Passaic County Bar Ass'n v. HughesPassaic County Bar Ass'n v. Hughes
This suit has been brought by the Passaic County Bar Association, Newton M. Roemer, president of the Association and William J. Marchese, its immediate past president. Defendants are the Honorable Richard J. Hughes, Governor of the State of New Jersey, the Honorable Frank X. McDermott, President of the Senate of the State of New Jersey, and all other individual members of the Senate. The New Jersey State Bar Association appears as amicus curiae.
The Passaic County Bar Association is a nonprofit membership corporation, incorporated pursuant to Title 15 of the New Jersey Revised Statutes. It is composed of approximately 650 members, all of whom are attorneys of this State in good standing, practicing or residing in the County of Passaic. In summary, the complaint charges that there are a disproportionately large number of judicial vacancies in Passaic County: that these have existed for an unwarranted period of time; that as a result of the long continued failure to fill these vacancies the trial of civil law actions in the
The respective roles of the Governor and Senate in the nomination and appointment of members of the judiciary is set forth in the State Constitution:
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, the Judges of the County Courts 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 seven days’ public notice by the Governor. [
N.J. Const., Art. VI, § 6, par. 1 ].
The facts are not in dispute. A vacancy occurred in the office of judge of the Juvenile and Domestic Relations Court on April 28, 1967. On April 2, 1969 the Governor indicated his intention to nominate a successor to this office and thereafter delivered the nomination to the Senate on April 10, 1969. On June 28, 1967 an additional County Court judgeship for Passaic County was created by act of the Legislature. On April 2, 1969 the Governor indicated his intention to fill this position and on April 10 delivered the nomination to the Senate. On September 7, 1967 a judge of the Passaic County District Court died. On April 2, 1969 an intention to nominate a successor was submitted by the Governor, as was the nomination itself on April 10. No action has been taken by the Senate with respect to any of these three nominations.
On April 21, 1969 the Governor gave notice of his intention to nominate a resident of Passaic County to fill a prospective vacancy on the Superior Court. On April 28 the nomination was made. Senate confirmation followed on May 15. The nominee took office in September 1969 and is рresently sitting in Passaic County.
The court will judicially notice the fact that in November 1969 a further vacancy in the Passaic County Court bench occurred by reason of resignation and that this vacancy still exists.
Near the end of June 1969 the assignment judge of Passaic County, the Honorable John F. Crаne, announced the suspension of the trial of civil cases in the Law Divisions of the Superior and County Courts due to the shortage of judges. The suspension became effective with the commencement of the September 1969 term of court and continues to date.
Plaintiffs contend that the suspension of the trial of civil law suits amounts to a breakdown in the mechanism of State Government; that as citizens, taxpayers and lawyers living and practicing in the county they have standing to seek to right this condition, and that the сourts should afford the means.
As indicated above, there are presently no judicial vacancies with respect to which appropriate executive action has not been taken with the exception of a County Court vacancy which only came into being in November 1969 and which, for this reason, is not mentioned in the complaint. It is true, however, that the Legislature has neither confirmed nor
Plaintiffs ask the court, by way of relief, to compel the Executive and Legislative Branches of the State Government to act (mandamus), to order the Senate to cease and desist from the practice of senatorial courtesy (injunction), and to define the “advice and consent” clause quoted above, determine and declare the status of pending nominations and declare the practice of senatorial courtesy to be illegal and unconstitutional (declaratory judgment).
Initially, consideration must be given to the question of justiciability. Are the issues presented and the relief sought matters which are subject to judicial resolution, or do the issues, or any of them, present “political questions” to be deemed nonjusticiable in the light of the doctrine of the separation of powers? This doctrine is set forth in our State Constitution in the following language:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [
N.J. Const., Art. III, par. 1 ].
There has never really developed either a judicial or academic consensus as to the theoretical bases upon which the political question doctrine rests nor as to its scope nor as to the kind of case that will surely provoke its application. For example, compare Finkelstein, “Judicial Self-Limitation,” 37 Harv. L. Rev. 338 (1924); Weston, “Political Questions,” 38 Harv. L. Rev. 296 (1925); Finkelstein, “Further Notes on Judicial Self-Limitation,” 39 Harv. L. Rev. 221 (1925); Scharpf, “Judicial Review and the Political Question: A Functional Analysis,” 75 Yale L.J. 517 (1966); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). It has been aptly described by Justice Brennan as “a function [of the doctrine] of the separation of powers.” Baker v. Carr, supra, 369 U.S., at 210, 82 S.Ct., at 706, 7 L.Ed.2d at 682.
