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De Vesa v. Dorsey

Decided: December 23, 1993.

FRED DE VESA, ACTING ATTORNEY GENERAL OF NEW JERSEY; HON. MARIANNE ESPINOSA MURPHY, J.S.C.; JOHN H. ADLER, A MEMBER OF THE SENATE OF THE STATE OF NEW JERSEY, AND WILBUR C. HANTEL, A CITIZEN OF NEW JERSEY, PLAINTIFFS-APPELLANTS, AND EDWARD T. O'CONNOR, JR., A MEMBER OF THE SENATE OF THE STATE OF NEW JERSEY, PLAINTIFF,
v.
JOHN H. DORSEY, INDIVIDUALLY AND AS A MEMBER OF THE SENATE OF THE STATE OF NEW JERSEY; DONALD DI FRANCESCO, INDIVIDUALLY AND AS PRESIDENT AND MEMBER OF THE SENATE OF THE STATE OF NEW JERSEY; WILLIAM L. GORMLEY, INDIVIDUALLY AND AS CHAIR OF THE JUDICIARY COMMITTEE AND MEMBER OF THE SENATE OF THE STATE OF NEW JERSEY; AND THE FOLLOWING MEMBERS OF THE SENATE JUDICIARY COMMITTEE SEVERALLY AND INDIVIDUALLY; JOHN O. BENNETT, JAMES S. CAFIERO, JOHN E. DIMON, JOHN A. GIRGENTI, LOUIS F. KOSCO, ROBERT MARTIN, BRADFORD S. SMITH, AND RAYMOND J. ZANE (COLLECTIVELY THE "PRIMARY DEFENDANTS"), DEFENDANTS-RESPONDENTS, AND THE FOLLOWING MEMBERS OF THE SENATE OF THE STATE OF NEW JERSEY SEVERALLY AND INDIVIDUALLY, C. LOUIS BASSANO, DR. GERALD CARDINALE, ANDREW R. CIESLA, RANDY CORMAN, JOHN H. EWING, C. WILLIAM HAINES, PETER A. INVERSO, JOSEPH M. KYRILLOS, JR., RICHARD J. LA ROSSA, ROBERT E. LITTELL, JOHN J. MATHEUSSEN, HENRY F. MC NAMARA, JOSEPH A. PALAIA, WILLIAM E. SCHLUTER, JOHN F. SCOTT, AND JACK G. SINAGRA (COLLECTIVELY THE "OTHER INTERESTED DEFENDANTS"), DEFENDANTS, AND RICHARD J. CODEY, THOMAS F. COWAN, MATTHEW FELDMAN, BERNARD F. KENNY JR., RAYMOND J. LESNIAK, WYNONA M. LIPMAN, JOHN A. LYNCH, WALTER RAND, AND RONALD L. RICE, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Chancery Division, Mercer County.

For affirmance -- Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. Pollock, J., Concurring. Justices Clifford and Garibaldi join in this concurrence. Handler, J., Concurring in part and Dissenting in part. Justices O'Hern and Stein join in this opinion.

Per Curiam

The judgment of the Superior Court, Chancery Division, Mercer County, is affirmed. The members of the Court being equally divided on the grounds for affirmance, the Court has filed no majority opinion.

POLLOCK, J., Concurring.

This is an appeal from the dismissal of a complaint challenging the constitutionality of the exercise of "senatorial courtesy" on judicial nominations. Because of the exercise of senatorial courtesy, the New Jersey Senate refused to consider the nomination of a Superior Court Judge for reappointment. The Chancery Division dismissed the complaint as raising a nonjusticiable political question. We granted the motion for direct certification of plaintiff Fred De Vesa, Acting Attorney General, 134 N.J. 467, 634 A.2d 517 (1993), and now affirm the judgment of the Chancery Division.

I

The New Jersey Constitution provides that "[t]he Governor shall nominate and appoint, with the advice and consent of the Senate . . . the Judges of the Superior Court." N.J. Const. art. VI, § 6, para. 1. "Senatorial courtesy" is a practice followed by the Senate in exercising its constitutional power to confirm gubernatorial nominations. Over the years, senatorial courtesy has evolved as an unwritten, informal, and unofficial procedure allowing a single senator who resides in or represents any portion of the county in which a nominee is domiciled to veto the appointment without further action by the Senate. In this case, Senator John Dorsey invoked senatorial courtesy to oppose the reappointment

of Judge Marianne Espinosa Murphy to the Superior Court. Plaintiffs challenge the constitutionality of senatorial courtesy and its exercise on Judge Murphy's nomination.

