NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0630-12T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BUCKNER,

Defendant-Appellant.

Argued January 27, 2014 - Decided

Before Judges Parrillo, Harris and Kennedy.

On appeal from the Superior Court of New 

Jersey, Law Division, Morris County, 

Indictment No. 10-06-0697.

Brian Plunkett, Assistant Deputy Public 

Defender, argued the cause for appellant 

(Joseph E. Krakora, Public Defender, 

attorney; Mr. Plunkett, of counsel and on 

the brief).

Jeffrey P. Mongiello, Deputy Attorney 

General, argued the cause for respondent 

(John J. Hoffman, Acting Attorney General, 

attorney; Frank J. Ducoat, Deputy Attorney 

General, of counsel and on the brief; 

Kenneth A. Burden, Deputy Attorney General, 

on the brief).

The opinion of the court was delivered by

PARRILLO, P.J.A.D.

In New Jersey, justices of the Supreme Court and judges of 

APPROVED FOR PUBLICATION

May 5, 2014

APPELLATE DIVISION

May 5, 2014
2 A-0630-12T1

the Superior Court "hold their offices" for seven years, and 

upon reappointment by the Governor, "hold their offices during 

good behavior" until they reach the age of seventy. N.J. Const.

art. VI, § 6, ¶ 3. Justices and judges "shall be retired upon 

reaching" their seventieth birthday. Ibid. To that end, the 

Legislature has enacted the "Judicial Retirement System Act," 

N.J.S.A. 43:6A-1 to -46, which governs judicial pensions, and, 

among other things, provides that justices and judges who have 

reached seventy years "shall be retired forthwith." N.J.S.A.

43:6A-7.

This case presents a challenge to the constitutionality of 

N.J.S.A. 43:6A-13(b), which authorizes the New Jersey Supreme 

Court to recall retired judges for temporary service, including 

those who have reached age seventy, an issue of first impression

in this State. It is brought by defendant James Buckner, whose 

trial on robbery and aggravated assault charges was presided 

over by a seventy-three-year-old judge who had been recalled for 

temporary service by the Supreme Court and who had earlier 

denied defendant's pre-trial motions for disqualification and 

for recusal from the disqualification motion.

Although the New Jersey Constitution contains two 

provisions pertaining to the compulsory retirement of judges and 

justices at age seventy, N.J. Const., art. VI, § 6, ¶ 3 (the 
3 A-0630-12T1

Judicial Article) and N.J. Const. art. XI, § 4, ¶ 1 (the 

Schedule Article), defendant relies only on the latter in 

support of his argument on appeal that he is entitled to a new 

trial because the presiding judge was constitutionally 

disqualified from serving as a Superior Court judge based solely 

on his age. For the sake of completeness, however, we address 

both constitutional provisions in finding they do not conflict 

with the practice legislatively prescribed in N.J.S.A. 43:6A13(b). 

I. Development of Constitutional Provision 

To place the issue in proper perspective, we first trace 

the development of these constitutional provisions. To date, 

New Jersey has had three State Constitutions. The first, the 

Constitution of 1776, N.J. Const. of 1776 art. XII, which 

preceded the Federal Constitution and was necessarily drawn in 

haste,1 and the second, the Constitution of 1844, N.J. Const. of 

1844 art. VII, which was ratified after adoption of the Federal 

 

1 New Jersey was the third colony to adopt a Constitution. John 

Bebout, Introduction to Proceedings of the New Jersey State

Constitutional Convention of 1844, at xvi (New Jersey Writers' 

Project ed., 1942), available at http://lawlibrary.

rutgers.edu/cgi-bin/diglib.cgi?collect= njconst&file=

1844_bebout&page=0001 (last visited on Mar. 6, 2014). The 

Constitution was ratified on July 2, 1776, only eight days after 

the appointment of the Constitutional Convention Committee. 

Ibid. "This haste may have been due partly to the arrival of 

the British Fleet off Sandy Hook." Ibid.

 
4 A-0630-12T1

Constitution,2 both contained provisions setting forth limited 

judicial terms of office, none of which exceeded seven years, 

and contained no provision for compulsory retirement. See

www.state.nj.us/njfacts/njdoc10.htm (last visited on Mar. 6, 

2014) (discussing the history surrounding the ratification of 

the 1776 Constitution); DePascale v. State, 211 N.J. 40, 48 

(2012) (discussing the history surrounding the ratification of 

the 1776 and 1844 Constitutions). 

By the 1940's there was wide agreement that our 

complicated, rigid court system, modeled after the discarded 

pre-colonial English legal tribunals, and "characterized by a 

multiplicity of courts, overlapping functions of judges, and 

lack of unified administrative direction," desperately needed 

reform. 4 Proceedings of the Constitutional Convention of 1947, 

at 595, 121 (1952) ("[O]ur court system[] was the most 

antiquated and intricate that exist[ed] in any considerable 

community of English-speaking people.");3 Symposium, The "New 

Judicial Federalism" and New Jersey Constitutional 

Interpretation, 7 Seton Hall Const. L.J. 823, 823 (1997) ("Prior 

 

2 There is no mandatory retirement age for judges appointed under 

Article III, Section 1 of the Federal Constitution.

 

3 All five volumes of these proceedings are available at 

http://slic.njstatelib.org/new_jersey_ information/

searchable_publications_0 (last visited on Mar. 6, 2014).
5 A-0630-12T1

to the convention in 1947, New Jersey's judicial system was 

described as the worst in the country.").

In 1941, in response to the escalating calls for reform, 

the Legislature appointed a Commission to study the revision of 

the State Constitution. L. 1941, Joint Resolution No. 2 (Nov. 

18, 1941). In its May 1942 report, the Commission, chaired by 

Senator Robert Hendrickson, recommended the adoption of an 

entirely new State Constitution, and submitted a draft of a 

revised constitution, which included sweeping changes to the 

court system. Report of the Commission on Revision of the New 

Jersey Constitution, at 21-25 (May 1942).4 Pertinent for present

purposes, the Commission recommended the appointment of judges 

for a trial term, and then, if reappointed, that they have 

tenure during good behavior. Id. at 22. The Commission also 

recommended adoption of a compulsory retirement age, that is, 

that "[a]ll members of the judiciary shall retire upon reaching 

the age of seventy years." Ibid. 

In accordance with its recommendations, the Commission's 

draft of the revised Constitution included a provision in the 

proposed Judicial Article that "[n]o justice or judge of any 

 

4 Available at http://lawlibrary.rutgers.edu/cgi-bin/diglib.

cgi?collect=njconst&file=1942_comm&page=0001 (last visited on 

Mar. 6, 2014). Reprinted in 4 Proceedings of the Constitutional 

Convention of 1947, supra, at 556-65. 
6 A-0630-12T1

court shall continue in office after he has attained the age of 

seventy years." Id. at 48 (proposed art. V, § 5, ¶ 3). The 

draft also included a proposed Schedule Article to facilitate 

the Court's transition from the 1844 Constitution to the newly 

proposed constitution, including a provision for the appointment 

of the "justices" of the new Supreme and Superior Courts from 

the "persons then holding the offices[.]" Id. at 56 (proposed 

art. XI, § 4, ¶ 1) (emphasis added). The proposed Schedule 

Article included a provision that "[n]othing in this section 

shall be construed, however, to permit any justice to continue 

in office after attaining the age of seventy years." Ibid.

(proposed art. XI, § 4, ¶ 1). 

In 1943, the Legislature was empowered to act as a limited 

constitutional convention. See Revised Proposed Amendments of 

1944.

5 The Legislature's draft of the Judicial Article to the 

proposed 1944 revised Constitution and the proposed Schedule 

Article closely followed the Commission's recommendations. 

Compare 4 Proceedings of the Constitutional Convention of 1947, 

at 560-65, with id. at 566-74. However, in its proposed 

Judicial Article, the Legislature added a recall provision to 

 

5 Available at http://lawlibrary.rutgers.edu/cgibin/diglib.cgi?collect=njconst&file=1944_rev&page=0001 (last 

visited on Mar. 6, 2014). Reprinted in 4 Proceedings of the 

Constitutional Convention of 1947, supra, at 566-74.
7 A-0630-12T1

the Commission's draft proposal on compulsory retirement:

No Justice of the Supreme Court or of the 

Superior Court shall continue in office 

after he has attained the age of seventy 

years; but, subject to law, he may be 

assigned by the Chief Justice to temporary 

service in the Supreme Court or in the 

Superior Court, as need appears.

[L. 1944, c. 92 (emphasis added); (proposed 

N.J. Const. of 1944 art. V, § 5, ¶ 5).]

The Legislature also changed the age under which existing 

justices and judges could be reappointed under the new 

Constitution from seventy years, as proposed by the Commission 

in its Schedule Article, to seventy-five years, and explicitly 

banned reappointment thereafter:

No such Justice of the Superior Court who 

has been reappointed shall continue in 

office after he has attained the age of 

seventy-five years.

[L. 1944, c. 92; (proposed N.J. Const. of 

1944 art. XI, § 4, ¶ 1).] 

However, the voters rejected the Legislature's proposed revised 

Constitution during the November 1944 election. 4 Proceedings 

of the Constitutional Convention of 1947, supra, at 566. 

Significantly, however, there is no indication in any of the 

historical sources, including the Proceedings on the 

Constitutional Convention of 1947, that the voters had objected 

to the recall of retired judges.

On June 12, 1947, the State convened another 
8 A-0630-12T1

Constitutional Convention, as approved by the voters by 

referendum. 1 Proceedings of the Constitutional Convention of 

1947, at 1-2; 2 Proceedings of the Constitutional Convention of 

1947, at 946. During his opening remarks, Governor Alfred E. 

Driscoll advised the delegates to limit the new State 

Constitution "to a statement of basic fundamental principles[,]" 

and to avoid the problems created under the State Constitution 

of 1844 by following the Federal Constitution's "ageless virtue 

of simplicity." 1 Proceedings of the Constitutional Convention 

of 1947, supra, at 7. 

During the open meetings and public hearings conducted in 

June and July 1947 by the Constitutional Convention's Committee 

on the Judiciary (the Committee charged with drafting the 

proposed articles on the judiciary), the issue of the adoption 

of a fixed compulsory retirement age for judges was a 

significant topic of discussion. 4 Proceedings of the 

Constitutional Convention of 1947, supra, at 37, 135, 167-68, 

190, 208, 330, 342, 429, 486. Some commenters, including 

Governor Driscoll, argued in favor of compulsory retirement at 

age seventy, other commenters argued for voluntary retirement at 

age sixty-five and requiring mandatory retirement at age 

seventy, and others argued for voluntary retirement at age 

seventy and mandatory retirement at age seventy-five. 4
9 A-0630-12T1

Proceedings of the Constitutional Convention of 1947, supra, at 

429, 37, 342, 486; id. at 166-68, 190, 330, 486; id. at 135-36, 

190, 208, 486. 

There was also some much more limited discussion on the 

question of whether a judge, who had retired at the compulsory 

retirement age, could be recalled. For example, Vice-chairman 

Nathan L. Jacobs, who later became a New Jersey Supreme Court 

Justice, took note of the federal system under which a judge can 

retire, but be subject to recall by the Chief Justice. Id. at 

168. Jacobs said that Justice Van Devanter, after his 

retirement from the United States Supreme Court, had been 

permitted to sit as a trial judge which "carried with it the 

weight of a former Supreme Court Justice," and that was "the 

type of case, following Dean [Roscoe] Pound's suggestion of 

using retired judges in celebrated cases, where you might want 

the public to feel a respect greater than it might toward an 

ordinary trial judge in that one particular district." Ibid.

Jacobs commented that "even if you do have a so-called 

compulsory retirement age, you may make adequate provision for 

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

their capacities." Id. at 169.6 

 

6 Jacobs, although acknowledged as the "principal sponsor of 

mandatory retirement" by Morris M. Schnitzer, was also later the 

(continued)
10 A-0630-12T1

Additionally, Justice Frederic R. Colie responded to a 

query as to whether the "situation of [judicial] overwork" might 

be alleviated by "drafting some of the very able and capable" 

judges who were forced to retire at age seventy-five, saying 

that:

I think that judges who are retired, either 

voluntarily or because they have reached the 

age limit, should be kept on the roll, the 

state roll of the judiciary, so that they 

can do as they do in Connecticut. There 

they are sort of referees, or masters, and 

may be called in by the Chief Justice when 

the occasion arises, to handle cases.

