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Paul M. Depascale v. State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 7, 2011

PAUL M. DEPASCALE
v.
STATE OF NEW JERSEY

The opinion of the court was delivered by: Philip S Carchman, P.J.A.D.

ORDER ON MOTION

MOTION NO. M-001292-11

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)

BY: PAUL DEPASCALE

SUBMITTED TO COURT: November 14, 2011

ORDER

THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS, ON THIS 18th day of November, 2011, HEREBY ORDERED AS FOLLOWS:

MOTION BY APPELLANT

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 the other two branches of government to exceed their constitutional authority." Alfred E. Driscoll, Address to Committee on the Judiciary, 4 State of New Jersey Constitutional Convention of 1947, 427-29 (Goldmann & Crystal ed. 1951).

In its brief in support of its motion for a stay, the State suggests in a footnote: "I[t] cannot seriously be contended that judicial independence is threatened during the pendency of an appeal." We disagree with this assertion. The public's interest in maintaining a strong and independent judiciary is imperiled by any violation of N.J. Const. art. VI, § 6, ¶ 6, no matter how extensive and regardless of its duration. The fourth prong of Crowe, which we are obligated to address on this application, speaks directly to this consideration and compels a denial of the State's motion. The issue now before our State's highest court is whether such a violation has occurred here, an issue that the Court will resolve in its ultimate decision.

The motion for a stay is denied.

FOR THE COURT:

L-001893-11 MERCER


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