CONSTITUTIONAL LAW – SEPARATION OF POWERS – THE NEW JERSEY SUPREME COURT DECLARES IT CAN DECIDE CASES IN WHICH IT IS PERSONALLY INTERESTED, AND A STATUTE WHICH ARMS PROBATION OFFICERS IS AN UNCONSTITUTIONAL INFRINGEMENT OF THE POWER OF THE JUDICIAL BRANCH TO MAKE RULES GOVERNING THE ADMINISTRATION OF THE COURTS. Williams v. State, 895 A.2d 1128 (N.J. 2006). Kara Kiminsky* I. INTRODUCTION The Supreme Court of New Jersey, in Williams v. State1 unanimously held that the Probation Officer Safety Community Act, which permitted probation officers to carry firearms,2 violated provisions of the New Jersey Constitution granting the supreme court exclusive authority to govern judicial employees.3 As a result of the legislature’s encroachment onto * J.D. Candidate, Rutgers University School of Law—Camden, May 2008; B.A., Rutgers University—Douglass College, 2005. 1. 895 A.2d 1128 (N.J. 2006). 2. N.J. STAT. ANN. § 2B:10A-1 to -3 (West 2006), invalidated by Williams, 895 A.2d 1128. The Act created a special unit of at least 200 probation officers who were to be trained by police officers and authorized to carry firearms and arrest probation violators. Id. § 2B:10A-2. The Act also directed the New Jersey Supreme Court to promulgate rules for the new probation officer unit, and for the Administrative Director of the Courts to report to the legislature on the unit’s effectiveness. Id. Further, the Act specified that the law enforcement training must be in accordance with rules adopted by the court and that the unit must comply with rules to be adopted by the court when they carry firearms, arrest, detain and transport probationers. Id. 3. The court referred to two provisions of the New Jersey Constitution. Williams, 895 A.2d at 1134-35. Article VI, section II, paragraph 3 of the New Jersey Constitution states:
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judicial territory, the court determined that the Act also violated the separation-of-powers doctrine embodied in the New Jersey Constitution.4 Additionally, the court determined that although the judiciary itself may be perceived as personally interested in the outcome of the case, it is nevertheless the sole constitutional responsibility of the court to review the legislation.5 This Comment suggests that the court reached the correct decision in determining that the Act violated the separation-of-powers doctrine, and also that it was the court’s duty to determine the constitutionality of the Act despite the appearance of self-interest in deciding the case. The court sought to defend the separation-of-powers doctrine, however, the appearance of bias may undermine both the legitimacy of the court and the separation-of-powers doctrine. II. STATEMENT OF THE CASE On January 7, 2002, the New Jersey Legislature enacted the Probation Officer Safety Community Act.6 The Act created a special unit of probation officers7 authorized to carry firearms and arrest probation violators,8 though “The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts.” N.J. CONST. art. VI, § II, ¶ 3. Article VI, section VII, paragraph 1 of the New Jersey Constitution provides: “The Chief Justice of the Supreme Court shall be the administrative head of all the courts in the State [and] shall appoint an Administrative Director to serve at his pleasure.” N.J. CONST. art. VI, § VII, ¶ 1. 4. Williams, 895 A.2d at 1142. Article III, section 1 of the New Jersey Constitution states: “The powers of 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. art. III, § 1. 5. Williams, 895 A.2d at 1143. 6. Id. at 1131. The court was aware of the legislature’s reasons for enacting the Act. Id. In a series of declarations, the legislature found the following: (1) over 15,000 probationers have violated their probation and have warrants for their arrest, which probation officers cannot enforce; (2) probation sentences must be enforced to protect the public; and (3) the number of dangerous and repeat offenders serving probation sentences has continued to rise in New Jersey and probation officers in other states are permitted to act as law enforcement officers. Id. (citing N.J. STAT. ANN. § 2B:10A-1). 