[Id. at 214.]

Significantly, several commentators, including Governor 

Driscoll, advised the Committee during the open sessions to 

leave the particular details of judicial retirement to the 

 

(continued)

primary architect of creating the recall provisions at issue. 4 

Proceedings of the Constitutional Convention of 1947, supra, at 

1; Conversations with Morris M. Schnitzer, 47 Rutgers L. Rev.

1391, 1401 (1995); see also post at 28-29. Justice Jacobs, by 

then serving on our Supreme Court, "promoted the idea as a way 

of dealing with emergencies and thereafter as a way of enlisting 

economical judicial service." Conversations with Morris M. 

Schnitzer, supra, 47 Rutgers L. Rev. at 1401-02. Thus, although 

Schnitzer, who served as the Technical Advisor to the Committee 

on the Judiciary, rejected the idea that recall of judges over 

age seventy was contemplated by that body, Justice Jacobs, who 

served as the Vice-chairman of the committee and was "the author 

of every draft of the Judicial Article," certainly saw no 

constitutional conflict between the mandatory retirement 

provision in the Constitution and the recall statute. Id. at 

1391, 1393, 1401-02.
11 A-0630-12T1

Legislature. Id. at 429, 211, 265. For example, Dean Roscoe 

Pound, a distinguished legal scholar and former Dean of Harvard 

Law School, advised that:

If there is anything that needs to be borne 

in mind in the Constitution it is not to put 

in too much. Robert Louis Stevenson said, 

the difference between Homer and the 

ordinary poet was that Homer knew what to 

leave out. The difference between the man 

who writes a good constitution and one who 

doesn't is that the former knows what to 

leave out. Amending a constitution is a 

slow business, and the way to achieve a 

thing that has to be achieved is on the 

basis of experience by those who have the 

experience. Don't, therefore, lay down a 

hard and fast elaborate scheme of courts, 

their boundaries rigidly defined, and their 

personnel rigidly defined. The framers of 

the Constitution of the United States did a 

very good job when they provided for just 

one court and left the rest to legislation

. . . . 

[Id. at 113.] 

On July 24, 1947, the Committee published its first draft 

of the Judicial Article, which provided in relevant part that 

"[s]uch Justices and Judges shall be retired upon attaining the 

age of seventy years." 2 Proceedings of the Constitutional 

Convention of 1947, supra, at 1168. There was no provision for 

the recall of retired judges for temporary service. In the 

proposed Schedule Article, the Committee provided that "[n]o 

Justice of the new Supreme Court or Judge of the General Court 

shall, however, hold his office after attaining the age of 
12 A-0630-12T1

seventy years." Id. at 1170.7 

The Committee presented the final draft of the proposed 

Judicial and Schedule Articles to the Convention on July 31, 

1947. 2 Proceedings of the Constitutional Convention of 1947, 

supra, at 1173. The compulsory retirement provision in the 

Judicial Article remained unchanged. Id. at 1175. The Schedule 

provisions were changed, and provided in relevant part: "No 

Justice of the new Supreme Court or Judge of the General Court 

shall hold his office after attaining the age of seventy years, 

except, however, that such Justice or Judge may complete the 

period of his term which remains unexpired at the time the 

Constitution is adopted." Id. at 1176 (emphasis added).

 In its report on its final draft, the Committee set forth 

that a noteworthy feature of the proposed Judicial Article is 

that "[e]xcept for incumbent judges, who will serve out their 

terms, Justices and Judges of the Supreme and Superior Courts 

must retire at 70, the Legislature to prescribe pensions." Id.

at 1181, 1189.8 With regard to the proposed Schedule Article, 

 

7 During the final open public session on July 30, 1947, several 

individuals expressed their views on the proposed compulsory 

retirement age of seventy. 4 Proceedings of the Constitutional 

Convention of 1947, supra, at 500, 515-16, 523-24, 531, 542-43. 

Additionally, Robert Carey, a former Hudson County Judge, argued 

that retired judges should be placed on an inactive list and 

subject to recall by the Chief Justice. Id. at 543.

8 Our Court "has often relied on the Judiciary Committee Report 

(continued)
13 A-0630-12T1

the Committee explained:

The Schedule Article is intended to provide 

for the transition between the present and 

the new judicial branches of government. It 

will govern incumbent judges until the 

expiration of their terms, assigns the 

clerical personnel of existing state courts, 

transfers the files of pending litigation 

and makes such other specific provisions as 

are necessary until the new Judicial Article 

is completely in effect.

[Id. at 1195 (emphasis added).]

 

The Committee also explained that with regard to "the text 

and scope of the constitutional provisions governing the 

judiciary," it had observed the following two considerations:

First: Constitutions should deal with 

fundamentals, not details. The organic law 

should establish the framework of 

government, leaving the body and content to 

be supplied by legislation.

Second: The function of a Judicial Article 

in a Constitution is to create a system of 

courts, not to write or change the law which 

those courts will administer or enforce. 

The Committee was as concerned with avoiding 

revision of the substantive law, however 

urgent and necessary, as it was careful to 

preserve intact the right to trial by jury 

and the scope and extent of the judicial 

power.

 

(continued)

as an authoritative source" of constitutional intent. Henry v. 

N.J. Dep't of Human Servs., 204 N.J. 320, 349 n.4 (2010) 

(Rabner, C.J., concurring). But see Winberry v. Salisbury, 5 

N.J. 240, 248 (criticizing reliance on the Committee report), 

cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950).
14 A-0630-12T1

[Id. at 1180-81.]

Thus, although the recall of judges over age seventy was a 

concept about which members of the Convention were obviously 

aware if only by virtue of its inclusion in the 1944 proposed 

constitution, it was also one which they chose not to consider, 

delegating that detail, instead, to the Legislature.

In November 1947, the voters ratified the Constitution 

adopted by the Constitutional Convention. The Judicial Article 

provides in relevant part that:

The Justices of the Supreme Court and the 

Judges of the Superior Court shall hold 

their offices for initial terms of seven

years and upon reappointment shall hold 

their offices during good behavior. Such 

Justices and Judges shall be retired upon 

attaining the age of seventy years.

Provisions for the pensioning of the 

Justices of the Supreme Court and the Judges 

of the Superior Court shall be made by law.

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

added).]

The Schedule Article provides in relevant part that:

Subsequent to the adoption of this 

Constitution the Governor shall nominate and 

appoint, with the advice and consent of the 

Senate, a Chief Justice and six Associate 

Justices of the new Supreme Court from among 

the persons then being the Chancellor, the 

Chief Justice and Associate Justices of the 

old Supreme Court, the Vice Chancellors and 

Circuit Court Judges. The remaining 

judicial officers enumerated and such Judges 

of the Court of Errors and Appeals as have 

been admitted to the practice of law in this 
15 A-0630-12T1

State for at least ten years, and are in 

office on the adoption of the Constitution, 

shall constitute the Judges of the Superior 

Court. The Justices of the new Supreme 

Court and the Judges of the Superior Court 

so designated shall hold office each for the 

period of his term which remains unexpired 

at the time the Constitution is adopted; and 

if reappointed he shall hold office during 

good behavior. No Justice of the new 

Supreme Court or Judge of the Superior Court 

shall hold his office after attaining the 

age of seventy years, except, however, that 

such Justice or Judge may complete the 

period of his term which remains unexpired 

at the time the Constitution is adopted.

[N.J. Const. art. XI, § 4, ¶ 1 (emphasis 

added).]

 

II. Legislation: The Recall Statute

Thus, the Legislature, in addition to the Senate's 

constitutional power to confirm gubernatorial nominations to the 

bench, N.J. Const. art. VI, § 6, ¶ 1; In re Mathesius, 188 N.J.

496, 522 (2006), also has the constitutional authority to set 

judicial salaries, N.J. Const. art. VI, § 6, ¶ 6 and to make 

provisions for pensions, N.J. Const. art. VI, § 6, ¶ 3. To that 

end, in 1948 the Legislature carried out the constitutional 

mandate of providing pensions for justices and judges who were 

subject to mandatory retirement at age seventy. L. 1948, c. 391 

(codified at N.J.S.A. 43:6-6.4 to -6.10 (now repealed)). There 

was, however, no provision in the 1948 Act for the recall of 

retired judges. 
16 A-0630-12T1

In 1973, the Legislature enacted the "Judicial Retirement 

System Act," N.J.S.A. 43:6A-1 to -46. L. 1973, c. 140. The Act 

included a provision for mandatory retirement at age seventy, 

N.J.S.A. 43:6A-7, and provisions regarding the age at which a 

judge was eligible for voluntary retirement, N.J.S.A. 43:6A-8 to 

-11. Significantly, N.J.S.A. 43:6A-13(b) (now amended) provided 

for the recall of judges who had not attained the age of 

seventy, as follows:

[a]ny judge retired on pension, except a 

judge of municipal court, who has not 

attained the age of 70 years, may, with his 

consent, be assigned by the Chief Justice to 

sit in any court but the Supreme Court, or 

in the case of a retired justice of the 

Supreme Court, to sit in any court.

[L. 1973, c. 140.]

At the request of the Supreme Court, the Bar Institute and 

Law Center of New Jersey prepared a formal report on the 

constitutional issues concerning the recall of judges past the 

age of mandatory retirement; it recommended passage of 

legislation permitting same. See The Bar Institute and Law 

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

Retirement: An Examination of the Pertinent Issues (October 

1974). Its October 24, 1974 report was submitted to the Court 

at its November 12, 1974 Administrative Conference. Shortly 

thereafter, in 1975, the Legislature amended N.J.S.A. 43:6A-
17 A-0630-12T1

13(b)9 to remove the restriction against recalling judges over 

the age of seventy, as follows:

Subject to rules of the Supreme Court[]

. . . any judge of the superior court[] 

. . . who has retired on pension may, with 

his consent, be recalled by the Supreme

Court for temporary service within the 

judicial system other than the Supreme 

Court.

[L. 1975, c. 14.]

The Sponsor's Statement to the bill explains that:

This bill removes the restriction on the 

employment of retired judges who are 70 

years of age or older on special assignments 

by the Chief Justice in the same manner as 

retired judges under 70 years of age may 

presently be assigned. 

The New Jersey Constitution in Article VI, 

Section VI, paragraph 3 requires that judges 

retire at age 70. This mandatory retirement 

does not however prevent the utilization of 

such senior judges on a special assignment 

basis, if they so desire, at the pleasure of 

the Chief Justice.

Permitting the assignment of senior judges 

would help speed the administration of 

justice and, by securing the benefit of 

years of judicial experience, increase the 

quality of justice.

[Sponsor's Statement to Assembly Bill No. 

1419, at 2 (April 1, 1974).]

 

9 Similar statutory provisions were later enacted for the recall 

of retired Workers' Compensation judges, N.J.S.A. 34:15-49(a), 

and Administrative Law judges, N.J.S.A. 52:14F-4, who had not 

yet reached the age of eighty.
18 A-0630-12T1

Thus, the Legislature has authorized the Supreme Court to 

recall retired judges, who were appointed in accordance with the 

Constitution, for temporary assignment - a practice that has 

been in existence since 1973, for judges younger than seventy,

L. 1973, c. 140, and since 1975, for judges who had attained the 

age of seventy. N.J.S.A. 43:6A-13(b). Prior to this appeal, 

the recall statute, N.J.S.A. 43:6A-13, has never been 

challenged.10

III. Implementation of Statute by the Supreme Court

Since 1975, our Supreme Court has, without challenge, 

recalled a great number of retired judges to temporarily serve 

at all levels of our court system. Effective September 1, 2001, 

the Administrative Office of the Courts (AOC) established in 

Directive #12-01, the Judiciary's "Policy Governing Recall for 

Temporary Service Within the Judicial System", which, in its 

introductory passage, acknowledges the importance of the recall 

procedure in fulfilling the Court's constitutional mandate to

"'see that the public interest is fully served by the proper 

functioning of this vital branch of our government[,]'" Henry,

supra, 204 N.J. at 353 (Rabner, C.J., concurring) (quoting 

 

10 Minor revisions to N.J.S.A. 43:6A-13 were made by L. 1981, c.

470, § 7, and L. 1990, c. 45, § 1, but no substantive changes 

were made to the authority of the Supreme Court to recall 

justices and judges.
19 A-0630-12T1

Thurber v. City of Burlington, 191 N.J. 487, 499 (2007) 

(internal citations omitted)):

Over the years, the Judiciary has benefited 

greatly from the willingness of retired 

judges to be recalled for judicial service. 

