State v. James Buckner (074390)

delivered the opinion of the Court.

For the past half century, the Judiciary has been able to recall retired judges to serve temporarily in our State’s court system where they are needed most. To recall judges who are willing to serve, the Supreme Court has relied on statutes that authorize recall and date back to 1964. Since then, hundreds of retired judges have temporarily served on recall and resolved hundreds of thousands of cases. Their efforts have not only helped countless litigants on a timely basis but have also enhanced the quality of justice in our State.

Until now, recall service has gone unchallenged. Today, as the current Recall Statute — N.J.S.A. 43:6A-13 — turns forty, defendant claims that his criminal conviction should be reversed because it was unconstitutional for a retired judge to preside over his jury trial. He claims that the existing recall law- — passed by the Legislature, signed by the Governor, and relied on by the Judiciary for decades — is unconstitutional. To make that novel argument, defendant relies on language in the State Constitution that says “judges shall be retired” when they turn seventy, and “[provisions for the pensioning” of those judges “shall be made by law.” N.J. Const, art. VI, § 6, ¶ 3.

Constitutions generally offer a framework for government but do not attempt to resolve all issues. See Reilly v. Ozzard, 33 N.J. *5529, 539,166 A.2d 360 (1960). What the Constitution does not bar, either expressly or by clear implication, is left to the Legislature to address. N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 18, 292 A.2d 545, appeal dismissed, 409 U.S. 943, 93 S.Ct. 270, 34 L.Ed.2d 215 (1972); Gangemi v. Berry, 25 N.J. 1, 11, 134 A.2d 1 (1957). In that spirit, the modem State Constitution of 1947 provides for mandatory retirement of judges, but the document is silent on the subject of recall. Nowhere does the plain language of the Constitution forbid recall. And the mandatory retirement age in the Constitution, on which defendant relies, does not conflict with temporary recall assignments because the two concepts are distinct. One prevents lifelong tenure; the other affords judges neither tenure nor a seven-year term and does not reverse a judge’s retirement.

The history of the Constitutional Convention of 1947 reveals that the framers were very much aware of recall and neither required nor rejected it. Among other options, they turned away from restrictive language in a prior draft Constitution which barred recall; they also declined to adopt a proposal at the other end of the spectrum which made recall mandatory. The framers instead opted for a streamlined approach that selected a retirement age, required a pension system for judges, and otherwise left the details to the Legislature. Nothing in the historical record suggests the framers wanted to ban recall.

At different times over the decades, the Legislature accepted the framers’ invitation and included recall in the judicial pension statute. That approach is consistent with the aims of the Constitutional Convention: to develop an effective, flexible, and fair system of justice. The current system of recall serves those very goals.

The legislative enactments of the past fifty years are presumed constitutional. Only if a law is “repugnan[t] to the constitution ... beyond a reasonable doubt” can it be declared void. Franklin v. N.J. Dep’t of Human Servs., 111 N.J. 1,17, 543 A.2d 1 (1988) (quotation omitted).

*6Defendant cannot, and has not, overcome the strong presumption of validity that underlies the Recall Statute. The current recall law, in effect since 1975, violates neither the plain language of the State Constitution, as defendant claims, nor the separation of powers doctrine. For that reason, we affirm the judgment of the Appellate Division, which upheld the Recall Statute.

I.

At the heart of this appeal are two provisions of law: part of the Judicial Article of the State Constitution, N.J. Const, art. VI, § 6, 113, and the Recall Statute, N.J.S.A. 43:6A-13(b). We review them here to provide context for what follows.

The Judicial Article outlines the basic structure of the state court system and the powers of the Judiciary. Section 6, Paragraph 3 of the Article discusses the appointment and reappointment of judges, their retirement, and judicial pensions. That section provides in pertinent part that

[t]he Justices of the Supreme Court and the Judges of the Superior Court shall hold their offices for initial terms of 7 years and upon reappointment shall hold then- offices during good behavior____Such justices and judges shall be retired upon attaining the age of 70 years. Provisions for the pensioning of the Justices of the Supreme Court and the Judges of the Superior Court shall be made by law.

[N.J. Const, art. VI, § 6,¶ 3.]

The provision thus requires that judges retire at age seventy. It also directs the Legislature to create a judicial pension system.

The Legislature responded on a number of occasions. In 1973, for example, Governor William T. Cahill signed into law the Judicial Retirement System Act (“JRSA”), N.J.S.A. 43:6A-1 to - 46. All justices of the Supreme Court and judges of the Superior Court are members of the judicial retirement system, N.J.S.A. 43:6A-5, and, upon retirement, a judge is entitled to the payment of retirement benefits, N.J.S.A. 43:6A-16.

