Gilbert v. Gladden

The opinion of the Court was delivered by

CLIFFORD, J.

This appeal concerns the process by which legislation becomes law in this state. Plaintiffs include two members of the New Jersey Senate, two members of the General Assembly, seven private citizens and taxpayers, and Common Cause of New Jersey. Defendants Gladden and Merlino are, respectively, Secretary and President of the New Jersey Senate; and defendants Miller and Jackman are, respectively, Clerk and Speaker of the General Assembly. By leave of court Governor Byrne appears as intervenor.

Plaintiffs’ challenge centers on the constitutional provision governing presentment of bills to the Governor. Article V, section 1, paragraph 14 of the New Jersey Constitution of 1947 *279requires that “[e]very bill which shall have passed both houses shall be presented to the Governor.” If he approves the bill, the Governor signs it and it becomes law. If the bill is disapproved, the Governor must return it, with his objections, to the legislative house from which it originated, within a specified time (generally, ten days after presentment if that house is in session and forty-five days after adjournment if that house is in adjournment on the tenth day after presentment).1 The Legislature may then override the veto if two-thirds of the members of each house vote to pass the bill. There is one exception to the procedure: if the house is adjourned and the forty-fifth day thereafter falls “on or after the last day of the legislative year in which the second annual session was held,” no special session may be convened.2 Therefore, the bill cannot be returned to the Legislature and, if not signed, it does not become law.

Within this framework there has developed an unofficial custom of long duration, known as gubernatorial courtesy, whereby bills that have been passed in both houses of the Legislature are not presented to the Governor for signature or veto until the Governor requests them. Consequently, when the request for a bill is withheld and therefore presentation not made until forty-five days before the end of the second legislative session, at which time the legislative house is in adjournment sine die, the Governor can prevent the bill from becoming law merely by not signing it, inasmuch as the Legislature has no opportunity to override that result. This device, often referred to as New Jersey’s version of the “pocket veto,” is the focus of plaintiffs’ complaint.

*280In particular, plaintiffs argue that the practice of gubernatorial courtesy permits the legislative process to be frustrated through this “pocket veto” technique; if the Governor anticipates a legislative override, he can avoid it simply by not calling for a bill until the forty-five days provision becomes operative. According to plaintiffs this circumvention of the Legislature’s power to override a veto is contrary to the constitutional design found in Article V, section 1, paragraph 14 of the state Constitution. They would have us construe that paragraph as requiring the Legislature to present bills to the Governor “forthwith” in order to preclude such manipulation. Plaintiffs further argue that since the Constitution does not expressly permit discretion regarding the timing of the presentment of bills, neither the Governor nor the Legislature may forestall presentment.

On the other hand defendants contend that questions concerning the manner and time in which passed bills are presented to the Governor are essential to the workings of the legislative process; hence, absent any express constitutional or statutory criteria regulating the procedure, this case presents a non justiciable political question. Furthermore, they maintain that the lack of constitutional regulation of the procedure amounts to empowerment of the Legislature to promulgate its own regulations.

After discovery, plaintiffs moved for summary judgment and defendants filed a cross-motion seeking the same relief. The trial court granted defendants’ application and entered judgment dismissing the complaint. Plaintiffs appealed. We granted direct certification, 85 N.J. 450 (1981), while this case was pending unheard in the Appellate Division. R. 2:12-1.

I

We note at the outset that the justiciability inquiry must be distinguished from the issue of whether subject-matter jurisdiction exists. The latter question involves merely a threshold determination as to whether the Court is legally authorized *281to decide the question presented. If the answer to this question is in the negative, consideration of the cause is “wholly and immediately foreclosed.” See Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 699, 7 L.Ed.2d 663, 674 (1962). In respect of justiciability, however, the inquiry proceeds beyond the threshold determination “to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.” Id. In the instant case it is the latter determination with which we are concerned.

II

“The nonjusticiability of a political question is primarily a function of the separation of powers.” Baker v. Carr, supra, 369 U.S. at 210, 82 S.Ct. at 706, 7 L.Ed.2d at 682. In New Jersey the separation of powers is expressly established in Article III, paragraph 1 of the state Constitution:

The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution. [N.J. Const, of 1947, Art. III, ¶ 1.]