Recall judges provide stability and 

continuity for the work of the Judiciary by 

accepting assignments for special projects 

and programs, so that judges on permanent 

assignment are not diverted from their 

primary responsibilities.

[AOC Directive #12-01.]

The AOC policy establishes detailed and comprehensive 

procedures governing recall service pursuant to N.J.S.A. 43:6A13, including, among other things, a screening and approval 

process; a limitation on compensation; a bar on service beyond a 

retired judge's eightieth birthday; and a complete severance 

from "of counsel" associations. Ibid. In addition to requiring 

medical clearance, the policy enumerates other qualifications 

governing eligibility of candidates for recall service. 

Moreover, recall judges remain subject to strict judicial 

guidelines; are bound by the ethical restrictions on judges set 

forth in N.J.S.A. 52:13D-17; and must comply with all of the 

provisions of the Code of Judicial Conduct governing full-time 

judges, Code of Judicial Conduct, Canon 7. See In re Dileo, 216

N.J. 449, 467 (2014) ("Every judge is duty bound to abide by and 

enforce the standards in the Code of Judicial Conduct.").
20 A-0630-12T1

Depending on the staffing needs of the vicinages, the 

Supreme Court issues orders recalling judges, which are 

published in the New Jersey Law Journal and posted on the 

judiciary website. By law, the Superior Court consists of 443

judges. N.J.S.A. 2B:2-1(a). There are currently 398 active 

Superior Court judges, including four Tax Court judges assigned 

to the Superior Court, representing a vacancy rate of about 

thirteen percent. As of April 1, 2014, seventy-three recalled 

judges are temporarily assigned to the Superior Court.

11

IV. Constitutionality of the Recall Statute

A. Principles of Review

We consider defendant's constitutional challenge to 

N.J.S.A. 43:6A-13(b) in light of well-settled principles of 

review. First and foremost, "'[a] statute is presumed to be 

 

11 A review of the recall orders reveals that, as needed, some 

judges are recalled to specific assignments for short periods of 

time, and others serve on more general assignment for longer, 

albeit temporary terms. Thus, it is highly likely that some of 

the assignments might overlap, but that only one judge would be 

sitting in the position at any given time. We do not view these 

temporary assignments, as the dissent intimates, as unlawfully 

increasing the number of statutorily-authorized judicial 

positions, or extending their terms of office. Recall judges do 

not, by virtue of their assignment, "hold" an office that could 

become vacant upon termination of their powers either by death 

or operation of law. Indeed, it is only upon his or her recall 

in accordance with a statute as authorized by the Constitution 

that a judge may exercise any judicial power whatsoever, and 

this only during the period specified in the assignment and 

subject to whatever other conditions the Legislature sees fit to 

enact and the Supreme Court deems appropriate to impose.
21 A-0630-12T1

constitutional and will not be declared void unless it is 

clearly repugnant to the Constitution.'" Trautmann ex rel. 

Trautmann v. Christie, 211 N.J. 300, 307 (2012) (quoting Newark 

Superior Officers Ass'n. v. City of Newark, 98 N.J. 212, 222 

(1985)). "The strong presumption of constitutionality that 

attaches to a statute can be rebutted only upon a showing that 

the statute's 'repugnancy to the Constitution is clear beyond a 

reasonable doubt.'" Hamilton Amusement Ctr. v. Verniero, 156 

N.J. 254, 285 (1998) (quoting Harvey v. Bd. of Chosen 

Freeholders, 30 N.J. 381, 388 (1959)), cert. denied, 527 U.S.

1021, 119 S. Ct. 2365, 144 L. Ed. 2d 770 (1999). The burden is 

on the party challenging the statute to demonstrate clearly that 

it violates a constitutional provision. DePascale, supra, 211 

N.J. at 63; Bd. of Educ. v. Caffiero, 86 N.J. 308, 318, appeal 

dismissed, 454 U.S. 1025, 102 S. Ct. 560, 70 L. Ed. 2d 470 

(1981). 

"The Constitution is, above all, an embodiment of the will 

of the People, and this Court's responsibility as final 

expositor is to ascertain and enforce that mandate." Gallenthin 

Realty Dev., Inc. v. Bor. of Paulsboro, 191 N.J. 344, 359 

(2007). The constitution should be construed to "'achieve its 

dominating purpose'" and, in this regard, "'[i]ts words should 

be interpreted in the sense most obvious to the common 
22 A-0630-12T1

intelligence, because a matter proposed for public adoption must 

be understood by all entitled to vote.'" Opinion of Justices, 

284 N.E.2d 908, 912 (Mass. 1972) (quoting Lincoln v. Sec. of 

Commonwealth, 93 N.E.2d 744, 747 (Mass. 1950)). Policy and 

practical matters, though not reasons in themselves to control 

constitutional interpretations, nevertheless do bear on the 

interests and wishes of the people and, to that extent, should 

be taken into account.

By the same token, in ascertaining the constitutionality of 

a statute, courts presume that "'the [L]egislature acted with 

existing constitutional law in mind and intended the [statute] 

to function in a constitutional manner.'" Gallenthin Realty 

Dev., Inc., supra, 191 N.J. at 359 (quoting State v. Profaci, 56 

N.J. 346, 349 (1970)). Principles of statutory construction 

obligate courts to interpret statutes to avoid unconstitutional 

applications. N.J. Dep't of Envtl. Prot. v. Huber, 213 N.J.

338, 371 (2013). It is thus the court's duty "to construe the 

statute as to render it constitutional if it is reasonably 

susceptible to such interpretation." Profaci, supra, 56 N.J. at 

350. 

B. Applicability of the Schedule Article

In arguing that N.J.S.A. 43:6A-13(b) contravenes the 

Schedule Article of our State Constitution, defendant relies on 
23 A-0630-12T1

prohibitory language in the provision reciting that "no Justice 

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

hold his office after attaining the age of seventy years 

. . . ." N.J. Const. art. XI, § 4, ¶ 1. While such an express 

ban on "hold[ing] office" would otherwise be a compelling 

consideration in determining whether a recall statute is 

constitutional, see Edward A. Hartnett, Ties in the Supreme 

Court of New Jersey, 32 Seton Hall L. Rev. 735, 767-68 (2003), 

the cited language in our Schedule Article applies exclusively 

to "the incumbent judges who held their judicial offices at the 

adoption of the Constitution," and therefore has no bearing 

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

The conclusion that the provisions in the Schedule Article 

do not apply to current judges is overwhelmingly supported by 

the plain language, which contains phase-in provisions designed 

to facilitate a smooth transition to the new Constitution and 

applying only to incumbent judges in 1947. As the Court in 

Lloyd, supra, 22 N.J. at 209-10,

12 found, the provisions in the 

Schedule Article specifically provide that 

 

12 Interestingly, several of the Justices in Lloyd, including 

Justice Jacobs, who wrote the opinion, and Chief Justice 

Vanderbilt, were well-qualified to discuss the framers' intent 

as they had been members of the Committee on the Judiciary or 

presenters during the Constitutional Convention. 
24 A-0630-12T1

the justices of the new Supreme Court and 

the judges of the Superior Court so 

designated shall hold office each for the 

period of his term "which remains unexpired 

at the time the Constitution is adopted" and 

if reappointed shall hold office during good 

behavior. This sentence would appear to 

obliterate any lingering doubts, for its 

terminology was well chosen to effectuate 

the general understanding that in Art. XI, 

Sec. IV, par. 1, the framers were dealing 

with the terms and tenure of the incumbent 

judges (who held judicial offices at the 

adoption of the Constitution) and no others; 

indeed it seems to us that it is hardly 

susceptible of any other interpretation. 

The fourth and final sentence provides that 

no justice of the new Supreme Court or judge 

of the Superior Court shall hold his office 

after attaining the age of 70 years, except, 

however, that such justice or judge may 

complete "the period of his term which 

remains unexpired at the time the 

Constitution is adopted." Here, again, the 

framers adequately displayed that they were 

dealing with the incumbent judges who held 

judicial offices at the adoption of the 

Constitution.

[Id. at 209-10 (quoting N.J. Const. art. XI, 

§ 4, ¶ 1).]

That interpretation is also overwhelmingly supported by the 

recorded intent of the framers who drafted the provision. Id.

at 206-07. Most notably, in its report on the final draft, the 

Committee specifically set forth that the Schedule Article "will 

govern incumbent judges until the expiration of their terms . . 

. and makes such other specific provisions as are necessary 

until the new Judicial Article is completely in effect." 2 
25 A-0630-12T1

Proceedings of the Constitutional Convention of 1947, supra, at 

1195. Once the incumbent judges' terms expired, the provisions 

in the Schedule Article became void. 

Therefore, in enacting N.J.S.A. 43:6A-13(b), the 

Legislature, as explained in the Sponsor's statement, properly 

considered whether the recall of retired judges who had attained 

the age of seventy would conflict with the mandatory retirement 

provision in the Judicial Article, which applies to current 

judges and justices, and did not consider the provisions in the 

Schedule Article, which does not. Sponsor's Statement to 

Assembly Bill No. 1419, supra, at 2. We therefore conclude the 

Schedule Article has no applicability here and, as such, affords 

no basis for defendant's constitutional attack on the recall 

statute.

C. The Judicial Article

Although, as noted, neither raised nor briefed by 

defendant, see Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 

(1973), we next consider whether the recall of retired judges 

who have attained the age of seventy would conflict with 

compulsory retirement under the Judicial Article.

First, to determine the meaning of a constitutional 

provision, courts look "to the precise language used by the 

drafters." State v. Trump Hotels & Casino Resorts, Inc., 160 
26 A-0630-12T1

N.J. 505, 527 (1999). The plain language of the Judicial 

Article simply provides that "[s]uch justices and judges shall 

be retired upon attaining the age of 70 years." N.J. Const.

art. VI, § 6, ¶ 3. In pointed contrast to the prohibitory

language in the Schedule Article, the phrase "shall be retired," 

is mandatory, clearly requiring compulsory retirement from a 

permanent position. However, it does not bar a retired judge 

from being recalled for temporary service. See Gallenthin 

Realty Dev., Inc., supra, 191 N.J. at 359 ("[T]he surest 

indicator of [] intent is a provision's plain language").

We discern a clear, compelling distinction between the 

proscriptive language in the Schedule Article against "hold[ing]

office" and the "shall be retired" terminology used in the 

Judicial Article. For example, in an advisory opinion upholding 

the constitutionality of legislation authorizing the recall of 

retired judges, the Massachusetts Supreme Court found it was 

"significant" that the proposed constitutional amendment 

requiring compulsory retirement at age seventy did "not provide 

that a judge shall not hold office after reaching a certain 

age." Opinion of Justices, supra, 284 N.E.2d at 912-13.

Similarly here, the compulsory retirement provision in the 

Judicial Article contains no language, express or even implied, 

banning the temporary recall of retired judges. Indeed, it is 
27 A-0630-12T1

noteworthy that the Judicial Article deliberately avoids use of 

the proscriptive phrase ("shall [not] hold office") contained in 

the Schedule Article. When the enacting body "has carefully 

employed a term in one place and excluded it in another, it 

should not be implied where excluded." G.E. Solid State v. 

Dir., Div. of Tax'n, 132 N.J. 298, 308 (1993).

