De Vesa v. Dorsey
| Decision Date | 23 December 1993 |
| Citation | 134 N.J. 420,634 A.2d 493 |
| Parties | 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. |
| Court | New Jersey Supreme Court |
Jack M. Sabatino, Asst. Atty. Gen., for plaintiff-appellant Fred De Vesa, Acting Atty. Gen. of N.J. .
James A. Plaisted, Roseland, for plaintiff-appellant Hon. Marianne Espinosa Murphy, J.S.C. (Walder, Sondak, Berkeley & Brogan, attorneys).
Thomas S. Higgins, Laurel Springs, for plaintiff-appellant John H. Adler (Higgins, Slachetka & Long, attorneys).
Edward J. Dauber, Newark, for plaintiff-appellant Wilbur C. Hantel, a citizen of New Jersey (Greenberg, Dauber & Epstein, attorneys).
Edward N. FitzPatrick, Newark, for defendants-respondents 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 (Clapp & Eisenberg, attorneys, Mr. FitzPatrick, Agnes I. Rymer, Adam N. Saravay, and Robert J. Beacham, on the briefs).
John H. Dorsey, pro se.
Gerald Krovatin, Roseland, for amicus curiae Coalition for an Independent Judiciary (Lowenstein, Sandler, Kohl, Fisher & Boylan, attorneys).
Thomas R. Curtin, President, for amicus curiae New Jersey State Bar Ass'n.
Leon J. Sokol, Senate Minority Counsel, submitted a letter in lieu of brief on behalf of respondents John A. Girgenti, Raymond J. Zane, Richard J. Codey, Thomas F. Cowan, Matthew Feldman, Bernard F. Kenny, Jr., Raymond J. Lesniak, Wynona Lipman, John A. Lynch, Walter Rand and Ronald L. Rice.
Joseph T. Wilkins, Smithville, submitted a brief on behalf of amici curiae Alan E. Kligerman and The Institute for Law and Justice, Inc.
Bruce Eden, Wayne, submitted a letter in lieu of brief on behalf of amicus curiae pro se.
Robin Vinik submitted a letter in lieu of brief on behalf of amicus curiae pro se.
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.
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.
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, p 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, p 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, 1 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 [], 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.
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...
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