Bill Text: NJ SCR64 | 2020-2021 | Regular Session | Introduced


Bill Title: Proposes constitutional amendment reducing initial appointed terms of Supreme Court justices, abolishing their reappointment with tenure, and establishing retention elections to serve additional terms.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2020-02-13 - Introduced in the Senate, Referred to Senate Judiciary Committee [SCR64 Detail]

Download: New_Jersey-2020-SCR64-Introduced.html

SENATE CONCURRENT RESOLUTION No. 64

STATE OF NEW JERSEY

219th LEGISLATURE

 

INTRODUCED FEBRUARY 13, 2020

 


 

Sponsored by:

Senator  MICHAEL J. DOHERTY

District 23 (Hunterdon, Somerset and Warren)

 

 

 

 

SYNOPSIS

     Proposes constitutional amendment reducing initial appointed terms of Supreme Court justices, abolishing their reappointment with tenure, and establishing retention elections to serve additional terms.

 

CURRENT VERSION OF TEXT

     As introduced.

  


A Concurrent Resolution proposing to amend Article VI, Section VI, paragraph 3 of the New Jersey Constitution.

 

Whereas, The New Jersey Supreme Court has a decades-old reputation for being a very activist court; and

Whereas, In many decisions the Supreme Court has overreached its judicial authority to pursue its own vision of constitutional jurisprudence, which goes far beyond interpreting the law as adopted by the people in the New Jersey Constitution or developed by the people's elected representatives in the executive and legislative branches; and

Whereas, The Supreme Court's activism has resulted in the creation of burdensome new laws and policies by an unelected judicial branch that is unaccountable to the public-at-large, and which forces upon the elected branches the responsibility to fund and administer such laws and policies; and

Whereas, There are no greater examples of the activist Supreme Court's overreach having an unwieldy impact upon New Jersey's social and fiscal wellbeing, without any direct public accountability, than its multitude of decisions on education policy and affordable housing; and

Whereas, Upon first declaring, in 1973, the existing system for funding public schools unconstitutional in Robinson v. Cahill, 62 N.J. 473 (1973), and demanding in subsequent Robinson decisions more education spending in poorer districts and tax increases to fund such, the Supreme Court inappropriately assumed an activist, policymaking role; and

Whereas, The Supreme Court expanded its role over education policy beginning with Abbott v. Burke, 100 N.J. 269 (1985), and has continued in this role for decades through a line of additional Abbott decisions, with the Court demanding drastic increases in student aid, school construction, and expanded educational and pre-K services for mostly poor, urban districts, costing tens of billions of dollars to implement; and

Whereas, In the affordable housing decision of Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151 (1975) ("Mount Laurel I"), the Supreme Court unilaterally declared that all municipalities had to alter their zoning laws to ensure each had a constitutionally required "fair share" of housing available to low- and moderate-income families, and in the follow-up decision involving the same named parties, commonly referred to as "Mount Laurel II," 92 N.J. 158 (1983), the Court not only reiterated its "fair share" housing obligation, it empowered private developers to sue municipalities in order to comply with affordable housing demands; and

Whereas, Countless affordable housing lawsuits have caused irreversible, rapid court-ordered expansion of suburban and rural areas, lacking coordination with needed local or regional infrastructure improvements, and the resulting increased population sizes have strained services and forced the adoption of significant property tax increases to pay for extra services necessitated by the new development; and

Whereas, Having a Supreme Court made up of justices who are appointed and reappointed by the Governor with the Senate's advice and consent, with the possibility of serving until the constitutionally mandated retirement age of 70, without ever facing any direct public accountability for their jurisprudential decision making, has allowed the Court to actively engage in creating new law and policies beyond the Court's limited role of interpreting the law as adopted by the people in the New Jersey Constitution or developed by the people's elected representatives in the executive and legislative branches; and

Whereas, Establishing a new system of public accountability in which justices face periodic retention elections, resulting in their continuation or rejection of further service on the Supreme Court following their initial appointed term, will serve as a check upon the Supreme Court by the very people who are affected by its decisions and from whom its judicial power is derived; now, therefore,

 

     Be It Resolved by the Senate of the State of New Jersey (the General Assembly concurring):

 

     1.    The following proposed amendment to the Constitution of the State of New Jersey is agreed to:

 

PROPOSED AMENDMENT

 

     Amend Article VI, Section VI, paragraph 3 to read as follows:

     3.  [The]  a.  Upon appointment by the Governor, with the advice and consent of the Senate, the Justices of the Supreme Court shall hold their offices for initial terms of four years and shall retain their offices for additional terms of four years by a vote of the people as set forth in this paragraph until attaining the age of 70 years, and the Judges of the Superior Court shall hold their offices for initial terms of [7] seven years and upon reappointment shall hold their offices during good behavior until attaining the age of 70 years; provided however, that, upon the abolition of the juvenile and domestic relations courts or family court and county district courts as provided by law, the judges in office in those former courts who have acquired tenure and the Judges of the Superior Court who have acquired tenure as a judge in those former courts prior to appointment to the Superior Court, shall have tenure as Judges of the Superior Court [.  Judges]; judges of the juvenile and domestic relations courts or family court and county district courts who have not acquired tenure as a judge of those former courts shall hold their offices for the period of their respective terms which remain unexpired and shall acquire tenure upon reappointment to the Superior Court  [.  Such justices and judges shall be retired upon attaining the age of 70 years]; and provided further, that, on January 1,     (year immediately following adoption), tenure shall be abolished for all justices in office on that date who have acquired tenure and thereafter all formerly tenured justices shall remain in office and be subject to future retention elections as set forth in this paragraph; justices who have not acquired tenure because their initial terms have yet to expire by that date shall remain in office for the period of such unexpired terms as provided for by their original appointments, and be subject to future retention elections as set forth in this paragraph.

     b.    (1)  Each justice appointed to an initial term shall retain office by a vote of the people occurring at the general election next preceding the expiration of the justice's initial term.  The election shall be carried out in a manner as provided by the Legislature by law, with the question of retention presented to the people on the ballot under a nonpartisan designation, reading substantially as follows: "Shall Justice (name of justice) of the New Jersey Supreme Court be retained in office?"  The ballot shall also indicate a choice of "yes" to retain the justice, and "no" to not retain the justice.  If a majority of the legally qualified voters of the State voting thereon vote to retain the justice, that justice shall be retained for an additional term of four years, or until attaining the age of retirement if occurring sooner, with the retained justice's term beginning on the anniversary date of the justice's initial appointment.  Unless retired, the justice shall be subject to another retention election in a like manner every four years.  If a majority of the legally qualified voters of the State voting thereon vote not to retain the justice, the justice shall remain in office until the expiration of the term currently being served and thereafter a vacancy shall exist requiring a nomination and appointment by the Governor, with the advice and consent of the Senate.  A justice who is not retained as the result of a retention election shall not be eligible for any subsequent judicial office in this State.

     (2)   The Justices of the Supreme Court in office on January 1,    (year immediately following adoption) whose tenure is abolished and who remain in office shall, unless attaining the age of retirement, be subject to the following schedule of retention elections: the justice most senior in service on the Supreme Court shall be subject to a retention election in the first year next following the year of tenure being abolished; the justices second and third most senior in service on the Supreme Court shall be subject to a retention election in the second year next following the year of tenure being abolished; the justices fourth and fifth most senior in service on the Supreme Court shall be subject to a retention election in the third year next following the year of tenure being abolished; and the remaining justices shall be subject to a retention election in the fourth year next following the year of tenure being abolished.

     c.     Provisions for the pensioning of the Justices of the Supreme Court and the Judges of the Superior Court shall be made by law.

(cf: Art. VI, Sec. VI, par. 3; amended effective December 8, 1983)

 

     2.    When this proposed amendment to the Constitution is finally agreed to pursuant to Article IX, paragraph 1 of the Constitution, it shall be submitted to the people at the next general election occurring more than three months after the final agreement and shall be published at least once in at least one newspaper of each county designated by the President of the Senate, the Speaker of the General Assembly and the Secretary of State, not less than three months prior to the general election.

 

     3.    This proposed amendment to the Constitution shall be submitted to the people at that election in the following manner and form:

     There shall be printed on each official ballot to be used at the general election, the following:

     a. In every municipality in which voting machines are not used, a legend which shall immediately precede the question as follows:

     If you favor the proposition printed below make a cross (X), plus (+), or check (a) in the square opposite the word "Yes." If you are opposed thereto make a cross (X), plus (+) or check (a) in the square opposite the word "No."

     b.  In every municipality the following question:

 

 

 

YES

CONSTITUTIONAL AMENDMENT CONCERNING THE APPOINTMENT AND RETENTION OF STATE SUPREME COURT JUSTICES

 

     Do you approve amending the Constitution to reduce the initial term of appointment of Supreme Court justices and the process for them to serve more terms?

     The proposed amendment would reduce the appointed terms of justices to four years.  It would also abolish reappointment with tenure, and instead require continuing voter approval to stay in office.


 

 

 

INTERPRETIVE STATEMENT

 

NO

 

 

     Currently, the seven State Supreme Court justices are appointed by the Governor, with the advice and consent of the Senate.  They serve an initial term of seven years.  If reappointed, they have tenure until retirement at age 70.