Underlying all discussion of the subject is a general recognition that our tripartite division of the powers of government, whether viewed at the national or state level, was intended to allocate to the political branches of government a competence, in certain areas at least, ill-defined as they may be, to reach ultimate decisions and to engage in practices that are not subject to judicial supervision or review. I am aware that proponents of the “classical theory” of judicial review may disagree with this statement as seeming to justify a privilege of self-abnegation on the part of the judiciary, the exercise of which may result in a failure to accept the obligation “to say what the law is” whenever the decision of a case requires it. This theory, which appears to impose upon the judiciary a duty of decision from which there is no escape, was adopted, it is said, by Chief Justice Marshall in Marbury v. Madison, 5 U.S. (Cranch) 137, 177-178, 2 L.Ed. 60 (1803), and is implicit, if not indeed explicit, in the doctrine of judicial review which that decision expounded. Scharpf, “Judicial Review and the Political Question: A Functional Analysis,” supra, at 518. A protagonist of the classical theory, in referring to the political question doctrine, has said that “all the doctrine can defensibly imply is that the courts are called upon to judge whether the Constitution has committed to another agency of government the autonomous determination of the issue raised, a finding that itself requires an interpretation.” Wechsler, “Toward Neutral Principles of Constitutional Law,” 73 Harv. L. Rev. 1, 7-8 (1969). This appears to be the approach adopted by the Supreme Court in Powell v. McCormick, supra, where Chief Justice Warren observed that the court must interpret the Constitution and determine what power that document confers on the House of Representatives before the court can determine to what extent the
The majority opinion in Baker v. Carr, supra, with respect to the political question doctrine, merits notice at this point. There it is said that any case held to involve a political question — and which will therefore and for that reason be nonjusticiable — will clearly present at least one of the following formulations:
“a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; оr the impossibility of a court‘s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 369 U.S., at 217, 82 S.Ct., at 710, 7 L.Ed.2d, at 686.
The court is here considering the political question doctrine in relation to the national government and the Federal Constitution. Admittedly, certain of the “formulations” are almost certainly directed to questions of foreign affairs, treaties and the like, with which a state government has no constitutional concern but which have very often provided the occasion for an invocation of this doctrine in the federal courts. Certain of the formulations, however, and especially the first two, seem immediately relevant to the problem we are considering at the state level.
It is necessary at this point to consider briefly the nature and history of the practice of senatorial courtesy which is really the principal target of the plaintiffs’ challenge. This
Historically, the practice, in its present form at least, did not exist in New Jersey prior to the adoption of the Constitution of 1844 for the reason that prior to that time the Governor had no power of judicial appointment. The Constitution of 1776 placed this power in the Legislative Council and General Assembly, acting jointly.
The Constitution of 1844 provided that all the principal judicial officers of the State should “be nominated by the governor, and appointed by him, with the advice and consent of the senate.”
What had this experience been? In The Federalist (No. 66) Alexander Hamilton, in commenting upon the appointing power, had prophesied:
History has shown this prophecy to have been almost totally in error.1
The first instance of senatorial courtesy occurred early in Washington‘s first administration. The President nominated one Benjamin Fishbourn to the post of naval officer of the port of Savannah. Despite his “excellent qualifications the Senate rejected the nomination as a courtesy to the two senators from Georgia, who had a candidate of their own. The following day Washington withdrew the nomination of Fishbourn and yielded to the two Georgia senators by nominating the candidate they desired; * * *.” Harris, The Advice and Consent of the Senate 40 (1953). This practice has continued, despite recurrent executive expostulation, until the present time.2 In general only two occasions have been deemed aрpropriate for the waiving of the practice of Senatorial courtesy: where the nominee is nationally recognized as exceptionally
Following the adoption of the Constitution of 1844 in New Jersey the practice quickly became common and has been more or less followed ever since. Just as has been true at the federal level, it has been constantly decried by the Executive. In 1941 Governоr Edison said of senatorial confirmation in general and of senatorial courtesy in particular, “[a] governor of New Jersey is called upon to rely in his administration of the state offices upon numerous executives over whom he does not have this basic control [the appointing and removal power]. He is certain to find that some of these men on whom he must depend worked personally, perhaps even used their departments, to prevent his election.” Governor Edge is said to have held the same view but stressed that the practice was more pernicious with respect to county than to state-wide nominees.3
In an address delivered before the Essex County Bar Association in April 1965 (and which has been filed as an appendix to plaintiffs’ brief) Governor Hughes took sharp issue with this practice. At that time there were unfilled vacancies in Essex County for which the Governor had proposed nominees. He described the increasing backlog of cases as a hardship to the citizens of the entire State that was directly attributable to “a tradition known as senatorial courtesy, which is certainly being grossly abused in New Jersey today.” The Governor added, “[i]t is bad enough that a Senator may say for no valid reason who shall not be a judge. It is inexcusable that a Senator should attempt to dictate who the judge shall be.” He described the rule as it actually operates.