There is nothing intrinsic in the definition of "retire" to 

suggest its incompatibility with temporary recall service. On 

the contrary, in the dictionary definition then current at the 

drafting of the 1947 Constitution, "retire" means to "withdraw 

from office, a public station, business, or the like[.]" 

Merriam-Webster's New International Dictionary Unabridged 2128

(2d ed. 1934). Similarly, in the version of Black's Law 

Dictionary that most closely preceded the Constitution's

adoption, "retire" means "to withdraw from active service as an 

officer of the army or navy; to separate, withdraw, or remove." 

Black's Law Dictionary, 1550 (3d ed. 1933). In the next version 

of Black's Law Dictionary, published in 1957, the definition of 

"retire" remained the same. Black's Law Dictionary 1479 (4th 

ed. 1957). Thus, while the popular notion continues to date 

that a retiree is no longer "active" in his or her work or 

profession, and is ready for immediate annuity or pension, the 

term need not imply abandonment forever, as demonstrated by the 
28 A-0630-12T1

retention of title to the office. 

Stripped of its plumage, the dissent's contrary 

construction boils down to this: the plain language of the 

Judicial Retirement paragraph creates an irrevocable alienation 

of pensioner from title, a kind of sequestration, worse yet 

quarantine, rendering the judicial retiree incognito, isolated 

and idle, relegated to some sort of professional limbo, yet 

imprisoned by all the ethical restraints of a status and an 

office that somehow no longer exists. Nothing in the language 

of the Judicial Article, or its intended purpose, however, 

compels this overly harsh result.

In fact, and most significantly, defendant makes no claim 

that the retirement provision bars the recall of any retired 

judge other than one having attained the age of seventy. Yet, 

if the term "retire" had any proscriptive intent, it would be 

interpreted as banning the temporary recall of any retired 

judge, regardless of age. No one, however, has ever advocated 

this position other than our dissenting colleague who, in a 

footnote, finds himself tethered to that result — a captive of 

his own unforgiving reasoning. We therefore conclude that 

retirement and temporary recall assignments are conceptually 

different and there is no constitutional conflict between 

mandatory retirement for age, under which retired judges receive 
29 A-0630-12T1

a pension allowance in accordance with N.J.S.A. 43:6A-8 to -11, 

not a salary, and are no longer members of the retirement 

system, N.J.S.A. 43:6A-5, and recalling a judge for temporary 

service, where they are paid a per diem rate, N.J.S.A. 43:6A13(c). 

The recall of retired judges has been upheld by other state 

courts. The Supreme Judicial Court of Massachusetts in 1972, in 

response to questions posed by the State Senate, answered that a 

proposed bill permitting the temporary service by certain 

retired justices and judges would not, if enacted, be in 

contravention of a proposed constitutional amendment almost 

identical to the provision of the New Jersey Constitution at 

issue here, providing for the compulsory retirement of all 

judges at age seventy. Opinion of Justices, supra, 284 N.E.2d 

at 908-12. In rendering its advisory opinion finding no 

constitutional conflict, the Court emphasized that the language 

did not specifically require that the office become vacant and 

distinguished provisions in other state constitutions expressly 

prohibiting actual office holding by a person over the age of 

seventy. Id. at 912. 

In Pickens v. Johnson, 267 P.2d 801 (Cal. 1954), the 

Supreme Court of California held that the temporary assignment 

of a retired judge for recall service with consent does not 
30 A-0630-12T1

effectuate an extension of his or her term of office but rather 

merely vests in him or her the powers of a judge of the 

particular court for the term of the assignment. Id. at 805. 

The Court held that the constitutional provision authorizing the 

Legislature to establish a judicial retirement system included 

the power to provide a system for retired judges to be subject 

to recall for judicial service:

It would seem to be beyond question that the 

provision for the assignment and service of 

a retired judge in accordance with the 

statute bears a reasonable relationship to a 

system of judges' retirement. It is 

inherently connected with the problems of 

the administration of justice under which 

the state, in consideration for the 

retirement allowance, may invoke the 

assistance of retired personnel of the 

judicial department in emergencies found to 

exist by the chairman of the Judicial 

Council.

[Ibid.]

In a similar vein, the Supreme Court of Utah held in Nelson 

v. Miller, 480 P.2d 467 (Utah 1971), that a statute providing 

for mandatory retirement of judges and justices was not in 

conflict with another statute authorizing the recall of a judge 

or justice back into service from retirement on a case to case 

basis. Id. at 476. While there was no constitutional provision 

expressly providing a retirement age, the retirement statute 

derived from an expressed constitutional provision. Id. at 476-
31 A-0630-12T1

77. See also Claremont Sch. Dist. v. Governor, 712 A.2d 612, 

614-15 (N.H. 1998) (although the Legislature has "no prerogative 

to invest retired justices over age seventy with the panoply of 

powers associated with judicial office, it does have the 

constitutional authority to authorize limited temporary 

assignment of retired justices over age seventy to ensure the 

adequate and orderly administration of justice"); Werlein v. 

Calvert, 460 S.W.2d 398, 402 (Tex. 1970) (holding that in the 

face of a constitutional provision that the office of every 

judge and justice shall become vacant when the incumbent reaches 

the age of 75, such retired judge is not ineligible for 

temporary assignment to active duty on a case by case basis);

State ex rel. New Wash. Oyster Co. v. Meakim, 208 P.2d 628, 632

(Wash. 1949) (holding that although a recalled judge's powers 

were necessarily limited to those allowed by the Constitution, 

there was nevertheless no constitutional bar to a statute 

allowing such recall).

13

Moreover, as noted, the fact that the recall mechanism was 

considered at the Constitutional Convention, but not included in 

the 1947 Constitution, does not establish that the framers 

 

13 Thirty-two states and the District of Columbia provide for 

mandatory retirement at a given age. Some of these states also 

have a constitutional provision for the recall of retired 

judges. See, e.g., The Arizona Constitution, Ariz Const. art. 

VI, § 20 (2013).
32 A-0630-12T1

intended to prohibit the practice. The Constitution does not 

"resolve all policy problems." Reilly v. Ozzard, 33 N.J. 529, 

539 (1960) ("What is left untouched remains within the 

jurisdiction of government."). 

Instead, a review of the record of the Convention 

demonstrates that the framers decided to limit the new 

Constitution to a statement of basic fundamental principles, as 

they were advised to do, and to leave the resolution of the 

details, including arguably judicial recall, to the Legislature. 

1 Proceedings of the Constitutional Convention of 1947, supra, 

at 7 (Governor Driscoll's opening statement). The Committee on 

the Judiciary specifically explained that, in drafting the 

judicial articles, it had observed that "Constitutions should 

deal with fundamentals, not details. The organic law should 

establish the framework of government, leaving the body and 

content to be supplied by legislation." 2 Proceedings of the 

Constitutional Convention of 1947, supra, at 1181. 

In fact, the Constitution specifically conferred on the 

Legislature the power to establish a system for the retirement 

of judges. N.J. Const. art. VI, § 6, ¶ 3, says: "[p]rovisions 

for the pensioning of the Justices of the Supreme Court and the 

Judges of the Superior Court shall be made by law." In 

accordance with that mandate, the Legislature included in the 
33 A-0630-12T1

"Judicial Retirement System Act," N.J.S.A. 43:6A-1 to -46, some 

of the other provisions discussed during the convention, but not 

included in the Constitution. For example, as discussed during 

the convention, N.J.S.A. 43:6A-8 to -11 provides for voluntary 

retirement at various ages, with various corresponding years of 

service, and then mandatory retirement at age seventy. 

4 Proceedings of the Constitutional Convention of 1947, supra, 

at 37, 135, 167-68, 190, 208, 330, 342, 429, 486.

By the same token, there is a logical and rational 

explanation for placing the recall provision, N.J.S.A. 43:6A13(b), in the pension statute — notably because only retired 

judges receiving a pension can be recalled. Moreover, N.J.S.A.

43:6A-13(a) specifically provides that "[n]o member of the 

retirement system shall, while receiving a pension or retirement 

allowance pursuant to this act, engage in the practice of law 

before any of the courts of this State." In that regard, 

N.J.S.A. 43:6A-13(c) explains that judges who are receiving a 

pension can receive a per diem payment for a temporary recall 

assignment. Thus, although conceptually distinct so as to avoid 

any constitutional conflict, nevertheless, as the California 

Supreme Court acknowledged in Pickens, supra, recall bears a 

reasonable relationship to the system of retirement such that 

the former is properly contained in the pension statute.
34 A-0630-12T1

In the absence of any conflict between N.J.S.A. 43:6A-13(b) 

and the Judicial Article, we also find that interpreting the 

recall statute as constitutional would serve to "effectuate 

fully and fairly[,]" Trump Hotels & Casino Resorts, supra, 160 

N.J. at 527, two of the overriding purposes of the Judicial 

Article, which are to create flexibility in the court system and 

to provide for prompt judicial relief. In its report on the 

final draft, the Committee stated that "[b]y assignment of 

judges according to ability, experience and need, and 

apportionment of judicial business among courts, divisions and 

parts according to the volume and type of cases, judicial 

resources can be fully utilized and litigation promptly 

decided." 2 Proceedings on the Constitutional Convention of 

1947, supra, at 1180. That language, as the Attorney General 

points out, is very similar to the Sponsor's Statement 

accompanying N.J.S.A. 43:6A-13(b). Sponsor's Statement to 

Assembly Bill No. 1419, supra, at 2. Allowing the recall of 

retired judges gives the Court the flexibility to utilize 

experienced judges "to dispense justice expeditiously." Henry, 

supra, 204 N.J. at 352 (Rabner, C.J., concurring) (discussing 

temporary assignments). 

Additionally, as noted, the recall system, governed by 

N.J.S.A. 43:6A-13(b) and AOC Directive #12-01, contains strict 
35 A-0630-12T1

requirements that serve to assure the citizens of New Jersey an 

effective and efficient judicial service. The combination of a 

mandatory retirement system and a strictly designed temporary 

recall provision allows those judges who are performing at their 

full intellectual powers to continue to provide a valuable 

service to the Court, and to ensure the vigorous judiciary to 

which the public is entitled. 

Finally, although "historical practice alone rarely proves 

the correctness of a legal proposition[,]" Henry, supra, 204 

N.J. at 345 (Rabner, C.J., concurring), the presumption that a 

statute is constitutional "is enhanced" because N.J.S.A. 43:6A13(b) has been in effect and has been implemented without 

challenge or objection for almost four decades. Trump Hotels & 

Casino Resorts, supra, 160 N.J. at 527. 

In fact, hundreds of qualified judges have been temporarily 

assigned under this provision, and they have undoubtedly issued 

thousands of rulings, thereby providing the judiciary with a 

valuable service. See, e.g., Henry, 204 N.J. at 344 (Rabner, 

C.J., concurring), similarly noting that "[i]n the hundreds of 

instances when Chief Justices have made temporary assignments to 

the Court, the practice has never been challenged." 

We therefore find that the strong presumption of the 

validity of N.J.S.A. 43:6A-13(b), which was enacted by the 
36 A-0630-12T1

Legislature, signed into law by the Governor, and implemented by 

the judiciary, has not been rebutted.

In concluding otherwise, our dissenting colleague, while 

acknowledging the very weighty burden a constitutional 

challenger bears, ignores that burden when it comes to his own 

analysis. Instead of affording the legislation, "every possible 

presumption" favoring its validity, N.J. Sports & Exposition 

Auth. v. McCrane, 61 N.J. 1, 8 (1972), and construing the 

Constitution's language to achieve its dominating purpose, 

Gallenthin, supra, 191 N.J. at 359-60, the dissent stretches its 

definition of "retire" far beyond its true contextual sense and 

commonly understood meaning to find a constitutional repugnancy 

"beyond a reasonable doubt." Harvey v. Bd. of Chosen 

Freeholders of Essex Cnty., 30 N.J. 381, 388 (1959). And 

instead of exercising the "extreme self-restraint" to which our 

judiciary is accustomed in reviewing legislative enactments for 

constitutional conflict, McCrane, supra, 61 N.J. at 8, the 

dissent nails to the cathedral door its exegesis on politics, 

ageism, and the perceived benefits of youthful replenishment. 

