                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                                    State v. James Buckner (A-22-14) (074390)

Argued April 28, 2015 -- Decided July 30, 2015

RABNER, C.J., writing for a majority of the Court.

         In this appeal, the Court considers whether temporary recall service by retired judges violates the
mandatory retirement rule set forth in the Judicial Article of the State Constitution, which declares that “[t]he
Justices of the Supreme Court and the Judges of the Superior Court . . . shall be retired upon attaining the age of 70
years.” N.J. Const. art. VI, § 6, ¶ 3.

          The constitutional question in this case arises out of defendant’s indictment and trial for counts of robbery,
aggravated assault, and related charges, all stemming from the March 2010 attack of a woman in a parking lot of the
Morris County Mall. The Honorable Salem Vincent Ahto, a retired Superior Court Judge, presided at defendant’s
trial. Judge Ahto was 73 years old at the time. He had been recalled to service by the Supreme Court three times by
orders dated June 24, 2008, June 29, 2010, and February 7, 2012.

         Prior to trial, defendant moved to disqualify Judge Ahto, contending that (1) the Recall Statute, N.J.S.A.
43:6A-13 -- which allows retired judges to be recalled for temporary judicial service -- was unconstitutional, and (2)
Judge Ahto should not decide the disqualification motion because the $300 per diem stipend paid to recall judges
allegedly created a financial interest in the case. Judge Ahto denied both motions. After a three-day trial, a jury
found defendant guilty of second-degree robbery, third-degree aggravated assault, and attempted theft. Judge Ahto
sentenced defendant to nine years’ imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

          Defendant appealed, arguing both that the trial judge erred in denying the disqualification motions and that
his sentence was excessive. A divided Appellate Division panel affirmed defendant’s conviction. State v. Buckner,
437 N.J. Super. 8 (App. Div. 2014). The panel found that Judge Ahto properly declined to recuse himself based on a
purported financial interest in the case, and further upheld defendant’s sentence. Id. at 37-38. The panel divided
over the constitutionality of the Recall Statute. Evaluating defendant’s claim under the Judicial Article, the majority
upheld the constitutionality of the statute, finding “no language, express or even implied, banning the temporary
recall of retired judges.” Id. at 28. Among other conclusions, the majority rejected an argument raised by the
dissent, not the parties: that recall service is unconstitutional because it improperly encroaches upon the Executive’s
power of appointment and thus violates the separation of powers doctrine. The majority found that the Recall
Statute struck an appropriate compromise and maintained the balance among the three branches. Id. at 35.

         The dissenting member of the panel concluded that the Recall Statute is unconstitutional. Id. at 39 (Harris,
J.A.D., dissenting). In the dissent’s view, the phrase “shall be retired upon attaining the age of 70 years” in the
Judicial Article “connotes (1) the compulsory abdication of a judicial office; (2) the surrender of judicial power”;
and (3) “the permanent loss of the ability to exercise -- for the benefit of the public -- the sovereign functions of
government that had previously been made possible by the Governor’s selection, with the advice and consent of the
Senate.” Id. at 42 (Harris, J.A.D., dissenting) (citation omitted).

         Defendant appealed as of right under Rule 2:2-1(a)(2), based on the dissent in the Appellate Division.

HELD: Defendant has failed to show beyond a reasonable doubt that the Recall Statute is clearly repugnant to the
New Jersey Constitution. To the contrary, the current law, in effect since 1975, is consistent with both the language
and the history of the modern State Constitution, and does not violate the separation of powers doctrine.

1. A legislative act will not be declared void unless its repugnancy to the constitution is clear beyond a reasonable
doubt. Silence typically cannot satisfy a challenger’s heavy burden of proof. Unless prohibited by the Constitution

                                                           1
expressly or by clear implication, the Legislature has the power to take any action or course reasonably necessary or
incidental to the operation of government. (pp. 16-18)

2. New Jersey has had three constitutions. The focus of this appeal is on the modern State Constitution, which was
ratified by the voters in 1947 and took effect in 1948. Before the trial court and the Appellate Division, defendant
relied exclusively on Article XI of the Constitution -- the Schedule Article. As the majority and the dissent in the
Appellate Division correctly noted, the Schedule Article has no bearing on this appeal because its provisions dealt
exclusively with the incumbent judges who held their judicial offices at the adoption of the 1947 Constitution.
Defendant’s reliance on the Schedule Article is therefore misplaced. (pp. 19-20)

3. The proper focus of this appeal is the Judicial Article of the modern Constitution, which provides “The Justices
of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of 7 years and
upon reappointment shall hold their offices during good behavior . . . . Such justices and judges shall be retired
upon attaining the age of 70 years. Provisions for the pensioning of the Justices of the Supreme Court and the
Judges of the Superior Court shall be made by law.” N.J. Const. art. VI, § 6, ¶ 3. The word “retired” is not
incompatible with recall service. In the context of Paragraph 3, “retire” means an end to a seven-year or tenured
term of service, and the start of “pensioning.” Temporary recall service, by comparison, does not reverse a judge’s
retirement. Nor does it restore judges to their former position. Recall judges serve at the pleasure of the Supreme
Court for two years, with duties often limited to participation in “special projects and programs.” Recall judges
remain retired and do not earn a judicial salary, but instead receive $300 per diem, not to exceed more than one-
quarter of a judicial salary in a year. The Appellate Division dissent submits that recall clashes with retirement
because “shall be retired” “connotes” the complete “surrender of judicial power” and “the permanent loss of the
ability to exercise” the functions of a judge. Buckner, supra, 437 N.J. Super. at 42 (Harris, J.A.D., dissenting). But
the dissent’s far-reaching connotation finds no support in the text of the Constitution. The Judicial Article does not
foreclose recall on a limited or temporary basis -- either expressly or by clear implication. (pp. 20-23)

4. The parties and the Appellate Division opinions also discuss the framers’ choice to use different language in the
Schedule and Judicial Articles. The difference in language reveals that the framers knew how to bar recall but chose
not to do so in the Judicial Article. The first phrase of the Schedule Article -- no judge “shall hold his office after
attaining the age of seventy years” -- banned recall, and the framers had to create an escape clause and expressly
permit judges to complete their unexpired terms during the transition from the old to the new Constitution. The
Judicial Article, by contrast, does not bar recall; it says that judges “shall be retired” at age seventy and subject to a
pension. Had the framers intended to ban recall, they could have repeated the text used in Article XI. (pp. 23-25)

5. Because the language of the Constitution does not rule out recall, there is no need to turn to extrinsic sources. A
close look at the constitutional proceedings, however, does not suggest that the framers wanted to restrict recall.
Rather, the history of the Judicial Article shows that the framers considered various options including restrictive
language in an early draft of the Constitution that barred recall, a revised draft that made recall mandatory, and
varied proposals raised at the Constitutional Convention. Also, multiple individuals at the Convention offered
positive comments about recall. The framers declined to act on the issue, opting instead to leave it to the
Legislature. Defendant maintains that the framers expressly barred recall -- even though the Constitution does not
say so, and nothing in the record of the proceedings suggests the framers had that in mind. The Constitution’s
silence is not a rejection of recall; instead it amounts to an appropriate delegation of authority to another branch of
government. The emphasis at the Convention on both simplicity of language and the need for flexibility in the court
system also supports the Court’s analysis. (pp. 25-40)

6. Having addressed the Judicial Article, the Court turns to the history and purpose of the Recall Statute. The
Legislature designed a pensioning system that today includes recall. Over time, the Legislature has acted on a
number of occasions to permit the recall of retired judges, including in 1973, when the Legislature enacted the
Judicial Retirement System Act (“JRSA”), N.J.S.A. 43:6A-1 to -46, leaving in place the recall provision enacted in a
prior law. The Legislature took action again in 1975, amending the Recall Statute to permit the recall of retired
judges older than seventy. N.J.S.A. 43:6A-13(b). Defendant suggests that the period from 1948 to 1973, when he
claims there was no recall legislation, is proof that the framers did not intend recall. The argument’s premise is
flawed. The Legislature first enacted a recall provision in 1964, and, even more importantly, defendant’s suspicion,
based on a period of legislative inaction, is not enough to show unmistakably that the Recall Statute runs afoul of the


                                                            2
Constitution. If anything, the passage of time works against defendant’s claim. Defendant must surmount the well-
settled policy of our law not to invalidate a statute which has been in force without substantial challenge for many
years, unless its unconstitutionality is obvious. (pp. 40-48)

7. The Court observes that the fifty states have adopted various approaches to judicial retirement and recall, but
declines to rely upon the approaches taken by other states, noting that its obligation is to interpret the words and
meaning of the New Jersey Constitution and New Jersey statutory law in light of the State’s history. The
approaches taken by others do not offer insight into what the framers of New Jersey’s modern Constitution intended.
(pp. 48-51)

8. Although defendant did not preserve the issue, he adopts an argument raised by the Appellate Division dissent,
namely that the Recall Statute conflicts with the separation of powers doctrine. The Court concludes that the
argument lacks merit. The separation of powers clause of the Constitution directs that one branch of government
may not exercise powers that properly belong to another. As pertains to this appeal, the Constitution gives the
Governor the power to nominate and appoint judges, subject to the advice and consent of the Senate. Recall does
not limit or encroach on the Executive’s power. The moment a judge retires, the position becomes vacant, and the
Governor may appoint a new judge as a replacement. Because defendant cannot show that the Recall Statute clashes
with or usurps the Governor’s constitutional authority to appoint judges, the separation of powers argument fails.
(pp. 52-53)

9. In short, this appeal is governed by two fundamental principles: the strong presumption of validity that attaches
to every legislative enactment, and the Court’s obligation to act with “extreme self restraint” before it overrides the
Legislature and pronounces a law unconstitutional. Before a court can declare a law unconstitutional, it must find
proof beyond a reasonable doubt that the statute is clearly repugnant to the New Jersey Constitution. Defendant has
not met that burden. To the contrary, the Recall Statute is consistent with both the language and the history of the
modern State Constitution. (p. 54)

         The judgment of the Appellate Division is AFFIRMED.

          JUSTICE ALBIN, DISSENTING, expresses the view that the plain meaning of the Judicial Article --
including its declaration that “justices and judges shall be retired upon attaining the age of 70 years” -- does not
provide that justices and judges can be recalled to their offices beyond the age of seventy. Nor does it empower the
Legislature to make laws to recall justices and judges beyond that age. In Justice Albin’s view, if justices or judges
are to serve in office beyond the age of seventy, full time or on recall, the Constitution must be amended.

        JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON, and JUDGE CUFF (temporarily
assigned) join in CHIEF JUSTICE RABNER’s opinion. JUSTICE ALBIN filed a separate, dissenting
opinion. JUSTICE PATTERSON did not participate.




                                                           3
                                       SUPREME COURT OF NEW JERSEY
                                         A-22 September Term 2014
                                                  074390

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

JAMES BUCKNER,

    Defendant-Appellant.


         Argued April 28, 2015 – Decided July 30, 2015

         On appeal from the Superior Court, Appellate
         Division.

         Brian F. Plunkett, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph E. Krakora, Public Defender,
         attorney).

         Jeffrey P. Mongiello, Deputy Attorney
         General, argued the cause for respondent
         (John J. Hoffman, Acting Attorney General of
         New Jersey, attorney).

         Thomas H. Prol argued the cause for amicus
         curiae New Jersey State Bar Association
         (Paris P. Eliades, President, attorney; Mr.
         Eliades, of counsel; Mr. Eliades, Mr. Prol,
         Sandra T. Ayres, Robert B. Hille, and John
         W. Kaveney, on the brief).


    CHIEF JUSTICE RABNER delivered the opinion of the Court.

    For the past half century, the Judiciary has been able to

recall retired judges to serve temporarily in our State’s court

system where they are needed most.   To recall judges who are


                                1
willing to serve, the Supreme Court has relied on statutes that

authorize recall and date back to 1964.     Since then, hundreds of

retired judges have temporarily served on recall and resolved

hundreds of thousands of cases.   Their efforts have not only

helped countless litigants on a timely basis but have also

enhanced the quality of justice in our State.

    Until now, recall service has gone unchallenged.     Today, as

the current Recall Statute -- N.J.S.A. 43:6A-13 -- turns forty,

defendant claims that his criminal conviction should be reversed

because it was unconstitutional for a retired judge to preside

over his jury trial.   He claims that the existing recall law --

passed by the Legislature, signed by the Governor, and relied on

by the Judiciary for decades -- is unconstitutional.    To make

that novel argument, defendant relies on language in the State

Constitution that says “judges shall be retired” when they turn

seventy, and “[p]rovisions for the pensioning” of those judges

“shall be made by law.”    N.J. Const. art. VI, § 6, ¶ 3.

    Constitutions generally offer a framework for government

but do not attempt to resolve all issues.    See Reilly v. Ozzard,

33 N.J. 529, 539 (1960).   What the Constitution does not bar,

either expressly or by clear implication, is left to the

Legislature to address.    N.J. Sports & Exposition Auth. v.

McCrane, 61 N.J. 1, 18, appeal dismissed, 409 U.S. 943, 93 S.

Ct. 270, 34 L. Ed. 2d 215 (1972); Gangemi v. Berry, 25 N.J. 1,

                                  2
11 (1957).    In that spirit, the modern State Constitution of

1947 provides for mandatory retirement of judges, but the

document is silent on the subject of recall.    Nowhere does the

plain language of the Constitution forbid recall.     And the

mandatory retirement age in the Constitution, on which defendant

relies, does not conflict with temporary recall assignments

because the two concepts are distinct.    One prevents lifelong

tenure; the other affords judges neither tenure nor a seven-year

term and does not reverse a judge’s retirement.