7. Id. There are differences between probation and parole. Probation is a court order which places the offender under the supervision of a probation officer in lieu of imprisonment. American Probation & Parole Association, Answers to Frequently Asked Questions, http://www.appa-net.org/resources/faq/faq1.htm#discharges (last visited Jan. 25, 2008). Parole officers supervise offenders that have been conditionally released from prison. Additionally, it
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in New Jersey, probation officers are part of the judicial branch of government.9 A few months after the Act was enacted, the Administrative Director of the Courts10 filed a complaint seeking a judgment declaring the Act an unconstitutional violation of the exclusive powers of the judiciary under article VI and the separation of powers under article III of the New Jersey Constitution.11 The trial court ordered the re-captioning of the complaint and designated the plaintiff and defendants to the action.12 The Probation Association of New Jersey (“PANJ”), a named defendant, then attempted to remove the case to federal court, but failed for lack of federal subject matter jurisdiction.13 Thereafter, PANJ claimed that the judiciary should not hear the case because it was personally invested in its outcome and moved to transfer the matter to a neutral third party.14 However, the trial court denied the motion and granted summary judgment in favor of the Administrative Director of the Courts.15 Essentially, the trial court declared the Act unconstitutional because it “impermissibly intrudes and threatens the is mandatory in New Jersey that parole officers carry firearms. KAREN FULLER, AM. PROB. AND PAROLE ASS’N, ADULT AND JUVENILE PROBATION AND PAROLE NATIONAL FIREARM SURVEY 2001-2002, at 34 (2002). 8. See N.J. STAT. ANN. § 2B:10A-2, invalidated by Williams, 895 A.2d 1128. 9. See Williams, 895 A.2d at 1131. For a discussion on the placement of probation officers in the judicial branch, see infra note 53 and accompanying text. 10. Richard Williams was the Administrative Director of the Courts. Williams, 895 A.2d at 1132. The lawsuit alleging the unconstitutionality of the Act was authorized by Chief Justice Deborah Poritz; however, she did not take part in the decision of the court. See Robert Schwaneberg, Justices Overrule Legislature on Arming Probation Officers, STAR-LEDGER (Newark, N.J.), Apr. 20, 2006, at 22. The complaint specifically alleged that the Act gave probation officers law enforcement powers that are not compatible with their judicial roles and placed them under the supervision of both the Attorney General and the Supreme Court. Williams, 895 A.2d at 1132. 11. Williams, 895 A.2d at 1132. 12. Id. The trial court named Williams as plaintiff in his capacity as the Administrative Director of the Courts and permitted the State of New Jersey to be named as defendant. Id. Later, the court allowed the PANJ to intervene. Id. Despite its technical status as intervenor, the court treated PANJ as a defendant. Id. 13. Id. According to the appellate court opinion in Williams v. State, 868 A.2d 1034 (N.J. Super. Ct. App. Div. 2005), PANJ filed for removal of the action to the United States District Court for the District of New Jersey in July 2002. Id. at 1037. Subsequently, the plaintiff filed a motion to remand the matter to state court. Id. After a hearing on plaintiff’s motion in September 2002, Judge Anne E. Thompson ordered the matter remanded to the Superior Court of New Jersey. Id. 14. Williams, 895 A.2d at 1132. PANJ also moved to compel arbitration of the case by claiming that its collective bargaining agreements with the judiciary require an arbitrator to resolve the constitutionality of the statute. Id. 15. Id. at 1132-33.