In the process, the dissent violates the cardinal principle of 

making every effort to avoid striking down laws duly enacted by 

the elected branches of government. In re Incorp. of the Vill. 

of Loch Arbour, 25 N.J. 258, 264-65 (1957). 
37 A-0630-12T1

Perhaps recognizing the limitations of its own grammatical 

reading, the dissent unleashes a "separation of powers" 

broadside against N.J.S.A. 43:6A-13. See Mt. Laurel Twp. v.

N.J. Dep't of Pub. Advocate, 83 N.J. 522, 530 (1980) (separation 

of powers doctrine is system of checks and balances on the three 

branches of government); In re Application of Plainfield-Union 

Water Co., 14 N.J. 296, 308 (1954) (doctrine forbids one branch 

of government from encroaching on powers of another branch). 

Waxing eloquently, albeit mistakenly, the dissent posits: given 

that the nomination and appointment of judges is an executive 

prerogative, and the Secretary of State signs the commissions 

and receives the resignations, how can the Legislature, who has 

only "advice and consent" authority, delegate the power to 

"appoint" recall judges to the judicial branch?

Putting aside the fact that the issue was not raised below 

or on appeal, the Executive, whose authority the dissent insists 

has been "irreparably" arrogated, has never challenged the 

constitutionality of the recall statute, passed by the 

Legislature and signed into law by Governor Brendan Byrne on 

February 14, 1974, L. 1975, c. 14 (amending N.J.S.A. 43:6A-13),14

 

14 The Legislature has on at least two separate occasions amended 

other provisions of the recall statute, but left the language 

relevant here intact. See L. 1981, c. 470, § 7; L. 1970, c. 45, 

§ 1.
38 A-0630-12T1

and funded by a budget annually approved by each successive 

governor. See Henry, supra, 204 N.J. at 344 (Rabner, C.J., 

concurring) (the parties did not object to the temporary 

assignment to the Supreme Court, nor present arguments as to the 

constitutionality for the Court to consider). Certainly, if the 

Executive believed that N.J.S.A. 43:6A-13 transgressed its 

appointment power, we have no doubt it would have voiced that 

opinion.

More to the point, gubernatorial authority in this area is 

neither exclusive nor absolute, but subject to the Senate's 

"advice and consent" responsibility. N.J. Const., art. VI, § 6, 

¶ 1. As the dissent correctly notes, given that "[t]he 

compartmentalization of governmental powers . . . has never been 

watertight[,]" State v. Loftin, 157 N.J. 253, 284 (1999)

(quoting In re Salaries for Prob. Officers of Bergen Cnty., 58 

N.J. 422, 425 (1971)), the separation of powers doctrine 

"requires . . . a cooperative accommodation among the three 

branches of government[,]" Commc'ns Workers of Am. v. Florio, 

130 N.J. 439, 449-50 (1992).

We believe that N.J.S.A. 43:6A-13 strikes the appropriate 

compromise by "maintain[ing] the balance [among] the three 

branches of government, preserv[ing] their respective 

independence and integrity, and prevent[ing] the concentration 
39 A-0630-12T1

of unchecked power in the hands of any one branch." David v. 

Vesta Co., 45 N.J. 301, 326 (1965). It also best effects the 

overriding purpose of the Constitution's Judicial Article, which 

is to empower the judiciary to "function[] effectively in the 

public interest." Winberry v. Salisbury, 5 N.J. 240, 244, cert. 

denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950). 

For all these reasons, then, we deem N.J.S.A. 43:6A-13 in 

harmony with the Constitution's Judicial Article. Clearly, in 

enacting the recall statute, it cannot be said, and certainly 

not beyond a reasonable doubt, that the Legislature violated the 

framers' intent and the will of the people as embodied in our 

Constitution.

V.

Defendant also argues that the judge erred in denying the 

motion to recuse himself from hearing the disqualification 

motion based on age, because the judge had a financial interest 

(his per diem payment of $300), in the outcome of the motion. 

We disagree. Under the doctrine of judicial necessity, the 

judge correctly refused to recuse himself from deciding the 

disqualification motion. 

Rule 1:12-1(e) provides that "[t]he judge of any court 

shall be disqualified on the court's own motion and shall not 

sit in any matter, if the judge . . . is interested in the event 
40 A-0630-12T1

of the action[.]" Similarly, N.J.S.A. 2A:15-49(d) provides that

"[n]o judge of any court shall sit on the trial of or argument 

of any matter in controversy in a cause pending in his court, 

when he . . . [i]s interested in the event of such action." 

"The disposition of a motion for disqualification is 'entrusted 

to the sound discretion of the trial judge whose recusal is 

sought.'" Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. 

Div.) (quoting Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. 

Div. 2001)) (internal quotation marks omitted), certif. denied, 

200 N.J. 207 (2009). 

The resolution of defendant's disqualification affects not 

only the judge to whom it was addressed, but every other current 

judge or justice, including retired judges temporarily recalled, 

and judges who may decide to accept a recall assignment upon 

retirement. Rule 1:12-1(e) "speaks to an individual judge's 

disqualification, not to the disqualification of an entire 

segment of the bench." Pressler & Verniero, Current N.J. Court 

Rules, comment 7.3 on R. 1:12-1 (2014). As a matter of judicial 

necessity, therefore, the judge was obliged to hear the 

disqualification motion based on age, which involved a pecuniary 

interest applicable to every current and retired judge or 

justice. In In re P.L. 2001, Ch. 362, 186 N.J. 368, 393 (2006), 

the Court held that "[w]hen a statute interferes with the 
41 A-0630-12T1

administration of the judiciary, Superior Court judges and the 

Justices of this Court cannot escape their constitutional 

responsibility to decide the validity of the legislation." 

Additionally, in DePascale, supra, 211 N.J. at 44, the Court 

noted that "[n]o party has objected to this Court deciding the 

constitutional issue before us, even though resolution of that 

issue involves a pecuniary interest touching members of this 

Court and most of the judiciary." By judicial necessity, the 

judge was required to decide the motion for disqualification 

based on his age even though he had a pecuniary interest in the 

outcome, and therefore properly denied the motion to recuse 

himself.

VI.

Lastly, defendant argues that his sentence of nine years 

with an eighty-five percent parole disqualifier for seconddegree robbery was excessive. We disagree.

In sentencing defendant, the court found three aggravating 

factors: the risk that defendant will commit another offense; 

the extent of defendant's prior criminal record; and the need to 

deter defendant and others from violating the law. N.J.S.A.

2C:44-1(a) (3), (6) & (9). In this regard, the court properly 

considered defendant's "long history of convictions for 

disorderly persons and indictable offenses, failed attempts at 
42 A-0630-12T1

rehabilitation and a violation of parole." This was defendant's 

eighth indictable conviction, and his fourth for robbery — the 

very crime he was convicted of in this case. In fact, the judge 

found that defendant's "recidivism alone warrants th[e]

sentence." 

Moreover, the evidence overwhelmingly supported the jury's 

verdict, which is not contested on appeal, that defendant 

committed second-degree robbery, N.J.S.A. 2C:15-1(a)(1). There 

was ample evidence that during the course of the robbery 

defendant inflicted bodily harm on the victim by placing her in 

a choke-hold, causing her to lose consciousness and control of 

her bladder and bowels.

In contrast, the court found no mitigating factors, and 

determined that the aggravating factors outweighed the 

nonexistent mitigating factors. While defendant argues that the 

court failed to apply one mitigating factor, N.J.S.A. 2C:44-

1(b)(7), that he had led a law-abiding life for a substantial 

period of time before the present offense, the fact remains that 

in the ten years preceding this offense, defendant accumulated 

five municipal convictions, multiple arrests, and a bench 

warrant — behavior that requires a finding that he had not led a 

"law-abiding life." 

We therefore conclude that the court properly followed and 
43 A-0630-12T1

applied the sentencing guidelines and criteria, and that the 

sentence imposed in the higher end of the range, given the 

circumstances surrounding the crime and defendant's recidivism,

is not manifestly excessive nor does it shock the judicial 

conscience. State v. Ghertler, 114 N.J. 383, 387-89 (1989).

Affirmed.
Harris, J.A.D., dissenting.

I.

Warning: the elegantly pragmatic approach of the able and 

well-researched opinion of my colleagues may seduce the reader 

into undiscerning agreement. I urge caution and a willingness 

to disagree.

The majority endorses the thirty-nine-year utilization of 

Section 13(b) of the Judicial Retirement System Act (the JRSA), 

N.J.S.A. 43:6A-1 to -47, as a proper source, and apt means, of 

conferring judicial power upon septuagenarians who once were 

Superior Court1 judges but "retired on pension or retirement 

allowance" and are then "recalled by the Supreme Court for 

temporary service within the judicial system other than the 

Supreme Court." N.J.S.A. 43:6A-13(b). Those familiar with our 

publicly funded system of dispute resolution recognize that such 

recall judges "serve[] the people of New Jersey with skill, 

diligence and integrity." DePascale v. State, 211 N.J. 40, 93 

(2012) (Patterson J., dissenting). Alongside active judges, 

this grey-haired army of retiree jurists —— cloaked yet again 

with their former sovereign authority by N.J.S.A. 43:6A-13(b) 

 

1 Because the present appeal involves the recall of a Superior 

Court judge, it is unnecessary to address Supreme Court justices 

and Tax Court judges.
2 A-0630-12T1

and -13(c) —— reliably deliver tangible benefits for "real 

parties and actual people who are trying to vindicate their 

rights as they await justice." Henry v. N.J. Dep't of Human 

Servs., 204 N.J. 320, 340 (2010) (Rabner, C.J., concurring). 

The problem, however, is that the statute —— and, inescapably, 

the long-standing practice of deploying recall troops for 

temporary judicial service —— are both unconstitutional.2 

Accordingly, I dissent. 

II.

A.

The standard of review that governs this case is 

formidable: has defendant James Buckner demonstrated, beyond a 

reasonable doubt, see Gangemi v. Berry, 25 N.J. 1, 10 (1957), 

that Article VI, Section 6, Paragraph 3 of the New Jersey 

Constitution (the Judicial Retirement paragraph) was intended by 

its framers and the people who adopted it in 1947 to not permit 

the Legislature to authorize reinstatement of this state's 

 

2 For this reason, I would vacate Buckner's conviction, and order 

a new trial. I recognize that the venerable de facto officer 

doctrine, see Jersey City v. Dep't of Civil Serv., 57 N.J. 

Super. 13, 27 (App. Div. 1959), might counsel against this 

course of action. However, in the interest of fairness and 

equity, this one litigant, who has successfully demonstrated 

that the trial judge was without judicial authority, is entitled 

to such a remedy. 
3 A-0630-12T1

judicial power to pensioner judges?3 Because the enabling 

legislation —— N.J.S.A. 43:6A-13(b) —— that purports to 

accomplish this (1) offends the plain "shall be retired upon 

attaining the age of 70 years" language of the Judicial 

Retirement paragraph, and (2) irreparably rends the 

Constitution's fabric of separation of powers by legislatively 

authorizing the Supreme Court —— rather than the Governor —— to 

make the selection decisions to implement recalls, the high 

threshold of presumptive constitutionality has been surmounted. 

Even with awareness of the admonition that it is the 

"policy of our law not to invalidate a statute which has been in 

force without substantial challenge for many years," I cannot

stand mute when a statute's unconstitutionality is obvious.4 In 

re Loch Arbour, 25 N.J. 258, 265 (1957). "It is a familiar rule 

 

3 Buckner's reliance upon the schedule provisions of N.J. Const.

art. XI, § 4, ¶ 1, is wholly unpersuasive. In light of (1) the 

majority's correct analysis of Lloyd v. Vermeulen, 22 N.J. 200 

(1956); (2) the history of the transitional plan from the 1844 

Constitution to the 1947 Constitution; and (3) the schedule 

provision's plain language, I fully subscribe to the majority's 

rejection of Buckner's attack using this constitutional 

justification.