    The history of the Constitutional Convention of 1947

reveals that the framers were very much aware of recall and

neither required nor rejected it.     Among other options, they

turned away from restrictive language in a prior draft

Constitution which barred recall; they also declined to adopt a

proposal at the other end of the spectrum which made recall

mandatory.    The framers instead opted for a streamlined approach

that selected a retirement age, required a pension system for

judges, and otherwise left the details to the Legislature.

Nothing in the historical record suggests the framers wanted to

ban recall.

    At different times over the decades, the Legislature

accepted the framers’ invitation and included recall in the

judicial pension statute.    That approach is consistent with the

aims of the Constitutional Convention:    to develop an effective,

                                  3
flexible, and fair system of justice.    The current system of

recall serves those very goals.

    The legislative enactments of the past fifty years are

presumed constitutional.   Only if a law is “repugnan[t] to the

constitution . . . beyond a reasonable doubt” can it be declared

void.   Franklin v. N.J. Dep’t of Human Servs., 111 N.J. 1, 17

(1988) (quotation omitted).

    Defendant cannot, and has not, overcome the strong

presumption of validity that underlies the Recall Statute.     The

current recall law, in effect since 1975, violates neither the

plain language of the State Constitution, as defendant claims,

nor the separation of powers doctrine.   For that reason, we

affirm the judgment of the Appellate Division, which upheld the

Recall Statute.

                                  I.

    At the heart of this appeal are two provisions of law:

part of the Judicial Article of the State Constitution, N.J.

Const. art. VI, § 6, ¶ 3, and the Recall Statute, N.J.S.A.

43:6A-13(b).   We review them here to provide context for what

follows.

    The Judicial Article outlines the basic structure of the

state court system and the powers of the Judiciary.    Section 6,

Paragraph 3 of the Article discusses the appointment and



                                  4
reappointment of judges, their retirement, and judicial

pensions.    That section provides in pertinent part that

            [t]he Justices of the Supreme Court and the
            Judges of the Superior Court shall hold their
            offices for initial terms of 7 years and upon
            reappointment shall hold their offices during
            good behavior . . . . Such justices and judges
            shall be retired upon attaining the age of 70
            years. Provisions for the pensioning of the
            Justices of the Supreme Court and the Judges
            of the Superior Court shall be made by law.

            [N.J. Const. art. VI, § 6, ¶ 3.]

The provision thus requires that judges retire at age seventy.

It also directs the Legislature to create a judicial pension

system.

       The Legislature responded on a number of occasions.    In

1973, for example, Governor William T. Cahill signed into law

the Judicial Retirement System Act (“JRSA”), N.J.S.A. 43:6A-1 to

-46.   All justices of the Supreme Court and judges of the

Superior Court are members of the judicial retirement system,

N.J.S.A. 43:6A-5, and, upon retirement, a judge is entitled to

the payment of retirement benefits, N.J.S.A. 43:6A-16.

       One section of the JRSA -- referred to as the Recall

Statute -- allows retired judges to be recalled for temporary

judicial service.    See N.J.S.A. 43:6A-13.    Under the law, judges

can be recalled only if they have retired.     The Recall Statute

now provides, in part, that “[s]ubject to rules of the Supreme

Court . . . any judge of the Superior Court . . . who has

                                  5
retired on pension or retirement allowance may, with his

consent, be recalled by the Supreme Court for temporary service

within the judicial system other than the Supreme Court.”

N.J.S.A. 43:6A-13(b).

       The Recall Statute also details the conditions of recall

service:

           Upon such recall the retired . . . judge shall
           have all the powers of a . . . judge of the
           court to which he is assigned and shall be
           paid a per diem allowance fixed by the Supreme
           Court in accordance with its rules, provided
           however that in no event shall he receive a
           salary which together with his pension or
           retirement allowance exceeds the current
           salary of a . . . judge of the court from which
           he retired.

           [N.J.S.A. 43:6A-13(c).]

Recall judges do not receive a salary; they instead get a per

diem stipend that the Supreme Court has set at $300.

Administrative Directive 12-01, “Policy Governing Recall for

Temporary Service within the Judicial System” (July 19, 2001),

https://www.judiciary.state.nj.us/directive/personnel/dir_12_01.

pdf.   They do not work full-time but must be able to “serve for

at least 120 days per year.”    Ibid.   Recall judges receive

specific assignments within the court system -- often in areas

that “meet[] a significant need” or serve “a designated

statewide priority.”    Ibid.   And they serve “at the pleasure of

the Supreme Court” for two-year terms that are renewable -- also


                                  6
in the Court’s discretion -- until the retired judge reaches age

eighty.   Ibid.

     The terms of recall service are thus defined by statute and

Court directive.    This appeal asks whether temporary recall

service violates the Judicial Article’s mandatory retirement

rule.

                                 II.

    The constitutional question in this case arises out of the

following events.     On the afternoon of March 21, 2010, defendant

James Buckner attacked a woman as she returned to her car in the

parking lot of the Morris County Mall in Cedar Knolls.      After

she placed a package in the back seat and opened the front

driver-side door, defendant grabbed her around the neck in a

choke-hold, brought her to her knees, and told her to give him

her purse.   Even though the victim told him to take the purse,

he continued to choke her until she briefly passed out.     When

defendant loosened his grip, the woman screamed and threw her

keys.

     Others in the parking lot heard the screams and responded.

One passerby kicked defendant until he released the victim and

began to walk away.    Another called the police and followed

defendant to a store in the mall.      When the police arrived, the

latter witness told an officer where defendant had gone.         Soon

after, the officer detained defendant.      Minutes later, the

                                  7
victim and both witnesses identified defendant as the attacker,

while he sat in the back of a police car.

    A grand jury in Morris County indicted defendant on six

counts:   second-degree robbery, N.J.S.A. 2C:15-1(a)(1); third-

degree hindering, N.J.S.A. 2C:29-3(b)(4); third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree

attempted theft, N.J.S.A. 2C:20-3(a); first-degree robbery,

N.J.S.A. 2C:15-1(a)(1); and second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1).

    The Honorable Salem Vincent Ahto presided at defendant’s

trial.    Judge Ahto is a retired Superior Court Judge.   At the

time of the trial, he was 73 years old.     This Court recalled him

to service three times by orders dated June 24, 2008, June 29,

2010, and February 7, 2012.

    Prior to trial, defendant moved to disqualify Judge Ahto

for two reasons.   First, defendant alleged that Judge Ahto could

not preside over the case because the Recall Statute -- the

basis for his temporary assignment -- was unconstitutional.        For

support, defense counsel relied on arguments presented in a

different, recent case before the Judge.     Second, defendant

asserted that Judge Ahto should not decide the disqualification

motion because he had a financial interest in the case -- the

$300 per diem.



                                  8
    Judge Ahto relied on his decision in the prior case and

denied both motions.     As to the first claim, he observed that he

was “ill-equipped” to declare orders of the Supreme Court

unconstitutional, that the Constitution does not bar recall

service, and that the Recall Statute was presumptively

valid.   Judge Ahto relied on a memorandum from the Assignment

Judge to deny the second argument.        The memo noted that the per

diem payment a recall judge receives is not the type of

financial interest that requires disqualification.

    After a three-day trial in April 2012, the jury found

defendant guilty of second-degree robbery, third-degree

aggravated assault, and attempted theft, and acquitted him of

the remaining charges.    Two months later, Judge Ahto sentenced

defendant to nine years’ imprisonment subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2.

    Defendant appealed.     He argued that the trial judge erred

in denying the disqualification motions and claimed that his

sentence was excessive.    A divided appellate panel affirmed

defendant’s conviction.    State v. Buckner, 437 N.J. Super. 8

(App. Div. 2014).   The panel found that the trial judge properly

declined to recuse himself based on a purported financial

interest in the case.     Id. at 37.   The panel also upheld

defendant’s sentence.     Id. at 37-38.



                                  9
       The panel divided over the constitutionality of the Recall

Statute.    Defendant claimed that it violated Article XI, Section

IV, Paragraph 1 of the State Constitution (the “Schedule

Article”), which states that “[n]o Justice of the new Supreme

Court or Judge of the Superior Court shall hold his office after

attaining the age of seventy years.”      N.J. Const. art. XI, § 4,

¶ 1.    The majority explained that that language “applies

exclusively to ‘the incumbent judges who held their judicial

offices at the adoption of the Constitution,’ and therefore has

no bearing here.”     Buckner, supra, 437 N.J. Super. at 25-26

(quoting Lloyd v. Vermeulen, 22 N.J. 200, 209 (1956)).      The

dissent agreed.     Id. at 40 n.3 (Harris, J.A.D., dissenting).

Both instead evaluated defendant’s claim under the Judicial

Article, which declares that “[t]he Justices of the Supreme

Court and the Judges of the Superior Court . . . shall be

retired upon attaining the age of 70 years.”     N.J. Const. art.

VI, § 6, ¶ 3.

       Judge Parrillo, writing for the majority, upheld the

constitutionality of the statute.      Buckner, supra, 437 N.J.

Super. at 36.   He began with an extensive review of the history

of the Judicial Article and the Recall Statute.     Id. at 13-23.

Based on that analysis, the majority concluded that “the recall

of judges over age seventy was a concept about which the members

of the Convention were obviously aware” but “it was also one

                                  10
which they chose not to consider, delegating that detail,

instead, to the Legislature.”    Id. at 20.

    In response, according to the majority, the Legislature

enacted the JRSA, which authorized the Supreme Court to recall

retired judges.   Id. at 20-21, 32.     Like all legislation, the

majority noted, the Recall Statute “is presumed to be

constitutional and will not be declared void unless it is

clearly repugnant to the Constitution.”       Id. at 24 (quoting

Trautmann ex rel. Trautmann v. Christie, 211 N.J. 300, 307

(2012)).

    To assess the law’s constitutionality, the majority

searched the text of the Judicial Article and found “no

language, express or even implied, banning the temporary recall

of retired judges.”   Id. at 28.    Unlike the proscriptive phrase

in the Schedule Article -- “shall [not] hold office” -- the

majority noted that the Judicial Article used the terms “shall

be retired.”   Id. at 27-28.    The majority found “nothing

intrinsic in the definition of ‘retire’ to suggest its

incompatibility with temporary recall service.”      Id. at 28.

    As further support for its conclusion, the majority pointed

to decisions by other state courts that found temporary post-

retirement service constitutional, id. at 28-31; observed that

the law achieved two overriding purposes of the Judicial

Article, “to create flexibility in the court system and to

                                   11
provide for prompt judicial relief,” id. at 32; and noted that

the statute had “been implemented without challenge or objection

for almost four decades,” id. at 33 (citing State v. Trump

Hotels & Casino Resorts, 160 N.J. 505, 527 (1999)).

    The majority also rejected an argument raised by the

dissent, not the parties:   that recall service is

unconstitutional because it improperly encroaches upon the

Executive’s power of appointment and thus violates the

separation of powers doctrine.   Id. at 35.   The majority found

that the Recall Statute struck an appropriate compromise and

maintained the balance among the three branches.     Ibid.

    Judge Harris, in dissent, concluded that the Recall Statute

is unconstitutional.   Id. at 39 (Harris, J.A.D., dissenting).

He found that the retirement provision in the Judicial Article

“was intended by its framers and the people who adopted it in

1947 to not permit the Legislature to authorize reinstatement of

this state’s judicial power to pensioner judges.”    Id. at 40

(Harris, J.A.D., dissenting).    In the dissent’s view, the phrase

“shall be retired upon attaining the age of 70 years” in the

Judicial Article “connotes (1) the compulsory abdication of a

judicial office; (2) the surrender of judicial power”; and (3)

“the permanent loss of the ability to exercise -- for the

benefit of the public -- the sovereign functions of government

that had previously been made possible by the Governor’s

                                 12
selection, with the advice and consent of the Senate.”      Id. at

42 (Harris, J.A.D., dissenting) (citation omitted).   The dissent

also stressed that “nothing in the Constitution authorizes”

recall.   Id. at 41 (Harris, J.A.D., dissenting).

    The dissent found the language in the Schedule Article to

be of little use because the term “office” “was clearly limited

and intended to punctuate the end of incumbency under the 1844

constitutional framework for those pre-modern-era judges who had

transitioned to the Superior Court.”   Id. at 43 (Harris, J.A.D.,

dissenting).   The dissent also challenged the majority’s

reliance on decisions from other states because the

constitutionality of New Jersey’s recall platform cannot be

measured from a “dissimilar foreign source.”   Id. at 47-48

(Harris, J.A.D., dissenting).

    The dissent examined the history of the 1947 Constitutional

Convention as well and concluded that the “excision” of the

recall provision “that had appeared in the failed 1944

Constitution was purposive” -- “even though there is no express

record of its rejection” at the 1947 Convention.    Id. at 43-47

(Harris, J., dissenting).   In the dissent’s view, “the twenty-

five-year span” from 1948 to 1973 “during which there was no

recall legislation” also weighs against the majority’s reading

of the Constitution.   Id. at 43-44 (Harris, J.A.D., dissenting).

The dissent took “comfort in the recollection of Morris M.

                                13
Schnitzer,” an advisor to the 1947 Convention.    Id. at 57

(Harris, J.A.D., dissenting).   In an interview nearly a half

century later, he recalled that it was “[c]ertainly not

[contemplated]” that judges could be recalled.    Ibid. (quoting

Conversations with Morris M. Schnitzer, 47 Rutgers L. Rev. 1391,

1401 (1995)).

    Defendant appealed as of right under Rule 2:2-1(a)(2).      Our

review is thus limited to the issues raised by the dissent.

See, e.g., State v. T.J.M., 220 N.J. 220, 228 (2015).

    The Court granted the New Jersey State Bar Association

(NJSBA) leave to appear as amicus curiae.

                                III.

    Defendant argues that the Recall Statute violates the plain

language of the Constitution.   Before this Court, he relies on

both the Schedule Article and the Judicial Article.    Defendant

asserts that, when read together, the two provisions “divest

judges of their judicial power at age 70 without exception.”