One section of the JRSA — referred to as the Recall Statute— allows retired judges to be recalled for temporary judicial service. See N.J.S.A 43:6A-13. Under the law, judges can be recalled *7only if they have retired. The Recall Statute now provides, in part, that “[s]ubject to rules of the Supreme Court ... any judge of the Superior Court ... who has retired on pension or retirement allowance may, with his consent, be recalled by the Supreme Court for temporary service within the judicial system other than the Supreme Court.” N.J.S.A. 43:6A-13(b).

The Recall Statute also details the conditions of recall service:

Upon such recall the retired ... judge shall have all the powers of a ... judge of the court to which he is assigned and shall be paid a per diem allowance fixed by the Supreme Court in accordance with its rules, provided however that in no event shall he receive a salary which together with his pension or retirement allowance exceeds the current salary of a ... judge of the court from which he retired.

[N.J.S.A. 43:6A-13(c).]

Recall judges do not receive a salary; they instead get a per diem stipend that the Supreme Court has set at $300. Administrative Directive 12-01, “Policy Governing Recall for Temporary Service within the Judicial System” (July 19, 2001), https://www.judiciary. state.nj.us/directive/personnel/dir_12_01.pdf. They do not work full-time but must be able to “serve for at least 120 days per year.” Ibid. Recall judges receive specific assignments within the court system — often in areas that “meet[ ] a significant need” or serve “a designated statewide priority.” Ibid. And they serve “at the pleasure of the Supreme Court” for two-year terms that are renewable — also in the Court’s discretion — until the retired judge reaches age eighty. Ibid.

The terms of recall service are thus defined by statute and Court directive. This appeal asks whether temporary recall service violates the Judicial Article’s mandatory retirement rule.

II.

The constitutional question in this case arises out of the following events. On the afternoon of March 21, 2010, defendant James Buckner attacked a woman as she returned to her car in the parking lot of the Morris County Mall in Cedar Knolls. After she placed a package in the back seat and opened the front driver-side door, defendant grabbed her around the neck in a choke-hold, *8brought her to her knees, and told her to give him her purse. Even though the victim told him to take the purse, he continued to choke her until she briefly passed out. When defendant loosened his grip, the woman screamed and threw her keys.

Others in the parking lot heard the screams and responded. One passerby kicked defendant until he released the victim and began to walk away. Another called the police and followed defendant to a store in the mall. When the police arrived, the latter witness told an officer where defendant had gone. Soon after, the officer detained defendant. Minutes later, the victim and both witnesses identified defendant as the attacker, while he sat in the back of a police ear.

A grand jury in Morris County indicted defendant on six counts: second-degree robbery, N.J.S.A. 2C:15-l(a)(l); third-degree hindering, N.J.S.A. 2C:29-3(b)(4); third-degree aggravated assault, N.J.S.A. 2C:12-l(b)(7); third-degree attempted theft, N.J.S.A. 2C:20-3(a); first-degree robbery, N.J.S.A. 2C:15-l(a)(l); and second-degree aggravated assault, N.J.S.A 2C:12 — 1(b)(1).

The Honorable Salem Vincent Ahto presided at defendant’s trial. Judge Ahto is a retired Superior Court Judge. At the time of the trial, he was 73 years old. This Court recalled him to service three times by orders dated June 24, 2008, June 29, 2010, and February 7, 2012.

Prior to trial, defendant moved to disqualify Judge Ahto for two reasons. First, defendant alleged that Judge Ahto could not preside over the case because the Recall Statute — the basis for his temporary assignment — was unconstitutional. For support, defense counsel relied on arguments presented in a different, recent case before the Judge. Second, defendant asserted that Judge Ahto should not decide the disqualification motion because he had a financial interest in the case — the $300 per diem.

Judge Ahto relied on his decision in the prior case and denied both motions. As to the first claim, he observed that he was “ill-equipped” to declare orders of the Supreme Court unconstitution*9al, that the Constitution does not bar recall service, and that the Recall Statute was presumptively valid. Judge Ahto relied on a memorandum from the Assignment Judge to deny the second argument. The memo noted that the per diem payment a recall judge receives is not the type of financial interest that requires disqualification.