4 Although being compared by the majority to Martin Luther may be 

flattering, ante at ___ (slip op. at 36) (constructively 

criticizing the dissent for "nail[ing] to the cathedral door its 

exegesis on politics, ageism, and the perceived benefits of 

youthful replenishment"), I prefer the role of the small child 

who exclaims that the Emperor has no clothes. Hans Christian 

Andersen, The Emperor's New Clothes (1837).
4 A-0630-12T1

of construction that where phraseology is precise and 

unambiguous there is no room for judicial interpretation or for 

resort to extrinsic materials. The language speaks for itself, 

and where found in our State Constitution the language is the 

voice of the people." Vreeland v. Byrne, 72 N.J. 292, 302 

(1977); see also The Federalist No. 78 (Alexander Hamilton) 

("[T]he Constitution ought to be preferred to the statute, the 

intention of the people to the intention of their agents."). In 

the present case, I see nothing that permits the placement of 

executive powers within the orbit of our highest court. The 

law, while arguably well-informed and foresighted from a policy 

standpoint, cannot withstand constitutional scrutiny, and we 

should say so, even after almost four decades of going 

unchallenged.5 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 

177, 2 L. Ed. 60, 73 (1803) ("It is emphatically the province 

and duty of the judicial department to say what the law is.").

B.

The majority observes that the Judicial Retirement 

paragraph licenses the practice of recalling post-age-seventy 

 

5 See also McCutcheon v. FEC, ___ U.S. ___, 134 S. Ct. 1434, 188 

L. Ed. 2d 468 (2014) (demonstrating judicial resolve, even after 

almost thirty-eight years of a statute's service, in striking 

down the aggregate contribution limits imposed by the Federal 

Election Campaign Act Amendments of 1976, 2 U.S.C.A. 441a(a)(3), 

because they violate the First Amendment).
5 A-0630-12T1

former judges because it "does not bar a retired judge from 

being recalled for temporary service." Ante at ___ (slip op. at 

26). However, nothing in the Constitution authorizes it. Does 

the majority believe that, in the absence of enabling 

legislation, the Constitution's silence would permit, 

hypothetically, the implementation of an ad hoc recall-ofretired-judges system by, say, the Supreme Court on its own 

initiative, or the Governor through an Executive Order, or the 

Legislature by joint resolution? I doubt it. Thus, the essence 

of the present analysis focuses not just upon what is left 

unsaid by the Constitution, but also upon the question of 

whether the particular statute is a valid exercise of 

legislative power.

I start with the language of the Constitution's Judicial 

Retirement paragraph, which, in pertinent part, states the 

following: 

The Justices of the Supreme Court and the 

Judges of the Superior Court shall hold 

their offices for initial terms of 7 years 

and upon reappointment shall hold their 

offices during good behavior . . . . Such 

Justices and Judges shall be retired upon 

attaining the age of 70 years. Provisions 

for the pensioning of the Justices of the 

Supreme Court and the Judges of the Superior 

Court shall be made by law.

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

added).]
6 A-0630-12T1

The plain language of the Judicial Retirement paragraph must be 

construed with thorough attention to the framers' choice of 

language, noting not only what they included, but also what they 

excluded from the document presented to, and approved by, the 

people in November 1947. "The polestar of constitutional 

construction is always the intent and purpose of the particular 

provision." State v. Apportionment Comm'n, 125 N.J. 375, 381 

(1991). Although a literal reading of a constitutional 

declaration may be rejected when it is inconsistent with the 

spirit, policy, and true sense of the declaration, Lloyd v. 

Vermeulen, 22 N.J. 200, 205-06 (1956), "'the words employed [in 

the Constitution] have been carefully measured and weighed to 

convey a certain and definite meaning, with as little as 

possible left to implication . . . .'" Apportionment Comm'n, 

supra, 125 N.J. at 382 (citation omitted).

The phrase "shall be retired upon attaining the age of 70 

years," simply connotes (1) the compulsory abdication of a 

judicial office; (2) the surrender of judicial power previously 

conferred by N.J. Const. art. VI, § 1, ¶ 1; and (3) the 

permanent loss of the ability to exercise —— for the benefit of 

the public —— the sovereign functions of government that had 

previously been made possible by the Governor's selection, with 
7 A-0630-12T1

the advice and consent of the Senate. See N.J. Const. art. VI, 

§ 6, ¶ 1. 

To support its reading of the Judicial Retirement 

paragraph, the majority correctly quotes several vintage 

definitions of "retire." Ante at ___ (slip op. at 27-28). But 

the majority's chosen dictionary definitions still fail to 

illustrate the source of recall authority. Absent express 

constitutional authorization, the definitional silence is a very 

thin reed indeed to support the awesome renewal of judicial 

power to those who formerly wielded it. 

I conclude that there is nothing about the plain language 

of the Judicial Retirement paragraph that supports the 

majority's view. Alternatively, the majority "discern[s] a 

clear, compelling distinction between the proscriptive language 

in the Schedule Article against 'hold[ing] office' and the 

'shall be retired' terminology used in the Judicial [Retirement 

paragraph]." Ante at ___ (slip op. at 26-27). This is 

comparing apples to oranges.

The majority favorably contrasts the proscriptive use of 

language in the Schedule Article —— "[n]o Justice of the new 

Supreme Court or Judge of the Superior Court shall hold his 

office after attaining the age of seventy years," N.J. Const.

art. XI, § 4, ¶ 1 —— with the mere mandatory retirement language 
8 A-0630-12T1

of the Judicial Retirement paragraph —— "[s]uch Justices and 

Judges shall be retired upon attaining the age of 70 years." 

N.J. Const. art. VI, § 6, ¶ 3. Ante at ___ (slip op. at 26). 

In the former phrase, where the framers used the word "office," 

it was clearly limited and intended to punctuate the end of 

incumbency under the 1844 constitutional framework for those 

pre-modern-era judges who had transitioned to the Superior 

Court. The latter phrase was intended to deal with the new 

regime, and cannot be seen as keeping the door open for 

temporary recall where its object was to strip judges of their 

judicial authority at midnight immediately preceding their 

seventieth birthday. 

Another reason why the majority discounts the significance 

of the absence of express recall authority in the Judicial 

Retirement paragraph is its interpretation of the provision's 

evolution. I concede that the majority opinion accurately 

analyzes the 1947 proceedings of the Constitutional Convention, 

as far as it goes. In my view, however, it does not go quite 

far enough. The majority assumes that the Constitution's finaldraft silence with respect to recalling retired judges on an asneeded basis was in accord with the generalized philosophy that 

a constitution should deal with fundamental principles, not 

details. This is not only speculative, but also it is belied by 
9 A-0630-12T1

the twenty-five-year span (1948 to 1973) that immediately 

followed the Constitution's adoption, during which there was no 

recall legislation and no recall judges.

During the constitutional sausage-making that took place in 

New Brunswick in the summer of 1947, the Constitutional 

Convention's Committee on the Judiciary participated in hours 

upon hours of spirited exchanges about court unification; the 

judicial selection process; trial periods for new judges and 

tenure; the appropriate age, if any, for a judge's compulsory 

retirement;6 and judicial pensions. Yet, there were only a scant 

few minutes, best characterized as stray comments, devoted to 

conversations about the use of retired jurists as temporary 

judicial officers in the proposed new, unified court system. 

See 4 Proceedings of the Constitutional Convention of 1947 at 

168-69; 190; 214-15. On July 30, 1947, one speaker, retired 

judge Robert Carey7 (also a Convention delegate and member of the 

Committee on Rights, Privileges, Amendments and Miscellaneous 

 

6 Some commentators suggested that retirement should be imposed 

at ages seventy or seventy-five; others recommended life tenure, 

like federal judges, with no mandatory separation from the 

bench.

7 Carey prefaced his remarks by noting that he "expects to 

practice law for the next 25 years," and would be "in the midst 

of the celebration of [his] 75th birthday" seven weeks hence, on 

September 16, 1947. 4 Proceedings of the Constitutional 

Convention of 1947, supra, at 542. 
10 A-0630-12T1

Provisions), while constructively criticizing the Committee on 

the Judiciary's age-seventy retirement proposal, stated:

Why, most men don't get high judicial 

positions until after they are 58 or 60, and 

they are 70 before they know it. To put 

them on the shelf then, or to make them law 

loafers of the State, what a mistake that 

would be! I'd say 75 at the lowest, and 

after 75 retire them. And then put them on 

the inactive list subject to the call of the 

Chief Justice, whoever he may be, at all 

times.

[4 Proceedings of the Constitutional 

Convention of 1947, supra, at 543 (emphasis 

added).]

Carey's suggested retirement age was not adopted, and I submit 

that his recall-equivalent "inactive list" proposal was likewise 

consigned to the constitutional trashbin.

The framers' failure to devote much attention to a 

temporary recall provision is understandable; they were 

struggling with much larger and more complex issues at the time. 

Nevertheless, the subject of post-retirement judicial service 

was clearly known to them. Among the sources of information 

made available to members of the Committee on the Judiciary 

during their seventeen days of meetings were fifty-five 

witnesses, plus "some two dozen persons" who presented their 

views on the Committee's tentative draft of the Judicial 

Article, together with a wealth of written reports, monographs, 

and position papers. Among the writings are the proposal of the 
11 A-0630-12T1

New Jersey Committee for Constitutional Revision, which included 

a provision "for mandatory retirement at age 70, . . . subject 

to possible recall to temporary service as need may appear," 

4 Proceedings of the Constitutional Convention of 1947, supra, 

at 580; 28, and a small mention in a June 5, 1947 New Jersey Law 

Journal editorial. See id. at 677. Leaving a recall provision 

out of the Constitution was neither an inadvertent oversight nor 

a nod towards simplicity of draftsmanship. 

The majority accurately recounts the evolution of the 

Constitution's Judicial Article from the May 1942 report of the 

Commission on Revision of the New Jersey Constitution (the 

Hendrickson Commission) up to the Judicial Article's actual 

drafting in 1947. Ante at ___ - ___ (slip op. at 4-7). Also, 

the majority rightly notes that the 1944 Legislature modified 

and supplemented the Hendrickson Commission's recommended 

judicial retirement language from 

No justice or judge of any court shall 

continue in office after he has attained the 

age of seventy years.

[4 Proceedings of the Constitutional 

Convention of 1947, supra, at 562 (proposed 

art. V, § 5, ¶ 3)]

 

to

No Justice of the Supreme Court or of the 

Superior Court shall continue in office 

after he has attained the age of seventy 

years; but, subject to law, he may be 
12 A-0630-12T1

assigned by the Chief Justice to temporary 

service in the Supreme Court or in the 

Superior Court, as need appears.

[Id. at 569 (emphasis added) (proposed N.J. 

Const. of 1944 art. V, § 5, ¶ 5).]

However, after observing that the people soundly rejected the 

proposed 1944 Constitution at the polls, the majority deems it 

"[s]ignificant[]" that "there is no indication in any of the 

historical sources, including the Proceedings on the 

Constitutional Convention of 1947, that the voters had objected 

to the recall of retired judges." Ante at ___ (slip op. at 7). 

What is significant is not the conjectural objection of 

putative voters, but rather, it is that the 1947 framers 

purposefully elected to omit the twenty-seven words8 that would 

have validated the present recall contrivance. The majority 

chalks up the loss of this phrase to the principle of 

constitutional minimalism, but I fail to see how the addition of 

these utterly unassuming words would have violated Governor 

Driscoll's call for "limiting our State Constitution to a 

statement of basic fundamental principles." 1 Proceedings of 

the Constitutional Convention of 1947 at 7. The framers, and 

the people, had no problem including detailed managerial

 

8 Those words are: "but, subject to law, he may be assigned by 

the Chief Justice to temporary service in the Supreme Court or 

in the Superior Court, as need appears."
13 A-0630-12T1

features in the Judicial Article, such as the appointment of an 

Administrative Director to serve at the pleasure of the Chief 

Justice, see N.J. Const. art. VI, § 7, ¶ 1; provisions for the 

Chief Justice's assignment of judges to the various Divisions of 

the Superior Court, see N.J. Const. art. VI, § 7, ¶ 2; and 

authorization for the Supreme Court to appoint Clerks for the 

Supreme and Superior Courts. See N.J. Const. art. VI, § 7, ¶ 3. 