The Recall Statute, according to defendant, directly conflicts

with those “clear constitutional provisions.”

    Defendant contends that the differences in language between

the Schedule Article and the Judicial Article do not support the

constitutionality of the Recall Statute.    He also submits that

the Constitution’s silence on the subject of recall does not

weigh in favor of the law.   Because mandatory retirement is an

                                14
absolute bar to further service, defendant argues, there was no

reason for the framers to explicitly bar recall.    Defendant

finds support for that proposition from the record of the 1947

Constitutional Convention and the period from 1948 to 1973,

during which he claims the Legislature did not enact a recall

provision.

    Defendant also draws on the dissent in the Appellate

Division and argues that the Recall Statute violates the

separation of powers doctrine because it encroaches on the

appointment power of the Executive Branch.

    The State, represented by the Attorney General, maintains

that the Recall Statute is constitutional.   The State argues

that the Constitution permits the Legislature to authorize

temporary recall service.   According to the State, a mandatory

retirement age does not affirmatively bar recall.   Absent direct

evidence to the contrary, the State contends, the recall law --

which is presumed constitutional -- cannot be overturned.

    The State asserts that defendant “confuses the concepts of

retirement and temporary recall assignments, which are related

but separately distinct and can co-exist without constitutional

infirmity,” and also “disregards the will of the people and the

spirit of the New Jersey Constitution.”   In addition, the State

argues that the Constitution’s silence is not an affirmative ban

on recall; that the framers deliberately chose not to use clear

                                15
language that would have precluded recall service; that the

Constitution outlines broad principles of governance, not the

details; and that the Recall Statute aids the Judiciary in its

obligation to provide a fair, efficient, and functioning court

system, consistent with the intent of the modern Constitution.

    The State submits that defendant’s separation of powers

argument is not properly before the Court and is meritless, in

any event.    The State maintains that recall does not infringe on

the Executive’s authority to appoint judges and reflects a

cooperative system of shared power among the branches of

government.

    The NJSBA does not take a position on the constitutionality

of the Recall Statute.   Instead, the NJSBA requests that if the

Court declares the law unconstitutional, the ruling should be

applied prospectively.

                                 IV.

    Defendant must shoulder a “heavy burden” to prevail on his

claim that the Recall Statute is unconstitutional.    Trump

Hotels, supra, 160 N.J. at 526.    He must hurdle “[t]he strong

presumption of constitutionality that attaches” to this and

every other law.    Hamilton Amusement Ctr. v. Verniero, 156 N.J.

254, 285 (1998).   Indeed, “from the time of Chief Justice

Marshall,” case law has steadfastly held to “the principle that



                                  16
every possible presumption favors the validity of an act of the

Legislature.”   McCrane, supra, 61 N.J. at 8.

    The foundation for that presumption is solid and clear:

the challenged law “represents the considered action of a body

composed of popularly elected representatives,” ibid., and, as

Justice Oliver Wendell Holmes admonished, “it must be remembered

that legislatures are ultimate guardians of the liberties and

welfare of the people in quite as great a degree as the courts,”

id. at 9 (quoting Mo., Kan. & Tex. Ry. Co. v. May, 194 U.S. 267,

270, 24 S. Ct. 638, 639, 48 L. Ed. 971, 973 (1904)).    As a

result, courts exercise the power to invalidate a statute on

constitutional grounds with “extreme self restraint.”    Id. at 8.

    To overcome the strong presumption of validity and

“deference [due] to any legislative enactment,” the challenger

must demonstrate -- “unmistakably” -- that the law in question

“run[s] afoul of the Constitution.”    Lewis v. Harris, 188 N.J.

415, 459 (2006) (citation omitted).   This standard is also well-

settled:   “a legislative act will not be declared void unless

its repugnancy to the constitution is clear beyond reasonable

doubt.”    Gangemi, supra, 25 N.J. at 10 (emphasis added).     When

reasonable people “might differ” about the constitutionality of

a law, courts must “defer[] to the will of the lawmakers.”      N.J.

Ass’n on Corr. v. Lan, 80 N.J. 199, 220 (1979) (internal

quotation marks and citation omitted).

                                 17
    Silence typically cannot satisfy a challenger’s heavy

burden of proof.    “[W]hen the framers of the constitution

intended that a subject should be placed beyond legislative

control they said so.”    State v. De Lorenzo, 81 N.J.L. 613, 621

(E. & A. 1911); see also Humane Soc. of U.S., N.J. Branch, Inc.

v. N.J. State Fish & Game Council, 70 N.J. 565, 579 (1976)

(finding delegation of authority “is not in derogation of the

constitution where that document is silent as to the” issue

(citation omitted)).     Viewed another way, “[t]he Legislature is

invested with all powers not forbidden.”     Gangemi, supra, 25

N.J. at 11.    Unless “prohibited by the Constitution expressly or

by clear implication,” “[t]he Legislature has the power to take

any action or course reasonably necessary or incidental to the

operation of government.”    McCrane, supra, 61 N.J. at 18.

    To understand the meaning and intent of a constitutional

provision, courts look first to the plain language the framers

used.   Comm. to Recall Robert Menendez v. Wells, 204 N.J. 79,

105 (2010).    If the language is straightforward, “the words used

must be given their plain meaning.”     Trump Hotels, supra, 160

N.J. at 527.    If the language is unclear or open to more than

one interpretation, courts may examine other sources for

guidance, including the document’s history and discussions at

the constitutional convention.    Menendez, supra, 204 N.J. at

106; Trump Hotels, supra, 160 N.J. at 527-28.

                                  18
                                V.

    New Jersey has had three constitutions.    Neither the

Constitution of 1776 nor the Constitution of 1844 contained a

mandatory retirement provision for judges.    Buckner, supra, 437

N.J. Super. at 13.   Our focus is on the modern State

Constitution, which was ratified by the voters in 1947 and took

effect in 1948.

                                A.

    Defendant relied exclusively on Article XI of the

Constitution, the Schedule Article, before the trial court and

the Appellate Division.   Article XI “contains various phase-in

provisions designed to facilitate the smooth transition to the

1947 constitution and several subsequent amendments.”    Robert F.

Williams, The New Jersey State Constitution 197 (2d ed. 2012).

As the majority and the dissent in the Appellate Division

correctly noted, the Schedule Article has no bearing here

because the provisions in Article XI, Section 4, Paragraph 1

“dealt exclusively with the incumbent judges who held their

judicial offices at the adoption of the Constitution.”    Lloyd,

supra, 22 N.J. at 209; see also Buckner, supra, 437 N.J. Super.

at 25-26.

    The Schedule Article directs the Governor to appoint the

members of the new Supreme Court from among certain judges of

the outgoing court system.   N.J. Const. art. XI, § 4, ¶ 1.    The

                                19
provision also identifies which judicial officers would become

judges of the new Superior Court.    Ibid.   Finally, the paragraph

provides that

         [t]he Justices of the new Supreme Court and
         the Judges of the Superior Court so designated
         shall hold office each for the period of his
         term which remains unexpired at the time the
         Constitution is adopted; and if reappointed he
         shall hold office during good behavior.     No
         Justice of the new Supreme Court or Judge of
         the Superior Court shall hold his office after
         attaining the age of seventy years, except,
         however, that such Justice or Judge may
         complete the period of his term which remains
         unexpired at the time the Constitution is
         adopted.

         [Ibid. (emphasis added).]

As with the rest of Paragraph 1, “the framers adequately

displayed that they were dealing with the incumbent judges who

held judicial offices at the adoption of the Constitution.”

Lloyd, supra, 22 N.J. at 210.   Defendant’s reliance on the

Schedule Article is therefore misplaced.

                                B.

    The proper focus of this case is the Judicial Article of

the modern Constitution -- Article VI, Section 6, Paragraph 3.

For ease of reference, we quote part of it again:

         The Justices of the Supreme Court and the
         Judges of the Superior Court shall hold their
         offices for initial terms of 7 years and upon
         reappointment shall hold their offices during
         good behavior . . . . Such justices and judges
         shall be retired upon attaining the age of 70
         years. Provisions for the pensioning of the

                                20
         Justices of the Supreme Court and the Judges
         of the Superior Court shall be made by law.

         [N.J. Const. art. VI, § 6, ¶ 3.]

The paragraph does not mention recall.    It does not explicitly

bar recall.   Nor does it say that all service of any type must

end at age seventy.    As discussed earlier, the Constitution’s

silence does not help defendant; unless the Constitution

“expressly or by clear implication” forbids the political

branches from acting, they have the authority to proceed.

McCrane, supra, 61 N.J. at 18.    That begs the question:    is the

phrase “shall be retired” in the Judicial Article unmistakably

incompatible with temporary recall service?    Does the language

clearly imply, beyond a reasonable doubt, that the Constitution

bars recall service?

    The word “retired,” by itself, is not incompatible with

recall service.    In the context of Paragraph 3, “retire” means

an end to a seven-year or tenured term of service, and the start

of “pensioning.”    It marks a withdrawal from the office of

Superior Court Judge and paves the way for a successor to fill

that position.

    At the time of the Constitutional Convention, “retired”

meant just that.    Webster’s defined “to retire” as “[t]o

withdraw from a public station, or from business; as, having

made a large fortune, he retired.”    Webster’s Revised Unabridged


                                 21
Dictionary 1231 (1913), http://machaut.uchicago.edu/websters;

see also 2 Webster’s New International Dictionary 2128 (2d ed.

1949) (same).   Retirement, thus, meant an end to lifelong

tenure, which the federal system permitted.     U.S. Const. art.

III, § 1.   The 1844 Constitution, as well, had no age limit for

judicial service.     See N.J. Const. of 1844 art. VI, § 2; art.

VII, § 2.

    Temporary recall service, by comparison, does not reverse a

judge’s retirement.    It does not restore judges to their former

position.    It does not invest them with a seven-year or tenured

term.    Unlike a judge appointed under the Judicial Article,

recall judges serve for two years at the pleasure of the Supreme

Court.   Administrative Directive 12-01, supra.    Rather than sign

orders as a “Judge of the Superior Court,” they note that they

are “retired and temporarily on recall.”     They do not earn a

judicial salary; recall judges instead receive $300 per diem and

can earn no more than one-quarter of a judicial salary in a

year.    See id.; N.J.S.A. 43:6A-8(e).   Also, the duties of recall

judges are often limited to participation in “special projects

and programs, so that judges on permanent assignment are not

diverted from their primary responsibilities.”     Administrative

Directive 12-01, supra.

    The law has recognized the significance of those basic

differences for well more than a century.     See, e.g., United

                                  22
States v. Hartwell, 73 U.S. (6 Wall.) 385, 393, 18 L. Ed. 830,

832 (1868) (noting that concept of office holder “embraces the

ideas of tenure, duration, emolument, and duties”).     Those

differences also help demonstrate that temporary recall service

and service as a Judge of the Superior Court are distinct forms

of service that can co-exist.     In short, recall judges remain

retired.

    The Appellate Division dissent submits that recall clashes

with retirement because “shall be retired” “connotes” the

complete “surrender of judicial power” and “the permanent loss

of the ability to exercise” the functions of a judge.     Buckner,

supra, 437 N.J. Super. at 42 (Harris, J.A.D., dissenting).      If

that were true, retired judges could not provide temporary

recall service.   By the same logic, no retired judge could be

recalled to swear in a public official, which routinely happens.

See N.J.S.A. 41:2-1; N.J.S.A. 41:2-10.

    But the dissent’s far-reaching connotation finds no support

in the text of the Constitution, which simply says that judges

“shall be retired” and subject to “pensioning.”     The Judicial

Article does not foreclose recall on a limited or temporary

basis -- either expressly or by clear implication.

    The parties and the Appellate Division opinions also

discuss the framers’ choice to use different language in the

Schedule and Judicial Articles.    The Schedule Article provides

                                  23
that “[n]o Justice of the new Supreme Court or Judge of the

Superior Court shall hold his office after attaining the age of

seventy years, except, however, that such Justice or Judge may

complete the period of his term which remains unexpired at the

time the Constitution is adopted.”    N.J. Const. art. XI, § 4, ¶

1.

     As noted earlier, the Schedule Article was meant “to

provide for the transition” from the old to the new

Constitution.   2 Proceedings of the Constitutional Convention of

1947, 1195.   The framers intended that the Article would “govern

incumbent judges until the expiration of their terms . . . and

make[] such other specific provisions as are necessary until the

new Judicial Article is completely in effect.”    Ibid.   The

language in the Schedule Article thus addressed a unique concern

about offices soon to be eliminated.

     The difference in language reveals that the framers knew

how to bar recall but chose not to do so in the Judicial

Article.   The first phrase of the Schedule Article -- no judge

“shall hold his office after attaining the age of seventy years”

-– banned recall.   To undo its effect, the framers had to create

an escape clause and expressly permit judges to complete their

unexpired terms.    The Judicial Article, once again, does not bar

recall; it says that judges “shall be retired” at age seventy

and subject to a pension.    Had the framers intended to ban

                                 24
recall, they could have repeated the text they used in the

Schedule Article.     Their deliberate use of different language is

telling.   See GE Solid State v. Dir., Div. of Taxation, 132 N.J.

298, 308 (1993) (citation omitted); Norman J. Singer & Shambie

Singer, 2A Sutherland Statutory Construction § 46:6, at 261-66

(7th ed. 2014).

                                   C.

    Because the language of the Constitution does not rule out

recall, there is no need to turn to extrinsic sources.      Trump

Hotels, supra, 160 N.J. at 527.     A close look at the

constitutional proceedings, however, does not suggest that the

framers wanted to restrict recall.      Rather, the history of the

Judicial Article shows that the framers considered various

options and declined to act on any of them, opting instead to

leave the issue to the Legislature.

