State v. Buckner, 437 N.J. Super. 8 (App. Div. 2014). The issue of whether mandatory retirement of judges at age 70 is constitutional was discussed here. (As an aside, the Supreme Court of Pennsylvania, which thereafter addressed that very issue in that jurisdiction, concluded that there was no unconstitutionality, as discussed here). This split decision of the Appellate Division addressed a related issue— whether it is constitutional to recall retired Superior Court judges who are over the age of 70 for temporary service in the Superior Court. N.J.S.A. 43:6A-13(b) authorizes the Supreme Court to recall for temporary judicial service, on certain conditions, judges over the age of 70 who have retired. The majority (Judge Parrillo, who wrote the majority opinion, and Judge Kennedy) held that it is, rejecting the challenge of this criminal defendant to his trial, over which a 73-year old judge, retired and serving on recall, presided. In a lengthy dissent, Judge Harris disagreed.
Defendant’s challenge to the recall mechanism was premised solely on Article XI, section 4, paragraph 1 of the New Jersey Constitution (“the Schedule Article”). That clause stated “No Justice of the new Supreme Court [recall that, in the pre-1947 court system, there was also a Supreme Court, but it was not the highest court, so the Supreme Court constituted by the 1947 Constitution was a “new” Supreme Court] or Judge of the Superior Court shall hold his office after attaining the age of seventy years.” But that provision applied only to “the incumbent judges who held their judicial offices at the adoption of the  Constitution,” said Judge Parrillo, quoting a Supreme Court case. “Once the incumbent judges’ terms expired, the provisions in the Scheduling Article became void.” On that point, all three judges agreed.
The panel considered, however, the possible effect of the Judicial Article, Article VI, section 6, paragraph 3, even though defendant had not argued that clause below. This constitutional issue was an exception to the normal rule that issues not raised below cannot be presented for the first time on appeal.
The Judicial Article states that “justices and judges shall be retired upon attaining the age of 70 years.” Judge Parrillo found a “clear, compelling distinction” between the prohibition in the Schedule Article against “hold[ing] office” and the “shall be retired” language of the Judicial Article. The latter did not “bar a retired judge from being recalled for temporary service,” and there was nothing incompatible between “retirement” and temporary recall service. Thus, the plain language of the Constitution dictated the result.
The majority cited the strong policy in favor of holding statutes (such as the recall statute here) to be constitutional wherever possible. Judge Parrillo also cited cases from other jurisdictions that had validated comparable recall schemes. Moreover, Justice Jacobs, one of the drafters had stated that, in his view, recalls were contemplated by the 1947 Constitution. Finally, the Constitution’s silence on that issue did not mean that recalls were banned. Instead, “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.” The Legislature then adopted a law authorizing recall.
Judge Harris agreed that showing the unconstitutionality of the recall statute was a “formidable” task. He found, however, that defendant had met that burden. He concluded that the recall statute “(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.” He rejected as “speculative” the majority’s view that the Constitution was silent about recalls because the framers meant to leave that issue to the Legislature. The records of the proceedings leading to the adoption of the Constitution showed that the framers were aware of the issue of recall, and a 1944 version that had included recall had been rejected by the voters. Given all that, “[l]eaving a recall provision out of the Constitution was neither an inadvertent oversight nor a nod towards simplicity of draftsmanship.”
Judge Harris ended his dissent by noting that Morris Schnitzer, the “Dean” of the New Jersey Bar, stated years later that there had been no intent to authorize recall. “If that is the way Schnitzer remembered it, whom am I to disagree?”
Both opinions contained much more, and both are well worth reading in full. Given the dissent, the Supreme Court will have the final word. In my view, the majority has the better of the argument. But the dissent, written in Judge Harris’s uniquely colorful style, makes for more entertaining reading.