[92 NJSuper Page 374] Plaintiffs instituted this suit to have certain actions of the New Jersey State Senate declared illegal, unconstitutional and void under Art. VI, Sec. VI(1) of the New Jersey Constitution, which places the appointing power in the Governor with the advice and consent of the Senate. Plaintiffs are residents of Atlantic County and claim that said actions are violative of their rights under Art. I, Sec. I of the New Jersey Constitution and under the 14 th Amendment of the Federal Constitution.
Defendants have filed a motion to dismiss the action for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction.
The facts presented in plaintiffs' brief, which must be accepted as true for the purpose of the motion, establish that on June 6, 1966 the State Senate failed to confirm a judicial nomination for the Atlantic County Court; that the sole reason for rejection was for purely personal reasons, as expressed by the Senator from Atlantic County, and that because of the said Senator's objection against the said nominee, the custom of "Senatorial Courtesy" was invoked and not one of the members of the Senate voted to affirm the appointment.
Plaintiffs contend that the custom of "Senatorial Courtesy" is an improper exercise of the constitutional mandate to advise and consent to judicial appointments, and thus this court has the authority to hear and determine the present case. The court cannot agree.
Plaintiffs contend that rejection of qualified nominees for personal reasons is so arbitrary as to be incompatible with the power vested in the Senate, and that the framers of the Constitution never intended this check on the appointive power to supplant a properly exercised executive function.
While this court must agree with plaintiffs that the constitutional draftsmen never intended the advice and consent clause to be so used, it cannot agree that it has the power to rectify the situation.
The framers of the Constitution were not blind to the problem here at issue; indeed, those present at the Constitutional Convention of 1844 who opposed the transfer of the appointive power from the joint meeting of the legislative houses to the Governor and Senate relied heavily on this argument. Proceedings of the New Jersey State Constitutional Convention of 1844 (New Jersey State House Commission 1942). Mahlon Dickerson, from Morris County, pointed to the situation existing at the federal level:
"Look at the state of things at Washington now, where more than half of the nominations of the President, have been either rejected or suspended. Some of the officers too, are of the greatest importance. Such as Judges of the Supreme Court. I will not say whether the President or Senate is wrong, but the system is wrong, and much mischief grows out of it." (at page 353)
William B. Ewing, of Cumberland County, who originally moved to strike the proposed change from the new Constitution, argued in a like manner:
"But suppose the Governor and Senate should be of different parties. The Governor will only nominate his own political friends and his nominations will be disregarded by the Senate and the offices will not be filled and the people will suffer great inconvenience." (at page 349)
The members of the Convention were fully apprised of the dangers inherent under both the existing system and the proposed system, yet they realized that they were powerless to correct or control the abuses. Mr. Field of Mercer County, a proponent ...