    “The movement that culminated in the adoption of New

Jersey’s ‘model’ constitution of 1947 actually began in earnest

in 1940.     From that date until 1947, a succession of three

governors made constitutional reform a high priority in their

administrations.”     Williams, supra, at 22.

    In 1941, the Legislature appointed a commission to study

constitutional reform.     L. 1941, Joint Resolution No. 2 (Nov.

18, 1941).    The following year, the Commission chaired by

Senator Robert Hendrickson submitted a draft constitution.

                                  25
Among other significant changes, the 1942 draft included

extensive reform to the New Jersey court system.    Proposed

Const. (1942), reprinted in 4 Proceedings, supra, at 556-65.

The draft provided in part that

         [t]he Chief Justice and associate justices of
         the Supreme Court shall be appointed to hold
         office during good behavior. Justices of the
         Superior Court shall hold office for a term of
         seven   years   and   if   reappointed   shall
         thereafter hold office during good behavior.
         . . . No justice or judge of any court shall
         continue in office after he has attained the
         age of seventy years.

         [Proposed Revised Const. (1942) art. V, § 5,
         ¶ 3, reprinted in 4 Proceedings, supra, at
         562 (emphasis added).]

The Legislature held hearings on the draft but did not submit it

to the voters, many of whom were away to fight in World War II.

Williams, supra, at 24.    Certain legislators pressed forward in

the next session, and the voters ultimately authorized “the 1944

legislature to act as a limited constitutional convention.”

Ibid.

    A joint legislative committee worked off of the 1942 draft

to create the Proposed Constitution of 1944.    Id. at 25.     The

1944 draft provided that

         [n]o Justice of the Supreme Court or of the
         Superior Court shall continue in office after
         he has attained the age of seventy years.
         Subject to law, the Chief Justice may assign
         any such judicial officer who has attained the
         age of seventy years to temporary service in


                                  26
          the Supreme Court or in the Superior Court, as
          need appears.

          [Proposed Revised Const. (1944) art. V., §
          5, ¶ 5 (emphasis added).]

The 1944 draft thus barred judges from “continu[ing] in office”

after age seventy and added a recall provision.

    The voters rejected the proposed constitution in November

1944 “amid heated partisan and other political controversy.”

Williams, supra, at 25.     As defendant concedes, however, there

is no sign from the historical sources that the voters reacted

to the recall language in particular.       See also Buckner, supra,

437 N.J. Super. at 16.

    The movement to reform the Constitution advanced in the

next few years.   In June 1947, the voters overwhelmingly

approved a constitutional convention and elected delegates to

attend.   Williams, supra, at 26.      The delegates met that summer

and produced what Professor Robert F. Williams, a recognized

scholar in the field, says “has been viewed as among the best of

the state constitutions.”    Ibid.

    A comprehensive record -- that fills five volumes -- exists

of the presentations and discussions at the 1947 Constitutional

Convention.   The Committee on the Judiciary heard from dozens of

people at ten open meetings; it also met multiple times in

executive session to consider testimony and formulate a draft of

the Judicial Article.     4 Proceedings, supra, at iii.   Testimony

                                  27
at the open meetings and public hearing appears in the

historical record; no record was made of closed executive

sessions to foster discussion.   Id. at iii-iv.

    On July 24, 1947, the Committee on the Judiciary presented

a “Tentative Draft of [the] Judicial Article” to the Convention

and invited public comments.   2 Proceedings, supra, at 1166.

The final draft submitted to the voters -– with only slight

changes to the relevant provision -- provided in part as

follows:

           The Justices of the Supreme Court and the
           Judges of the Superior Court shall hold their
           offices for initial terms of seven years and
           upon reappointment shall hold their offices
           during good behavior.      Such Justices and
           Judges shall be retired upon attaining the age
           of seventy years.        Provisions for the
           pensioning of the Justices of the Supreme
           Court and the Judges of the Superior Court
           shall be made by law.

           [Final Draft of the Const., art. VI, § 6, ¶
           3, reprinted in 2 Proceedings, supra, at
           1303.]

    The Committee thus made three noteworthy changes from the

Proposed Constitution of 1944:   (1) it replaced the phrase “[n]o

Justice of the Supreme Court or of the Superior Court shall

continue in office after he has attained the age of seventy

years” with “[s]uch Justices and Judges shall be retired upon

attaining the age of seventy years”; (2) it removed the recall

provision; and (3) it added the “pensioning” provision.


                                 28
    The first change is critical.     Standing alone, the

declaration in the 1944 draft -- “No Justice . . . shall

continue in office” after age seventy -- would have barred

temporary recall service.   The quoted language would not have

permitted recall judges to continue to wield the authority of

their prior office in any form of service.    The 1942 draft,

which had only that language, therefore, would have barred

recall.

    To counter the meaning of the quoted phrase, the drafters

had to provide for recall explicitly in the 1944 draft.      They

did so by adding that judges who had reached seventy could be

recalled to temporary service “[s]ubject to law.”      Proposed

Revised Const. (1944) art. V., § 5, ¶ 5.

    The 1947 Constitution, by contrast, took a different

approach.   It did not affirmatively bar judges from

“continu[ing] in office”; it instead stated that judges “shall

be retired” and pensioned at age seventy.    Because the revised

language removed the bar to recall service, it was no longer

necessary to permit recall expressly.

    The shift in language also marked a decision to leave the

question of recall to the Legislature.     By comparison, the 1944

proposed Constitution would itself have allowed the Chief

Justice to recall retired judges.    Because powers that are not

prohibited are vested in the Legislature, see Gangemi, supra, 25

                                29
N.J. at 11, the 1947 Constitution gave the Legislative Branch

the authority to decide whether, when, and how to allow for

recall.     That implicit delegation of power is reinforced by the

paragraph’s last sentence, which directs the Legislature to

provide for “the pensioning” of judges.     N.J. Const. art. VI, §

6, ¶ 3.

    The framers settled on the final draft after they

considered and rejected alternate proposals -- including some

that directly addressed recall.     Evelyn Seufert and John Bebout,

for example, presented a draft judicial article on June 24,

1947, on behalf of the New Jersey Committee for Constitutional

Revision.     4 Proceedings, supra, at 26-30; see also id. at 575-

83 (explanation of draft).     Section 5, Paragraph 5 of the draft

provided that

            [n]o justice or judge shall remain in
            continuous service after he has attained the
            age of seventy years; but the chief justice
            may assign any such judicial officer who has
            attained the age of 70 years before his term
            has expired to temporary service in the
            supreme court or in the general court, as need
            appears.

            [Id. at 28 (emphasis added).]

As in the 1944 draft, the introductory phrase of the proposal --

“No justice or judge shall remain in continuous service” --

would have barred recall.     To alter the effect of that language,

the draft had to provide expressly for recall service for


                                  30
retired judges over age seventy.      The proposal also removed the

Legislature from the equation.     Because the framers of the 1947

draft did not adopt the first part of the proposal, they did not

need to add language to authorize recall.

    The framers likewise declined to adopt an amendment that

Chief Justice Thomas J. Brogan proposed:

         Such Justices or Judges shall be eligible for
         retirement at the age of seventy years, but
         shall be retired at the age of seventy-five
         years.    Upon the retirement of any such
         Justice or Judge he shall receive a pension
         equal in amount to the salary which he is
         receiving at that time. Such Justice or Judge
         shall be required, if able so to do, to perform
         such judicial duties and services as may be
         required of him by designation or order of the
         Court of Appeals . . . .

         [2 Proceedings, supra, at 1207 (emphasis
         added).]

That proposal, of course, would have changed the Judicial

Article in a number of ways and made recall service mandatory.

    The League of Women Voters offered a different variation

for the Judicial Article, which was also not adopted.     Their

recommendation mirrored part of the 1942 draft and would have

barred recall.   See 4 Proceedings, supra, at 60, 596

(recommending that “[n]o justice shall continue in office after

he has attained the age of seventy years”).

    At various times during the Convention, other individuals

offered positive comments about recall.      For example, Justice


                                 31
Nathan L. Jacobs, then the Vice-Chairman of the Committee on the

Judiciary, observed that “even if you do have a so-called

compulsory retirement age, you may make adequate provision for

allowing the court to use these retired judges to the extent of

their capacities.”   4 Proceedings, supra, at 169.   At a later

session, Justice Frederic R. Colie addressed the question of

judicial “overwork” as follows:

           I think that judges who are retired, either
           voluntarily or because they have reached the
           age limit, should be kept on the roll, the
           roll of the judiciary, so that they can do as
           they do in Connecticut. There they are sort
           of referees, or masters, and may be called in
           by the Chief Justice when the occasion arises,
           to handle cases.

           [Id. at 214.]

See also id. at 543 (“[A]fter [age] 75, retire [the judges].

And then put them on the inactive list subject to the call of

the Chief Justice . . . at all times.” (Judge Robert Carey)).

    Whatever the merits of the various comments and proposals,

they reveal certain important points:   the issue of recall was

squarely before the framers at the Convention, yet they did not

address the question in the text of the Constitution they

crafted.   The framers, though, did not have to adopt a

particular approach to keep the possibility of recall alive.      By

taking the course they chose -- neither embracing nor rejecting

recall expressly or by clear implication -- the framers


                                  32
effectively left the issue to the Legislature.     Gangemi, supra,

25 N.J. at 11.

     To repeat, the historical record reveals that the framers

were well aware of recall when they drafted the Judicial

Article.   They had multiple examples to consider:     the 1942

draft against recall; the 1944 draft in favor; and the varied

proposals and comments raised at the Convention.       Yet not a

single delegate or witness spoke out against temporary recall

service.   Defendant maintains that the framers expressly barred

recall -- even though the Constitution does not say so, and

nothing in the record of the proceedings suggests the framers

had that in mind.   The dissent in the Appellate Division

believes that the framers purposely omitted a recall provision,

Buckner, supra, 437 N.J. Super. at 46-47 (Harris, J.A.D.,

dissenting), but, again, nothing in the record supports that

view.   The framers instead left it to the Legislature to decide

what, if anything, to do about recall.

     By comparison, in Menendez, supra, this Court addressed an

attempt by a committee of voters who sought a recall election of

a sitting United States Senator.     204 N.J. at 85.    The question

called for an examination of the text of the Federal

Constitution and relevant historical materials.      Ibid.   Although

the Federal Constitution does not directly address recall, id.

at 105-06, this Court observed that the right to recall elected

                                33
representatives from office was expressly “considered and

rejected” at the Federal Constitutional Convention in 1787, id.

at 107.   The delegates, in fact, unanimously voted to strike

proposed language that would have allowed recall.    Ibid.   Many

delegates to the Convention and the state ratifying conventions

also “highlighted that recall was not part of the proposed new

Constitution.   Some did so approvingly; others lamented that

recall did not exist.”   Id. at 86.   Relying in part on that

history, this Court concluded that the Federal Constitution

“do[es] not allow the states the power to recall U.S. Senators.”

Ibid.

     No delegates to the 1947 State Constitutional Convention

voted down judicial recall service, and none declared that it

was not part of the new State Constitution.1   Viewed in isolation

or in context, the Constitution’s silence is not a rejection of




1  The dissent relies on an additional source: an interview that
Morris M. Schnitzer gave nearly forty years after the
Constitutional Convention. See post at      (slip op. at 12).
Schnitzer was not among the framers of the 1947 Constitution but
was an esteemed member of the bar who testified at the
Convention. He also described his role at the Convention as a
co-technical advisor to the Judiciary Committee. Conversations,
supra, 47 Rutgers L. Rev. at 1392. Schnitzer believed that the
framers did not intend to permit recall. Id. at 1401.

     No authority, however, suggests that a court can
reconstruct the meaning of a constitutional text by asking an
advisor what the framers meant decades after the fact. What
matters, of course, is the language of the Constitution itself
and the contemporaneous debates at the Convention.
                                34
recall.   It amounts to an appropriate delegation of authority to

another branch of government.

                                  D.

    The emphasis at the Convention on both simplicity of

language and the need for flexibility in the court system also

supports the above analysis.     Those and other themes repeatedly

surfaced during the debates, and they shed light on the changes

from the 1944 to the 1947 draft Constitutions.

    The notion of simplicity animated the 1947 Convention from

the start.     Governor Alfred E. Driscoll opened the Convention

and charged the delegates to “limit[] our State Constitution to

a statement of basic fundamental principles.”     1 Proceedings,

supra, at 7.    He pointed to “the ageless virtue of simplicity”

of the Federal Constitution.     Ibid.   The Governor also stressed

that the State Constitution is a “basis for government” and

“should not be a series of legislative enactments.”     Ibid.

    Others highlighted the same concerns at meetings of the

Committee on the Judiciary.     Harvard Law School Dean Roscoe

Pound cautioned that

          [i]f there is anything that needs to be borne
          in mind in the Constitution it is not to put
          in too much. Robert Louis Stevenson said, the
          difference between Homer and the ordinary poet
          was that Homer knew what to leave out. The
          difference between the man who writes a good
          constitution and one who doesn’t is that the
          former knows what to leave out. Amending a
          constitution is a slow business, and the way

                                  35
         to achieve a thing that has to be achieved is
         on the basis of experience by those who have
         the experience. Don’t, therefore, lay down a
         hard and fast elaborate scheme of courts,
         their boundaries rigidly defined, and their
         personnel rigidly defined.

         [4 Proceedings, supra, at 113.]

Chief Justice Clarence E. Case similarly testified that “[t]here

were a number of things in [the] proposed Constitution of 1944

that I think should not be in a Constitution, not because they

are not good, wise and advisable, but because adequate

discretion is not left to the court in some instances and to the

Legislature in some instances.”     Id. at 134.

