Russo v. Governor of State of New Jersey

Wacheneeld, J.

(dissenting). The crucial factual determination made by the Governor, that the appellant illegally received compensation for services allegedly performed by him, is fully sustained by the majority. The opinion concludes that “there is little that can be added to the Governor’s determination on this score” and Russo’s “good faith cannot right this wrong and save him from the legal consequences of a violation of the law.” I am in accord in both instances.

With these pronouncements, however, my concept is that our power to affect the result reached below is exhausted, no matter how broad may be the scope of judicial review under the removal clause of the Constitution. Under Art. V, Sec. IY, par. 5, of the Constitution, the question of punishment in these matters is expressly reserved for the Governor’s discretion and not for the reviewing tribunals.

I agree with the majority that it is not for this court to sit in judgment upon “the adequacy of the punishment im*183posed by the Governor” in the exercise of his powers under the removal clause of the Constitution. For is it the function of this court to review the severity of the punishment meted out by the Governor.

Even where we have traditionally exercised the power of review upon the law and the facts, as in appeals in criminal causes, we do not possess nor have we ever to my knowledge exercised the power to review the adequacy or the severity of a sentence imposed by the court of first instance. The sentence itself presents no question of law; it is a matter solely within the discretion of the sentencing judge.

Yet the majority, in substance, remands the cause to the Governor with what is the equivalent of a suggestion that he may reduce the “sentence” which he has already determined. There is little authority for our intrusion into a purely executive function. Indeed, it is alien to the basic doctrine of the separation of powers not only expressly decreed by our Constitution but fundamental to our concept of democratic government.

The justification for the remand procedure is the Governor’s supposed failure to appreciate his constitutional power to impose a punishment less than removal if he so desired.

Erom a reading of the record, I come to a contrary conclusion as to the Governor’s appraisal in this respect. It seems quite clear from the Governor’s written opinion that he was fully aware of the fact that he could prescribe a punishment less than removal. After concluding the payments to Russo were illegal, he expressly stated that “the remaining issue is whether Russo’s conduct was attended by a state of mind sufficient to warrant removal.” The basis on which this statement was made connotes a recognition of the power to mete out a lesser punishment if the evidence so warranted.

The Governor’s humane concern for the appellant’s loss of his pension rights, which prompted him to seek steps to preserve them, contradicts any notion that he placed a narrow construction upon his authority under the Constitution.

*184It shows, additionally, grave concern about the penalty and considerable reluctance to impose it. Many a judge has encountered the same equation, regretting the severity of the punishment but imposing it nevertheless, deeming it to be required in the public good.

The order of removal which the Governor signed recites:

“Upon the findings of fact and conclusions of law therein set forth, I find and conclude that the respondent, Louis J. Russo, should be removed from his office or position of Assistant Chief Examiner in the Department of Civil Service for cause, as detailed in the said Final Determination.”

The order, in my view, is factually and legally correct and should be affirmed in foto.

For reversal and remandment — Chief Justice Vanderbilt, and Justices Oliphant, Jacobs and Brennan — 4.

For affirmance — Justices Heher and Wachenfeld — 2.