The separation of powers doctrine is a principle shared by many other states as well as the federal government. See David v. Vesta Co., 45 N.J. 301, 323 (1965). Its purpose is to safeguard the “essential integrity” of each branch of government. See Massett Building Co. v. Bennett, 4 N.J. 53, 57 (1950).3

*282Deciding whether a matter presents a nonjusticiable political question is a “delicate exercise in constitutional interpretation” for which this Court is responsible as the ultimate arbiter of the Constitution of this state. See Baker v. Carr, supra, 369 U.S. at 211, 82 S.Ct. at 706, 7 L.Ed.2d at 682. The Supreme Court has provided us with guidance regarding the identification of political questions:

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. [Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct at 710, 7 L.Ed.2d at 686.]

To justify dismissal based on nonjusticiability, one of these criteria must be inextricable from the facts and circumstances of the case in question. Id.

In this case the first criterion of Baker v. Carr provides the basis for our determination that plaintiffs’ complaint presents a nonjusticiable political question. The “textually demonstrable constitutional commitment” of the question of presentment of bills to the Governor can be derived from proper consideration of two constitutional provisions. Article IV, section 4, paragraph 3 of the New Jersey Constitution grants each house of the Legislature the power “to determine the rules of its proceedings * * Neither that provision nor Article V, section 1, paragraph 14, which provides for presentment of bills to the Governor, limits the time within which presentment may be accomplished.

In the absence of constitutional or statutory standards, it is not the function of this Court to substitute its judgment for that of the Legislature with respect to the rules it has adopted or the procedures followed in giving effect to the constitutionally-declared scheme. See In re Lamb, 67 N.J. Super. 39, 59 *283(App.Div.), aff’d 34 N.J. 448 (1961). Furthermore, since a state constitution, unlike its federal counterpart, is not a grant but a limitation of legislative power, State v. Murzda, 116 N.J.L. 219, 222 (E. & A.1935), the Legislature is invested with all powers not constitutionally forbidden. Gangemi v. Berry, 25 N.J. 1, 11 (1957). Thus, although the legislature is constitutionally required to present passed bills to the Governor, the timing of such presentment is discretionary, and a rule or practice delaying presentment is well within the legislative prerogative.4

The dissent contends that the custom of gubernatorial courtesy “subverts the carefully considered framework that establishes the joint responsibility of the executive and legislative branches of our State government for the enactment of laws.” Post at 301. This argument ignores the plain fact that the custom itself represents a determination by the legislative branch on how best to exercise its share of this joint responsibility. The Legislature is free to vote for presentment of a bill to the Governor at any time after passage, regardless of whether the Governor calls for the bill. It may even vote to override a contrary decision of its leadership in this regard. It freely chooses, however, to delay presentment until the Governor indi*284cates his desire to deal with the bill. Thus, gubernatorial courtesy exists only by virtue of the consent of the Legislature as a whole. The fact that this custom may lead to extended delay in the enactment of certain bills in no way detracts from its constitutionality. Rather, the Legislature’s acquiescence in such a result is merely indicative of that branch’s view of its role in the “joint responsibility” for the enactment of our laws. Moreover, the legislative history of the presentment provision indicates that this very arrangement constitutes the “carefully considered framework” envisioned by the framers.

The state constitution of 1776 contained no provision for the gubernatorial veto of enacted legislation. Hence, bills were not presented to the Governor for signature. The Constitution of 1844 required the presentment of bills to the Governor and also provided for gubernatorial veto, legislative override of that veto, and a pocket veto if legislative adjournment prevented return of the bill. See N.J.Const. of 1844, Art. Y, ¶ 7. The 1947 Constitution closely tracks the language of this paragraph; the presentment requirement has remained unchanged. See N.J.Const, of 1947, Art. V, § 1, ¶ 14.5

The minutes of the 1947 Constitutional Convention reveal that the framers were well aware of the custom of gubernatorial courtesy. At one point former Governor Larsen was questioned about it:

MR. BARTON: To hark back to the question of signing bills that Senator Farley brought up, is there anything that stands out in your mind during your term as Governor that you now consider a sore spot in connection with the signing of bills — as to when they are received, signed, failure to sign, or anything connected with the Executive phase, anything outstanding?
GOVERNOR LARSON: I never had any.
*285MR. BARTON: Is there any reform that would work better, in the light of some instance that came up during your term?
GOVERNOR LARSON: I never had any trouble either in the Legislature or as Governor.
MR. FELLER: Under the Constitution, the Governor now has five days in which to sign or veto a bill.
GOVERNOR LARSON: If he receives it. He doesn’t have to receive it; he can wait a couple of months. He simply doesn’t ask for it from the Legislature.
CHAIRMAN: I think a lot of people feel that many of these bills signed are unconstitutional.
MRS. BARUS: Couldn’t the Legislature swamp the Governor by sending them all at once and there would not be enough hours for him to read them if he sat up all night?
GOVERNOR LARSON: The point that Senator Van Alstyne raised is that some people question the constitutionality of these laws because they are handled that way.
CHAIRMAN: The Governor may have been studying them for two months, but the original bill doesn’t get into his hands.
[V New Jersey Constitutional Convention of 1947 (Committee on the Executive, Militia, and Civil Officers 22-23) (S. Goldmann & H. Crystal eds. 1953)]

The issue was again raised in the questioning of former Governor Moore:

MR. GEORGE H. WALTON: Governor Moore, in allowing the Governor ten days in which to consider bills passed by the Legislature, is it your thought that the subterfuge that has grown up over the terms of many Governors, of allowing the Governor to get around that five-day rule by having him call for bills as he wants to consider them — do you think that should be dropped and, if you do, is ten days sufficient?
GOVERNOR MOORE: Ten days is not sufficient if you want to consider bills very carefully, but ten days would be helpful and probably more easily gotten than anything else. I just want to point out to you that if there is trouble between the Legislature and the Governor — it often happens; I tried to get along with them, trying to be a peaceable soul — but if you don’t, I know that on occasion they come in with these bills, hundreds of them, and then say, “Send them over to that So-and-So and let’s see what he is going to do.” In five days he can’t possibly. How could he? And that happens.
MR. WALTON: There were 400 bills at the end of this session. It would be humanly impossible, to my mind, to consider them in ten days.
GOVERNOR MOORE: They could have dropped them in as they went along. I suppose they did, but ten days is better than five.
MRS. BARUS: Wouldn’t you think 30 would probably be somewhat more reasonable, especially at the end of the session?
GOVERNOR MOORE: Then again, you run into the idea that the governor might be somewhat “hipped” against the man who sponsored the bill, and maybe it would be a bill that should be signed quickly, and the Governor could punish
*286him by holding him up 30 days. I think ten days would answer the purpose fairly well.

[Id. at 68-69]

It is apparent from these discussions that serious thought was given to a constitutional prohibition of gubernatorial courtesy. Taken together with the evidence that the framers deliberated on the problem, their failure ultimately to change the presentment language demonstrates a considered decision to retain the practice. It further appears that the increase of the number of days after presentment during which the Governor may consider a bill was not intended implicitly to preclude gubernatorial courtesy. An intention to abolish a well-established and widely recognized practice would have been expressed more perspicuously.6 Rather, the most sensible explanation for the extended time period is that it merely provides an additional safety margin for the Governor in the event of a break-down in the arrangement between the Executive and the Legislature.

Ill

In the alternative, plaintiffs contend that in N.J.S.A. 1:2-5 the Legislature has statutorily required the presentment of passed bills to the Governor forthwith. That enactment reads as follows:

On the passage of any bill, or the adoption of any joint resolution, by both Houses of the Legislature, the same shall be delivered to the Governor or person administering the government, who, if he shall approve such bill or joint resolution, shall sign and deliver the same to the Secretary of State, to be filed in his office, in such order that the laws and joint resolutions of each sitting of the Legislature shall be kept separately, according to the year in which they shall be passed, and not delivered to any person whatsoever, but safely kept by the Secretary of State in his office, and not suffered to be taken or removed therefrom on any pretext whatsoever. [Emphasis added.]

Plaintiffs assert that the emphasized language constitutes a significant change from that used in the Constitution and that *287the only reasonable meaning attributable to that change in language is the establishment of a temporal limitation on the presentment of bills to the Governor. We are unpersuaded.

As with the constitutional presentment provision, this statute contains no explicit limitations on the method for presenting bills to the Governor. Furthermore, the only purpose of this statute was to insure the permanent safeguarding of the statute laws of our State. See In re Public Utility Board, 83 N.J.L. 303, 309 (Sup.Ct.1912) (construing the predecessor statute to N.J.S.A. 1:2-5). Such a statute would be a most inappropriate vehicle by which to abolish the practice of gubernatorial courtesy, and we decline to attribute such a purpose to it in the absence of an unmistakable expression of legislative intent.