After a three-day trial in April 2012, the jury found defendant guilty of second-degree robbery, third-degree aggravated assault, and attempted theft, and acquitted him of the remaining charges. Two months later, Judge Ahto sentenced defendant to nine years’ imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

Defendant appealed. He argued that the trial judge erred in denying the disqualification motions and claimed that his sentence was excessive. A divided appellate panel affirmed defendant’s conviction. State v. Buckner, 437 N.J.Super. 8, 96 A.3d 261 (App.Div.2014). The panel found that the trial judge properly declined to recuse himself based on a purported financial interest in the case. Id. at 37, 96 A.3d 261. The panel also upheld defendant’s sentence. Id. at 37-38, 96 A.3d 261.

The panel divided over the constitutionality of the Recall Statute. Defendant claimed that it violated Article XI, Section IV, Paragraph 1 of the State Constitution (the “Schedule Article”), which states that “[n]o Justice of the new Supreme Court or Judge of the Superior Court shall hold his office after attaining the age of seventy years.” N.J. Const, art. XI, § 4, ¶ 1. The majority explained that that language “applies exclusively to ‘the incumbent judges who held their judicial offices at the adoption of the Constitution,’ and therefore has no bearing here.” Buckner, supra, 437 N.J.Super. at 25-26, 96 A.3d 261 (quoting Lloyd v. Vermeulen, 22 N.J. 200, 209, 125 A.2d 393 (1956)). The dissent agreed. Id. at 40 n. 3, 96 A.3d 261 (Harris, J.A.D., dissenting). Both instead evaluated defendant’s claim under the Judicial Article, which declares that “[t]he Justices of the Supreme Court and *10the Judges of the Superior Court ... shall be retired upon attaining the age of 70 years.” N.J. Const, art. VI, § 6, 113.

Judge Parrillo, writing for the majority, upheld the constitutionality of the statute. Buckner, supra, 437 N.J.Super. at 36, 96 A.3d 261. He began with an extensive review of the history of the Judicial Article and the Recall Statute. Id. at 13-23, 96 A.3d 261. Based on that analysis, the majority concluded that “the recall of judges over age seventy was a concept about which the members of the Convention were obviously aware” but “it was also one which they chose not to consider, delegating that detail, instead, to the Legislature.” Id. at 20, 96 A.3d 261.

In response, according to the majority, the Legislature enacted the JRSA, which authorized the Supreme Court to recall retired judges. Id. at 20-21, 32, 96 A.3d 261. Like all legislation, the majority noted, the Recall Statute “is presumed to be constitutional and will not be declared void unless it is clearly repugnant to the Constitution.” Id. at 24, 96 A.3d 261 (quoting Trautmann ex rel. Trautmann v. Christie, 211 N.J. 300, 307 (2012)).

To assess the law’s constitutionality, the majority searched the text of the Judicial Article and found “no language, express or even implied, banning the temporary recall of retired judges.” Id. at 28, 96 A.3d 261. Unlike the proscriptive phrase in the Schedule Article — “shall [not] hold office” — the majority noted that the Judicial Article used the terms “shall be retired.” Id. at 27-28, 96 A.3d 261. The majority found “nothing intrinsic in the definition of ‘retire’ to suggest its incompatibility with temporary recall service.” Id. at 28, 96 A.3d 261.

As further support for its conclusion, the majority pointed to decisions by other state courts that found temporary post-retirement service constitutional, id. at 28-31, 96 A.3d 261; observed that the law achieved two overriding purposes of the Judicial Article, “to create flexibility in the court system and to provide for prompt judicial relief,” id. at 32, 96 A.3d 261; and noted that the statute had “been implemented without challenge or objection for *11almost four decades,” id. at 33, 96 A.3d 261 (citing State v. Trump Hotels & Casino Resorts, 160 N.J. 505, 527, 734 A.2d 1160 (1999)).

The majority also rejected an argument raised by the dissent, not the parties: that recall service is unconstitutional because it improperly encroaches upon the Executive’s power of appointment and thus violates the separation of powers doctrine. Id. at 35, 96 A.3d 261. The majority found that the Recall Statute struck an appropriate compromise and maintained the balance among the three branches. Ibid.