If these provisions were deserving of inclusion in the 

Constitution, then a provision for recalling retired judges 

beyond seventy years of age was equally constitution-worthy.

Accordingly, I conclude that the excision of recallauthorization language that had appeared in the failed 1944 

Constitution was purposive, even though there is no express 

record of its rejection in the public annals of the

Committee on the Judiciary.9 Because the authority to recall 

retired judges never made it into the Constitution, it may not 

be invoked sub silentio, legislatively or otherwise. 

 

9 At the conclusion of the Committee on the Judiciary's open 

sessions, it held five closed executive sessions to consider the 

testimony and formulate a tentative draft of the Judicial 

Article. 4 Proceedings of the Constitutional Convention of 

1947, supra, at iii. No stenographic record was made of the 

executive sessions "to [e]nsure the fullest possible 

discussion," and to allow a "free exchange of views." Id. at 

iv. As a result, there is no official record of several of the 

Committee's discussions surrounding the adoption of the draft 

Judicial and Schedule Articles.
14 A-0630-12T1

This conscious decision to omit a provision for the recall 

of judges is bolstered by the Constitutional Convention's 

rejection of a proposed amendment to the Committee's final draft 

of the Judicial Article, its so-called Proposal No. 4-1, which 

included a recall provision. That failed amendment, introduced 

by Committee member, retired Chief Justice Thomas J. Brogan, 

contained among its myriad adjustments, in pertinent part, the 

following:

Such Justices or Judges shall be eligible 

for retirement at the age of seventy years, 

but shall be retired at the age of seventyfive years. Upon the retirement of any such 

Justice or Judge he shall receive a pension 

equal in amount to the salary which he is 

receiving at that time. Such Justice or

Judge shall be required, if able so to do, 

to perform such judicial duties and services 

as may be required of him by designation or 

order of the Court of Appeals[.]

[2 Proceedings of the Constitutional 

Convention of 1947 at 1207 (emphasis added) 

(Amendment No. 1 to Committee Proposal No. 

4-1, § VII, ¶ 6).] 

Based upon what went into the task of constitution-making 

at the beginning, and what came out at the end, I cannot agree 

with the majority that the Judicial Retirement paragraph is 

fluid enough to embrace the recall of judges who outlive their 

seventieth birthdays.
15 A-0630-12T1

C.

Unlike the majority, I take no comfort in the exposition of 

the temporary recall provisions in other states. Ante at ___ -

___ (slip op. at 29-32). In fact, the leading case, Opinion of 

Justices, 284 N.E.2d 908 (Mass. 1972), while validating proposed 

legislation authorizing the temporary recall of retired judges 

of "the several courts of the commonwealth," id. at 908, did so 

within a governmental framework entirely distinguishable from 

New Jersey's. The Massachusetts recall paradigm, completely 

contrary to New Jersey's open-ended provision,10 proposed to 

 

10 I call it an open-ended system because it contains no express 

limits and few guidelines. For example, N.J.S.A. 2B:2-1 

authorizes 443 Superior Court judges. As of April 1, 2014, there 

were 398 active-service Superior Court judges (including four Tax 

Court judges assigned to the Superior Court), see

http://www.judiciary.state.nj.us/directory/judgebiographies.pdf

(last visited April 7, 2014), plus at least seventy-three 

temporary recall judges assigned to the Superior Court, see 2012-

2014 Notices to the Bar, http://www.judiciary.state.nj.us/

notices/index.htm (last visited April 7, 2014), for a total of at 

least 471 persons exercising judicial authority in the Superior 

Court, which is more than legislatively approved. From these 

data, it is impossible to compute how many full-time-equivalent 

judges are deployed. But even if some of the temporary recall 

judges merely serve on a part-time or as-needed basis, there are 

still more persons holding judicial power in the Superior Court 

than are authorized by the statutory numerical limit of N.J.S.A.

2B:2-1. Moreover, there is nothing in the recall statute to 

prevent the recall of dozens, perhaps even hundreds, of 

additional retired jurists, subject only to the qualifications of 

the Policy Governing Recall for Temporary Service Within the 

Judicial System, Administrative Directive #12-01 (July 19, 2001), 

and budgetary constraints. Finally, there is no assurance that 

the choosing of recall judges follows the "most distinctive 

(continued)
16 A-0630-12T1

operate from a list of available jurists, vetted by the 

Massachusetts Governor with the advice and consent of that 

state's elected Executive Council (roughly analogous to New 

Jersey's Senate in its advice and consent modality). Id. at 

909. We cannot measure the constitutionality of our recall 

platform from this dissimilar foreign source.

As it turns out, Opinion of Justices appears to have played 

an important, albeit misleading, role in changing the once 

accepted view that recall judges were not authorized by the 

Constitution, and which led to the adoption of N.J.S.A. 43:6A13(b)'s predecessor statute in 1973. Once again, the majority's 

canvass of the legislative history is accurate. See ante at 

___-___ (slip op. at 16-18) (reflecting that before 1975 there 

was no statutory provision that permitted the recall of a 

retired judge or justice over the age of seventy years). 

 

(continued)

institution of our judicial system —— the bipartisan selection of 

judges." Hon. Arthur T. Vanderbilt, C.J., Famous Firsts in Jersey 

Jurisprudence: An Acknowledgement of Indebtedness, The Inaugural 

Lecture of the Harvard Law School Ass'n of N.J. Annual Lecture 

Series, 22-26 (Feb. 23, 1956) (discussing New Jersey's 

"distressing experiences" of the breakdown of the judicial 

appointive process following the adoption of the 1844 

Constitution, and the evolutionary response of bipartisan 

appointments, culminating in the "unwritten tradition" of 

ensuring a nonpartisan judiciary through the bipartisan selection 

of judges).
17 A-0630-12T1

However, some additional history may illuminate how the Supreme 

Judicial Court of Massachusetts helped get us to this point.

Opinion of Justices was decided on June 29, 1972. Eleven 

months later, on May 22, 1973, the JRSA became effective. L.

1973, c. 140. Among the many features of the new pension 

statute was the first authorization for the "assignment" —— not 

recall —— of retired judges, but only for those judges who had 

not attained the age of seventy:

Any judge retired on pension, except a judge 

of a municipal court, who has not attained 

the age of 70 years, may, with his consent, 

be assigned by the Chief Justice to sit in 

any court but the Supreme Court, or in the 

case of a retired justice of the Supreme 

Court, to sit in any court.

[L. 1973, c. 140, § 13; N.J.S.A. 43:6A-13(b) 

(later amended by L. 1975, c. 14) (emphasis 

added).]

A few months later, in a January 31, 1974 New Jersey Law 

Journal editorial, the Law Journal Board noted that, unlike the 

senior judge system of the federal courts, "[i]n the New Jersey 

system no such practice exists." Senior Judges, 97 N.J.L.J. 68 

(Jan. 31, 1974). The editorial opined that the Constitution 

does not prohibit "the rendering of service by . . . retired 

jurists comparable to that performed by Senior Judges in the 

federal system." Ibid. Consequently, it "urge[ed] that 
18 A-0630-12T1

[N.J.S.A.] 43:6-6.39[11] be amended so as to permit the Chief 

Justice to assign 'retired' judges, whether they retire over or 

under the age of 70, to sit in any court other than the Supreme 

Court and to assign a retired Justice of the Supreme Court to 

sit in any court." Ibid.

Two months later, another editorial confessed, 

We have just had our attention called to 

Opinion of the Justices of the Supreme 

Judicial Court of Massachusetts, 284 

[N.E.2d] 908 (1972), wherein that Court 

advised the Massachusetts Senate that a bill 

relating to service by retired judges would 

not contravene the proposed Massachusetts 

constitutional amendment, which provided 

that "upon attaining seventy years of age 

said Judges shall be retired."

[Judicial Service For Judges Retired At Age 

70 Who Wish Such Service, 97 N.J.L.J. 118 

(March 21, 1974).] 

In light of this decisional law, which supposedly fortified the 

Law Journal Board's January 31 commentary, the editorial opined: 

Here is a non-controversial proposal in 

which all can join for bringing back into 

the judicial system some of our mostexperienced judges who are at the peak of 

their power.

[Ibid.]

 

11 This statute had been repealed in May 1973 as part of the 

adoption of the JRSA. See L. 1973, c. 140, § 45; N.J.S.A.

43:6A-45(q). Inexplicably, the Law Journal Board was unaware of 

the repeal and contemporaneous adoption of N.J.S.A. 43:6A-13(b), 

which allowed for limited assignment of retired judges. 
19 A-0630-12T1

Less than two weeks later, Assemblyman William J. Bate (an 

attorney and later Passaic County Surrogate) introduced what 

became Assembly Bill No. 1419, which ultimately was adopted as 

the present version of N.J.S.A. 43:6A-13(b). The misguided hand 

of Opinion of Justices indubitably played a role in changing our

law.12

As I have indicated, Opinion of Justices is not a proper 

vehicle to interpret our Constitution, even if the language of 

the judicial retirement provisions of the Massachusetts and New 

Jersey Constitutions are nearly identical. At the time the 

Massachusetts justices grappled with the issue, the 

Massachusetts Constitution had not yet even provided for 

compulsory judicial retirement upon reaching seventy years of 

 

12 Another source for this conclusion comes from a 1995 interview 

with Morris M. Schnitzer, once "the dean of the New Jersey Bar," 

and a Technical Advisor to the Committee on the Judiciary. 

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

(1995). In explaining how retired judges in New Jersey came to 

be subject to recall, Schnitzer stated:

[T]he Massachusetts Constitution had a 

mandatory retirement provision much like the 

1947 New Jersey Constitution. Once the 

Massachusetts Supreme Judicial Court decided 

that retired judges could be recalled, 

Nat[han] Jacobs, by then on the New Jersey 

Supreme Court, promoted the idea as a way of 

dealing with emergencies and thereafter as a 

way of enlisting economical judicial 

service.

[Id. at 1401-02.] 
20 A-0630-12T1

age. Opinion of Justices, supra, 284 N.E.2d at 911. The court 

noted that the proposed constitutional amendment, if adopted, 

"would require the immediate retirement of almost one-fifth of 

the present justices of the general trial courts of the 

Commonwealth." Ibid. (quotation marks omitted). In its 

practical opinion validating the recall of retired judges, the 

court was rightly concerned that, without the ability to recall 

judges,

approval of the proposed amendment would 

cause the immediate retirement of a 

substantial number of experienced judges. 

This would undoubtedly create great 

confusion and possible chaos throughout our 

entire judicial system . . . . To hold that 

the Legislature would be prevented from 

recalling retired judges to active service 

by the proposed amendment would greatly 

diminish the quality of justice for all.

[Id. at 913.]

However laudatory this urge to save the Massachusetts 

judicial system for the benefit of the people it served may be, 

exigency and pragmatism are insufficient impulses to either 

suspend our Constitution or fill a power vacuum with a novel 

solution. See Janouneau v. Harner, 16 N.J. 500, 514 (1954) 

(emergencies do not create or enlarge power); see also Commc'ns 

Workers of Am., AFL-CIO v. Christie, 413 N.J. Super. 229, 260 

(App. Div. 2010) (citing Youngstown Sheet & Tube Co. v. Sawyer, 

343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952)). I eschew 
21 A-0630-12T1

the limited persuasive attributes of Opinion of Justices,

13 and 

disagree with the majority that it, and any of the other states 

that have weighed in on the issue, got it right.

D.

I further differ with the majority because I believe that 

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

authority, impairs the essential integrity of the Chief 

Executive, and revokes senatorial prerogative, all of which 

violate separation of powers doctrine. In particular, N.J.S.A.

43:6A-13(b) does violence to the Constitution's complementary 

goals of (1) ensuring a strong Chief Executive and (2) investing 

the Governor with the solitary, plenary power —— subject only to 

the advice and consent of the Senate —— of making judicial 

appointments:

The Governor shall nominate and appoint, 

with the advice and consent of the Senate, 

the Chief Justice and associate justices of 

the Supreme Court, the Judges of the 

Superior Court, and the judges of the 

inferior courts with jurisdiction extending 

to more than one municipality . . . . No 

nomination to such an office shall be sent 

to the Senate for confirmation until after 7 

days' public notice by the Governor.