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Judiciary’s constitutional authority over the administration of the courts.”16 The Appellate Division affirmed.17 The Supreme Court of New Jersey granted both the State’s and PANJ’s petitions for certification and affirmed the decisions of the lower courts.18 The supreme court held that the court is the only competent jurisdiction to hear constitutional claims, and that because the Act encroached on the judiciary’s authority over the administration of the courts, it also violated the separation-of-powers doctrine of the New Jersey Constitution.19 III. REASONING OF THE COURT The court began its assessment of the constitutionality of the Act with a powerful, sweeping statement: “This case presents an irreconcilable conflict between two branches of government, each claiming to posses the exclusive constitutional authority to dictate whether or not probation officers should be armed and make arrests.”20 On that note, the court turned to the separationof-powers doctrine, which it called a “bedrock principle” of both the federal and state constitutions.21 Although the court has consistently declined to interpret the separation-of-powers doctrine as establishing three “watertight” compartments of government,22 the court noted that the purpose of the separation-of-powers doctrine is to ensure that each branch of government
16. Id. at 1133 (internal quotation marks omitted). 17. Id. 18. Id. at 1133, 1143. 19. Id. at 1143. 20. Id. at 1133. It is not clear from this case whether the legislature actually did claim it had exclusive constitutional authority to decide that probation officers can make arrests and carry firearms. In fact, there is some evidence that the legislature knew the Act would be deemed unconstitutional by the court. See, e.g., Schwaneberg, supra note 10, at 22 (reporting Senator Robert Singer (Republican, Ocean County) as stating that the justices’ ruling “was not unexpected”). Alternatively, the legislature may have assumed the court would tolerate its intrusion into the judicial realm in the spirit of comity, as it had done in the past. See, e.g., Knight v. City of Margate, 431 A.2d 833, 844-45 (N.J. 1981) (holding an act which limited judges’ relationships with casino entities constitutional because the standards it imposed served judicial policy as well and because there was a need to regulate relationships with casino entities). 21. Williams, 895 A.2d at 1134. The separation-of-powers doctrine is codified in article III of the state constitution. Id. The court regards the separation of powers as “‘fundamental’” to the state government. Id. (quoting Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project, L.P., 712 A.2d 180, 184 (1998)). 22. Id. (internal quotation marks omitted).
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operates within a larger framework of checks and balances.23 Therefore, while cooperation between the branches is favored whenever possible, the court announced that it will not deviate from the separation-of-powers doctrine if it would impair the essential integrity of one of the three branches of government.24 In order to determine whether the legislature breached the separation of powers in enacting the Act, the court addressed the powers given to the judiciary by the constitution.25 Article VI, section II, paragraph 3 of the constitution provides: “The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts.”26 Additionally, article VI, section VII, paragraph 1 provides: “The Chief Justice of the Supreme Court shall be the head of all the courts in the State [and] shall appoint an Administrative Director to serve at his pleasure.”27 The court determined that these two provisions, taken together, give the court exclusive authority to “govern their own house.”28 Further, the phrase “subject to law” only appears before the provision conferring rule-making authority over practice and procedure of the courts to the judiciary; and therefore, does not qualify the court’s rulemaking authority over the administration of the courts.29 The court parenthetically explained that its decision in Winberry v. Salisbury30 dictates that the phrase in the constitution “subject to law” be
23. Id. The Court further explained that the drafters of the 1947 New Jersey Constitution recognized the importance of the separation-of-powers doctrine in state government. According to the court, the drafters thought that without the separation of powers, “‘the Legislature would be capable of using its plenary lawmaking power to swallow up the other departments of Government.’” Id. (quoting Gen. Assembly v. Byrne, 448 A.2d 438, 441 (N.J. 1982)). 24. Id. (citing Masset Bldg. Co. v. Bennett, 71 A.2d 327, 329 (N.J. 1950)). Interestingly, it is not clear what exactly constitutes the essential integrity of a branch of government. 25. Id. at 1134-35. 26. N.J. CONST. art. VI, § II, ¶ 3. 27. N.J. CONST. art. VI, § VII, ¶ 1. 28. Williams, 895 A.2d at 1135. 29. Id. In fact, a draft of the 1947 constitution did qualify the court’s rule-making authority over the administration of the courts with the phrase “subject to law.” That draft provided: “The Supreme Court shall, subject to law, make rules governing the administration and the practice and procedure in all courts of the State.” Id. (citation and internal quotation marks omitted). However, the drafters decided to transfer the phrase so that the court would have unfettered rule-making authority over its administration, and only its control of practice and procedure would be subject to law. See id. 30. 74 A.2d 406 (N.J. 1950).