Here is how it works — a vacancy occurs or a new judgeship is created. The Governor, after exhaustive consultation and careful consideration,
With this brief word as background, we return to the principal issued posed: may this practice, privilege, tradition — call it what you will — of senatorial courtesy be judicially examined and its constitutionality determined by this court, or is it immune from such scrutiny and judicial evaluation under the political question doctrine discussed above? In my opinion, as presented to this court in this case, the issue is nonjusticiable.
In Kligerman v. Lynch, 92 N.J. Super. 373 (Ch. Div. 1966) cert. den. 389 U.S. 822, 88 S.Ct. 49, 19 L.Ed.2d 74 (1967), Judge Wick had occasion to consider this precise issue. He there observed:
Plaintiffs contend that rejection of qualified nominees for personal reasons is so arbitrary as to be incompatible with the power vested in the Senate, and that the framers of the Constitution never intended this check on the appointive power to supplant a properly exercised executive function.
While this court must agree with plaintiffs that the constitutional draftsmen never intended the advice and consent clause to be so used, it cannot agree that it has the power to rеctify the situation. [at 375]
The decision of the court that the practice of senatorial courtesy presented a nonjusticiable issue was rested in large part upon a finding that it was not the intention of the framers of the Constitutions of 1844 and 1947 to invest the courts with power to supervise the Legislature‘s internal procedures where these are not spelled out in the Constitution. With this I agree. Furthermore, there may be added, as additional grounds for reaching the same result, the first two of the “formulations” set forth by Justice
Thus, there is also “a lack of judicially discoverable and manageable standards” for resolving the issue. How is a judicial inquiry to be undertaken to find out whether, in fact, inaction on the part of the Senate results from a deference to the tradition and practice of senatorial courtesy or from some other cause? Are senators to be interrogated as to the reasons and motivations for their actions or their inactions?
For these various reasons the court concludes that whether the practice of senatorial courtesy is or is not constitutional, at least as the point arises here, it is a nonjusticiable issue which the court should not undertake to resolve. Whether the practice is to be longer sanctioned or finally condemned must be determined at the bar of public opinion.
As to the question of mandamus, we do not need to look beyond a leading decision of our own courts. State v. Governor, 25 N.J.L. 331 (Sup. Ct. 1856). In that case William Gledhill claimed to have been elected surrogate of Passaic County and sought a writ of mandamus to compel Governor Price to issue his commission. The court denied the relief sought
* * * upon the broad ground that this court has no power to award a mandamus, either to compel the execution of any duty enjoined on the executive by the constitution, or to direct the manner of its performance. The exercise of such power would be an unwarrantable interference with the action of the executive within his appropriate sphere of duty. The constitution has divided the powers of government into distinct departments, and cautiously provided for their independent exericse. It has expressly forbidden any person belonging to, or constituting one of these departments, from exercising any of the powers properly belonging to either of the others, except as expressly provided in the constitution itself. [at 349-350].
Plaintiffs’ argument that the granting of the commission was merely a ministerial act and might therefore be ordered by the court was likewise rejected upon the ground that whether ministerial or discretionary, it was nontheless an executive act and as such beyond the reach of judicial supervision. We have before us a much stronger case for
Finally, there is really no controversy as to this issue before the court. At the time the suit was started Governor Hughes had taken appropriate action with respect to all existing vacancies.
Plaintiffs project one further argument which should be considered.
The argument seems to go further and to suggest that the nominations presently before the Senate are no longer viable. I cannot read this constitutional provision to support such a result.
The court has purposely refrained from passing upon the question as to whether plaintiffs do or do not have standing in respect of any of the particular issues raised, having preferred to treat the case in the manner set forth above.
Counsel may submit a form of judgment reflecting the conclusion reached.