In July 1986, Governor Thomas H. Kean nominated Judge Murphy of Chatham Borough, Morris County, to be a Judge of the Superior Court. In September 1986, with the advice and consent of the New Jersey Senate, Governor Kean appointed her to that court. Under the New Jersey Constitution, the initial term for a Superior Court Judge is seven years, after which time that Judge may be reappointed by the Governor if confirmed by the Senate. N.J. Const. art. VI, § 6, para. 3. A reappointed Judge receives tenure until the mandatory retirement age of seventy. Ibid.

Judge Murphy's initial seven-year term expired on September 11, 1993. In anticipation of the expiration of her term, Governor Jim Florio, on May 13, 1993, gave public notice to the Secretary of the Senate of his intent to submit Judge Murphy's name for reappointment and, on May 21, 1993, the Governor formally renominated Judge Murphy in a letter to the Senate President.

Senator Dorsey represents the twenty-fifth legislative district, which includes a part of Morris County, but not Chatham Borough. Invoking senatorial courtesy, he refused to approve Judge Murphy's reappointment. Some senators disapproved of his exercise of senatorial courtesy. One senator, Raymond Lesniak, proposed a resolution, identified as Resolution 99,*fn1 which sought to

compel the Judiciary Committee to consider Judge Murphy's nomination and to make a recommendation to the Senate by September 1. As disclosed by the Senate minutes for August 16, 1993, the following events occurred:

Senator Lesniak, pursuant to Rule 128 [which permits a senator to make a motion to move a resolution], moved to introduce [Senate Resolution No. 99] and have the same made the Order of the Day. Senator DiFrancesco ruled the motion was out of order.

Senator Lesniak moved to appeal the ruling of the Chair. A machine vote was taken. The resolution Lost by the following machine vote: 12-22.

[Minutes of New Jersey Senate, August 16, 1993, at 1.]

Thus, the Senate defeated Senator Lesniak's motion to appeal the ruling of the Senate President. Thereafter, the Senate did not further consider the nomination.

On August 27, 1993, before the expiration of Judge Murphy's term, plaintiffs instituted this action. Plaintiffs are Acting Attorney General De Vesa, Judge Murphy, Senator John H. Adler, Senator Edward T. O'Connor, Jr., who is also a member of the Senate Judiciary Committee, and a citizen, Wilbur C. Hantel. Defendants are various senators, including Senator Dorsey, Senate President Donald T. DiFrancesco, and Senator William L. Gormley, the chair of the Senate Judiciary Committee.

Plaintiffs sought injunctive relief and a declaratory judgment that the practice of senatorial courtesy, particularly as it applies to judicial nominations for reappointment, violates the New Jersey Constitution on various grounds. In the alternative, plaintiffs asked that Judge Murphy be deemed reappointed if, as a result of the actions or inactions of the defendants-senators, the entire Senate failed to act on her appointment before September 11, 1993.

On August 31, 1993, Senator Dorsey filed papers in opposition to plaintiffs' claims for relief and moved to dismiss on various grounds, including nonjusticiability. Other defendants took a similar position.

On September 2, 1993, Judge Carchman of the Chancery Division heard oral argument and, on September 3, dismissed plaintiffs' complaint. He determined that the case was not justiciable, noting that the Advice and Consent Clause commits the confirmation power to the Senate and that no standards exist by which the judiciary can determine whether the exercise of senatorial courtesy constitutes an abuse of that power. The court also concluded that senatorial courtesy was a valid exercise of the confirmation power under the Advice and Consent Clause of the State Constitution.

We heard oral argument on September 8, 1993. Three days later, Judge Murphy's term expired.

II

This case implicates three principles that define the role of the judiciary in a democracy: judicial review, judicial restraint, and judicial independence. An independent judiciary, one free from political pressure, is essential to a democratic society. Notwithstanding the independence of Judges from political considerations, judicial appointments, like other gubernatorial appointments, remain subject to the political process. Our focus is on the role of senatorial courtesy in that process.

Senatorial courtesy

as it relates to judicial appointments, may be stated as follows: If a nomination to judicial office with respect to a particular county is displeasing to one or more of the senators from that county, then the other members of the Senate will take no

action looking to the confirmation of the proposed nominee and this quite apart from the nominee's qualifications or lack thereof.

