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Application of Edwin B. Forsythe

Decided: April 30, 1982.

APPLICATION OF EDWIN B. FORSYTHE, MATTHEW J. RINALDO, MILLICENT FENWICK, HAROLD C. HOLLENBECK, JAMES A. COURTER, MARGARET S. ROUKEMA, AND CHRISTOPHER H. SMITH


Matthews, Pressler and Petrella. The majority opinion of the court was delivered by Matthews, P.J.A.D. Petrella, J.A.D. (dissenting).

Matthews

These proceedings were instituted by seven citizens of the State who are all presently members of the House of Representatives, questioning the constitutionality of the enactment procedure employed by the Legislature in the passage of chapter 1 of the Laws of 1982. The petition is filed under the provisions of N.J.S.A. 1:7-4 which gives this court jurisdiction in the premises in the first instance. The petition broadly alleges that the law in question is void on the ground that it was not passed by both houses of the Legislature in the manner required by Art. IV, § IV, para. 6 of the State Constitution:

All bills and joint resolutions shall be read three times in each house before final passage. No bill or joint resolution shall be read a third time in either house until after the intervention of one full calendar day following the day of the second reading; but if either house shall resolve by vote of three-fourths of all its members, signified by yeas and nays entered on the journal, that a bill or joint resolution is an emergency measure, it may proceed forthwith from second to third reading. . . .

The uncontroverted facts, drawn largely from the petition, disclose that as the result of the 1980 decennial census it became necessary for the New Jersey Legislature to divide the State into new congressional districts on the basis of that census and in accordance with the procedures established by the Constitution and laws of this State. That obligation became incumbent upon the Legislature after notification was given to the Governor that the number of representatives to which this State is

entitled has been decreased from 15 to 14. See 2 U.S.C.A. § 2a(b).

Thereafter, on January 12, 1982 a congressional redistricting bill, denominated S-711, was introduced in the New Jersey Senate. That bill was advanced to second reading in the Senate on the same date, and on January 18, 1982 was given third reading and thereupon passed by the Senate. The bill as passed was, on January 18, 1982, delivered to the General Assembly.

A congressional redistricting bill, numbered A-605, was introduced in the General Assembly on January 12, 1982 and given first reading there on that date. The bill was given second reading on the evening of January 12, 1982. A-605 was identical in its provisions to those contained in S-711.*fn1

On January 18, 1982 S-711 was received in the General Assembly from the Senate with a request that the Assembly concur therein. S-711 was given a first reading in the Assembly upon its receipt on January 18, 1982 and, on the same date, by motion, was advanced to second reading by special order on a vote of 41 in favor and 34 against. Thereafter, still on January 18, 1982, S-711 was substituted for A-605 in the General Assembly by motion without roll call vote.

S-711 was thereupon immediately given a third reading in the Assembly and passed on January 18, 1982 by a vote of 42 in favor and 34 against.

The bill was thereupon delivered to the Governor who signed it into law.

The substitution of S-711 for A-605 in the General Assembly on January 18, 1982 was made under the provisions of Rule 15:20 of The Rules of the General Assembly:

When a bill originating in the Senate shall have been delivered to this House, with a message that the Senate has passed the same and requesting the

concurrence of this House therein, and a bill identical therewith, originating in this House, is then pending in this House, the Senate Bill may be substituted for such Assembly Bill, on motion of a sponsor of such Assembly Bill, upon or after the second reading of the Assembly Bill and the Senate Bill may then be advanced to, and have, third reading and be passed in substitution for the Assembly Bill and take the usual course of passed bills and the sponsors of the Assembly Bill may, upon the motion of one of them, be added as co-sponsors of the Senate Bill, with the Senator or Senators who were sponsors of the Senate Bill in the Senate and the names of such co-sponsors shall be endorsed upon the jacket containing the Senate Bill. The provisions of this Rule are expressly subject to the provisions of Rule 15:12. No Senate bill may be substituted for an Assembly bill unless the Senate bill shall have received second reading in the General Assembly.

It is the petitioners' contention that since the proponents of S-711 knew that they had been able to muster only 41 votes in favor of the motion to advance S-711 to second reading in the Assembly by special order, they also knew there was no way in which 60 affirmative votes, which would have been necessary to hold that S-711 was an emergency measure under the aforementioned constitutional provision, could be obtained. Petitioners contend that the Assembly majority was thus presented with a direct conflict between political expediency and compliance with the mandate of the Constitution. The inauguration of the incoming Governor was to take place on January 19, 1982, and if the Assembly was to comply with the Constitution, it could not pass S-711 before January 20, 1982, and therefore would be required to submit it to the new Governor, who probably would veto it. Petitioners allege that the only way that the outgoing Governor could receive S-711 to be signed into law was for the Assembly simply to disregard the constitutional mandate and move S-711 to third reading and passage the same day as its receipt from the Senate.

The gist of petitioners' argument is that the substitution of S-711 for A-605 was constitutionally impermissible. They argue that S-711 could not have been acted on by the Assembly in any way without the intervention of one calendar day.

In exercising our jurisdiction under the statute establishing the procedure here involved, N.J.S.A. 1:7-1 et seq., we

emphasize at the outset that our jurisdiction extends only to resolving the question of whether chapter 1 of the Laws of 1982 was adopted by a procedure in conformity with the constitutional requirement set out in Art. IV, § IV, para. 6 of our Constitution. We do not claim to assert, nor could we assert, jurisdiction over the internal procedures of the General Assembly or the rules of that body which are adopted in accordance with the provisions of Art. IV, § IV, para. 3 of the Constitution. Compare Gilbert v. Gladden, 87 N.J. 275 (1981). Our sole quest is to determine whether the statute in arriving in its status as a law reached there by a route condoned by the Constitution.

In his comments on the New Jersey Constitution of 1947, Judge Milmed,*fn2 referring specifically to the provisions of Art. IV, § IV, para. 6, stated:

To "effectively cure the evil of rushing bills from second to third reading without giving the members of the Legislature an opportunity to study their contents", the Convention's Committee on the Legislative recommended, and the Convention adopted, a new provision (Article IV, Section IV, Paragraph 6) which has contributed immeasurably to the more orderly conduct of the legislative process. This provision prohibits any bill or joint resolution from being read a third time in either house until after the intervention of one full calendar day following the day of the second reading. The Committee on the Legislative recognized "that the inclusion of this provision might make it difficult, or even impossible, for the Legislature to deal with real emergencies, which might require immediate action". To guard against such a contingency the Committee proposed, and the Convention adopted an exception to the one day lay-over clause which permits a bill or joint resolution to proceed forthwith from second to third reading in either house if that house resolves by vote of three-fourths of all its members, signified by yeas and nays entered on the journal, that it is an emergency measure.

In proposing the provision requiring a full day's intervention between second and third reading of a bill or joint resolution, the Convention's Committee on the Legislative expressed "confident expectation" that the provision "will not only bring about more orderly sessions of the Legislature but will also improve the character of legislation by affording an adequate opportunity to ...


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