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Gilbert v. Gladden

Decided: July 29, 1981.


On certification to the Superior Court, Law Division.

For affirmance -- Chief Justice Wilentz and Justices Sullivan and Clifford. For reversal -- Justices Pashman and Schreiber. The opinion of the Court was delivered by Clifford, J. Pashman and Schreiber, JJ., dissenting.


This appeal concerns the process by which legislation becomes law in this state. Plaintiffs include two members of the New Jersey Senate, two members of the General Assembly, seven private citizens and taxpayers, and Common Cause of New Jersey. Defendants Gladden and Merlino are, respectively, Secretary and President of the New Jersey Senate; and defendants Miller and Jackman are, respectively, Clerk and Speaker of the General Assembly. By leave of court Governor Byrne appears as intervenor.

Plaintiffs' challenge centers on the constitutional provision governing presentment of bills to the Governor. Article V, section 1, paragraph 14 of the New Jersey Constitution of 1947

requires that "[e]very bill which shall have passed both houses shall be presented to the Governor." If he approves the bill, the Governor signs it and it becomes law. If the bill is disapproved, the Governor must return it, with his objections, to the legislative house from which it originated, within a specified time (generally, ten days after presentment if that house is in session and forty-five days after adjournment if that house is in adjournment on the tenth day after presentment).*fn1 The Legislature may then override the veto if two-thirds of the members of each house vote to pass the bill. There is one exception to the procedure: if the house is adjourned and the forty-fifth day thereafter falls "on or after the last day of the legislative year in which the second annual session was held," no special session may be convened.*fn2 Therefore, the bill cannot be returned to the Legislature and, if not signed, it does not become law.

Within this framework there has developed an unofficial custom of long duration, known as gubernatorial courtesy, whereby bills that have been passed in both houses of the Legislature are not presented to the Governor for signature or veto until the Governor requests them. Consequently, when the request for a bill is withheld and therefore presentation not made until forty-five days before the end of the second legislative session, at which time the legislative house is in adjournment sine die, the Governor can prevent the bill from becoming law merely by not signing it, inasmuch as the Legislature has no opportunity to override that result. This device, often referred to as New Jersey's version of the "pocket veto," is the focus of plaintiffs' complaint.

In particular, plaintiffs argue that the practice of gubernatorial courtesy permits the legislative process to be frustrated through this "pocket veto" technique; if the Governor anticipates a legislative override, he can avoid it simply by not calling for a bill until the forty-five days provision becomes operative. According to plaintiffs this circumvention of the Legislature's power to override a veto is contrary to the constitutional design found in Article V, section 1, paragraph 14 of the state Constitution. They would have us construe that paragraph as requiring the Legislature to present bills to the Governor "forthwith" in order to preclude such manipulation. Plaintiffs further argue that since the Constitution does not expressly permit discretion regarding the timing of the presentment of bills, neither the Governor nor the Legislature may forestall presentment.

On the other hand defendants contend that questions concerning the manner and time in which passed bills are presented to the Governor are essential to the workings of the legislative process; hence, absent any express constitutional or statutory criteria regulating the procedure, this case presents a nonjusticiable political question. Furthermore, they maintain that the lack of constitutional regulation of the procedure amounts to empowerment of the Legislature to promulgate its own regulations.

After discovery, plaintiffs moved for summary judgment and defendants filed a cross-motion seeking the same relief. The trial court granted defendants' application and entered judgment dismissing the complaint. Plaintiffs appealed. We granted direct certification, 85 N.J. 450 (1981), while this case was pending unheard in the Appellate Division. R. 2:12-1.


We note at the outset that the justiciability inquiry must be distinguished from the issue of whether subject-matter jurisdiction exists. The latter question involves merely a threshold determination as to whether the Court is legally authorized

to decide the question presented. If the answer to this question is in the negative, consideration of the cause is "wholly and immediately foreclosed." See Baker v. Carr, 369 U.S. 186, 198, 82 S. Ct. 691, 699, 7 L. Ed. 2d 663, 674 (1962). In respect of justiciability, however, the inquiry proceeds beyond the threshold determination "to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded." Id. In the instant case it is the latter determination with which we are concerned.


"The nonjusticiability of a political question is primarily a function of the separation of powers." Baker v. Carr, supra, 369 U.S. at 210, 82 S. Ct. at 706, 7 L. Ed. 2d at 682. In New Jersey the separation of powers is expressly established in Article III, paragraph 1 of the state Constitution:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [ N.J. Const. of 1947, Art. III, para. 1.]

The separation of powers doctrine is a principle shared by many other states as well as the federal government. See David v. Vesta Co., 45 N.J. 301, 323 (1965). Its purpose is to safeguard the "essential integrity" of each branch of government. See Massett Building Co. v. Bennett, 4 N.J. 53, 57 (1950).*fn3

Deciding whether a matter presents a nonjusticiable political question is a "delicate exercise in constitutional interpretation" for which this Court is responsible as the ultimate arbiter of the Constitution of this state. See Baker v. Carr, supra, 369 U.S. at 211, 82 S. Ct. at 706, 7 L. Ed. 2d at 682. The Supreme Court has provided us with guidance regarding the identification of political questions:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. [ Baker v. Carr, supra, 369 U.S. at 217, 82 S. Ct. at 710, 7 L. Ed. 2d at 686.]

To justify dismissal based on nonjusticiability, one of these criteria must be inextricable from the facts and circumstances of the case in question. Id.

In this case the first criterion of Baker v. Carr provides the basis for our determination that plaintiffs' complaint presents a nonjusticiable political question. The "textually demonstrable constitutional commitment" of the question of presentment of bills to the Governor can be derived from proper consideration of two constitutional provisions. Article IV, section 4, paragraph 3 of the New Jersey Constitution grants each house of the Legislature the power "to determine the rules of its proceedings * * *." Neither that provision nor Article V, section 1, paragraph 14, which provides for presentment of bills to the Governor, limits the time within which presentment may be accomplished.

In the absence of constitutional or statutory standards, it is not the function of this Court to substitute its judgment for that of the Legislature with respect to the rules it has adopted or the procedures followed in giving effect to the constitutionally-declared scheme. See In re Lamb, 67 N.J. Super. 39, 59

(App.Div.), aff'd 34 N.J. 448 (1961). Furthermore, since a state constitution, unlike its federal counterpart, is not a grant but a limitation of legislative power, State v. Murzda, 116 N.J.L. 219, 222 (E. & A.1935), the Legislature is invested with all powers not constitutionally forbidden. Gangemi v. Berry, 25 N.J. 1, 11 (1957). Thus, although the legislature is constitutionally required to present passed bills to the Governor, the timing of such presentment is discretionary, and a rule or practice delaying presentment is well within the legislative prerogative.*fn4

The dissent contends that the custom of gubernatorial courtesy "subverts the carefully considered framework that establishes the joint responsibility of the executive and legislative branches of our State government for the enactment of laws." Post at 301. This argument ignores the plain fact that the custom itself represents a determination by the legislative branch on how best to exercise its share of this joint responsibility. The Legislature is free to vote for presentment of a bill to the Governor at any time after passage, regardless of whether the Governor calls for the bill. It may even vote to override a contrary decision of its leadership in this regard. It freely chooses, however, to delay presentment until the Governor indicates

his desire to deal with the bill. Thus, gubernatorial courtesy exists only by virtue of the consent of the Legislature as a whole. The fact that this custom may lead to extended delay in the enactment of certain bills in no way detracts from its constitutionality. Rather, the Legislature's acquiescence in such a result is merely indicative of that branch's view of its role in the "joint responsibility" for the enactment of our laws. Moreover, the legislative history of the presentment provision indicates that this very arrangement constitutes the "carefully considered framework" envisioned by the framers.

The state constitution of 1776 contained no provision for the gubernatorial veto of enacted legislation. Hence, bills were not presented to the Governor for signature. The Constitution of 1844 required the presentment of bills to the Governor and also provided for gubernatorial veto, legislative override of that veto, and a pocket veto if legislative adjournment prevented return of the bill. See N.J.Const. of 1844, Art. V, para. 7. The 1947 Constitution closely tracks the language of this paragraph; the presentment requirement has remained unchanged. See N.J.Const. of 1947, Art. V, ยง 1, para. 14.*fn5

The minutes of the 1947 Constitutional Convention reveal that the framers were well aware of the custom of gubernatorial courtesy. At one point former Governor Larsen was questioned about it:

MR. BARTON: To hark back to the question of signing bills that Senator Farley brought up, is there anything that stands out in your mind during your term as Governor that you now consider a sore spot in connection with the signing of bills -- as to when they are received, signed, failure to sign, or anything connected with the Executive phase, anything outstanding?

GOVERNOR LARSON: I never had any.

MR. BARTON: Is there any reform that would work better, in the light of some instance that came up during your term?

GOVERNOR LARSON: I never had any trouble either in the Legislature or as Governor.

MR. FELLER: Under the Constitution, the Governor now has five days in which to sign or veto a bill.

GOVERNOR LARSON: If he receives it. He doesn't have to receive it; he can wait a couple of months. He simply doesn't ...

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