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

Capitol Report

May 4, 2015


This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit


Justices Hear Constitutional Challenge of Judicial Recall Statute


The Supreme Court heard arguments on the constitutionality of a 42-year-old statute that permits the recall of retired judges over the age of 70 for temporary service in the superior court. The NJSBA participated as amicus curiae on the question of a remedy should the Court find N.J.S.A. 43:6A-13(b) (recall statute) unconstitutional, and took no position on the merits of the underlying matter. The brief was written by Sandra T. Ayres, Robert B. Hille, John W. Kaveney and Thomas Prol, and was argued by Prol.


At issue is the constitutionality of the recall statute in light of the New Jersey Constitution’s provisions that justices and judges “shall be retired upon reaching” their 70th birthday. N.J. Const. art. VI, §6, ¶3 (judicial article). The provision was challenged by James Buckner, whose trial on robbery and aggravated assault charges was presided over by a 73-year-old judge who had been recalled for temporary service by the Supreme Court and who had earlier denied the defendant’s pre-trial motions for disqualification and/or recusal from the disqualification motion. State v. Buckner, 437 N.J. Super. 8, 96 A.3d 261, 263 (App. Div. 2014).


The Appellate Division’s majority opinion contains a comprehensive historical framework of the development of the current constitutional provision related to judicial retirements. The majority held that the constitutional provision left to the Legislature the ability to grant the Supreme Court authority to recall retired judges who were appointed in accordance with the constitution, for temporary assignment. Id., at 268-69. The lengthy opinion detailed the deliberations of the 1947 constitution, which contains the challenged clause—including first the inclusion, and then the ultimate exclusion, of any recall provision. Noting that the public discourse demonstrates the framers’ intent to limit the constitution to a statement of basic fundamental principles, the majority held the constitution’s silence on the issue of recall “does not establish that the framers intended to prohibit the practice.” Id. at 276.


The opinion drew a strong dissent from Judge Jonathan N. Harris, arguing 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…” Id. at 281.


These arguments were echoed by the respective parties before the Supreme Court last Tuesday. Buckner’s attorney argued that the plain language of the statute was clear that “retire” does not allow for continuation of a judge’s judicial duties. Justice Jaynee Lavecchia challenged this argument by distinguishing retirement from office versus retirement of a person. She questioned why a valid interpretation is that the retirement of the office would not prohibit the permissible appointment of a retired judge until such time as a new constitutionally appointed officer is made. The office is vacant and open to be filled, but the judicial article does not speak to a person of retirement status remaining until such appointment is made, she further pointed out.


The state, on the other hand, argued that a “silent constitution cannot prohibit a practice.” Justice Barry T. Albin challenged the state’s argument, pointing out that of the 19 states that have mandatory retirement provisions in their constitutions, 15 of them have recall provisions. He further pointed out that drafts of the constitution contained a recall provision, but the current constitution ultimately did not include one.


The NJSBA declined to comment on the merits of the underlying action, but addressed the impact that a finding of unconstitutionality would have on the court system. “[J]udicial vacancies are currently having an adverse effect on the judicial process, and, thus, the rights of litigants to have their cases decided in a timely and appropriate manner,” said the association in its amicus brief. Addressing these concerns, the NJSBA submitted to the Court that if it found the recall statute unconstitutional, the ruling should be made prospective without disturbing prior proceedings, and that such effect should be delayed to permit the Legislature an opportunity to cure the constitutional infirmity while preserving and protecting judicial operations.


“There is no doubt that the Recall Statute was designed to provide relief where judicial appointments have not kept up with judicial vacancies. There is also no doubt that Recall Judges have served admirably and honorably to alleviate what would otherwise have had significant, even grave, consequences for the effective and efficient operations of the State Judiciary with a ripple effect on the timely resolution of disputes among residents, as well as the State’s business and governmental operations,” said the NJSBA in its brief. “It is in the interests of justice that, in the event of a finding that a Recall Statute is unconstitutional, the remedy not unduly exacerbate an already overtaxed bench and Bar.”


