Monday, May 19, 2014

Recalling the Recalled Judges | New Jersey Law Journal

New Jersey's courts face many challenges.  Too many judges is not one of them.  Over forty vacancies impact is moderated by the longstanding use of recalled retired judges, most beyond the constitutionally mandated retirement age of 70.  A dissenting judge in the Appellate Division has concluded that retired means retired, done, off the bench, for good.  At the state's storied Constitutional Convention of 1947 the drafters omitted a recall provision that had been in an earlier, rejected draft.  Judge Jonathan Harris conceded in dissent that the majority's interpretation of retired as less than absolute is appealing.  Nonetheless he concluded that the practice -enabled by legislation signed in 1974 by Gov. Brendan T. Byrne - is unconstitutional and that judgments entered by recalled judges cannot stand.

The Law Journal's Editorial Board backed the dissenter's view.  Since a dissent creates an appeal of right the Public Defender will find itself urging the Supreme Court to abandon a practice that many view as essential to keeping the wheels turning during a time when the stand-off between Gov. Chris Christie and the Democratic legislative majority shows no signs of abating.  The State Bar Assocation will doubtless be concerned about the impact that the loss of 80 recalled judges wouldl have on the system. - GWC  (disclosure: I am a member of the NJLJ Editorial Board)

Recalling the Recalled Judges | New Jersey Law Journal:

by the Editorial Board

In the areas of school funding and equal access to housing, just to name two, the New Jersey Supreme Court has not hesitated to direct the legislative and executive branches to comply with the state constitution, even at great expense and administrative burden to those branches. Now, the court must decide a case in which the judiciary itself might be significantly burdened.
In State v. Buckner, a divided Appellate Division panel affirmed the Supreme Court's ability to assign judges on recall status, notwithstanding that in virtually all cases those recalled judges have reached the mandatory retirement age of 70. The dissent in the case provides an appeal as of right to the Supreme Court.
We have long held the view, expressed repeatedly on this page, that the recalling of jurists over the age of 70 finds no basis in constitutional text. The text could not be clearer that "justices and judges shall be retired upon attaining the age of 70 years." In another section pertaining to the jurists who carried over from a prior system, the constitution directs that no justice or judge "shall hold his office" after age 70. As one legal scholar succinctly put it in a 2003 law review article, "once a judge or justice in New Jersey reaches the age of 70, he or she must cease performing judicial acts." The fact that there is a statute in place authorizing the recalling of retired judges does not diminish what we believe is a clear constitutional infirmity in that practice.
So we agree with the defendant in Buckner that the recalled judge who presided over and heard motions in respect of defendant's trial on robbery and assault charges should have been disqualified. But agreeing with the defendant does not mean that every recalled judge (there are currently over 70 such jurists in the system) must immediately exit the bench. We are acutely aware of the disruption to the judiciary that would result if the court were to eliminate the use of recall judges. But there are ways to ameliorate at least some of that disruption.

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1 comment:

  1. The case of State v. Buckner raises serious constitutional issues and the dissent seems to match the facts of the situation more than the majority opinion.

    Read the full text of the DISSENT HERE: