The opinion of the court was delivered by: Philip S Carchman, P.J.A.D.
BEFORE PART F JUDGE(S): PHILIP S CARCHMAN CLARKSON S FISHER JR. WILLIAM E NUGENT
MOTION FILED: 10/27/2011 BY: STATE OF NEW JERSEY ANSWER(S)
SUBMITTED TO COURT: November 14, 2011
THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS, ON THIS 18th day of November, 2011, HEREBY ORDERED AS FOLLOWS:
MOTION FOR STAY DENIED AND OTHER SUPPLEMENTAL:
The trial court entered judgment declaring L. 2011, c. 78 (Chapter 78) unconstitutional as applied to justices and judges and prohibiting its further application. In its decision, the trial court considered the impact of Chapter 78 on judicial independence. The State has moved for a stay of the trial court's judgment pending appeal.
To obtain a stay pending appeal, a movant must demonstrate that the factors associated with the issuance of injunctions favor a stay of a judgment until such time as the reviewing court may consider and dispose of the merits of the appeal. See Gosschalk v. osschalk, 48 N.J. Super. 566, 579 (App. Div.), aff'd, 28 N.J. 73 (1958). In determining whether to impose a stay pending appeal, we must consider: (1) whether the movant has demonstrated a reasonable probability of success on the merits; (2) whether a balancing of the equities and hardships favors issuance of the stay; (3) whether the movant will sustain irreparable injury if the stay does not issue; and (4) whether the public interest will be harmed by the stay. See Crowe v. DeGioia, 90 N.J. 126, 133 (1982). We determine that the State has failed to meet this burden. We add only the following brief comments and focus our attention on the fourth prong of Crowe.
The polestar in the trial court and now on appeal is the issue of judicial independence. The narrower question is whether Chapter 78 violates N.J. Const. art. VI, § 6, ¶ 6 (prohibiting a diminution of judicial salaries), and compromises this bedrock constitutional principle. The trial court answered that question in the affirmative. Whatever the result on the merits of the appeal of the constitutionality of Chapter 78, an issue not before us on this motion for a stay, both our review of the application for a stay and ultimately, the Supreme Court's review of the merits of the appeal*fn1 will necessarily address the impact of such legislation on the constitutional principle of judicial independence.
Judicial independence is not a meaningless catchphrase but the keystone of the third independent branch of government in our tripartite system of governance. To ensure the integrity and sanctity of this critical principle, the framers of the constitution carefully crafted a judicial article to ensure independence. Among the array of constitutional provisions, including appointment, tenure, and a prohibition against judges "engag[ing] in the practice of law or other gainful pursuits," the framers and citizenry adopted N.J. Const. art. VI, § 6, ¶ 6. Governor Driscoll articulated the purpose of this particular constitutional provision when he observed during the 1947 Constitutional Convention, that the mandate was to "secure beyond any question a strong, competent, easily functioning, but always independent, judiciary, and, therefore, [a judiciary] in a position to curb any tendency on the part of ...