This suit has been brought by the Passaic County Bar Association, Newton M. Roemer, president of the Association and William J. Marchese, its immediate past president. Defendants are the Honorable Richard J. Hughes, Governor of the State of New Jersey, the Honorable Frank X. McDermott, President of the Senate of the State of New Jersey, and all other individual members of the Senate. The New Jersey State Bar Association appears as amicus curiae.
The Passaic County Bar Association is a nonprofit membership corporation, incorporated pursuant to Title 15 of the New Jersey Revised Statutes. It is composed of approximately 650 members, all of whom are attorneys of this State in good standing, practicing or residing in the County of Passaic. In summary, the complaint charges that there are a disproportionately large number of judicial vacancies in Passaic County: that these have existed for an unwarranted period of time; that as a result of the long continued failure to fill these vacancies the trial of civil law actions in the
county has virtually ceased; that this condition is the result of improper inaction on the part of the Governor and the Senate; that plaintiffs have standing to bring this suit to correct this condition, and that the courts have the necessary competence to grant the relief sought.
The respective roles of the Governor and Senate in the nomination and appointment of members of the judiciary is set forth in the State Constitution:
The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and Associate Justices of the Supreme Court, the Judges of the Superior Court, the Judges of the County Courts and the judges of the inferior courts with jurisdiction extending to more than one municipality. No nomination to such an office shall be sent to the Senate for confirmation until after seven days' public notice by the Governor. [ N.J. Const. , Art. VI, § 6, par. 1].
The facts are not in dispute. A vacancy occurred in the office of judge of the Juvenile and Domestic Relations Court on April 28, 1967. On April 2, 1969 the Governor indicated his intention to nominate a successor to this office and thereafter delivered the nomination to the Senate on April 10, 1969. On June 28, 1967 an additional County Court judgeship for Passaic County was created by act of the Legislature. On April 2, 1969 the Governor indicated his intention to fill this position and on April 10 delivered the nomination to the Senate. On September 7, 1967 a judge of the Passaic County District Court died. On April 2, 1969 an intention to nominate a successor was submitted by the Governor, as was the nomination itself on April 10. No action has been taken by the Senate with respect to any of these three nominations.
On April 21, 1969 the Governor gave notice of his intention to nominate a resident of Passaic County to fill a prospective vacancy on the Superior Court. On April 28 the nomination was made. Senate confirmation followed on May 15. The nominee took office in September 1969 and is presently sitting in Passaic County.
On August 1, 1969 a judge of the Passaic County Court was mandatorily retired by reason of age. A like retirement with respect to a judge of the Superior Court now sitting in Passaic County will occur January 1, 1970. On July 30, 1969 the Governor gave public notice of his intention to nominate a judge of the Passaic County District Court to succeed the retiring County Court judge and of his further intention to fill the vacancy that would thus ensue on the county district court with a designated nominee. At the same time he expressed his intention to nominate a particular candidate to fill the anticipated Superior Court vacancy when that should occur. Nominations with respect to two of these proposals were submitted on August 6. No action has been taken by the Senate as to these nominations.
The court will judicially notice the fact that in November 1969 a further vacancy in the Passaic County Court bench occurred by reason of resignation and that this vacancy still exists.
Near the end of June 1969 the assignment judge of Passaic County, the Honorable John F. Crane, announced the suspension of the trial of civil cases in the Law Divisions of the Superior and County Courts due to the shortage of judges. The suspension became effective with the commencement of the September 1969 term of court and continues to date.
Plaintiffs contend that the suspension of the trial of civil law suits amounts to a breakdown in the mechanism of State Government; that as citizens, taxpayers and lawyers living and practicing in the county they have standing to seek to right this condition, and that the courts should afford the means.
As indicated above, there are presently no judicial vacancies with respect to which appropriate executive action has not been taken with the exception of a County Court vacancy which only came into being in November 1969 and which, for this reason, is not mentioned in the complaint. It is true, however, that the Legislature has neither confirmed nor
rejected any of the nominees for the vacant positions that have been submitted by the Governor. Plaintiffs attribute this inaction to the practice of senatorial courtesy, of which more will be said below.
Plaintiffs ask the court, by way of relief, to compel the Executive and Legislative Branches of the State Government to act (mandamus), to order the Senate to cease and desist from the practice of senatorial courtesy (injunction), and to define the "advice and consent" clause quoted above, determine and declare the status of pending nominations and declare the practice of senatorial courtesy to be illegal and unconstitutional (declaratory judgment).
Initially, consideration must be given to the question of justiciability. Are the issues presented and the relief sought matters which are subject to judicial resolution, or do the issues, or any of them, present "political questions" to be deemed nonjusticiable in the light of the doctrine of the separation of ...