Court Finds Error in Admission of Alcotest Results Without Foundational Documents


The Supreme Court handed down a unanimous decision last Tuesday in State v. Kuropchak, finding that a municipal court’s admission of Alcotest results without the foundational documents required by State v. Chun, 194 N.J. 54 (2009) was erroneous. The Court further held that the admission of the drinking driving report (DDR) and the drinking driving questionnaire (DDQ) contained inadmissible hearsay, which may have unduly influenced the municipal court’s findings. The matter was remanded for a new trial. The NJSBA appeared as amicus curiae in the matter. The brief was written by John Menzel, who also argued the association’s position before the Supreme Court.


The matter arose from an accident that occurred when, on her way home from picking up a prescription after a doctor’s appointment, Julie Kuropchak swerved to the left to avoid an oncoming car she observed straddling the center line at the top of a hill. She collided with the oncoming car and lost consciousness, awaking to a car filled with smoke and the taste of blood in her mouth. The officer performed three sobriety tests, two of which she failed. Kuropchak admitted she had a sip of her friend’s margarita almost six hours before the accident and took Nyquil. She was arrested and agreed to take an Alcotest breathalyzer. After nine tests, her blood alcohol content (BAC) was .10.


The municipal court judge admitted both the DDR and DDQ as business records, as well as certain documents to establish a foundation for the Alcotest machine and the simulator unit used to calibrate the device and the chemical composition of the solutions the machine requires, pursuant to the mandatory foundational evidence required under State v. Chun. While three documents were admitted without objection, the calibrating unit new standard solution report was admitted only at the conclusion of limited rebuttal testimony from the officer unrelated to the test. Additionally, the certificate of analysis that was admitted was determined to be incorrect, as it was for a different lot than was used in Karupchak’s control test. Nevertheless, the municipal court judge found Kuropchak guilty based on the results of the BAC and the officer’s observations, specifically noting that the Alcotest was operated properly. The conviction was upheld by the Law Division, and later by the Appellate Division, though noting certain inadequacies regarding the foundational evidence.


The NJSBA argued that the admission into evidence of narrative/testimonial reports prepared by investigating authorities in criminal and quasi-criminal cases is impermissible because it violates a defendant’s constitutional right to confront witnesses against him or her. The association contended that reliance upon such reports, which are prepared for prosecution of a particular individual, is erroneous because they are not evidence in and of themselves, but should be used to refresh the police officer’s recollection. The association further argued that the reports lack the reliability typically associated with documents admissible as exceptions to the hearsay rule.


In declining to find a violation of the confrontation clause, Justice Faustino Fernandez-Vina noted that in this case the officer testified at trial and was extensively cross-examined. He further found that the DDR contained inadmissible hearsay because it contained a narrative account of what the officer saw at the scene and included factual statements, observations and the officer’s opinions. Finding that the DDQ did not initially appear to be inadmissible hearsay, the incorporation by reference of the driving while intoxicated (DWI) report in the “remarks” section rendered the DDQ inadmissible hearsay because the DWI report contained several inadmissible opinions. HeHGH held that the DDR and DDQ were inadmissible hearsay outside the scope of the business records exception.


The association also urged the Court to reaffirm strict adherence to the requirements outlined by the Court in State v. Chun, arguing that the prosecution’s failure to produce the core foundational documents under Chun resulted in an ultimate failure to demonstrate that the particular Alcotest device was in good working order. On this point, Justice Fernandez-Vina held that the municipal court judge’s reliance on the credibility of the DDR and DDQ reports was erroneous. He noted the mistaken admittance of the wrong certificate of analysis and held that the admission of the correct calibrating unit new standards solution report during the officer’s limited rebuttal testimony unrelated to the Alcotest was erroneous, especially in light of the prosecutor’s failure to move to reopen its case.


The Supreme Court noted that this case was unusual because of the “unique confluence of events in this case...Had the only flaw been the admission of the DDR and DDQ, which contained hearsay, Officer Serritella’s testimony would have alleviated much of that problem. Here, however, the cumulative effect of the errors may have tilted the municipal court’s credibility findings.”


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