[ Passaic County Bar Ass'n v. Hughes, 108 N.J. Super. 161, 169, 260 A.2d 261 (Ch.Div.1969).]

Although not codified as a Senate rule of procedure relating to gubernatorial nominations, senatorial courtesy is nevertheless practiced in conjunction with those rules. Under the formal Senate Rules, all nominations received from the Governor are referred to the Senate Judiciary Committee, unless the Senate President directs the nomination differently. Rules of the Senate, R. 150. The Judiciary Committee considers the nomination and then reports to the Senate with a recommendation for either rejection or acceptance. Rules of the Senate, R. 151. The full Senate then votes on the nomination. Rules of the Senate, R. 152. According to an affidavit filed by Senator Gerald Cardinale, a senator can invoke senatorial courtesy after the Judiciary Committee receives the nomination. As described by Senator Cardinale, the practice is for the Judiciary Committee to send a form letter to each Senator "from the county and district where the nominee resides" seeking the approval of those Senators to the nomination. If any of those senators fails to "return the approval form," the Senate will take no further action on the nomination. The exercise of senatorial courtesy by a single senator refusing or failing to sign an "approval form" with respect to a nomination can be final. It "'forecloses indefinitely any consideration by the committee on the merits of the nomination.'" Passaic County Bar Ass'n, supra, 108 N.J. Super. at 172, 260 A.2d 261 (quoting Governor Richard J. Hughes, Address Before the Essex County Bar Association (April 1965)). In sum, the practice of senatorial courtesy allows a single senator to reject a nomination without regard to its merits, without disclosure of any reasons, without the conduct of any hearing, and without any action by the Senate as a whole. Passaic County Bar Ass'n, supra, 108 N.J. Super. at 172, 260 A.2d 261.

As explained by Senator Dorsey at oral argument, the exercise of senatorial courtesy was restricted originally to the "home county" senator of a nominee. With the development of cross-county districts, however, the courtesy privilege was afforded to

any senator whose district extended into the county in which the nominee is domiciled. In effect, Senator Dorsey could exercise senatorial courtesy on Judge Murphy's nomination, although she is not one of his constituents.

III

As a threshold matter, we consider whether this case has been rendered moot because the Senate did not confirm Judge Murphy's nomination during the term of her original appointment.

Unlike the federal Constitution, the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. See U.S. Const. art. III, § 2, cl. 1; N.J. Const. art. VI, § 1, para. 1. Nevertheless, this Court refrains from rendering advisory opinions or exercising its jurisdiction in the abstract. See In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104, 539 A.2d 1197 (1988).

Consistent with that principle, our courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot. See Oxfeld v. New Jersey State Bd. of Educ., 68 N.J. 301, 303-04, 344 A.2d 769 (1975). A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation. Id. at 303, 344 A.2d 769.

In some circumstances, however, our courts will entertain a case despite its mootness. Specifically, our courts will entertain a case that has become moot when the issue is of significant public importance and is likely to recur. In re Conroy, 98 N.J. 321, 342, 486 A.2d 1209 (1985); Clark v. Degnan, 83 N.J. 393, 397, 416 A.2d 816 (1980). "While we ordinarily refuse to examine moot matters due to our reluctance to render legal decisions in the abstract and our desire to conserve judicial resources, we will rule on such matters where they are of substantial importance and are capable of repetition yet evade review." In re J.I.S. Indus. Serv. Co. Landfill, supra, 110 N.J. at 104, 539 A.2d 1197 (citations omitted).

The threatened veto of Judge Murphy's reappointment by the exercise of senatorial courtesy triggered this litigation. Her term of office expired without reappointment before the matter could be

adjudicated; hence, the constitutionality of the veto of her judicial nomination by the exercise of senatorial courtesy no longer poses a live issue. Nevertheless, the validity of senatorial courtesy remains an issue of extraordinary public concern. It raises fundamental questions implicating the respective powers and responsibilities of each branch of government over the appointment of Judges.

Further, the constitutionality of senatorial courtesy as an exercise of the Senate's confirmation powers with respect to judicial appointments may recur. As illustrated by the circumstances of this case, the relatively short period of time between a Judge's renomination and the expiration of that Judge's initial term constrains the ability of a court to adjudicate the validity of senatorial courtesy. Consequently, the issue is one that may often escape review. We therefore invoke the well-established exception to the mootness doctrine and entertain this action.

