adjudicatory process. new law in this latter fashion is an development attribute function of the judicial power.
Thus this been Court has endowed the Constitution two separate entirely powers through distinct exercise of each which law course and be made. The method to be are en- pursued power the exercise one am, complete course, 5I majority accord with the view of the courts, deciding cases, course make law. The con widespread tinuing contrary belief is indeed a “stubborn myth.” judge-made existing “I take law as one of the realities of Cardozo, Process, life.” The Nature the Judicial 10.
tirely different from those called into play by exercise other. Thera is no room for merger overlap; two powers, and the manner of their separate exercise, are discrete and distinct.
A further point deserves comment with respect judicial law in the course of making cases. It is deciding elementary but worth perhaps here the repeating courts to the law confined change to those areas uncontrolled by If legislative enactment. has and the legislature spoken, statute neither unconstitutional nor impermissibly vague, function only of the court is to the enactment interpret law, A reached in it effect. so give judge-made *36 course of be adjudication, may rejected by in turn legis- lature; so, too, a which judicial statute interpretation can be altered legislature unsatisfactory finds intent amendatory enactment clear the making legislative short, which the In judge-made court has failed to perceive. law, controversies, is adopted adjudicating the course of all and supervision at to legislative change. times word. has the legislature clearly last
But this is not so as to rules properly promulgated pur- suant to the rule-making power of the As Supreme Court. such to rules in this State the has the last word.6 Court Since this confined to properly and pro- cedure, it be before must assumed that a rule promulgating Court has reached decision that it moving field of adjective law. But if I here mistakenly, as believe to have been case, the Court should exercise its rule-mak- to in ing power fact affect law, substantive would appear that by so it has removed from doing the reach of our Legis- lature a matter which is its rightful concern. It little needs imagination envision the conflicts between coordinate only Supreme 6“The state to assert its Court uncontrolled and rule-making power Jersey.” uncontrollable is New Levin and Am- sterdam, supra, at 24. Surely thus portend. branches of which government to avoid any solicitous sincerely Court be deeply should such confrontation. unseemly rule of the adoption
Por I believe the the reasons stated the constitu- exceeded we have court are considering direct would accordingly tional of this Court powers that it be expunged.
I I now address to Part of the myself majority opinion where the Court issue of up prejudgment takes as a matter of in this case. not sur- adjudication Perhaps it chooses to rule the same as the prisingly adopt exactly reveals, think, I This previously promulgated. a rule interest in the as to fatuity adopting in- only context of these cases. The rule as to prejudgment counsel or the Court was the that was considered terest and here under attack. No alternatives rule already adopted has What in effect rule were even existing suggested. law a rule which :m- been done is to and confirm as ratify This came life an exercise rule-making. providently in my has judicial nothing, awkward artificial technique examined all recommend it. We should have opinion, the rule only rather than consider phases problem instance, better rule that laid before Por is not the us. in- imposition the matter of
pertains equity, trial judge to the sound discretion of the erest left *37 it is. each case? I at the moment to think Should tend claims? Can it contract rule also apply unliquidated claims, instance, all as for be fairly justly applied tort should defamation? These and other questions those for we altered the law in have been and answered before posed any am in favor adopting I respect. this important all with respect rule at of this case. adjudication
record before us and Part I and Part II conclusions Both reached and vote to I dissent respectfully of the plurality opinion strike the interest components from each of the judgments entered below and to direct R. 4:42-11(b) expunged from our rules of court. Sullivan, JJ.,
Hall concur in result. For Justice Weinteaub and Justices affirmance —Chief Jacobs, Peoctoe, Hall Sullivan —6.
For reversal—Justice Mountain and Judge Confobd —2. BIEDERMAN,
IN THE MATTER OF DAVID A.
AN ATTORNEY-AT-LAW.
Argued April 24, July 6, 1973 Decided 1973.