    The preference for broad-strokes draftsmanship with details

left to the Legislature, or to the Court’s rulemaking authority,

echoed throughout the Convention.      See W. Brooke Graves, What

Should a Constitution Contain?, in 2 Proceedings, supra, at

1329-35; 4 Proceedings, supra, at 19, 34-35, 52-55, 113-14, 180,

189, 211, 264-65, 328, 429-31, 537.

    The Committee on the Judiciary embraced the goal to keep

the Constitution simple.   In its August 26, 1947 report to the

Convention, which accompanied the proposed draft Judicial

Article, the Committee stressed that “Constitutions should deal

with fundamentals, not details.”       2 Proceedings, supra, at 1181.

    The Judicial Article, like the Constitution, provides a

framework but does not address all issues.       See id. at 1180; see


                                  36
also Reilly, supra, 33 N.J. at 539-40.   It does include certain

mandates, but it omits discretionary details.   For example, the

Chief Justice “shall appoint an Administrative Director to serve

at his pleasure,” N.J. Const. art. VI, § 7, ¶ 1 (emphasis

added), and “shall assign Judges of the Superior Court,” N.J.

Const. art. VI, § 7, ¶ 2 (emphasis added), whom he “may”

transfer, ibid.   Similarly, “[t]he Clerk of the Supreme Court

and the Clerk of the Superior Court shall be appointed by the

Supreme Court.”   N.J. Const. art. VI, § 7, ¶ 3 (emphasis added).

By contrast, discretionary details -- about recall and a host of

other matters -- were left out of the streamlined document.

    In addition to simplicity of language, the Committee on the

Judiciary focused on “three fundamental requirements” of a

modern judicial system:   “[u]nification of courts”;

“[f]lexibility of the court system”; and “[c]ontrol over

administration, practice and procedure by rules of court.”     2

Proceedings, supra, at 1180.   Those “basic principles . . .

guided the Committee in framing the Judicial Article.”     Ibid.

    Those core principles reflected the desire for a new court

system that is fair, efficient, simple, and strong.    As Chief

Justice Vanderbilt observed,

         [t]here can be no doubt in the mind of anyone
         familiar with the work of the Constitutional
         Convention or with the ensuing election at
         which the Constitution was adopted by the
         people that . . . there was a clear intent to

                                37
           establish a simple but fully integrated system
           of courts and to give to the judiciary the
           power and thus to impose on them the
           responsibility for seeing that the judicial
           system functioned effectively in the public
           interest. Indeed, in the minds of many, if
           not a majority, of our citizens this was the
           primary reason for their desire for a new
           constitution.

           [Winberry v. Salisbury, 5 N.J. 240, 244
           (1950).]

Without question, the framers’ goals responded to the much-

maligned prior court system, which was described in 1943 as

follows:

           [I]f you want to see the old common law in all
           its picturesque formality, with its fictions
           and fads, its delays and uncertainties, the
           place to look for them is not London, . . .
           but in New Jersey. Dickens, or any other law
           reformer of a century ago, would feel more at
           home in Trenton than in London.

           [Carla Vivian Bello & Arthur T. Vanderbilt,
           New Jersey’s Judicial Revolution: A
           Political Miracle 3 (1997) (quoting D. W.
           Brogan, The English People (1943)).]

    A series of additional, related concerns about mandatory

retirement -- voiced repeatedly at the Convention -- is also

noteworthy.   The first addressed a serious and delicate subject:

that incapacitated judges not remain indefinitely on the bench.

See, e.g., 4 Proceedings, supra, at 167 (“The difficulty with

‘optional [retirement],’ as I see it, is that the men who are

really in a position where they should be retired are the last

ones to accept that option, because those men are the last to

                                38
acknowledge that they have reached the point where, perhaps,

they are letting go a little bit.” (Amos F. Dixon)); id. at 135

(“The lack of an age limit sometimes works to the disadvantage

of the court.” (Chief Justice Clarence E. Case, recommending

compulsory retirement at age seventy-five)); id. at 426 (noting

that an age limit could prevent judges from remaining on the

bench “after they have gotten to their dotage” (Judge Learned

Hand)).

    Second, some commentators suggested that mandatory

retirement could attract new judges to the bench.   See, e.g.,

id. at 36-37 (“[L]ife tenure . . . may promote stagnation on the

bench.” (Evelyn Seufert, recommending automatic retirement at

age seventy)); id. at 170 (“[I]f we retired the judges at a

reasonable age, . . . we would not have the situation where they

. . . [are] blocking the progress of a lot of very able men who

could step into those positions if they stepped out.” (Amos F.

Dixon)).

    Third, others lamented that a fixed age when judges must

quit the bench could deprive the court system of gifted and

experienced judges still in their prime.   See, e.g., id. at 484

(“[W]e have many, many judges throughout the State and the

country who are well above 70, who are alert, able and have over

a long period of years acquired a tremendous wealth of legal

thinking, wisdom and judgment.” (Judge Thomas Madden)); id. at

                               39
515-16 (“[S]ome of our most renowned jurists in the State of New

Jersey reached their greatest stature after the age of 70.”

(Morgan R. Seiffert, on behalf of the Law Reform Committee of

the New Jersey Bar Association)); id. at 542-43 (citing numerous

examples of judges who performed ably after reaching age

seventy, including Justice “Oliver Wendell Holmes [who] was over

90 years of age when he signed his last opinion as a United

States Supreme Court Justice” (Judge Robert Carey)).

    Temporary recall service is consistent with both the

fundamental principles underlying the Judicial Article and

concerns about retirement raised at the Convention.    Recall

enhances the efficiency of the new, unified court system through

resort to additional, temporary judicial resources, as needed.

Judges are retired from the bench at age seventy, yet the

Judiciary can benefit from experienced and able retired jurists

on recall.    Meanwhile, the service of recall judges in no way

prevents attracting new judges to the bench because the office

of Superior Court Judge becomes vacant upon a judge’s

retirement.

    We turn to the history and purpose of the Recall Statute to

explore those and other points more fully.

                                 VI.

    Governor Driscoll encouraged the members of the Committee

on the Judiciary to provide for a retirement age but not

                                 40
incorporate “[t]he particular details with respect to retirement

. . . in the Constitution.”   4 Proceedings, supra, at 429.       The

Committee followed his advice.   The framers set the mandatory

retirement age at seventy and otherwise simply stated that

“[p]rovisions for the pensioning of the Justices of the Supreme

Court and the Judges of the Superior Court shall be made by

law.”   N.J. Const. art. VI, § 6, ¶ 3.     In response, the

Legislature designed a pensioning system that today includes

recall.

    In 1948, the Legislature enacted a judicial pension system

that did not provide for recall.      L. 1948, c. 391.   The

Legislature amended the statute in 1964 to permit the Chief

Justice to assign retired judges to the Superior Court:        “Any

person who retires under the provisions of this act may be

designated and assigned by the chief justice of the supreme

court to perform such duties as he shall be willing to

undertake.”   L. 1964, c. 138 (codified at N.J.S.A. 43:6-6.16

(1964)).   The law imposed no age restriction on recall and ruled

out compensation for recall service.      Ibid.

    The Legislature repealed the provision in 1968 and replaced

it with the following:

           Any judge retired on pension, except a judge
           of the municipal court, who has not attained
           the age of 70 years, may, with his consent, be
           assigned by the chief justice to sit in any
           court but the supreme court, or in the case of

                                 41
         a retired justice of the supreme court, to sit
         in any court.

         Upon such assignment the retired judge shall
         have all the powers of a judge or justice of
         the court to which he is assigned and shall be
         paid a per diem allowance to be fixed by the
         chief justice at a rate which, for a court
         year, together with his pension, shall not
         exceed the current salary of the court from
         which he retired.

         [L. 1968, c. 232 (codified at N.J.S.A. 43:6-
         6.39 to -.40 (1968)).]

Thus, as envisioned by the Constitution, the Legislature

exercised its authority to modify the judicial pension statute -

- here, by limiting the maximum age for judges on recall and

offering compensation.

    In 1973, Governor Cahill signed the JRSA into law and

created a new Judicial Retirement System.   L. 1973, c. 140

(codified at N.J.S.A. 43:6A-1 to -46).   The new statute kept in

place the recall provision enacted five years earlier.     L. 1973,

c. 140, § 13 (codified at N.J.S.A. 43:6A-13).

    Calls for additional reform followed soon after.      The New

Jersey Law Journal featured two editorials that encouraged the

recall of judges over the age of seventy and opined that such an

approach would be constitutional.   Judicial Service for Judges

Retired at Age 70 Who Wish Such Service, 97 N.J.L.J. 188 (Mar.

21, 1974); Senior Judges, 97 N.J.L.J. 68 (Jan. 31, 1974).




                               42
    The second editorial brought attention to an opinion of the

Supreme Judicial Court of Massachusetts, Opinion of Justices,

284 N.E.2d 908 (Mass. 1972).     In that decision, the

Massachusetts court responded to questions posed by the State

Senate; the Senate had asked whether a proposed bill to allow

temporary recall service by certain retired judges would violate

a proposed amendment to the Massachusetts Constitution.     The key

language of the amendment was similar to the wording of New

Jersey’s Judicial Article:   “upon attaining seventy years of age

said judges shall be retired.”    Id. at 910 (emphasis added).   In

an advisory opinion, the Massachusetts court found “no conflict

between the precise language of the amendment and the bill.”

Id. at 912.   The court explained that the meaning of the phrase

“shall be retired” “was not intended to rule out the possibility

of recall for temporary or restricted service.”     Ibid.

    The Bar Institute and Law Center of New Jersey also weighed

in on the issue of recall in October 1974, in response to a

request of the Supreme Court.    See The Bar Institute and Law

Center of New Jersey, Recall of Judges Past the Age of Mandatory

Retirement: An Examination of the Pertinent Issues (Oct. 1974).

The group recommended “a recall provision for retired judges” so

that they could “return to the bench according to the needs of

our court system and according to their abilities to render such

service.”   Id. at 14.

                                  43
     The Legislature took action in 1975 and amended the Recall

Statute.   L. 1975, c. 14.   The amendment removed the law’s age

restriction and permitted the recall of retired judges older

than seventy.   Ibid.   According to the Sponsor’s Statement,

           [t]he New Jersey Constitution in Article VI,
           Section VI, paragraph 3 requires that judges
           retire at age 70. This mandatory retirement
           does not however prevent the utilization of such
           senior judges on a special assignment basis, if
           they so desire, at the pleasure of the Chief
           Justice.

                Permitting the assignment of senior judges
           would help speed the administration of justice
           and, by securing the benefit of years of
           judicial experience, increase the quality of
           justice.

           [Assemb. 1419 (Sponsor’s Statement), 196th
           Leg. (N.J. Apr. 1, 1974).]

     The 1975 amendment is codified at N.J.S.A. 43:6A-13(b).

The Recall Statute, which has since been amended twice in ways

that are not relevant to this appeal, now provides in part:

           b. Subject to rules of the Supreme Court, any
           justice of the Supreme Court who has retired
           on pension or retirement allowance may, with
           his consent, be recalled by the Supreme Court
           for temporary service in the Supreme Court2 or
           elsewhere within the judicial system, and any
           judge of the Superior Court, juvenile and
           domestic relations court, county district
           court or tax court who has retired on pension
           or retirement allowance may, with his consent,
           be recalled by the Supreme Court for temporary
           service within the judicial system other than
           the Supreme Court.

2  We do not address recall to the Supreme Court because that part
of the statute is not raised by this appeal.
                                 44
          c. Upon such recall the retired justice or judge
          shall have all the powers of a justice or judge
          of the court to which he is assigned and shall
          be paid a per diem allowance fixed by the Supreme
          Court in accordance with its rules, provided
          however that in no event shall he receive a
          salary which together with his pension or
          retirement allowance exceeds the current salary
          of a justice or judge of the court from which he
          retired. In addition the recalled justice or
          judge shall be reimbursed for reasonable
          expenses actually incurred by him in connection
          with his assignment and shall be provided with
          such facilities as may be required in the
          performance of his duties.        Such per diem
          compensation and expenses shall be paid by the
          State.

          d. Payment for services and expenses shall be
          made in the same manner as payment is made to
          the justices or judges of the court from which
          he retired.

          e. The Supreme Court is empowered to adopt
          such rules as it deems necessary or appropriate
          for the prompt and efficient administration of
          justice in furtherance of the purposes of this
          act.

          [N.J.S.A. 43:6A-13(b) – (e).]

    Pursuant to subsection (e), the Court, through the Director

of the Administrative Office of the Courts (AOC), issued a

policy on recall in 2001.   See Administrative Directive 12-01,

supra.   The Directive establishes terms and conditions of recall

service, some of which are summarized above.     Recall judges

serve for renewable two-year terms, at the pleasure of the

Supreme Court; cannot practice law or be associated with a law

firm while on recall; must undergo a full medical examination by

                                 45
an independent doctor as a prerequisite to any recall order; may

not be recalled after age eighty; are bound by the ethical

restrictions applicable to all judges; and, receive $300 per

diem.    Ibid.   Priority is given to retired judges who are

willing to accept assignments that meet “a significant need” in

the court system.     Ibid.   The Directive also aptly notes that,

            [o]ver the years, the Judiciary has benefitted
            greatly from the willingness of retired judges
            to be recalled for judicial service. Recall
            judges provide stability and continuity for
            the work of the Judiciary by accepting
            assignments for special projects and programs,
            so that judges on permanent assignment are not
            diverted from their primary responsibilities.

            [Ibid.]

     Today, more than seventy judges provide invaluable help as

they serve on temporary recall assignments throughout the State

Judiciary.    According to estimates by the AOC, they have

presided over hundreds of thousands of cases over the years,

large and small -- each of which involved parties seeking

justice from the courts.      Recall judges serve for modest pay,

and many continue to work without any payment after they reach

the maximum number of days for which they can be compensated.

They do so to help provide prompt justice to the people of our

State.

