On appeal from Superior Court, Law Division, Monmouth County.
Antell, Deighan and R. S. Cohen. The opinion of the court was delivered by Deighan, J.A.D.
Plaintiff Larry S. Loigman appeals from a dismissal of his complaint against the New Jersey Bar Association (Association), Raymond Trombadore, immediate past-president of the Association and past chairperson of the Association's Judicial and County Prosecutor's Appointments Committee (Appointments Committee), and James C. Pitney, chairperson of the Committee during Trombadore's term as Association president. Plaintiff's complaint alleged that the defendants wrongfully influenced the governor with regard to certain prospective nominees to the judiciary. Plaintiff sought to enjoin defendants from advising the governor concerning judicial qualifications of judicial appointees. He also sought compensatory and punitive damages. Prior to filing an answer, the defendants' motion to dismiss the complaint on the ground that it failed to state a claim for relief under R. 4:6-2(e) was granted.
In his complaint, plaintiff averred that the Association, through its officials, over the years has "attempted to exercise a form of power or control over the decisions of the Governor . . . with regard to the nomination of persons to the judiciary." He then claimed that "[d]uring [their] incumbency, [the individual] Defendants [have] purposefully presented to the public the
improper appearance that each has, and has attempted to exercise, such putative form of power or control" and have "led the good and honest citizens of the State of New Jersey to believe that the governor has corruptly surrendered his constitutional authority to them . . . in derogation of the New Jersey Constitution (1947), Art. VI, § 6, para. 1." He then charged that defendants have "caused the Governor to be subject to influence by false, misleading, fraudulent and malicious statements" and have "purposely, intentionally, deliberately, and with fraudulent intent, concealed relevant and material information regarding the nomination of persons to the judiciary."
He then asserted that the defendants, "by the use of secret documents containing rumor, innuendo, gossip and similar scandalous matter, attempted to thwart, pervert or subvert the democratic institutions of government in this State." In so doing, he asserted, defendants "combined, conspired and confederated together . . . to cheat, defraud and deprive plaintiff, and the other members of Defendant Association of the rights and privileges of membership therein." In particular he charged that the defendants, in the summer of 1986, "used without proper authority, and . . . with intention to deceive, with regard to the proposed nomination of one P.D.C. (said initials having been substituted herein for the full name of the actual person) to the judiciary" and that the activities of defendants have caused "grievous injury to Plaintiff, and all other residents, citizens and taxpayers of the State of New Jersey and all other members of Defendant Association."
Basically, plaintiff complained of the procedure by which the governor solicits and receives recommendations from the Association. This procedure began during the term of Governor Alfred E. Driscoll and was formalized by a written compact in 1969 by Governor Richard J. Hughes.*fn1 Governor William T.
Cahill, honoring his campaign commitment, continued the arrangement during his term of office after which he endorsed a new proposal to expand and strengthen this arrangement. See Governor Supports State Bar Judicial Selection Plan, 96 N.J.L.J. 1237 (1973); New Procedures Adopted For Judicial Nominations, 92 N.J.L.J. 657 (1969).
Plaintiff then demanded judgment, among other things:
1. Enjoining and restraining Defendants from exercising, . . . any form of power or control over the decision of the Governor with regard to the nomination of any person to the judiciary; and
2. Enjoining and restraining Defendants from communicating to the Governor any opinion with regard to the nomination of any person to the judiciary, unless such communication shall first have been approved by each member of Defendant Association; . . . .
Before the trial court, plaintiff argued that:
MR. LOIGMAN: There is quiet [sic] a difference between John Jones going in and saying to the Governor, I feel that you should sign this bill. I feel that so and so should be nom -- quite a difference between that and an organization composed of thousands of people saying in the name of this organization we tell you to do thus and such. We haven't consulted with our members about this, they never authorized us to give this opinion, we are not even going to tell them what this opinion is. Its a secret even from them, but in the name of twenty thousand people we are going to tell the Governor what to do.
On September 15, 1987, Judge Wichmann dismissed the complaint on the basis that it involved a political question and thus presented a non-justiciable issue. Judge Wichmann noted that,
Who the Governor solicits advice from regarding judicial nominations, and what passes between them, is private and is not the province of the judiciary to interfere.
The Governor is free to take such advice or disregard it, and the Court takes notice that he accepts input from many persons and organizations who do not always agree among themselves.
If the plaintiff is unhappy with the process or the results generated, his redress is with the Legislature, or perhaps the pressure of public opinion, or within the Association, and not through the courts.
On appeal before us plaintiff contends that the complaint properly sought relief against a voluntary association and presented a justiciable issue.
The issue of the justiciability of a political question involves consideration of the constitutional separation of powers between the respective branches of government. Article III, Paragraph I of the New Jersey Constitution provides:
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.
The purpose of this provision is to safeguard the "essential integrity" of each branch of government. Gilbert v. Gladden, 87 N.J. 275, 281 (1981); see Massett Building Co. v. Bennett, 4 N.J. 53, 57 (1950).
"The nonjusticiability of a political question is primarily a function of the separation of powers." Baker v. Carr, 369 U.S. 186, 210 82 S. Ct. 691, 706, 7 L. Ed. 2d 663, 682 (1962). Accord, Gilbert, 87 N.J. at 281. Determining whether a matter presents a non-justiciable political question requires engaging in a "delicate exercise in constitutional interpretation." Id. at 282. In Baker, ...