IV

In response to defendants’ contention that gubernatorial courtesy is necessary to insure adequate time for the Governor to consider passed bills, plaintiffs characterize the practice as a “verbal conspiracy,” a “pernicious practice,” and “trickery.” They have provided us with examples of bills whose presentation has been delayed for over eighteen months because of the Governor’s failure to call for them and the Legislature’s acceding to the practice. They claim that eighty-six bills were subject to pocket veto at the end of the 1978 legislative session. Although such occurrences arguably evince a questionable use of gubernatorial courtesy, the selection of the manner in which elected representatives exercise their legitimate powers short of a constitutional or statutory violation cannot be remedied by the courts. Kligerman v. Lynch, 92 N.J.Super. 373, 376-77 (Ch.Div.1966), cert. den., 389 U.S. 822, 88 S.Ct. 49, 19 L.Ed.2d 74 (1967). Whether gubernatorial courtesy is to be further sanctioned or finally condemned must be determined either by the Legislature *288or at the bar of public opinion. See Passaic County Bar Ass’n v. Hughes, 108 N.J.Super. 161, 173 (Ch.Div.1969).7

V

Because we find this case presents a nonjusticiable political question the resolution of which is constitutionally committed to the Legislature, we do not reach the additional questions raised on appeal. The trial court’s judgment dismissing plaintiffs’ cause of action is affirmed. No costs.

The extended time period in case of adjournment seems to have been provided so that a special session can be convened to consider the returned bill.

Each “Legislature” lasts two years. The first year is called the first session and the second is the second session. Bills and resolutions introduced during the first session remain valid and available for action only through the end of the second session. See Manual of the Legislature of New Jersey 194 (1981).

The doctrine of separation of powers does not, however, require an absolute division of powers among the three branches of government. State v. Leonardis, 73 N.J. 360, 370 (1977). In fact it necessarily assumes a cooperative effort among them. See id. at 371. See also Knight v. Margate, 86 N.J. 374, 387-388 (1981). Thus, an agreement between the Governor and Legislature that gives rise to a practice such as gubernatorial courtesy is not prohibited by the doctrine. Whether the judicial branch may review such agreements absent constitutional standards is the more difficult question and the one with which we are presently faced.

Our dissenting colleagues assert, post at 302, that the only sensible construction of the constitutional provision is that bills passed by both houses of the Legislature must be presented to the Governor for his action within a reasonable time after their passage. Reasonableness should be determined in light of the two purposes that delay in presentation may legitimately serve: preparation of bills for presentation and careful study of bills by the Governor.

This is followed shortly by a disclaimer. Post at 284 n. 5. For this Court to impose a reasonableness standard on the timing of presentment, as the dissent suggest, would obtrude the judiciary into the legislative process in a manner that would do greater violence to the constitutional framework than that which the dissent attributes to the use of gubernatorial courtesy. For example, it would require courts to make political value judgments regarding the priority of bills so as to evaluate the order in which the Governor reviews them and the amount of time he should spend studying them. A more blatant breach of the separation of powers is difficult to imagine.

The original paragraph was changed only to increase the votes needed to override a gubernatorial veto, to require that an override be considered no earlier than the third day following return of the bill, to increase the time during which the Governor may consider bills after presentment, and to alter the procedure for returning a bill when the Legislature is adjourned. Compare N.J.Const. of 1947, Art. V, § 1, ¶ 14 with N.J.Const. of 1844, Art. V, ¶ 7.

Such a change could easily have been wrought, for example, by providing for the “immediate” or “forthwith” presentment of passed bills to the governor.

The appropriateness of extra-judicial resolution of the questions surrounding the practice of gubernatorial courtesy is illustrated by the recent legislative action taken in this regard. On June 9, 1980 the State Senate adopted Senate Rule 141, which provides for presentment of bills to the Governor on the forty-fifth day following passage unless the Governor requests a delay. The Assistant Attorney General represented at oral argument that Governor Byrne has informally agreed to comply with the spirit of this Senate Rule by calling for Assembly bills within forty-five days of passage. Furthermore, by virtue of Assembly Concurrent Resolution No. 117, approved by the Assembly on November 24, 1980 and by the Senate on December 19, 1980, a proposed constitutional amendment on the subject will be placed before the electorate this coming November. That amendment requires presentment of a bill “before the close of the calendar day next following” final passage and gives the Governor forty-five days to consider the bill, with certain exceptions as expiration of the second session of a particular Legislature approaches.