State v. Buckner, 223 N.J. 1 (2015). In one of the biggest cases of the current the Supreme Court term, the Court today upheld the practice of permitting retired judges to serve temporarily on recall. The vote was 5-1. Chief Justice Rabner wrote the majority opinion. Justice Albin filed a dissent. The decision affirms the ruling of the Appellate Division, 437 N.J. .Super. 8 (App. Div. 2014), which split 2-1 n the issue, as discussed here.
The majority opinion relied on a few core principles. First, Chief Justice Rabner emphasized that “[w]hat the Constitution does not bar, either expressly or by clear implication, is left to the Legislature to address.” Here, the majority found that the Constitution did not preclude (or endorse) recall service by retired judges, but instead was silent on the issue. Accordingly, the issue was left to the Legislature, which adopted statutes allowing recall that have been in effect, without previous challenge, since 1964. Second, “[o]nly if a law is repugnan[t] to the Constitution … beyond a reasonable doubt can it be declared void.” Defendant did not carry the “heavy burden” of overcoming the “strong presumption of validity” that attends the recall statute that is currently in effect.
Third, recall service differs from pre-retirement judicial service. “Recall judges do not receive a salary,” but instead receive a per diem amount. They serve at the pleasure of the Supreme Court, for renewable terms of two years, and only as to “specific assignments within the court system.” There are other differences as well. Thus, retirement “is not incompatible with recall service.”
Chief Justice Rabner concluded that because the language of the Constitution does not rule out recall, that resolved the issue. But he went on to conclude, after a lengthy review, that “the history of the Judicial Article shows that the framers considered various options and declined to act on any of them, opting instead to leave the issue to the Legislature.” Thus, the fact that some proposals that would have expressly permitted recall were not adopted did not mean that recall had been rejected. Again, silence could not suffice to show unconstitutionality. Nor were the ways in which other states have dealt with this issue probative. The approaches of other states “are grounded in the language and history of their respective state constitutions and laws and tell us little about our own,” and there was no evidence that the framers considered what other states did.
There is much more in both opinions that is well worth reading. The majority opinion in particular contains a good exposition about the general purposes of a Constitution, including the idea that a Constitution paints in broad strokes and leaves to the Legislature whatever is not specifically mentioned in the Constitution.
Today’s decision was foreshadowed by the fact that, in recent days, several retired judges were recalled for judicial service, or continued on existing recalls. That would not have occurred if the Court intended, a few days later, to overturn the system of retired judges on recall.