[N.J. Const. art. VI, § 6, ¶ 1.]

 

13 Ironically, the Massachusetts recall statute parsed by Opinion 

of Justices, with its features of gubernatorial and Executive 

Council involvement, might actually survive separation-of-powers 

scrutiny, unlike N.J.S.A. 43:6A-13(b).
22 A-0630-12T1

The Legislature's delegation to the Supreme Court of the 

authority to select recall judges directly contravenes this

provision.14 It is no answer to suggest that in order to qualify 

as a recall judge, one had to have already run the nominationappointment-and-confirmation gauntlet twice. That may be true, 

but upon retirement, a judge not only steps aside from and gives 

up his or her judicial power, but also expressly resigns his or 

her judicial office. See N.J.S.A. 43:6A-7 (requiring that, as 

part of the application for benefits under the Judicial 

Retirement System, the judge submit "a copy of the [judge's] 

resignation from his [or her] judicial office which he [or she] 

has filed in the office of the Secretary of State").15

I ask the following question: Would it be possible for the 

Legislature to bestow the power to recall retired judges upon, 

 

14 Legislative involvement in the appointive process under the 

1844 Constitution was seen as a chief evil sought to be 

eradicated in the 1947 Constitution. See, e.g., 4 Proceedings 

of the Constitutional Convention of 1947, supra, at 671-75.

 

15 Analogously, when a lawyer resigns without prejudice from the 

New Jersey bar, "the membership in the bar of this state shall 

cease," R. 1:20-22(c), and "any subsequent application for 

membership shall be in accordance with the provisions of New 

Jersey Court Rules 1:24 and 1:25, including passing the bar 

examination." See http://www.judiciary.state.nj.us/oae/faqs/

reswoprej.pdf (last visited April 7, 2014). Resignation has 

consequences.
23 A-0630-12T1

say, the President of the Senate, or a committee comprised of 

the deans of New Jersey's law schools, or the Chief Justice

individually? I think not.16 Although there is logic and 

practicality to making the Supreme Court the arbiter of those in 

the ranks of retired judges who are recalled to active duty, 

there is not a constitutional whiff, much less one word, of such 

authority residing within the judiciary itself. 

"The doctrine of separation of powers is fundamental to our 

State government." Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower 

Project, L.P., 154 N.J. 141, 150 (1998). The Constitution 

provides that "[t]he legislative power shall be vested in a 

 

16 If the Legislature had chosen the Chief Justice alone as the 

instrument of recalling retired judges, there would, at least, 

be a plausible argument to support that choice. See N.J. Const.

art. VI, § 7, ¶ 2 ("The Chief Justice of the Supreme Court shall 

assign Judges of the Superior Court . . ., and may from time to 

time transfer Judges from one assignment to another, as need 

appears."); cf. In re P.L. 2001, Chapter 362, 186 N.J. 368, 381-

82 (2006) (Constitution gives Court exclusive authority over 

State judiciary); In re Judges of Passaic Cnty., 100 N.J. 352, 

367 (1985) (per curiam) (recognizing Court's constitutional 

responsibility for effective functioning of judiciary). 

However, the power to assign judges is quite unlike the power to 

select judges. The Chief Justice plays no role in the 

Governor's nomination-and-appointment and Senate's advice-andconsent processes. As the judiciary's leader, the Chief Justice 

is limited to the assignment of personnel that are provided by 

the political branches of government, much like a hockey coach 

who makes do with players selected by the team's general manager 

and owner. Unlike the dynamics of a professional sports team, 

the Chief Justice, as administrative head of the judiciary, N.J. 

Const. art. VI, § 7, ¶ 1, cannot burnish the quality of the team 

by requesting a judge's trade, or demotion to the minor leagues. 
24 A-0630-12T1

Senate and General Assembly," N.J. Const. art. IV, § 1, ¶ 1, and 

"[t]he executive power shall be vested in a Governor." Id. at 

art. V, § 1, ¶ 1. By these provisions, our Constitution 

prohibits any one branch of government from exercising powers 

assigned to a coordinate branch. The separation of powers 

doctrine was designed to "maintain the balance between the three 

branches of government, preserve their respective independence 

and integrity, and prevent the concentration of unchecked power 

in the hands of any one branch." David v. Vesta Co., 45 N.J.

301, 326 (1965) (footnote and emphasis omitted).

"Despite the explicit constitutional mandate that 

'contemplates that each branch of government will exercise fully 

its own powers without transgressing upon powers rightfully 

belonging to a cognate branch,'" the judiciary has "always 

recognized that the doctrine requires not an absolute division 

of power but a cooperative accommodation among the three 

branches of government." Commc'ns Workers of Am. v. Florio, 130 

N.J. 439, 449-50 (1992) (quoting Knight v. Margate, 86 N.J. 374, 

388 (1981)). Moreover, it has been "long recognized that '[t]he 

compartmentalization of governmental powers . . . has never been 

watertight.'" State v. Loftin, 157 N.J. 253, 284 (1999) 

(quoting In re Salaries for Prob. Officers of Bergen Cnty., 58 

N.J. 422, 425 (1971)). Additionally, a flexible approach to 
25 A-0630-12T1

separation of powers issues is employed in cases that have been 

brought to the Court. Ibid.

Notwithstanding this practical and collaborative approach 

to government, "[t]he Governor (Executive) is authorized to 

nominate and appoint. The Senate (Legislative) is to advise 

and, before the appointment may be finally made, to consent." 

Passaic Cnty. Bar Ass'n v. Hughes, 108 N.J. Super. 161, 173 (Ch. 

Div. 1969). "Missing from the Constitution is any role for the 

judiciary." De Vesa v. Dorsey, 134 N.J. 420, 430 (1993). Thus, 

the legislative delegation of a mechanism to reinstate judicial 

power in a retired judge is unconstitutional.17

A related separation of powers concern is the unintended 

inertial effect that N.J.S.A. 43:6A-13(b) has upon the 

replacement of retiring judges. When judges retire (at age 

seventy or earlier), vacancies are created that need to be 

promptly filled by executive and senatorial action. See

 

17 As an aside, N.J.S.A. 43:6A-13(b)'s provision permitting a 

retired Supreme Court Justice to be "recalled by the Supreme 

Court for temporary service in the Supreme Court" is undoubtedly 

unconstitutional because N.J. Const. art. VI, § 2, ¶ 1 expressly 

limits temporary assignments to the Supreme Court as follows: 

"When necessary, the Chief Justice shall assign the Judge or 

Judges of the Superior Court, senior in service, as provided by 

rules of the Supreme Court, to serve temporarily in the Supreme 

Court." I decline any further comment in light of the 

concurring, abstaining, and dubitante opinions in Henry, supra,

204 N.J. at 340, 354, 525 (2010) (Rabner, C.J., concurring; 

Rivera-Soto, J., abstaining; Hoens, J., dubitante). 
26 A-0630-12T1

N.J.S.A. 2B:2-1.2 (requiring "the Administrative Office of the 

Courts [to] notify the Legislature as vacancies occur"). It is 

probable that the intangible political dynamics that affect why 

such prompt action does not often take place are not directly 

influenced by the recall statute. Nevertheless, the Supreme 

Court's ability to insert its collective thumb —— through the 

enlistment of retired judicial elders —— in the levee of a 

never-ending caseload removes an incentive to appoint 

replacement judges. Although the effect of N.J.S.A. 43:6A-13(b) 

is hard to measure, with at least seventy-three retired judges 

—— more than sixteen percent of the total complement of 

authorized Superior Court judges —— toiling in the vicinages and 

on special assignments, there is an obvious disincentive to seed 

the judiciary with a fresh crop of judges. The recall statute 

creates an artificial supply of judges that satisfies an 

incessant and inevitable demand as active judges age or 

otherwise opt out of their judicial offices.

This is not a classic separation of powers phenomenon, but 

it is one that implicates a significant concern of the framers. 

Not only does the use of over-age-seventy jurists arithmetically 

drive up the average age of the institution, making it less 

representative of the people it serves, but also it constrains 

the institution's ability to profit from the energy and fresh 
27 A-0630-12T1

outlook of younger jurists. Cf. 4 Proceedings of the 

Constitutional Convention of 1947, supra, at 170 (memorializing 

the discussion between Judge Daniel J. Brennan and delegate Amos 

F. Dixon regarding the retirement of judges at a reasonable age 

to avoid "blocking the progress of a lot of very able men who 

could step into those positions if they stepped out"). If we 

were faithful to the Constitution, and no temporary assignments 

were possible, it is likely that public outcry would summon the 

political machinery necessary to swiftly invoke the nomination, 

appointment, advice, and consent processes to fill vacancies, 

and thereby fulfill the expectations of the framers for the 

benefit of the people.

E.

A fundamental disagreement between my views and the 

majority's lies in the separateness of judicial power and the 

persons who may be authorized to exercise it. The challenged 

legislation —— indeed, all judicial recall legislation that does 

not follow a constitutionally-authorized appointment process ——

operates on the unspoken assumption that "once a judge, always a 

judge." This view necessarily must acknowledge that retired 

judges —— after resigning and qualifying for a judicial pension 

(which qualification is, among other things, a prerequisite for 

recall) —— retain latent embers of judicial authority that can 
28 A-0630-12T1

be reanimated by Supreme Court recall orders. See N.J.S.A.

43:6A-13(c) ("Upon such recall the retired . . . judge shall 

have all the powers of a . . . judge of the court to which he is 

assigned . . . ."). The Constitution leaves no room for such 

restorative powers once a judge turns seventy years old,18 and I 

am loath to declare the discovery of such hidden potential in 

the face of the obstacles I have outlined. 

Furthermore, retired judges have no essential need for this 

intangible spark because they are clearly not, as the majority 

attributes to me, trapped in some "irrevocable alienation of 

pensioner from title, a kind of sequestration, worse yet 

quarantine, rendering the judicial retiree incognito, isolated 

and idle, relegated to some sort of professional limbo, yet 

imprisoned by all the ethical restraints of a status and an 

office that somehow no longer exist." Ante at ___ (slip op. at 

28). Life after a judicial career may be either professionally 

robust or crabbed, but it is not dependent upon being available 

for temporary recall. And the ethical contours that guide 

judges' conduct in retirement, see, e.g., N.J.S.A. 43:6A-13(a); 

 

18 Although it is not part of the present appeal, I also believe 

that an early-retired judge under the age of seventy years, see

N.J.S.A. 43:6A-8(a) and -8(b), cannot be recalled for temporary 

service under the Constitution because upon that judge's 

resignation, he or she ceases to possess any judicial authority, 

and neither the Legislature nor the Supreme Court has any power 

to restore it. 
29 A-0630-12T1

Guidelines on the Practice of Law by Retired Judges, 

Administrative Directive #5-08 (March 24, 2008), are proper 

constraints that ensure the judiciary's hallmark of 

independence, integrity, fairness, and quality service. After a 

public service career, a retired judge owes the institution at 

least that much. 

F.

Notwithstanding its salutary purposes and practical 

success, N.J.S.A. 43:6A-13(b) cannot be justified when taking 

bearings from the Constitution. Historical acceptance cannot 

establish the statute's bona fides, see Henry, supra, 204 N.J.

at 345 (Rabner, C.J., concurring) (noting that "historical 

practice alone rarely proves the correctness of a legal 

proposition"), and historical patterns cannot save an 

unconstitutional practice. 

I take final comfort in the recollection of Morris M. 

Schnitzer, who was asked in 1995, "Was it contemplated that 

judges, once retired at age 70, could be recalled?" 

Conversations with Morris M. Schnitzer, supra, 47 Rutgers L. 

Rev. at 1401. Schnitzer —— who was present during the 

Constitution's conception, gestation, and birth —— unequivocally 

responded: "Certainly not, since that would have resurrected the 

example of Justice Parker and others who sat long after their 
30 A-0630-12T1

peak." Ibid. If that is the way Schnitzer remembered it, who 

am I to disagree? 

Accordingly, I dissent.