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interpreted to mean substantive law,31 rather than pleading and practice.32 However, at this juncture, the court determined that the Act did not implicate its authority over the practice and procedure of the courts, which is qualified in the constitution by the phrase “subject to law,” but instead implicated the court’s rule-making authority over the administration of the courts.33 Because the constitution vests the courts with plenary authority to make rules governing the administration of the courts, and because probation officers are considered an “integral part of the judiciary,” the court has the sole authority to make rules governing their occupation.34 Therefore, the judiciary’s authority to make rules governing the administration of the courts is not subject to legislative enactment. As previously noted, despite this, the court has occasionally accommodated mild intrusions on its turf by other branches of government in the “spirit of comity.”35 However, the court determined that an Act arming probation officers is fundamentally incompatible with the court’s policies governing the probation system.36 This is, in large part, because the supreme court enacted a directive in 1974 which explicitly prohibited probation 31. See id. at 410. According to the Winberry majority, substantive law is defined as “our rights and duties.” Id. In contrast, rules of practice and procedure range from pre-trial intervention programs to dismissal and directed verdict motions. Williams, 895 A.2d at 113536. For examples of court rules of practice and procedure, see generally SYLVIA B. PRESSLER, CURRENT RULES GOVERNING THE COURTS OF THE STATE OF NEW JERSEY (2006). 32. Williams, 895 A.2d at 1135. Article VI, section II, paragraph 3 of the state constitution is interpreted as vesting the supreme court with almost exclusive power to make rules governing its practice and procedure. Id. The constitution bars the legislature from enacting a procedural statute that conflicts with a court rule. Winberry, 74 A.2d at 410. The phrase “subject to law” can then be read to mean that the court cannot make rules that are tantamount to substantive law. As the Winberry Court stated: The only interpretation of ‘subject to law’ that will not defect . . . an integrated judicial system . . . is to construe it as the equivalent of substantive law as distinguished from pleading and practice. The distinction between substantive law, which defines our rights and duties, and the law of pleading and practice, through which such rights and duties are enforced in the courts, is a fundamental one . . . . The phrase ‘subject to law’ in Article VI, Section II, paragraph 3 of the Constitution thus serves as a continuous reminder that the rule-making power as to practice and procedure must not invade the field of the substantive law as such. . . . [The courts] are not to make substantive law wholesale through the exercise of the rule-making power. Id. 33. Williams, 895 A.2d at 1135. 34. Id. at 1136, 1139. 35. Id. at 1137. 36. Id. at 1137-42.
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officers from carrying firearms.37 The court explained that it is opposed to arming probation officers because they serve an impartial judiciary, whereas law enforcement officers serve the prosecutor.38 Therefore, anything that allows probation officers to assume the appearance or duties of law enforcement officers is fundamentally incompatible with the aims of an impartial judiciary, and would also make it less likely that probationers would trust their probation officers.39 Next, the court explained that there is a presumption in favor of the constitutionality of legislative acts,40 and that the court favors cooperation with the other branches when the encroachment on its territory is compatible with the clear goals of the judiciary.41 However, the court had enunciated very clear policies with regard to arming probation officers, which the legislature deliberately supplanted by enacting the Act.42 The court also concluded that the Act was not a valid exercise of the legislature to govern the health and safety of probation officers because arming probation officers would be more likely to endanger them.43 For these reasons, the court held that the Act was irreconcilable with its constitutional power to govern the administration of the courts and thus also violated the separation-of-powers doctrine.44 After announcing its central holding, the court turned to address the propriety of deciding a case of constitutional magnitude in which it has a personal interest.45 The court pointed out that the constitution endows the 37. See id. at 1138-39; Probation Officers—Weapons, N.J. Directive No. 10-73 (May 15, 1974). 38. Williams, 895 A.2d at 1139. 39. Id. The court explicitly acknowledged that probation officers have dangerous jobs. Id. Nevertheless, the court insisted that any perceived entanglement of judicial employees and law enforcement would be imprudent. Id. at 1140. 40. See id. at 1142. 41. Id. at 1141. 42. Id. “Against the backdrop of those clearly enunciated judiciary policies, the Legislature passed into law the Probation Officer Community Safety Act. By authorizing probation officers to be armed and make arrests, the Act is fatally at odds with this Court’s administrative rules governing probation.” Id. at 1140. 43. Id. The defendant argued that the Act was a traditional exercise of the legislature’s police powers and rationally related to the goals of safety and incarcerating probation violators. Id. In addressing this argument, the court stated: “It is not our place to pass judgment on the wisdom of the legislation, and we do not do so here.” Id. However it seems that the court passed at least a little judgment on the rationality of the Act by contending that arming probation officers would not increase their safety. See id. 44. Id. at 1142. 45. See id. at 1142-43.
