Loigman v. Trombadore
| Citation | 550 A.2d 154,228 N.J.Super. 437 |
| Parties | Larry S. LOIGMAN Plaintiff-Appellant, v. Raymond R. TROMBADORE; James C. Pitney and New Jersey State Bar Association, Defendants-Respondents. |
| Decision Date | 21 October 1988 |
| Court | New Jersey Superior Court – Appellate Division |
William B. McGuire, Newark, for defendants-respondents Raymond Trombadore, James C. Pitney and New Jersey State Bar Ass'n (Tompkins, McGuire & Wachenfeld, attorneys).
Carton, Nary, Witt & Arvanitis, Asbury Park, for defendants-respondents Raymond Trombadore, James C. Pitney and New Jersey State Bar Ass'n
Mr. William B. McGuire and Marianne M. DeMarco, Newark of the firm Tompkins, McGuire & Wachenfeld and Robert R. Witt of the firm Carton, Nary, Witt & Arvanitis filed a joint brief, for defendants-respondents.
Before Judges 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 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."
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, p 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."
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. 1 Governor William T Plaintiff then demanded judgment, among other things:
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).
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:
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, 432 A.2d 1351 (1981); see Massett Building Co. v. Bennett, 4 N.J. 53, 57, 71 A.2d 327 (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, 432 A.2d 1351. Determining whether a matter presents a non-justiciable political question requires engaging in a "delicate exercise in constitutional interpretation." Id. at 282, 432 A.2d 1351. In Baker, Justice Brennan articulated the criteria for determining the identification of a political question:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution with expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker, supra, 369 U.S. at 217, 82 S.Ct. at 710, 7 L.Ed. 2d at 686; accord, Gilbert, 87 N.J. at 282, 432 A.2d 1351. To justify a dismissal based on nonjusticiability, only one of these criteria need be inextricable from the facts and circumstances presented before the court. Ibid.
The first criterion in Baker concerns "a textually demonstrable constitutional commitment of the issue to a coordinate The Governor shall nominate and appoint, with the advice and consent of the Senate, the Chief Justice and associate justices of the Supreme Court, [and] the Judges of the Superior Court....
political department." The power to nominate and appoint judges is expressly vested in the Governor and Legislature under Article [550 A.2d 158] VI, § VI, Paragraph 1 of the New Jersey Constitution
This provision does not impose any restriction upon the Governor concerning the sources of information he may choose in considering a nominee to the judiciary. Hence, there is no authority by which a court may restrict the Governor's access to information. By restraining the Association from communicating with the Governor concerning qualifications of judicial candidates, plaintiff attempts to foreclose the Governor from eliciting information from one of the most logical sources concerning the qualification of nominees to the bench.
The second criterion listed in Baker applies where there is a "lack...
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