IV

We next consider whether the issue before the Court is justiciable. Stated generally, that issue is whether the courts can adjudicate a challenge to the constitutionality of senatorial courtesy. As Justice Brennan wrote in Baker v. Carr, 369 U.S. 186, 211, 82 S. Ct. 691, 706, 7 L. Ed. 2d 663, 682 (1962), "[d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government . . . is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." So here, if we treat the issue as subject to judicial review, we may proceed to the substance of the claim. But if we determine that the matter is best left to the Senate, we should dismiss the case immediately so as not to "'spawn[ ] any legal consequences'" by any further Discussion of a nonjusticiable issue. Goldwater v. Carter, 444 U.S. 996, 1005, 100 S. Ct. 533, 538, 62 L. Ed. 2d 428, 438 (1979) (Rehnquist, J., Concurring) (quoting United States v. Munsingwear, 340 U.S. 36, 41, 71 S. Ct. 104, 107, 95 L. Ed. 36, 42 (1950)). Like the Chancery Division, we conclude that this case presents a nonjusticiable political question.

Baker, supra, states the basic test for the analysis of justiciability:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

[369 U.S. at 217, 82 S. Ct. at 710, 7 L. Ed. 2d at 686.]

We begin our analysis by determining whether a specific constitutional provision has been textually committed to one of the political branches. As Chief Justice Warren stated in Powell v. McCormack, 395 U.S. 486, 521 n. 43, 89 S. Ct. 1944, 1964 n. 43, 23 L. Ed. 2d 491, 516 n. 43 (1969), "the force of respondents' . . . arguments that this case presents a political question depends in great measure on the resolution of the textual commitment question." This case presents a clear textual commitment to a coordinate political branch, the New Jersey Senate.

The Constitution explicitly places the power of advising and consenting in the hands of the New Jersey Senate, not the executive or judicial branches. "Here is a clear commitment [to the Senate] derived from the text of the Constitution itself." Passaic County Bar Ass'n, supra, 108 N.J. Super. at 173, 260 A.2d 261. "The Governor (Executive) is authorized to nominate and appoint. The Senate (Legislative) is to advise and, before the appointment may be finally made, to consent." Ibid. Missing from the Constitution is any role for the judiciary. Because "[t]he nonjusticiability of a political question is primarily a function of the separation of powers," Baker, supra, 369 U.S. at 210, 82 S. Ct. at 706, 7 L. Ed. 2d at 682, we would unduly dislocate that separation if we were to prescribe how the Senate is to conduct the confirmation process.

In an analogous case, this Court refused to interfere with the legislative custom of "gubernatorial courtesy," a practice under which a bill that has passed both houses of the Legislature is not presented to the Governor for signing until the Governor "calls" for the bill. Gilbert v. Gladden, 87 N.J. 275, 432 A.2d 1351 (1981). That practice, in effect, vests the Governor with a "pocket veto." The plaintiffs in Gilbert included members of the Senate and Assembly who sued the leaders of both houses to compel prompt presentation of passed bills to the Governor, even if the Governor had not called for the bill.

Although the Gilbert Court found the use of gubernatorial courtesy to be "questionable," 87 N.J. at 287, 432 A.2d 1351, it determined the issue to be a "nonjusticiable political question the resolution of which is constitutionally committed to the Legislature . . . ." Id. at 288, 432 A.2d 1351. Finding a textual commitment to the legislative branch, the Court concluded that "[w]hether gubernatorial courtesy is to be further sanctioned or finally condemned must be determined either by the Legislature or at the bar of public opinion" and not in a courtroom. Id. at 287-88, 432 A.2d 1351.

Similarly, in Nixon v. United States, 506 U.S. , 113 S. Ct. 732, 122 L. Ed. 2d 1 (1993), the United States Supreme Court declined to decide whether the Senate could fulfill its constitutional obligation to try impeachment cases by delegating that duty to a twelve-member committee. The Nixon Court examined the scope of article 1, section 3, clause 6 of the United States Constitution, which provides that "[t]he Senate shall have the sole power to try all Impeachments." Through Impeachment Rule XI, the Senate delegated to a committee "'all the powers and functions conferred upon the Senate . . . when sitting on impeachment trials.'" See id. at n. 1, 113 S. Ct. at 734 n. 1, 122 L. Ed. 2d at 8 n. 1 (quoting Senate Impeachment Rule XI). Nixon, a convicted federal Judge, contended that the term "try" required the entire Senate, not merely a committee, to conduct an impeachment trial. The Court, however, determined that it could not interpret "try"

because the Constitution textually committed to the Senate the responsibility for trying articles of impeachment. Id. at , 113 S. Ct. at 736, 122 L. Ed. 2d at 10.

