New Jersey State Bar Association - The voluntary Bar Association of New Jersey, serving members since 1899.

For Immediate Release

04/11/2014

Kate Coscarelli

Sr. Director, Communications

732-937-7548

NJSBA resolution urges constitutional amendment to protect judicial independence

New Brunswick: The New Jersey State Bar Association today adopted a resolution urging the Senate and General Assembly to adopt a concurrent resolution to allow a ballot measure to go to the voters this fall regarding judicial reappointments.

Statement of New Jersey State Bar Association President Ralph J. Lamparello in support of a constitutional amendment on judicial reappointment:

The New Jersey State Bar Association’s Board of Trustees unanimously approved a resolution endorsing an amendment to the New Jersey State Constitution requiring reappointment of Justices of the Supreme Court and Judges of the Superior Court unless they have demonstrated unfitness for such reappointment.  Specifically, the Board of Trustees proposed a concurrent resolution to amend Article VI, Section VI, Paragraph 3 of the Constitution of the State of New Jersey.  The proposed resolution would be moved before the Senate of the State of New Jersey, with the General Assembly concurring.

The proposal, first put forth by retired Supreme Court Justice Gary Stein at the recent Chief Justice Joseph Weintraub Lecture at Rutgers School of Law-Newark, would change the New Jersey Constitution to say Justices and Judges “shall hold their offices for initial terms of seven years” and shall be reappointed “unless they have demonstrated unfitness” for the position.

The amendment would formalize the original intent of Article VI, Section VI, Paragraph 3 and stay true to the foundational principle of judicial independence that the 1947 Constitution embraced. To assure the independence of judges, the framers made clear that denial of reappointment was only for those found to be unfit.

As then-Gov. Alfred E. Driscoll noted: “Without independent courts, the whole republican system must surely fail. Our primary, our basic purpose, in the drafting of a new constitution is to secure beyond any question a strong, competent, easily functioning, but always independent Judiciary.”

As stated in the NJSBA’s resolution in support of the constitutional amendment, “it is evident that the time has come to reaffirm the stature, respect and independence of the state Judiciary and allow judges to be free to make difficult decisions based on the law, regardless of tenure status, by expressly conforming the State Constitution to the intent of its framers, and by guaranteeing that the reappointment of a judge or justice shall be based only on their fitness to serve.”

A Resolution of the New Jersey State Bar Association endorsing an amendment of the New Jersey State Constitution requiring reappointment of justices of the Supreme Court and judges of the Superior Court unless they have demonstrated unfitness for such reappointment

WHEREAS, An independent Judiciary, standing firmly as a co-equal branch of government, is a central underpinning of the 1947 New Jersey Constitution and has provided a stable base for the state’s nearly 400 judges and justices to produce fair decisions of extraordinary importance for the citizens of New Jersey, and
 
WHEREAS, Governor Alfred E. Driscoll, speaking at the 1947 Constitutional Convention, said the primary purpose in the drafting of a new Constitution “is to secure beyond any question a strong, competent, easily functioning, but always independent Judiciary,” and
 
WHEREAS, The debate at the 1947 Constitutional Convention made clear that reappointment would be denied only to a justice or judge who had demonstrated unfitness during his or her initial seven year term, and

WHEREAS, Eight governors, hailing from the Democrat and Republican political parties, who succeeded Governor Driscoll, reappointed 25 Supreme Court Justices because they understood judicial independence is an American value, and that a disagreement with a court decision or judicial philosophy was not envisioned under the 1947 Constitution as grounds for denying reappointment to a sitting justice, and

WHEREAS, On May 3, 2010, Justice John E. Wallace Jr., without any indication that he was not  fully qualified for reappointment, became the first justice to be denied reappointment to the Supreme Court since the adoption of the 1947 Constitution, and

WHEREAS, On August 12, 2013, Justice Helen E. Hoens, without any indication that she was not  fully qualified for reappointment, became the second justice to be denied reappointment to the Supreme Court since the adoption of the 1947 Constitution, and

WHEREAS, The current judicial appointment and reappointment processes under Article VI, Section VI, Paragraph 3 have been plagued by delays, some for reasons wholly unrelated to the qualifications of the nominees, including but not limited to negotiations over the nominations of other state officials, and

WHEREAS, Uncertainty over their reappointments has resulted in many non-tenured judges, who now comprise some 46 percent of the state judiciary, requesting reassignments from controversial or novel cases for fear of antagonizing political figures and jeopardizing their reappointments, and

WHEREAS, The unsettled nature of the judicial reappointment process exposes judges to unnecessary political and public pressures and affects public respect for judges and the court system, and

WHEREAS, It is evident that the time has come to reaffirm the stature, respect and independence of the State Judiciary and allow judges to be free to make difficult decisions based on the law, regardless of tenure status, by expressly conforming the State Constitution to the intent of its framers, and by guaranteeing that the reappointment of a judge or justice shall be based only on their fitness to serve,

BE IT THEREFORE RESOLVED, That the New Jersey State Bar Association calls upon the New Jersey Legislature to enact a concurrent resolution, as set forth in the attached document, to place a constitutional question on the ballot for the voters in November 2014 to approve an amendment to the New Jersey Constitution stating that Article VI, Section VI, Paragraph 3 shall read, in pertinent part, as follows:

“The Justices of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of seven years. They shall be reappointed by the Governor, with the advice and consent of the Senate, unless they have demonstrated unfitness for such reappointment, and upon reappointment shall hold office during good behavior.

[new language underscored]

Click here to read the proposed concurrent resolution.