Monday, May 5, 2014
Over a pointed dissent by Justice Harris, the New Jersey Appellate Division has affirmed a criminal conviction.
The court squarely rejected the principal challenge of the defendant -- that he could not be tried before a judge who had been mandatorily retired when he reached the age of 70.
The 73-year-old judge was recalled from retirement to hear the case.
The court noted regular practice that has long permitted retired judges to be recalled to preside over cases and responded to the dissent
Stripped of its plumage, the dissent's contrary construction boils down to this: the plain language of the Judicial Retirement paragraph creates an irrevocable alienation of pensioner from title, a kind of sequestration, worse yet quarantine, rendering the judicial retiree incognito, isolated and idle, relegated to some sort of professional limbo, yet imprisoned by all the ethical restraints of a status and an office that somehow no longer exists. Nothing in the language of the Judicial Article, or its intended purpose, however, compels this overly harsh result.
Warning: the elegantly pragmatic approach of the able and well-researched opinion of my colleagues may seduce the reader into undiscerning agreement. I urge caution and a willingness to disagree...
Notwithstanding its salutary purposes and practical success, N.J.S.A. 43:6A-13(b) cannot be justified when taking bearings from the Constitution. Historical acceptance cannot establish the statute's bona fides, see Henry, supra, 204 N.J. at 345 (Rabner, C.J., concurring) (noting that "historical practice alone rarely proves the correctness of a legal proposition"), and historical patterns cannot save an unconstitutional practice.
I take final comfort in the recollection of Morris M. Schnitzer, who was asked in 1995, "Was it contemplated that judges, once retired at age 70, could be recalled?" Conversations with Morris M. Schnitzer, supra, 47 Rutgers L. Rev. at 1401. Schnitzer —— who was present during the Constitution's conception, gestation, and birth —— unequivocally responded: "Certainly not, since that would have resurrected the example of Justice Parker and others who sat long after their peak." Ibid. If that is the way Schnitzer remembered it, who am I to disagree?
Mr. Schnitzer is remembered here. (Mike Frisch)