     Those realities, of course, cannot drive this Court’s

decision.    If the Constitution prohibited recall, that would end


                                   46
the discussion, no matter how great the benefits of any recall

system.     But the Constitution does not forbid recall.   It is

silent.   It leaves the issue of recall to legislators whose

response -- the Recall Statute -- dovetails with the overarching

concerns of the Constitutional Convention:    to help transform an

inefficient court system that had been the subject of widespread

criticism into a more effective system of justice.

    As discussed earlier, the Recall Statute, like all

legislative enactments, is entitled to a strong presumption of

validity.    In an effort to overcome that presumption, defendant

suggests that the twenty-five-year period from 1948 to 1973,

when he claims there was no recall legislation, is proof that

the framers did not intend recall.

    The argument’s premise is flawed.     The Legislature first

enacted a recall provision in 1964 and modified it in 1968.        The

Recall Statute of 1973 essentially adopted the 1968 law.        Even

more important, the argument turns the accepted analysis on its

head.   The recall law is presumptively valid, and defendant, who

challenges it, must show “unmistakably” that the law “run[s]

afoul of the Constitution.”     Lewis, supra, 188 N.J. at 459

(citation omitted).     Defendant’s suspicion, based on a period of

legislative inaction, is not enough to hurdle the high threshold

he faces.



                                  47
    If anything, the passage of time works against defendant’s

claim.    No one challenged the 1964 or 1968 recall laws.     Since

the Legislature amended N.J.S.A. 43:6A-13 four decades ago,

hundreds of recall judges have served and overseen countless

matters.    Until very recently, no one challenged that practice

either.    Defendant’s claim, thus, must also surmount the well-

settled “policy of our law not to invalidate a statute which has

been in force without substantial challenge for many years,

unless its unconstitutionality is obvious.”       In re Incorporation

of Loch Arbour, 25 N.J. 258, 265 (1957) (citation omitted); see

also Trump Hotels, supra, 160 N.J. at 527 (“The presumption that

a statute is constitutional is enhanced when that statute has

been in effect and implemented without challenge over an

extended period.”).

                                 VII.

    As part of its analysis, the dissent points to other state

constitutions.     The fifty states have taken nearly as many

different approaches to judicial retirement.      Nineteen states

have no mandatory retirement age.       See Wisconsin Briefs from the

Legislative Reference Bureau, Brief No. 15-5 (Feb. 2015),

http://legis.wisconsin.gov/lrb/pubs/wb/15wb5.pdf.       States that

require retirement set the retirement age at seventy to seventy-

five except for Vermont, which calls for retirement at age

ninety.    Ibid.

                                  48
    The states’ approaches to recall vary as well.       The dissent

notes that some states provide for recall when the state’s

constitution is silent.     See post at      (slip op. at 15-16).

Two variations follow.

    The Massachusetts Constitution, like New Jersey’s, declares

that all judges “shall be retired” at age seventy and “shall be

subject to any provisions made by law as to pensions . . . .”

Mass. Const. pt. 2, ch. 3, art. I.     In an advisory opinion

discussed earlier, Opinion of Justices, supra, 284 N.E.2d at

913, the Supreme Judicial Court of Massachusetts opined that the

quoted language allowed for recall.       The legislature later

adopted a series of statutes that empower the chief justice to

place a retired judge on a list for recall to the supreme

judicial court, the appeals court, or the trial court, depending

on the judge’s prior service; the respective heads of those

courts can then recall the retired judge.      See Mass. Gen. Laws

Ann. ch. 32, § 65E & ch. 211, § 24 (Supreme Judicial Court); ch.

32 § 65F & § ch. 211A, § 16 (Appeals Court); ch. 32, § 65G & ch.

211B, § 14 (Trial Court).

    New Hampshire’s Constitution provides that “[n]o person

shall hold the office of judge of any court . . . after he has

attained the age of seventy years.”       N.H. Const. pt. 2, art. 78.

The State Supreme Court, nonetheless, found a recall statute

constitutional because of the legislature’s implicit authority

                                  49
to authorize the assignment of retired justices.     Claremont Sch.

Dist. v. Governor, 712 A.2d 612, 615 (N.H. 1998).     The court

held that “[a]n integral part of this authority is the

legislature’s ability to enable a retired justice to exercise

authority as a judicial officer on a temporary basis” and

thereby “increase[] judicial manpower by making available a

greater number of experienced justices.”     Ibid.

    The dissent also points to other state constitutions that

expressly provide for recall.   See post at      ,     (slip op. at

4-5, 13 n.1).

    We do not rely on any of the above examples for a number of

reasons.   First, our obligation is to interpret the words and

meaning of the New Jersey Constitution and New Jersey statutory

law in light of our State’s history.     When other states consider

recall, they act likewise.   Their approaches are grounded in the

language and history of their respective state constitutions and

laws and tell us little about our own.     See Buckner, supra, 437

N.J. Super. at 48 (Harris, J.A.D., dissenting) (“We cannot

measure the constitutionality of our recall platform from [a]

dissimilar foreign source.”).

    Second, there is minimal evidence that the framers

considered how other states treated recall when they crafted the

Judicial Article.   In fact, no mention can be found in the

record of the Constitutional Convention except for a passing

                                50
reference that Connecticut allows retired judges to serve as

“referees, or masters.”   4 Proceedings, supra, at 214.   That is

not surprising.   All of the recall provisions in the state

constitutions cited by the dissent post-date New Jersey’s 1947

Constitutional Convention,3 and two states, Alaska and Hawaii,4

had not yet attained statehood status.




3  Recall provisions were first included in the constitutions of
the respective states in the following years: Alabama-1973, see
Johnson v. Bd. of Control of the Emps.’ Ret. Sys. of Ala., 740
So.2d 999, 1003-05 (Ala. 1999); Arizona-1958, see John D. Leshy,
The Arizona State Constitution 203-04 (2d ed. 2013); Colorado-
1967, see State v. Sherrod, 204 P.3d 466, 470 (Colo. 2009);
Connecticut-1965, see Fla. Hill Rd. Corp. v. Comm’r of Agric.,
321 A.2d 856, 857 (Conn. 1973); Florida-1972, see Fla. Const.
art. V, §§ 2, 8; Louisiana-1956, see 1956 La. Acts 1073-74 [Act
No. 588] & La. Legis. Council, Amendments to the Constitution of
1921 6; Maryland-1976, see Dan Friedman, The Maryland State
Constitution 221-22 (2011); Michigan-1963, see Susan P. Fino,
The Michigan State Constitution 142 (2011); Missouri-1976, see
Mo. Const. art. V, § 26(3); New York-1962, see Marro v.
Bartlett, 389 N.E.2d 808, 813 (N.Y. 1979) (Fuchsberg, J.,
dissenting); Ohio-1968, see Steven H. Steinglass & Gino J.
Scarselli, The Ohio State Constitution 203-04 (2011); Oregon-
1958, see Carey v. Lincoln Loan Co., 157 P.3d 775, 779 (Or.
2007); Pennsylvania-1968, see Pa. Const. of 1968,
http://www.duq.edu/academics/gumberg-library/pa-constitution/
texts-of-the-constitution/1968; Texas-1948, see Werlein v.
Calvert, 460 S.W.2d 398, 398 (Tex. 1970); Washington-1962, see
Wash. Const. art. IV, § 2(a).
4  The Hawaii Constitution has a mandatory retirement age and
also allows for recall “[a]s provided by law,” Haw. Const. art.
VI, §§ 2, 3, yet the State recently considered a ballot question
about recall to amend the constitution, Report of the Special
Committee on the Mandatory Retirement Age of State Judges, 18
Hawaii B.J. 4, 7 (2014). We are ill-equipped to explain why
Hawaii followed that course, rather than pass a law. Cf. post
at __ (slip op. at 15).
                                51
    The approaches taken by others, thus, do not offer insight

into what the framers of New Jersey’s modern Constitution

intended.   We note, as well, that the parties place little

reliance on the law from other states.

                                VIII.

    Defendant also argues for the first time that the Recall

Statute conflicts with the separation of powers doctrine.

Defendant did not properly preserve this issue and, in essence,

adopts an argument raised by the Appellate Division dissent.

Buckner, supra, 437 N.J. Super. at 51-55 (Harris, J.A.D.,

dissenting).   We briefly address the question and conclude that

it lacks merit.

    The separation of powers clause of the Constitution directs

that one branch of government may not exercise powers that

properly belong to another.   N.J. Const. art. III, ¶ 1.      The

doctrine is intended to prevent the concentration of power in

one branch at the expense of the other two co-equal branches.

See In re P.L. 2001, Chapter 362, 186 N.J. 368, 378 (2006); Gen.

Assembly v. Byrne, 90 N.J. 376, 381-83 (1982); David v. Vesta

Co., 45 N.J. 301, 326 (1965).    Under the Constitution, no single

branch can “claim[] or receiv[e] inordinate power.”    Brown v.

Heymann, 62 N.J. 1, 11 (1972).

    At the same time, the concept recognizes that the branches

of government are interdependent, not watertight.     In re

                                 52
Advisory Comm. on Prof’l Ethics Op. 705, 192 N.J. 46, 54 (2007);

In re Salaries for Prob. Officers of Bergen Cty., 58 N.J. 422,

425 (1971).   “[T]he doctrine requires not an absolute division

of power but a cooperative accommodation among the three

branches . . . .”     Commc’ns Workers of Am. v. Florio, 130 N.J.

439, 449 (1992).

    We measure the Recall Statute in light of those principles.

The Constitution gives the Governor the power to nominate and

appoint judges, subject to the advice and consent of the Senate.

N.J. Const. art. VI, § 6, ¶ 1.     N.J.S.A. 2B:2-1(a), in turn,

empowers the Governor to appoint 443 judges to the Superior

Court.

    Recall does not limit or encroach on the Executive’s power.

The moment a judge retires, the position becomes vacant, and the

Governor may appoint a new judge as a replacement.     That is true

even if a newly retired judge is recalled, because recall judges

do not hold the office of a Superior Court Judge.     They are

retired, on pension, and serve under the Recall Statute.

    Recall is no obstacle to filling any vacancies in the

Superior Court.     Because defendant cannot show that the Recall

Statute clashes with or usurps the Governor’s constitutional

authority to appoint judges, defendant’s separation of powers

argument fails.



                                  53
                                IX.

    In the end, we return to two fundamental principles:      the

strong presumption of validity that attaches to every

legislative enactment, Hamilton, supra, 156 N.J. at 285; and the

Court’s obligation to act with “extreme self restraint” before

it overrides the Legislature and pronounces a law

unconstitutional, McCrane, supra, 61 N.J. at 8.   Before a court

can declare a law unconstitutional, it must find proof beyond a

reasonable doubt that the statute is clearly repugnant to the

New Jersey Constitution.   Franklin, supra, 111 N.J. at 17.

    Defendant has not met that burden -- because there is no

such proof.   To the contrary, we find ample evidence that the

Recall Statute is consistent with both the language and the

history of the modern State Constitution.

    For the reasons stated above, the judgment of the Appellate

Division is affirmed.



     JUSTICES LaVECCHIA, FERNANDEZ-VINA, and SOLOMON, and JUDGE
CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s
opinion. JUSTICE ALBIN filed a separate, dissenting opinion.
JUSTICE PATTERSON did not participate.




                                54
                                       SUPREME COURT OF NEW JERSEY
                                         A-22 September Term 2014
                                                  074390

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

         v.

JAMES BUCKNER,

    Defendant-Appellant.



    JUSTICE ALBIN, dissenting.

    The New Jersey Constitution provides that “justices and

judges shall be retired upon attaining the age of 70 years.”

N.J. Const. art. VI, § 6, ¶ 3.   It does not provide that

justices and judges can be recalled to their offices beyond the

age of seventy.   It does not empower the Legislature to make

laws to recall justices and judges beyond that age.

    The drafters declined to include in the Judicial Article a

number of proposed recall provisions presented at the

Constitutional Convention.   The drafters were keenly aware that

three years earlier the people of New Jersey rejected a proposed

Constitution that provided for the recall of judges.

Undoubtedly, the eminent and able drafters of the 1947 New

Jersey Constitution knew how to write a recall provision.

    Nevertheless, the majority conjures a hidden meaning in the


                                 1
simple, clear, and declarative words, “judges shall be retired

upon attaining the age of 70 years” -- a meaning authorizing the

Legislature to pass a law that allows the New Jersey Supreme

Court to recall judges without any age limit.   By the majority’s

thinking, after setting an age for the end of judicial service,

the drafters, by their silence, left open a future scenario that

allowed for the Supreme Court to recall judges even at the age

of 100.

    That strained interpretation of our Constitution cannot be

justified by the plain words of the Judicial Article, by the

context of those words in relationship to other provisions of

the Constitution, by the history that led to the drafting of the

Judicial Article, by the debates at the Constitutional

Convention, by the absence of any contemporaneous recall

legislation after the Constitution’s ratification, and by

comparison to sister states with similar constitutional

retirement provisions that provide for recall of judges in their

constitutions.

    To be sure, the recall of a talented cadre of retired

judges serves an important policy of ensuring the prompt and

efficient delivery of justice in a system beset with chronic

judicial vacancies due to a dysfunctional political process.

There is no legitimate excuse for the Executive and Legislative

branches leaving vacancies on the bench of more than ten percent

                                2
year after year.     But the answer to the problem cannot be to

ignore the clear dictates of the Constitution for expedient or

other seemingly good reasons.     There is a right way and wrong

way to achieve a worthy end.     The Legislature cannot arrogate to

itself a power denied to it by the Constitution, and likewise it

cannot gift to the Supreme Court a power inconsistent with the

Constitution.

