The Supreme Court’s grant last Thursday of direct certification of the judges’ pension case, DePascale v. New Jersey, has generated some controversy. Governor Christie, for example, criticized the Court for preempting Appellate Division review. Direct certification is not a usual procedure. It is authorized by Rule 2:12-2(a), but that Rule does not state any criteria for when direct certification is appropriate.
A number of cases of extraordinary public significance have been directly certified for Supreme Court review in the past. See, e.g., In re Baby M., 109 N.J. 386 (1988) (validity of surrogate mother contract); Clark v. Degnan, 89 N.J. 393 (1980) (whether a county’s state-mandated expenditures for public welfare assistance, maintenance of county patients in state institutions, and operation of court system violated “Cap Law” limiting expenditures); New Jersey Builders, Owners & Managers Ass’n v. Blair, 60 N.J. 330 (1972) (challenge to validity of administrative Mulitple Dwelling Reporting rule).
Cases posing unusually important constitutional issues, such as those presented in DePascale, with its clash between and among the constitutionally-established branches of New Jersey government, have been particularly good candidates for direct certification. See, e.g., CWA Local 1044 v. Chief Justice, 118 N.J. 495 (1990) (case questioned constitutional power of Supreme Court to refuse to include in collective negotiations with judicial employees the issue of agency fees); Democratic Party of New Jersey, Inc. v. Collins, 109 N.J. 521 (1987) (case presented issues under dual-office holding provisions of the New Jersey Constitution); Chamber of Commerce v. State, 89 N.J. 131 (1982) (constitutionality of Strikebreakers Act); Robinson v. Cahill, 62 N.J. 473 (1973) (constitutional clash between branches of government regarding school funding mechanisms).
Direct certification was appropriate for DePascale. The case was virtually certain to reach the Court at some point. There was no reason to create delay and continued uncertainty. The Court is fully capable of addressing the validity of the lengthy opinion of the Law Division without having had the Appellate Division weigh in.
Governor Christie might have preferred that Supreme Court review wait until after March 2012, when he is scheduled to make two appointments to the seven-member Court. Justice Long will reach the mandatory retirement age of 70 at that time, and the Governor will be able to fill the seat that had been occupied by Justice Wallace at that time as well, under an arrangement that the Senate and the Governor previously made. The desire to have a Court that includes more of a Governor’s own appointees (three Justices instead of only one (Justice Patterson)) make decisions is not a valid reason for delay. If that were the rationale that underlies the Governor’s position, it would smack of Court-packing, a tactic that was resoundingly and rightly rejected in the 1930’s when President Roosevelt tried to alter the composition of the Supreme Court of the United States.