The Nixon Court buttressed its reliance on the text of the Constitution by pointing to the lack of judicially-discoverable standards, stating that "the concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the Conclusion that there is a textually demonstrable commitment to a coordinate branch." Id. at , 113 S. Ct. at 735, 122 L. Ed. 2d at 9. Similarly, the absence of standards in this case confirms the inappropriateness of judicial involvement.

Contrary to our Concurring and Dissenting colleagues, post at 448-450, 458-459, 634 A.2d at 507-508, 512-513, we find no manageable standards in the Advice and Consent Clause of the New Jersey Constitution. Nothing defines "advice and consent." Nor does the Constitution specify how the Senate is to exercise its responsibility. As then Judge, later Justice, Mountain, asked rhetorically: "How is a judicial inquiry to be undertaken to find out whether, in fact, inaction on the part of the Senate results from a deference to the tradition and practice of senatorial courtesy or from some other cause?" Passaic County Bar Ass'n, supra, 108 N.J. Super. at 173, 260 A.2d 261; cf. Loigman v. Trombadore, 228 N.J. Super. 437, 443, 550 A.2d 154 (App.Div.1980) (finding no judicially-manageable standards in article VI, section 6, paragraph 1 pertaining to gubernatorial power to nominate Judges). The Senate has the power to withhold action on a nomination for any number of reasons: the President might refuse to post a nomination for a Senate vote, the Senate could vote in caucus not to move a nomination for consideration, or the chair of the Judiciary Committee could fail to schedule a hearing for any reason, including deference to any one senator.

We are similarly unpersuaded by our colleagues' attempt to derive from the term "Senate" a standard that would require collective action by the entire Senate when providing advice and consent. As with the term "advice and consent," the standard derived from "Senate" is unmanageable. Our colleagues construe "Senate" to mean that "at some point in the life of a nomination the entire Senate as a legislative body must manifest collectivity when it takes final action on the nomination." Post at 454, 634 A.2d at 510. We cannot discern from their opinion what action will satisfy that standard. Furthermore, by requiring a collective vote on the nomination they ignore the Senate's prerogative either to act or not to act. The Constitution does not mandate that the Senate "shall" advise on and consent to an appointment; it merely contemplates that the nomination will not proceed without the advice and consent of the Senate. Consistent with the plain language of the Constitution, the Senate Rules recognize that the Senate President may prevent the referral of a nomination to the Judiciary Committee. See Rules of the Senate, R. 150 (providing that "[w]hen nominations shall be made by the Governor to the Senate, they shall, unless otherwise ordered by the Senate President, be referred to the Judiciary Committee"). The Rules likewise recognize that without Senate action, a nomination will lapse. Rules of the Senate, R. 154b (stating that "[a]ll nominations neither confirmed nor rejected during an annual session of the Senate shall not be acted upon in a subsequent annual session without being again made to the Senate by the Governor"). In brief, the text of the Constitution restrains us from ordering the Senate to confirm a nomination, just as it restrains us from ordering the Governor to submit one. The Senate, like the Governor, is part of a co-equal branch with which we may disagree, but which, notwithstanding our disagreement, we must respect.

Presumably, our colleagues are prepared not only to determine when the Senate has acted, but also to invalidate any Senate Rules that are inconsistent with that determination. Our colleagues must also be prepared to provide a remedy, one that remains

undefined in their opinion, if the Senate ignores that determination. Perhaps this Court could devise a confirmation process that is fairer than that devised by the Senate. Devising such a process, however, is a prerogative of the people and their elected representatives, not the judiciary.

The Nixon Court, when faced with a similar argument that the term "Senate" means the full Senate and not a Senate Committee, refused to require such collective action. In rejecting Judge Nixon's interpretation of "Senate" in the Impeachment Clause, Chief Justice Rehnquist declared in dicta:

It would be possible to read the . . . [Impeachment] Clause this way, but it is not a natural reading. Petitioner's interpretation would bring into judicial purview not merely the sort of claim made by petitioner, but other similar claims based on the Conclusion that the word "Senate" has ...


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