    If justices or judges are to serve in office beyond the age

of seventy, full time or on recall, then the Constitution must

be amended.     No reasonable interpretation of the Constitution

warrants the current recall system.     Although I would strike

down as unconstitutional the legislation permitting recall of a

judge over the age of seventy, I would not upset any judgment

rendered by a recall judge based on the de facto officer

doctrine.     To forestall a short-term catastrophic impact on the

judicial process on which the constitutional rights of so many

depend, I also would keep the present system in place for a

period not to exceed six months to allow the Legislature to pass

a conforming amendment, to increase the number of judgeship

positions, and/or to fill the multitude of judicial vacancies.

    I therefore respectfully dissent.

                                  I.

                                  A.

    Article VI -- known also as the Judicial Article --

                                   3
provides:   “[J]ustices and judges shall be retired upon

attaining the age of 70 years.    Provisions for the pensioning of

the Justices of the Supreme Court and the Judges of the Superior

Court shall be made by law.”     N.J. Const. art. VI, § 6, ¶ 3.

Had the drafters of the Constitution -- who were skilled

wordsmiths -- intended to authorize the Legislature to enact a

recall system Paragraph 3 would have read:    “[J]ustices and

judges shall be retired upon attaining the age of 70 years.

Provisions for the recall and pensioning of the Justices of the

Supreme Court and the Judges of the Superior Court shall be made

by law.”    That easy word fix would not have been lost on the

drafters.

    Other state constitutions with similarly worded mandatory-

retirement-age provisions specifically provide for the temporary

recall of justices and judges.    See, e.g., Alaska Const. art.

IV, § 11 (“Justices and judges shall be retired at the age of

seventy except as provided in this article.”); Mo. Const. art.

V, § 26 (“All judges other than municipal judges shall retire at

the age of seventy years, except as provided in the schedule to

this article . . . .”); Or. Const. art. VII, § 1a (“[A] judge of

any court shall retire from judicial office at the end of the

calendar year in which he attains the age of 75 years.     The

Legislative Assembly or the people may by law . . . [p]rovide

for recalling retired judges to temporary active service.”); Pa.

                                  4
Const. art. V, § 16 (“Justices, judges and justices of the peace

shall be retired on the last day of the calendar year in which

they attain the age of 70 years. . . .    A former or retired

justice or judge may, with his consent, be assigned by the

Supreme Court on temporary judicial service . . . .”); Wash.

Const. art. IV, §§ 2a, 3a (“A judge of the supreme court or the

superior court shall retire from judicial office . . . [when] he

attains the age of seventy-five years. . . .    [A] majority of

the Supreme Court is empowered to authorize . . . retired judges

. . . to perform, temporarily, judicial duties . . . .”).

    Those examples suggest that the word “retire” is not so

elastic that it can be imbued with contradictory meanings.      To

retire does not mean to ascend again.    At the time of the 1947

Constitution, “to retire” had distinct definitions:    “[t]o

withdraw from a public station, or from business; as, having

made a large fortune, he retired.”   Webster’s Revised Unabridged

Dictionary 1231 (1913); see also The Century Dictionary 5124

(1913) (defining “retire” as “[t]o withdraw from business or

active life”); A New English Dictionary 571-72 (1933) (defining

“retire” as “[t]o withdraw from office or an official position;

to give up one’s business or occupation in order to enjoy more

leisure or freedom (esp. after having made a competence or

earned a pension)”).   The magical interpretation that the

majority gives to the word “retire” does not conform to the

                                 5
plain meaning of that word as understood by the Constitution’s

drafters in their time.

    The absence of any language about recall in the New Jersey

Constitution could end the constitutional analysis.    However, if

we look further, every other sign evidences that the drafters

did not intend to undermine the constitutional age limit on

judicial service with a system that allowed the Supreme Court to

appoint recall judges without any age limitation.

                                 B.

    Another provision of the Constitution clearly shows that

the drafters knew how to allow for judges to hold office beyond

the age of seventy.    At the time of the Constitutional

Convention, justices and judges were not restricted from service

on the bench on the basis of age and were serving a previously

set term of years in office.    To cause the least disruption to

the judicial system, the new Constitution provided for a

conversion period rather than the abrupt dismissal of justices

and judges who already were seventy years of age or older.     This

was accomplished through the Schedule Article -- Article XI,

Section 4, Paragraph 1 of the Constitution.    See Robert F.

Williams, The New Jersey State Constitution 197 (2d ed. 2012)

(noting that Schedule Article “contains various phase-in

provisions designed to facilitate the smooth transition to the

1947 constitution”).   The Schedule Article allowed justices and

                                  6
judges over the age of seventy to continue in service for a

temporary period.   That Article provides:       “No Justice of the

new Supreme Court or Judge of the Superior Court shall hold his

office after attaining the age of seventy years, except,

however, that such Justice or Judge may complete the period of

his term which remains unexpired at the time the Constitution is

adopted.”   N.J. Const. art. XI, § 4, ¶ 1.

    Thus, the drafters knew how to and did write into the

Constitution a provision that allowed for judicial service

beyond the age of seventy.     They knew how to write into the

Constitution a recall system, but pointedly did not do so.

                                  C.

    Certain clauses of the Constitution, such as the “‘great

ordinances’ are flexible pronouncements constantly evolving

responsively to the felt needs of the times.”        Vreeland v.

Byrne, 72 N.J. 292, 304 (1977).        Fitting into that category are

the “due process clause, the equal protection clause, [and] the

free speech clause.”   Ibid.    Other clauses simply frame the

“details of governmental administration.”        Id. at 304-05.

There, “a literal adherence to the words of the clause is the

only way that the expressed will of the people can be assured

fulfillment.”   Id. at 305.    In that category, for example, falls

the provision that “‘the Governor shall be not less than thirty

years of age.’”   Ibid. (quoting N.J. Const. art. V, § 1, ¶ 2).

                                   7
The gubernatorial age limit is a peremptory directive not

subject to an evolving interpretation over time.   The same must

be said of the provision that “justices and judges shall be

retired upon attaining the age of 70 years.”   N.J. Const. art.

VI, § 6, ¶ 3.   Scrupulous adherence should be given to the clear

meaning of those words to fulfill the drafters’ intent.

                                II.

    If there were any lingering doubt concerning the meaning of

the mandatory-retirement language in the Judicial Article, the

history leading up to the adoption of the 1947 Constitution and

the debates during the Constitutional Convention dispel it.

    The proposed Constitution of 1944, which was not ratified

by the people, included a provision that allowed for judges over

the mandatory-retirement age of seventy to be recalled for

temporary service.   That provision read:

         No Justice of the Supreme Court or of the
         Superior Court shall continue in office after
         he has attained the age of seventy years.
         Subject to law, the Chief Justice may assign
         any such judicial officer who has attained the
         age of seventy years to temporary service in
         the Supreme Court or in the Superior Court, as
         need appears.

         [Proposed Revised Constitution (1944), art. V,
         § 5, ¶ 5.]

The delegates to the 1947 Constitutional Convention had for

their consideration the 1944 recall provision in the “Summary of

Proposals for Revision of Judicial Article” prepared for the

                                 8
Judiciary Committee.   4 Proceedings of the Constitutional

Convention of 1947, at 749.

    That, moreover, was not the only proposal for the temporary

recall of retired judges before the Convention’s delegates.       On

behalf of the New Jersey Committee for Constitutional Revision,

Evelyn M. Seufert and John Bebout submitted to the Judiciary

Committee a draft judicial article containing a provision for

the temporary recall of retired judges and justices.     That

recall proposal provided:

          No justice or judge shall remain in continuous
          service after he has attained the age of
          seventy years; but the chief justice may
          assign any such judicial officer who has
          attained the age of 70 years before his term
          has expired to temporary service in the
          supreme court or in the general court, as need
          appears.

          [4 Proceedings, supra, at 28.]

In addition, in commentary to the Judiciary Committee, Seufert

stated that the “provision for mandatory retirement at age 70”

of judges should be “subject to possible recall to temporary

service as need may appear.”      4 Proceedings, supra, at 580.

    There was yet another recall proposal submitted to the

Judiciary Committee, one by former Chief Justice Thomas J.

Brogan.   The provision stated:

          Upon the retirement of any such Justice       or
          Judge he shall receive a pension equal        in
          amount to the salary which he is receiving    at
          that time.   Such Justice or Judge shall      be

                                    9
           required, if able so to do, to perform such
           judicial duties and services as may be
           required of him by designation or order of the
           Court of Appeals . . . .

           [2 Proceedings,   supra,   at   1207    (emphasis
           added).]

     This recall proposal and the others before the Judiciary

Committee were rejected and not made part of the final Judicial

Article.

     Whether to have a judicial retirement age and, if so,

setting a retirement age was debated over nine days and thirteen

separate sessions in the Judiciary Committee.       See, e.g., 4

Proceedings, supra, at 500, 523-24, 540, 557.       In ultimately

deciding on seventy as the age for mandatory retirement, the

drafters balanced a number of factors.     One factor was the

wisdom and knowledge that experienced judges bring to the bench.

4 Proceedings, supra, at 484 (noting judges over age of seventy

“who are alert, able and have over a long period of years

acquired a tremendous wealth of legal thinking, wisdom and

judgment” (Judge Thomas Madden)); 4 Proceedings, supra, at 135-

36 (“We all remember, doubtless, some instances in which men did

some of their best work on the court when they were past 75 years

of age.” (Chief Justice Clarence E. Case)).       Another factor was

the concern about incapacity that afflicts older judges.        4

Proceedings, supra, at 24 (noting observations of Vice-Chairman

Nathan L. Jacobs that mandatory-retirement age of seventy would

                                10
reduce frequency of incapacitated judges).   The debates on the

Judicial Article included discussions about the option of a

system of recalling retired judges to service.   See, e.g., 4

Proceedings, supra, at 543 (noting suggestions of Judge Robert

Carey that mandatory-retirement age be set at seventy-five and

that retired judges be placed on “inactive list” subject to

recall); 4 Proceedings, supra, at 168 (noting Wayne D.

McMurray’s remarks that retired judges could be subject to

recall).

    Despite the proposed recall provisions and discussions

before the Judiciary Committee, the drafters did not write

recall into the Constitution or give the Legislature the

authority to do so.

    This is not the first time that this Court has construed

the import of the absence of a provision in a Constitution.      In

Committee to Recall Robert Menendez from the Office of U.S.

Senator v. Wells, 204 N.J. 79, 86-87 (2010), we held that New

Jersey’s constitutional provision allowing for a recall election

of a United States Senator, N.J. Const. art. I, ¶ 2, subject to

a six-year term of office, violated the Federal Constitution.

In reaching that conclusion, we emphasized that the United

States Constitution did not have a recall provision whereas the

prior Articles of Confederation did.   Id. at 85-86.   We also

noted that a proposal to include a recall provision in the new

                               11
Constitution was voted down.     Id. at 86.    From that record, we

reasoned that “the Framers rejected a recall provision and

denied the states the power to recall U.S. Senators.”         Ibid.

    The result the majority reaches in this case does not

square with that interpretative analysis.      The drafters did not

incorporate into the 1947 Constitution the judicial recall

provision in the proposed 1944 Constitution.      They also

evidently rejected the recall proposals advanced at the

Constitutional Convention.     The obvious conclusion should be

that legislation permitting the recall of judges over the age of

seventy runs afoul of the Constitution.

    That conclusion is supported by a retrospective interview

of Morris M. Schnitzer, the Technical Advisor to the Judiciary

Committee of the 1947 Convention.       Conversations with Morris M.

Schnitzer, 47 Rutgers L. Rev. 1391 (1995).       During the

interview, Schnitzer observed that the judicial retirement age

was adopted to banish the spectacle of aged and mentally

incapacitated judges presiding over cases.       Id. at 1400-01.

When asked whether “it [was] contemplated that judges, once

retired at age 70, could be recalled” for temporary service,

Schnitzer replied, “Certainly not, since that would have

resurrected the example of [judges] who sat long after their

peak.”   Id. at 1401.

                                 III.

                                  12
     The majority’s reading into our Constitution a legislative

right to authorize the recall of retired judges over the age of

seventy is contrary to the approach taken by most other states

with a constitutional mandatory-retirement provision.    Nineteen

state constitutions set a mandatory-retirement age for judges.

Sixteen of those state constitutions also specifically provide

for the recall of retired judges who have aged out.1    Those


1  See Ala. Const. art. VI, § 155 (“[A] judge over the age of
seventy may be appointed to the office of supernumerary judge if
he is not eligible to receive state judicial retirement
benefits.”); Alaska Const. art. IV, § 11 (“Retired judges shall
render no further service on the bench except for special
assignments as provided by court rule.”); Ariz. Const. art. VI,
§ 20 (“A retired judge who is temporarily called back to the
active duties of a judge . . . .”); Colo. Const. art. VI, § 5
(“Whenever the chief justice deems assignment of a judge
necessary to the prompt disposition of judicial business, he may
. . . assign any . . . retired justice or district, probate, or
juvenile judge who consents, temporarily to perform judicial
duties in any court.”); Conn. Const. art. V, § 6 (providing that
supreme court, superior court, and common pleas judges who have
attained age of seventy years may serve as state referees with
powers of judicial office); Fla. Const. art. V, § 8 (“No justice
or judge shall serve after attaining the age of seventy years
except upon temporary assignment or to complete a term, one-half
of which has been served.”); La. Const. art. V, § 5 (“The
supreme court . . . may assign a sitting or retired judge to any
court.”); Md. Const. art. IV, § 3a (providing that, with
approval of Court of Appeals, former judges may serve
“temporarily in any court of this State, except an Orphans’
Court”); Mich. Const. art. VI, § 23 (“The supreme court may
authorize [certain former] judges to perform judicial duties for
limited periods or specific assignments.”); Mo. Const. art. V, §
26 (“Any retired judge . . . may be assigned by the supreme
court as a senior judge to any court in this state . . . .”); N.
Y. Const. art. VI, § 25 (“A retired judge or justice shall serve
no longer than . . . the year in which he or she reaches the age
of seventy-six.”); Ohio Const. art. IV, § 6 (“Any voluntarily
retired judge, or any judge who is retired under this section,
                               13
sixteen states apparently concluded that such judicial-recall

clauses were necessary in light of the mandatory-retirement-age

provisions in their constitutions.