Judge Harris, in dissent, concluded that the Recall Statute is unconstitutional. Id. at 39, 96 A.3d 261 (Harris, J.A.D., dissenting). He found that the retirement provision in the Judicial Article “was intended by its framers and the people who adopted it in 1947 to not permit the Legislature to authorize reinstatement of this state’s judicial power to pensioner judges.” Id. at 40, 96 A.3d 261 (Harris, J.A.D., dissenting). In the dissent’s view, the phrase “shall be retired upon attaining the age of 70 years” in the Judicial Article “connotes (1) the compulsory abdication of a judicial office; (2) the surrender of judicial power”; and (3) “the permanent loss of the ability to exercise — for the benefit of the public — the sovereign functions of government that had previously been made possible by the Governor’s selection, with the advice and consent of the Senate.” Id. at 42, 96 A.3d 261 (Harris, J.A.D., dissenting) (citation omitted). The dissent also stressed that “nothing in the Constitution authorizes” recall. Id. at 41, 96 A.3d 261 (Harris, J.A.D., dissenting).

The dissent found the language in the Schedule Article to be of little use because the term “office” “was clearly limited and intended to punctuate the end of incumbency under the 1844 constitutional framework for those pre-modern-era judges who had transitioned to the Superior Court.” Id. at 43, 96 A.3d 261 (Harris, J.A.D., dissenting). The dissent also challenged the majority’s reliance on decisions from other states because the constitutionality of New Jersey’s recall platform cannot be meas*12ured from a “dissimilar foreign source.” Id. at 47 — 48, 96 A.3d 261 (Harris, J.A.D., dissenting).

The dissent examined the history of the 1947 Constitutional Convention as well and concluded that the “excision” of the recall provision “that had appeared in the failed 1944 Constitution was purposive” — “even though there is no express record of its rejection” at the 1947 Convention. Id. at 43 — 47, 96 A.3d 261 (Harris, J.A.D., dissenting). In the dissent’s view, “the twenty-five-year span” from 1948 to 1973 “during which there was no recall legislation” also weighs against the majority’s reading of the Constitution. Id. at 43-44, 96 A.3d 261 (Harris, J.A.D., dissenting). The dissent took “comfort in the recollection of Morris M. Schnitzer,” an advisor to the 1947 Convention. Id. at 57, 96 A.3d 261 (Harris, J.A.D., dissenting). In an interview nearly a half century later, he recalled that it was “[cjertainly not [contemplated]” that judges could be recalled. Ibid, (quoting Conversations with Morris M. Schnitzer, 47 Rutgers L.Rev. 1391, 1401 (1995)).

Defendant appealed as of right under Rule 2:2-l(a)(2). Our review is thus limited to the issues raised by the dissent. See, e.g., State v. T.J.M., 220 N.J. 220, 228,105 A.3d 1071 (2015).

The Court granted the New Jersey State Bar Association (NJSBA) leave to appear as amicus curiae.

III.

Defendant argues that the Recall Statute violates the plain language of the Constitution. Before this Court, he relies on both the Schedule Article and the Judicial Article. Defendant asserts that, when read together, the two provisions “divest judges of their judicial power at age 70 without exception.” The Recall Statute, according to defendant, directly conflicts with those “clear constitutional provisions.”

Defendant contends that the differences in language between the Schedule Article and the Judicial Article do not support the constitutionality of the Recall Statute. He also submits that the *13Constitution’s silence on the subject of recall does not weigh in favor of the law. Because mandatory retirement is an absolute bar to further service, defendant argues, there was no reason for the framers to explicitly bar recall. Defendant finds support for that proposition from the record of the 1947 Constitutional Convention and the period from 1948 to 1973, during which he claims the Legislature did not enact a recall provision.

Defendant also draws on the dissent in the Appellate Division and argues that the Recall Statute violates the separation of powers doctrine because it encroaches on the appointment power of the Executive Branch.

The State, represented by the Attorney General, maintains that the Recall Statute is constitutional. The State argues that the Constitution permits the Legislature to authorize temporary recall service. According to the State, a mandatory retirement age does not affirmatively bar recall. Absent direct evidence to the contrary, the State contends, the recall law — which is presumed constitutional — cannot be overturned.

The State asserts that defendant “confuses the concepts of retirement and temporary recall assignments, which are related but separately distinct and can co-exist without constitutional infirmity,” and also “disregards the will of the people and the spirit of the New Jersey Constitution.” In addition, the State argues that the Constitution’s silence is not an affirmative ban on recall; that the framers deliberately chose not to use clear language that would have precluded recall service; that the Constitution outlines broad principles of governance, not the details; and that the Recall Statute aids the Judiciary in its obligation to provide a fair, efficient, and functioning court system, consistent with the intent of the modern Constitution.

The State submits that defendant’s separation of powers argument is not properly before the Court and is meritless, in any event. The State maintains that recall does not infringe on the Executive’s authority to appoint judges and reflects a cooperative system of shared power among the branches of government.