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courts with the ability to be a judge in their own cause.46 In fact, the court is the only jurisdiction permitted to resolve constitutional questions.47 The court rejected the defendant’s argument that the health and safety provisions of the collective bargaining contract between the judiciary and probation officers apply in situations where a constitutional question exists.48 In fact, the court alleged that allowing an arbitrator to decide a constitutional question would be itself a violation of the separation of powers and void as against public policy.49 Therefore, although the court may appear interested in the outcome of a case, its constitutionally mandated responsibility to determine the validity of legislation cannot be trumped by a perception of bias or self interest.50 IV. ANALYSIS AND IMPLICATIONS A. Soundness of the Court’s Reasoning The soundness of the court’s reasoning rests on the validity of the underlying assumption that probation officers are an integral part of the judiciary.51 Indeed, if probation officers are an integral part of the judiciary, the court is vested with the unfettered ability to prescribe rules governing their administration, as provided by article VI of the state constitution.52 Although it is true that probation officers are currently employed by the judiciary, a single, bright-line rule relegating probation officers to the judicial branch does not exist.53 If the court’s control over probation officers 46. Id. at 1143. 47. Id. 48. Id. As the appellate court pointed out in Williams v. State, the health and safety provisions of the contract do not apply because the question whether an act is constitutional is purely a question of law. 868 A.2d 1034, 1059-60 (N.J. Super. Ct. App. Div. 2005). 49. Williams, 895 A.2d at 1143. 50. Id. 51. The court stated that it has a constitutional responsibility to make rules governing the administration of probation officers because they have historically been considered an “integral part of the judiciary.” Id. at 1136. 52. See supra notes 3 & 26-29 and accompanying text. 53. There are statutes that appear to authorize the designation of probation officers as members of the judiciary. See, e.g., N.J. STAT. ANN. § 2A:168-5 (West 2007) (“The Assignment Judge of the Superior Court in each county may appoint a chief probation officer, and, on application of the chief probation officer, such men and women probation officers as may be necessary.”); id. § 2A:168-7 (“The chief probation officer shall have general supervision of the probation work under the direction of the court.”); Williams, 895 A.2d at 1138 (“Those statutes [N.J. STAT. ANN. § 2A:168-5 to -13 and N.J. STAT. ANN. § 2C:45-1 to -
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is rooted in a legislative grant of authority, the legislature could simply remove probation officers from the judicial branch.54 It follows that if the legislature could pull the rug from under the court, the court’s assertion that it has authority to promulgate rules governing probation officers because they are an integral part of the judicial system is unsubstantiated. Moreover, it does not seem logical that the court would chastise the legislature for encroaching on a power that the legislature bestowed upon it and could easily rescind. On the other hand, if probation officers are a core mechanism of the judiciary,55 it seems to follow that the separation-of-powers doctrine would bar the legislature from removing probation officers from the judiciary absent a constitutional amendment. In fact, after Williams was decided, the state legislature did propose a constitutional amendment that would authorize the enactment of a statute transferring probation department from the judiciary and granting law enforcement powers to certain probation officers.56 This indicates that the designation of probation officers as judicial 4] clearly establish that the probation department is under the authority and part of the judiciary.”). Various statements in court precedent also imply that probation officers are inherently judicial employees. See, e.g., Passaic County Prob. Officers’ Ass’n v. County of Passaic, 374 A.2d 449, 452 (N.J. 1977) (“It accordingly seems clear that probation officers play an important and indeed vital role in the administration of justice . . . . It follows that as an integral part of our court system, they necessarily come within the regulatory control and superintendence of this Court.”); Godfrey v. McGann, 179 A.2d 6, 9 (N.J. 1962) (stating that probation officers operate as an arm of the judiciary). It has also been suggested that the state constitution somehow designates probation officers as judicial employees. See Williams, 868 A.2d at 1050 (“[T]he constitutional mandate given to this Court to make rules governing the administration of all courts in the State transcends the power of the Legislature to enact statutes governing those public employees properly considered an integral part of the court system.” (emphasis added) (citation and internal quotation marks omitted)); Passaic County Prob. Officers’ Ass’n, 374 A.2d at 452 (explaining that the state system of probation is “seemingly entrusted to the Judiciary by the terms of the Constitution” (emphasis added)). 