    Three other state constitutions include a mandatory-

retirement age but no provision for the recall of judges who

have reached mandatory retirement.   See Haw. Const. art. VI, § 3

(“Justices and judges shall be retired upon attaining the age of

seventy years.”); N.H. Const. pt. 2, art. 78 (“No person shall

hold the office of judge of any court, or judge of probate, or

sheriff of any county, after he has attained the age of seventy

years.”); Mass. Const. pt. 2, ch. 3, art. I (“[T]hat upon

attaining seventy years of age said judges shall be retired.”).

    The Hawaii Constitution has a mandatory-retirement age for

judges, Haw. Const. art. VI, § 3 (“Justices and judges shall be

retired upon attaining the age of seventy years.”), as well as a




may be assigned with his consent . . . to active duty as a judge
. . . .”); Or. Const. art. VII, § 1a (“The Legislative Assembly
or the people may by law . . . [p]rovide for recalling retired
judges to temporary active service on the court from which they
are retired . . . .”); Pa. Const. art. V, § 16 (“A former or
retired justice or judge may, with his consent, be assigned by
the Supreme Court on temporary judicial service as may be
prescribed by rule of the Supreme Court.”); Tex. Const. art. V,
§ 1-a (providing “reassignment to active duty [of retired
judges] where and when needed”); Wash. Const. art IV, §§ 2a, 3a
(“When necessary for the prompt and orderly administration of
justice a majority of the Supreme Court is empowered to
authorize judges or retired judges . . . to perform,
temporarily, judicial duties . . . .”).

                               14
provision allowing for the recall of retired judges, Haw. Const.

art. VI, § 2 (“[A]t the request of the chief justice, retired

justices of the supreme court also may serve temporarily on

the supreme court, and retired judges . . . may serve

temporarily on the [lower courts] . . . .”).      The recall

provision evidently has not been construed to permit the recall

of judges over the age of seventy.     The Hawaii Judiciary

expressed its support for a constitutional amendment, stating

that “the knowledge and experience of such judges are recognized

as valuable resources not only as judicial mentors but also to

help provide fair and timely disposition of cases.”     Hearing on

S.B. 650 Before the Haw. S. Judiciary & Labor Comm., 26th Leg.

(Feb. 14, 2012) (statement of Rodney A. Maile, Admin. Dir. of

the Courts).     In 2012, a constitutional amendment was placed

before the voters that would have allowed the state’s chief

justice to appoint retired judges over the age of seventy as

“emeritus judges” to temporarily serve for no longer than three

months.   Haw. S.B. 650, 26th Leg. (2011).    The amendment was

voted down.

    Only two states with a mandatory-retirement provision and

no recall clause in their state constitutions -- New Hampshire

and Massachusetts -- have permitted retired judges to be

temporarily assigned for service based on legislative

authorization.    Claremont Sch. Dist. v. Governor, 712 A.2d 612

                                  15
(N.H. 1998); Opinion of Justices, 284 N.E.2d 908 (Mass. 1972).

    The New Hampshire Supreme Court concluded that the state

legislature has “the constitutional authority to authorize

limited temporary assignment of retired justices over age

seventy to ensure the adequate and orderly administration of

justice,” but that those “retired justices over age seventy [are

not invested] with the panoply of powers associated with

judicial office.”   Claremont, supra, 712 A.2d at 615.

    The Supreme Judicial Court of Massachusetts held in an

advisory opinion to the Massachusetts Senate, Opinion of

Justices, supra, 284 N.E.2d at 913, that the temporary recall of

judges and justices by legislation would be permitted despite a

proposed constitutional amendment, which stated that “upon

attaining seventy years of age . . . judges shall be retired.”

Without the legislation, which was similar to the Schedule

Article in the New Jersey Constitution, N.J. Const. art. XI, §

4, ¶ 1, then-serving judges over the age of seventy under the

then-existing system (nearly twenty percent of the judiciary)

would have been removed immediately upon the ratification of the

constitutional amendment, causing a severe and abrupt disruption

of the judicial system.   Id. at 911-13.   In reaching its

decision, the Massachusetts high court gave “great weight” to

the “unusual and pragmatic considerations” involved as well as

to “public policy considerations.”   Id. at 913.   The advisory

                                16
opinion does not explain why “pragmatic” and “public policy

considerations” were compelling reasons for bypassing the

amendment process.

    Even accounting for the New Hampshire and Massachusetts

experiences, the majority’s approach is an outlier.

                                IV.

    For more than a quarter century after ratification of the

New Jersey Constitution, this State had no judicial recall

system.   The initial Judicial Retirement System Act, L. 1973, c.

140, passed in 1973, only allowed for the recall of judges who

had not yet attained the age of seventy, L. 1973, c. 140, § 13.

Setting a mandatory-age limit for recall presumably reflected

the Legislature’s understanding that the recall of judges over

the age of seventy was prohibited by the Judicial Article.

    In 1975, the Legislature passed into law the present

judicial recall system, which allows retired justices and judges

over the age of seventy to be recalled for temporary service.

L. 1975, c. 14.   The Recall Statute provides that “[s]ubject to

rules of the Supreme Court,” retired Supreme Court justices over

the age of seventy may “be recalled by the Supreme Court for

temporary service in the Supreme Court or elsewhere within the

judicial system” and that Superior Court judges over the age of

seventy may be recalled “for temporary service within the

judicial system other than the Supreme Court.”   N.J.S.A. 43:6A-

                                17
13(b).   The Recall Statute also endows the retired justice or

judge with “all the powers of a justice or judge of the court to

which he is assigned.”   N.J.S.A. 43:6A-13(c).

     The legislation limits the Supreme Court only to its own

rules.   Thus, per the Recall Statute, the Supreme Court could,

if it wished, promulgate a rule that permits the temporary

recall of justices and judges who do not exceed the age of 100 -

- and, according to the majority, that would be consistent with

the Constitution’s mandatory-retirement age.2    Additionally, the

Recall Statute invests the Supreme Court with the power to

recall retired justices to fill temporary vacancies on the

Supreme Court, despite the clear conflict with Article VI,

Section 2, Paragraph 1 of the State Constitution.    That

constitutional provision allows for the Chief Justice only to

“assign the Judge or Judges of the Superior Court, senior in

service . . . to serve temporarily in the Supreme Court.”    N.J.

Const. art. VI, § 2, ¶ 1.   Thus, the Recall Statute unlawfully

authorizes the Supreme Court to bypass our Constitution’s

prescribed method for filling vacancies on this Court.




2 Pursuant to the Recall Statute, N.J.S.A. 43:6A-13, the Court
has promulgated Directive 12-01, “Policy Governing Recall for
Temporary Service Within the Judicial System” (effective Sept.
1, 2001). The Directive states that “[n]o retired justice or
judge shall serve on recall beyond his or her eightieth
birthday.” That Directive is simply the Court’s own policy
determination.
                                18
    The recall legislation is clearly laudatory, but it is not

constitutional.     Before the passage of the current statute in

1975, the New Jersey Supreme Court requested the views of the

Bar “with respect to questions concerning the retirement of

judges who have reached the age of 70 years.”      The majority

references the 1974 report of the Bar Institute and Law Center

of New Jersey submitted to the Court and two New Jersey Law

Journal editorials published that year.      The Bar Institute’s

report “conclude[d] that our retired judges should be permitted

to return to the bench according to the needs of our court

system and according to their abilities to render such service.”

The Bar Institute and Law Center of New Jersey, Recall of Judges

Past the Age of Mandatory Retirement:       An Examination of the

Pertinent Issues 14 (Oct. 1974).       The report did not conclude

that enactment of a statute would pass muster under the

Constitution.     The 1974 Law Journal editorials calling for the

amending of the 1973 Recall Statute to allow for retired judges

over the age of seventy to be returned to temporary judicial

service contained no meaningful constitutional analysis, and

cited no authority other than the Massachusetts advisory

opinion.   Senior Judges, 97 N.J.L.J. 68 (Jan. 31, 1974);

Judicial Service for Judges Retired at Age 70 Who Wish Such

Service, 97 N.J.L.J. 188 (Mar. 21, 1974).       The 1974 Law Journal

editorials endorsing a recall statute, and the more recent Law

                                  19
Journal editorials claiming that the Recall Statute is

unconstitutional, cannot guide our decision-making process.

Recalling the Recalled Judges, 216 N.J.L.J. 470 (May 19, 2014);

Judges We Can’t Recall, 206 N.J.L.J. 742 (Nov. 28, 2011); 70 and

Out, 194 N.J.L.J. 962 (Dec. 15, 2008).

    In the end, this Court is the final arbiter of the

Constitution.   Although the Legislature’s policy reasons for

enacting the Recall Statute are praiseworthy (to “help speed the

administration of justice and, by securing the benefit of years

of judicial experience, increase the quality of justice,”

Statement to A. No. 1419 (Apr. 1, 1974)), those reasons do not

render the Statute constitutional.   Moreover, a law’s

constitutionality does not turn on public opinion or how it

favors the Bar or even the judicial process.   The Constitution

must be followed even if a true interpretation leads to a result

that is not consonant with the immediate interests of the

judiciary as an institution.

    That is a lesson passed on to us from the landmark case of

Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803), which stands

for the bedrock principle of judicial review and the primacy of

the Constitution over legislation.   The issue in Marbury bears a

noticeable similarity to the one before us, however different

the facts of the two cases may be.   The outgoing President, John

Adams, appointed William Marbury a justice of the peace, but

                                20
Marbury’s commission had not been physically delivered to him

before the administration’s final day.    Id. at 155, 2 L. Ed. at

66.   Marbury sought a writ of mandamus from the Supreme Court

ordering the new administration’s Secretary of State, James

Madison, to give him his commission.     Id. at 153-54, 2 L. Ed. at

66.   The Judiciary Act of 1789 conferred on the United States

Supreme Court original jurisdiction to issue writs of mandamus.

Id. at 173, 2 L. Ed. at 72.   In an opinion written by Chief

Justice Marshall, the Supreme Court held that it did not have

jurisdiction to issue the writ because the Judiciary Act

unconstitutionally expanded the Court’s original jurisdiction.

Id. at 176, 2 L. Ed. at 73.   The Supreme Court struck down that

portion of the Judiciary Act that arrogated to the Court a power

not vested in it by the Constitution.    Id. at 180, 2 L. Ed. at

74.

      Here, the Recall Statute arrogates to the New Jersey

Supreme Court a power not vested in it by the Constitution --

the power to assign retired judges over the age of seventy to

active, temporary service in the judiciary in violation of the

Judicial Article.

                                V.

      Although I would declare the Recall Statute

unconstitutional as it applies to those retired judges over the

age of seventy, no judgment rendered by a recall judge would

                                21
have been threatened.   Under the de facto officer doctrine, a

judge’s acts “undertaken in good faith and prior to a judicial

declaration of nullity have the force and effect of law

notwithstanding a constitutional defect in the enabling

legislation.”   State v. Celmer, 80 N.J. 405, 418 (1979).    Thus,

had my view prevailed, the ruling would not have applied

retroactively, except to the defendant who brought the issue

before this Court.   Additionally, I would have delayed

implementation of the decision for 180 days to allow the

Executive and Legislative branches time to remedy the

constitutional infirmity.   See Lewis v. Harris, 188 N.J. 415,

463 (2006) (giving Legislature 180 days to amend marriage

statutes or enact alternative legislation to provide equal

rights to same-sex couples).   During that time, the Legislature

would have had a number of options.   It could have begun the

process of amending the Constitution to allow for the recall of

retired judges or to extend the retirement age of judges to,

say, seventy-five.   It could have created more judgeship

positions or, at the very least, filled the many vacancies that

so limit the judiciary’s ability to fulfill its mission.     It

still can.

    Justice suffers when the judiciary is understaffed.     The

oft-heard refrain, “Justice delayed is justice denied,” is true.

Cases that are not heard timely compromise the rights of

                                22
litigants.   As of July 1, 2015, there were forty-six vacancies

among the 443 Superior Court judgeships authorized by statute,

N.J.S.A. 2B:2-1, with seventy-two judges serving on recall,

fifty-five of whom are above the mandatory age of retirement.

By failing to timely fill the many judicial vacancies, the

political branches have created the urgent need for and the

judiciary’s dependency on the recall system.   However effective

the recall system may be, politically created exigencies and

pragmatic considerations cannot excuse the use of

unconstitutional means to achieve a desirable end.

                                VI.

    Recall judges have served ably and with distinction, and

for little compensation.   They are to be commended for their

selfless service.   However, the Recall Statute is in conflict

with our State Constitution.   Today, by upholding that Statute,

the majority gives to the Supreme Court a power not conferred to

it by the Judicial Article of the New Jersey Constitution.

    I therefore respectfully dissent.




                                23
                       SUPREME COURT OF NEW JERSEY


NO.       A-22                                    SEPTEMBER TERM 2014
ON APPEAL FROM               Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

                 v.

JAMES BUCKNER,

      Defendant-Appellant.




DECIDED                 July 30, 2015
                  Chief Justice Rabner                            PRESIDING
OPINION BY            Chief Justice Rabner
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY            Justice Albin


CHECKLIST                                AFFIRM                DISSENT
CHIEF JUSTICE RABNER                          X
JUSTICE LaVECCHIA                             X
JUSTICE ALBIN                                                       X
JUSTICE PATTERSON                    --------------------   --------------------
JUSTICE FERNANDEZ-VINA                        X
JUSTICE SOLOMON                               X
JUDGE CUFF (t/a)                              X
TOTALS                                        5                      1