     The proposed amendment would reduce the initial terms of new justices to four years.  It would also abolish any new reappointments with tenure.  Instead, each justice would be subject to a public vote to remain in office.  The vote would take place at the last November general election that occurs during a justice's term.

     If a majority of voters agreed to keep a justice, the justice would serve a new term of four years, or until reaching retirement if happening sooner.  Unless retired, another vote would take place every four years.  If a majority of voters reject a justice, the justice would complete the justice's current term and then leave office.  The Governor would appoint, with the Senate's advice and consent, a new justice.  A justice who is rejected would not be eligible to serve in any other State judicial office.

     The tenure of any current justice would be abolished, and each would be subject to future votes to stay in office as explained above.  These votes would be initially staggered, so no more than two justices would be voted on in any election.  Current untenured justices would serve out the remainder of their initial seven-year term, not a shorter four-year term.  These justices would be subject to future votes as explained above, with the first occurring the final November of their initial term.

 

 

STATEMENT

 

     This proposed constitutional amendment concerns the appointment and retention of New Jersey Supreme Court justices.  Specifically, the proposed amendment would reduce the initial appointed terms of new justices to four years, abolish reappointment with tenure, and establish retention elections in order for justices to serve additional four-year terms (or until attaining the retirement age of 70 if occurring sooner).

     Based on the proposed amendment, each justice appointed to an initial term would retain office by a vote of the people occurring at the general election next preceding the expiration of the justice's initial term.  The election would be carried out in a manner as provided by the Legislature by law, with the question of retention presented to the people on the ballot under a nonpartisan designation, reading substantially as follows: "Shall Justice (name of justice) of the New Jersey Supreme Court be retained in office?"  The ballot shall also indicate a choice of "yes" to retain the justice, and "no" to not retain the justice.

     If a majority of the legally qualified voters of the State voting in the retention election vote to retain the justice, that justice would be retained for an additional term of four years, or until attaining the age of retirement if occurring sooner, with the retained justice's term beginning on the anniversary date of the justice's initial appointment.  Unless retired, the justice would be subject to another retention election in a like manner every four years.  If a majority of the legally qualified voters of the State vote not to retain the justice, the justice would remain in office until the expiration of the term currently being served and thereafter a vacancy would exist requiring a nomination and appointment by the Governor, with the advice and consent of the Senate.  A justice who is not retained as the result of a retention election would not be eligible for any subsequent judicial office in this State.

     The tenure of any current reappointed justice would be abolished, and each would be subject to future public votes to retain office as explained above.  These votes would be initially staggered based on the following schedule: the justice most senior in service on the Supreme Court would be subject to a retention election in the first year next following the year of tenure being abolished; the justices second and third most senior in service on the Supreme Court would be subject to a retention election in the second year next following the year of tenure being abolished; the justices fourth and fifth most senior in service on the Supreme Court would be subject to a retention election in the third year next following the year of tenure being abolished; and the remaining justices would be subject to a retention election in the fourth year next following the year of tenure being abolished.

     Current untenured justices would serve out the remainder of their initial seven-year term (the proposed amendment does not reduce these to four-year terms, allowing for the further staggering of retention elections amongst the seven justices).  These justices would be subject to future public votes to retain office as explained above, with the first such election occurring at the general election next preceding the expiration of the justice's initial term.

     The sponsor recognizes that the New Jersey Supreme Court has a decades-old reputation for being a very activist court.  In many decisions the Supreme Court has overreached its judicial authority to pursue its own vision of constitutional jurisprudence, which goes far beyond interpreting the law as adopted by the people in the New Jersey Constitution or developed by the people's elected representatives in the executive and legislative branches.

     The Supreme Court's activism has resulted in the creation of burdensome new laws and policies by an unelected judicial branch that is unaccountable to the public-at-large, and which forces upon the elected branches the responsibility to fund and administer such laws and policies.  There are no greater examples of the activist Supreme Court's overreach having an unwieldy impact upon New Jersey's social and fiscal wellbeing, without direct public accountability, than its multitude of decisions on education policy and affordable housing.  See, e.g., Robinson v. Cahill, 62 N.J. 473 (1973) and subsequent Robinson decisions; Abbott v. Burke, 100 N.J. 269 (1985) and subsequent Abbott decisions; and Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151 (1975) ("Mount Laurel I"), and 92 N.J. 158 (1983) ("Mount Laurel II").

     The sponsors' intent is to establish a new system of public accountability in which justices face periodic retention elections, resulting in their continuation or rejection of further service on the Supreme Court following their initial gubernatorial appointment, with the Senate's advice and consent.  These retention elections are meant to serve as a check upon the Supreme Court by the very people who are affected by its decisions and from whom its judicial power is derived.

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