54. During oral argument, Justice Zazzali suggested that if the legislature wishes to arm probation officers, both they and their job functions should be transferred to the executive branch. See Michael Booth, Justices Snipe at Probation-Officer Arming Statute, N.J.L.J., Jan. 9, 2006, at 69. In fact, a bill was introduced in the 212th Legislature to create a Division of Probation in the Department of Corrections, thus transferring probation functions and employees from the judicial branch. A. 2549, 212th Leg. (N.J. 2006). 55. See In re Salaries for Prob. Officers of Bergen County, 278 A.2d 417, 419 (N.J. 1971) (“Other states, quite apart from statute, have held that courts possess the inherent power to appoint probation officers . . . . Whether justification for the action be found in a statute, or in the inherent power of the courts . . . we have no doubt that such power exists . . . .”). 56. In addition to the state assembly bill, supra note 54, the assembly also proposed a constitutional amendment in response to the court’s decision to prohibit the arming of probation officers. The proposed amendment states, in relevant part: “It shall be lawful for the
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employees is something that is at least perceived to be constitutionally determined, and that the court was correct in its affirmation that probation officers are an integral part of the judiciary. Assuming that probation officers indeed are an integral part of the judiciary, the court’s analysis is cohesive and sound. The court’s determination that an Act which permits probation officers to carry firearms implicates the court’s rule-making authority over the administration of judicial employees is relatively straight forward.57 In fact, much of the criticism surrounding the court’s decision is primarily aimed at a perceived failure of the court to yield to favorable public policy, rather than improperly interpreting the constitution.58 As previously noted, the court’s authority to promulgate rules governing the administration of the courts cannot be subordinated to legislation, while the court’s authority over the practice and procedure of courts is subject to substantive law.59 The court acknowledged Legislature to authorize by law the transfer of all the functions, powers, duties and responsibilities concerning probation from the Judiciary . . . .” A. Con. Res. 192, 212th Leg. (N.J. 2006). 57. However, compared with other cases in which the court reviewed statutes for purportedly impinging on its administrative control over the courts, the Act at issue in this case does not clearly stand out as administrative in nature. For example, in Passaic County Probation Officers’ Ass’n, 374 A.2d 449, the court held that an employment statute could not supersede the judiciary’s authority to fix the hours which probation officers work. Id. at 45354. In contrast, the court in State v. Leonardis, 375 A.2d 607 (N.J. 1977), held that funneling offenders into a pre-trial intervention program implicates the practice and procedure of the courts. Id. at 611. While there is an interesting parallel between opting for pre-trial intervention and ordering probation instead of imprisonment, because probation officers are already employees of the judicial system, it seems that laws governing their duties likely fall on the side of administration, rather than practice and procedure. 58. See Rick Hepp, Fight over Guns Reaches Top Court, STAR-LEDGER (Newark, N.J.), Jan. 5, 2006, at 17 (quoting PANJ attorney David Fox explaining that the Act is about safety and should not be overturned for “important but technical reasons”); Henry Gottlieb et al., No Farewell to Arms, Yet, N.J.L.J., Apr. 24, 2006, at 247 (quoting PANJ attorney David Fox explaining that prohibiting probation officers from carrying arms is contrary to the public interest and that ninety-five percent of a probation officer’s job is akin to law enforcement). But see Debate Rages on Guns for Probation Officers, STAR-LEDGER (Newark, N.J.), May 30, 2000, at 26 (quoting State Senator Robert W. Singer as arguing that the separation of powers argument is insignificant because a probation officer can carry a firearm and remain impartial). 59. See supra notes 29-33 and accompanying text. For additional background on the court’s authority to make rules governing the practice and procedure of the courts, see generally Eli J. Warach, The Rule-Making Power: Subject to Law?, 5 RUTGERS L. REV. 376 (1950-1951) (discussing the propriety and impact of Winberry v. Salisbury, 74 A.2d 406 (N.J. 1950)); see also John B. Wefing, The New Jersey Supreme Court 1948-1998: Fifty Years of Independence and Activism, 29 RUTGERS L.J. 701 (1998). Interestingly, when article VI was
