Vreeland v. Byrne

• Decision Date: 11 February 1977
• Citation: 72 N.J. 292,370 A.2d 825
• Parties: James P. VREELAND, Jr., et al., Plaintiffs-Respondents, v. Hon. Brendan T. BYRNE, Governor of New Jersey, et al., Defendants-Appellants. MORRIS COUNTY TAXPAYERS ASSOCIATION, et al. Plaintiffs-Respondents, v. Stephen B. WILEY, Defendant, and Brendan T. BYRNE, Governor of the State of New Jersey, et al., Defendants-Appellants.
• Court: New Jersey Supreme Court

Page 292

72 N.J. 292 370 A.2d 825 James P. VREELAND, Jr., et al., Plaintiffs-Respondents,
v.
Hon. Brendan T. BYRNE, Governor of New Jersey, et al.,
Defendants-Appellants.
MORRIS COUNTY TAXPAYERS ASSOCIATION, et al. Plaintiffs-Respondents,
v.
Stephen B. WILEY, Defendant,
and
Brendan T. BYRNE, Governor of the State of New Jersey, et
al., Defendants-Appellants. Supreme Court of New Jersey. Argued Nov. 23, 1976.
Decided Feb. 11, 1977.

[370 A.2d 826]

Page 294

Stephen Skillman, Asst. Atty. Gen., for defendants-appellants (William F. Hyland, Atty. Gen., of New Jersey, attorney; Mr. Skillman of counsel and on the brief).

John P. Sheridan, Jr., Trenton, for plaintiffs-respondents, James P. Vreeland, Jr., et al.

Page 295

Ralph Fucetola, III, North Arlington, for plaintiffs-respondents, Morris County Taxpayers Ass'n et al.

The opinion of the court was delivered by

MOUNTAIN, J.

This appeal presents the question of the constitutionality of the nomination of Stephen B. Wiley to the office of Associate Justice of the Supreme Court of New Jersey. The trial judge ruled that the nomination was unconstitutional as being in violation of N.J.Const., Art. 4, § 5, 1, which reads as follows:

No member of the Senate or General Assembly, during the term for which he shall have been elected, shall be nominated, elected or appointed to any State civil office or position, of profit, which shall have been created by law, or the emoluments whereof shall have been increased by law, during such term. The provisions of this paragraph shall not prohibit the election of any person as Governor or as a member of the Senate or General Assembly. (N.J.Const., Art. 4, § 5, 1)

The facts are not in dispute. Wiley was elected to the New Jersey State Senate in November, 1973, and took office January 8, 1974. This four-year term will expire January 10, 1978. In 1974 the New Jersey Legislature passed and there was enacted into law, a statute which, Inter alia, increased the annual salaries of Associate Justices of the Supreme Court from $45,000 to $48,000. L.1974, c. 57, effective [370 A.2d 827] June 28, 1974.¹ The enactment contains the following provision:

The increases in salary provided for in this act shall not be applicable to any present member of the Senate or General Assembly during the term for which he shall have been elected should such member hereafter be appointed to any of the offices enumerated in section 1 of this act. (N.J.S.A. 2A:1A--8)

It will be noted that one of the offices enumerated in section 1 is 'Associate Justice of the Supreme Court.'

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On March 31, 1975, Associate Justice Frederick W. Hall retired from the bench creating a vacancy in the office of Associate Justice of the Supreme Court. On September 16, 1976 Governor Byrne nominated Senator Wiley to the office of Associate Justice to fill this vacancy. The New Jersey Senate confirmed the nomination with five dissenting votes. Because of the litigation which immediately ensued, Senator Wiley has not taken the oath of office as an Associate Justice, nor has he undertaken any judicial duties.

Two declaratory judgment actions challenging the Wiley nomination were promptly filed in the Superior Court, Law Division. The first, in Morris County, was brought by taxpayer groups against Senator Wiley, Governor Byrne, the President of the New Jersey Senate and the Attorney General. The second, filed in Mercer County by eight members of the New Jersey Senate, joined the Governor and the State of New Jersey as parties defendant. Both suits charged that Senator Wiley was ineligible, during the term for which he had been elected Senator, to be nominated to fill the vacancy in the Supreme Court, because the emoluments of that office had been increased by law during his senatorial term.

The two actions were consolidated. There being no disputed issues of fact, Judge Schoch, after hearing argument, rendered an oral opinion on September 30, 1976, holding the nomination invalid as in violation of N.J.Const., Art. 4, § 5, 1, quoted above.

Defendants filed notices of appeal to the Appellate Division and then moved before this Court for direct certification and for an accelerated argument. Both motions were immediately granted.

Shortly after hearing oral argument, this Court, Sua sponte, directed the parties to file supplemental briefs upon the issue, not theretofore raised, as to whether N.J.S.A. 2A:1A--6 et seq., containing as it does, N.J.S.A. 2A:1A--8, set forth above, is in violation of N.J.Const., Art. 4, § 7, 9(5), which states that:

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The Legislature shall not pass any private, special or local laws:

(5) Creating, increasing or decreasing the emoluments, term or tenure rights of any public officers or employees. (N.J.Const., Art. 4, § 7, 9(5))

Four members of this Court are of the view that this statute, in its present form, is special legislation which violates N.J.Const., Art. 4, § 7, 9(5). All parties to the litigation concede that were it not for N.J.S.A. 2A:1A--8, the nomination would clearly be in violation of N.J.Const., Art. 4, § 5, 1. Since the majority have concluded that the presence of N.J.S.A. 2A:1A--8 renders the salary statute unconstitutional in its application to legislator-appointees, and hence must be excised therefrom, it follows that the nomination cannot stand.

Three members of the majority, furthermore, agree with the trial court that even were the statute allowed to stand intact, the nomination would nonetheless do violence to N.J.Const., Art. 4, § 5, 1.

[370 A.2d 828] I

We first address the issue, as to the resolution of which there is majority agreement, whether L.1974, c. 57, now N.J.S.A. 2A:1A--6 et seq. is, in its present form, special legislation increasing the emoluments of public officers and hence prohibited by N.J.Const., Art. 4, § 7, 9(5). The argument of course centers upon the final section of the act, which, for convenience, we restate here:

The increases in salary provided for in this act shall not be applicable to any present member of the Senate or General Assembly during the term for which he shall have been elected should such member hereafter be appointed to any of the offices enumerated in section 1 of this act. (N.J.S.A. 2A:1A--8)

It is not disputed that the statute increases emoluments--indeed it has no other purpose and deals with no other

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subject--nor that an Associate Justice of the Supreme Court is a public officer. Thus it seems conceded that the subject matter of the enactment falls within one of the categories of legislation that can constitutionally be enacted only by a general law. The only question at issue, then, is whether the statute constitutes special or general legislation.

The constitutional provision identifying certain subjects as eligible for treatment only by way of general legislation became part of the Constitution of 1844 by amendment adopted in 1875. It was carried into the Constitution of 1947 without substantial change. Similar provisions are to be found in most, but not all, of the constitutions of the other states. 2 Sutherland, Statutory Construction (4th ed. 1973) § 40.01. The purpose behind special law prohibitions has been stated thus:

The legislative and judicial processes (have) developed along different lines . . . the legislative process lacks the safeguards of due process and the tradition of impartiality which restrain the courts from using their powers to dispense special favors. Over the course of time, as a result, the propensities of legislatures to indulge in favoritism through special legislation developed into a major abuse of governmental power.

As the bulk of special laws grew, demands for reform became insistent, and constitutional prohibitions were enacted to limit the practice of enacting special legislation and to achieve greater universality and uniformity in the operation of statute law in respect to all persons. (Id.)

In seeking to decide whether any particular legislation is general or special, the initial inquiry must be to determine the purpose of the enactment and the subject matter with which it is concerned. Alfred Vail Mutual Ass'n. v. Borough of New Shrewsbury, 59 N.J. 40, 48--49, 274 A.2d 801 (1971); See also Roe v. Kervick, 42 N.J. 191, 233, 199 A.2d 834 (1964). While this may sometimes be difficult, it is not so here. The purpose of L.1974, c. 57 was simply and solely to adjust judicial

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salaries. This was the one and only object of the act.² Although it dealt with the salaries of most members of the state judiciary, we are here concerned only with its application to salaries of Associate Justices of the Supreme Court.

This having been determined, it is next appropriate to inquire whether there [370 A.2d 829] are persons similarly situated to those embraced within the act, who, by the terms of the act, are excluded from its operation. The persons, relevant to this inquiry, who are embraced within the act are the Associate Justices of the Supreme Court, presently five in number, each of whose annual salary by the terms of the statute was increased $3,000. Excluded by the terms of the act (Section 8) is any member of the Legislature who might succeed to the vacant position on the Court. For a prescribed period of time any such legislator-appointee, having become an Associate Justice, would not receive this increment. There would thus be five Associate Justices each receiving $3,000 more in annual salary than would the sixth. Unless this classification can somehow be sustained, the attack on the statute must succeed. The test, of course, is whether the classification is reasonable, not arbitrary, and can be said to rest upon some rational basis justifying the distinction. Budd v. Hancock, 66 N.J.L. 133, 135, 48 A. 1023 (Sup.Ct.1901); Woodruff v. Freeholders of Passaic, 42 N.J.L. 533, 535 (Sup.Ct.1880); Cf. Skinner v. Collector, 42 N.J.L. 407, 412 (Sup.Ct.1880).

There has been excluded from the class of persons to whom the act...