*14The NJSBA does not take a position on the constitutionality of the Recall Statute. Instead, the NJSBA requests that if the Court declares the law unconstitutional, the ruling should be applied prospectively.

IV.

Defendant must shoulder a “heavy burden” to prevail on his claim that the Recall Statute is unconstitutional. Trump Hotels, supra, 160 N.J. at 526, 734 A.2d 1160. He must hurdle “[t]he strong presumption of constitutionality that attaches” to this and every other law. Hamilton Amusement Ctr. v. Vemiero, 156 N.J. 254, 285, 716 A.2d 1137 (1998). Indeed, “from the time of Chief Justice Marshall,” ease law has steadfastly held to “the principle that every possible presumption favors the validity of an act of the Legislature.” McCrane, supra, 61 N.J. at 8, 292 A.2d 545.

The foundation for that presumption is solid and clear: the challenged law “represents the considered action of a body composed of popularly elected representatives,” ibid., and, as Justice Oliver Wendell Holmes admonished, “it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts,” id. at 9, 292 A.2d 545 (quoting Mo., Kan. & Tex. Ry. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971, 973 (1904)). As a result, courts exercise the power to invalidate a statute on constitutional grounds with “extreme self restraint.” Id. at 8, 292 A.2d 545.

To overcome the strong presumption of validity and “deference [due] to any legislative enactment,” the challenger must demonstrate — “unmistakably”—that the law in question “run[s] afoul of the Constitution.” Lewis v. Harris, 188 N.J. 415, 459, 908 A.2d 196 (2006) (citation omitted). This standard is also well-settled: “a legislative act will not be declared void unless its repugnancy to the constitution is clear beyond reasonable doubt.” Gangemi, supra, 25 N.J. at 10, 134 A.2d 1 (emphasis added). *15When reasonable people “might differ” about the constitutionality of a law, courts must “defer[ ] to the will of the lawmakers.” N.J. Ass’n on Corr. v. Lan, 80 N.J. 199, 220, 403 A.2d 437 (1979) (internal quotation marks and citation omitted).

Silence typically cannot satisfy a challenger’s heavy burden of proof. “[W]hen the framers of the constitution intended that a subject should be placed beyond legislative control they said so.” State v. De Lorenzo, 81 N.J.L. 613, 621, 79 A. 839 (E. & A.1911); see also Humane Soc. of U.S., N.J. Branch, Inc. v. N.J. State Fish & Game Council, 70 N.J. 565, 579, 362 A.2d 20 (1976) (finding delegation of authority “is not in derogation of the constitution where that document is silent as to the” issue (citation omitted)). Viewed another way, “[t]he Legislature is invested with all powers not forbidden.” Gangemi supra, 25 N.J. at 11, 134 A.2d 1. Unless “prohibited by the Constitution expressly or by clear implication,” “[t]he Legislature has the power to take any action or course reasonably necessary or incidental to the operation of government.” McCrane, supra, 61 N.J. at 18, 292 A.2d 545.

To understand the meaning and intent of a constitutional provision, courts look first to the plain language the framers used. Comm, to Recall Robert Menendez v. Wells, 204 N.J. 79, 105, 7 A.3d 720 (2010). If the language is straightforward, “the words used must be given their plain meaning.” Trump Hotels, supra, 160 N.J. at 527, 734 A.2d 1160. If the language is unclear or open to more than one interpretation, courts may examine other sources for guidance, including the document’s history and discussions at the constitutional convention. Menendez, supra, 204 N.J. at 106, 7 A.3d 720; Trump Hotels, supra, 160 N.J. at 527-28, 734 A.2d 1160.

V.

New Jersey has had three constitutions. Neither the Constitution of 1776 nor the Constitution of 1844 contained a mandatory retirement provision for judges. Buckner, supra, 437 N.J.Super. *16at 13, 96 A.3d 261. Our focus is on the modern State Constitution, which was ratified by the voters in 1947 and took effect in 1948.

A.

Defendant relied exclusively on Article XI of the Constitution, the Schedule Article, before the trial court and the Appellate Division. Article XI “contains various phase-in provisions designed to facilitate the smooth transition to the 1947 constitution and several subsequent amendments.” Robert F. Williams, The New Jersey State Constitution 197 (2d ed. 2012). As the majority and the dissent in the Appellate Division correctly noted, the Schedule Article has no bearing here because the provisions in Article XI, Section 4, Paragraph 1 “dealt exclusively with the incumbent judges who held their judicial offices at the adoption of the Constitution.” Lloyd, supra, 22 N.J. at 209,