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that the boundaries between substantive law and practice and procedure are often blurred.60 Nevertheless, the court does not thoroughly analyze or explain why the Act does not constitute a substantive law that could circumvent its rule-making authority. Yet, on at least some level, the court’s simple statement that the Act is administrative in nature makes intuitive sense.61 Even if a statute runs afoul of the judiciary’s exclusive administrative authority over the courts, the court will tolerate the trespass if it is consistent with the “core goals” of the judiciary.62 The idea of the “spirit of comity” in accommodating legislation that touches on another branch’s powers is well rooted in precedent.63 However, the court’s commitment to cooperation is not unqualified. In this case, the legislature and the court were not in agreement; in fact, the Act flew in the face of long-standing judicial policies concerning the roles of probation officers.64 being considered, Arthur Vanderbilt (later Chief Justice of the state supreme court) sent a letter urging the convention to change or omit the words “subject to be law” in the constitution because he believed the phrase would enable the legislature to make rules of court procedure. Wefing, supra, at 702. Although his suggestions were not implemented at that time, Vanderbilt eventually won. Vanderbilt became Chief Justice of the New Jersey Supreme Court and held in Winberry, that “subject to law” meant substantive law, and that the legislature could not make rules governing court procedure. Id. at 703. 60. Williams v. State, 895 A.2d 1128, 1136 n.1 (N.J. 2006). 61. But see Hepp, supra note 58, at 17. Andrea Sullivan, special counsel for the Attorney General’s Office, claimed that the legislature has constitutional authority to oversee the state’s police powers and argued that “[s]imply saying something is administrative doesn’t make it so.” Id. (citation and internal quotation marks omitted). 62. Williams, 895 A.2d at 1141. 63. See Knight v. City of Margate, 431 A.2d 833, 840-41 (N.J. 1981); State v. Leonardis, 375 A.2d 607, 613 (N.J. 1977) (explaining that cooperation between the three branches of government has been a recurrent theme in both state and federal jurisprudence); Passaic County Prob. Officers’ Ass’n v. County of Passaic, 374 A.2d 449, 453 (N.J. 1977). 64. Compare Probation Officers—Weapons, N.J. Directive No. 10-73 (May 15, 1974) with N.J. STAT. ANN. § 2B:10A-1 to -3 (West 2006). The legislature and judiciary are fatally at odds concerning the propriety of arming probation officers. The question of whether to arm probation officers is considered largely a philosophical debate. See Shawn E. Small & Sam Torres, Arming Probation Officers: Enhancing Public Confidence and Officer Safety, 65 FED. PROB. 24, 26 (2001). Traditionalists argue that arming probation officers would create an environment of suspicion and distrust, therefore interfering with rehabilitation. Id. Those who are “[e]nforcement-oriented” think that firearms are a valuable tool for probation officers to protect themselves from the risks associated with interacting with violent offenders. Id. It is also argued that public support for probation will increase if it prioritizes community and officer safety. Id. at 27. It appears that the supreme court has sided with the traditionalists in the debate. See, e.g., Williams, 895 A.2d at 1139 (“At his best, a probation officer serves as a probationer’s supporter, counselor, . . . and sometimes even a role model . . . committed to the
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Despite this, the Act did not completely subrogate the judiciary’s control over probation officers.65 In at least one instance, the court has permitted its own judicial policy—which encroached on legislative powers—to stand in part because it was modeled to respect legislative judgment.66 It could also be argued that the strength of public opinion regarding arming probation officers should prompt the court to reexamine its policies on firearms.67 However, while it may leave a sour taste in the mouth of critics, the court is not obligated to reconsider its policies even if some may think them unwise.68 As the court did in this case, when another branch encroaches upon constitutionally granted judicial authority, the court is entitled to use its subjective disapproval of a statute or policy to declare it unconstitutional. This is because no “spirit of comity” can exist when the legislature is not in step with the court; and therefore, there can be no exception in the name of comity for allowing encroachment onto judicial territory. The court’s determination that the Act violated the separation of powers naturally flows from the fact that the Act was out of sync with corresponding judicial policies regarding probation officers. Although the court has been criticized for being a judge in its own cause,69 courts have long had this probationer’s rehabilitation under court order, with the help of family, friends, and community, all in the effort to achieve a normal productive life.” (citation and internal quotation marks omitted)). 65. See Williams, 895 A.2d at 1132 (“The Act specifies that the law enforcement and self-defense training must be in accordance with rules adopted by the Supreme Court. . . . [T]he unit must comply with rules to be adopted by the Supreme Court when they carry their firearms; arrest, detain, and transport probationers; and enforce the criminal laws.” (citing N.J. STAT. ANN. § 2B:10:A-2)). 66. See Leonardis, 375 A.2d at 613 (holding that a pre-trial intervention program is a cooperative action that does not impair the essential functions of the legislative branch, in part because guidelines for the program instructed the authorities to pay deference to the legislature in determining the seriousness of a given act). 67. See Charles Toutont, Probation Officers Feel the Chill of Asking Court to Rule Against Itself, N.J.L.J., Jan. 17, 2005, at 161 (quoting Andrea Sullivan, special counsel for the Attorney General’s Office as expressing the view that the interests of comity should convince the court to work out the dispute with probation officers). 68. At least some probation officers think they would be safer if they could carry firearms. See, e.g., Robert Schwaneberg, Gun Case Pits Judges Against N.J. Lawmakers, STAR-LEDGER (Newark, N.J.), Jan. 3, 2006, at 1. In fact, New Jersey boasts some of the most dangerous cities in the nation, with Camden, Trenton, and Newark ranking in the top twentyfive nationally. Cities of Danger, PHILA. DAILY NEWS, Oct. 31, 2006, at 4, available at 2006 WLNR 18848577. 69. See, e.g., Martin L. Haines, The Ultimate Conflict of Interest, N.J.L.J., July 22, 2002, at 307. According to this article, the real party in interest was the supreme court. See id. In fact, the judiciary lobbied the legislature to defeat the bill. Id. As the article explains, this
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responsibility as sole arbiters of the constitution.70 The system was designed to work in this way.71 In fact, as the court noted, allowing an entity other than the court to decide the constitutionality of the Act would itself be a violation of the separation of powers.72 Because the court could not escape its constitutional responsibility, it was obligated to decide the case.73 A separation-of-powers rule, “‘without the teeth of checks and balances,’” is meaningless.74 The legislative and executive branches are not criticized to the same degree as the judiciary when asserting that another branch of government has encroached its powers and violated the constitution.75 However, the appearance of bias does not make the protection could not have been done without the approval of the Chief Justice. Id. In effect, the court announced its bias by taking a public position on the Act even before the suit was filed. 70. The concept of judicial review dates back to the landmark United States Supreme Court decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 71. See Robert F. Williams, Keeping Co-Equal: State Court Responses to Legislative Encroachment, in POUND CIVIL JUSTICE INSTITUTE, REPORT OF THE 2004 FORUM FOR STATE APPELLATE COURT JUDGES, STILL COEQUAL?: STATE COURTS, LEGISLATURES, AND THE SEPARATION OF POWERS 5, 15 (2006). Professor Williams argues that the “protection of the judicial power is a necessary element of the separation of powers, and one of the key mechanisms of checks and balances that are used to enforce separation-of-powers mandates.” Id. 72. See supra notes 45-50 and accompanying text. 73. There is some support for the position that the court should have deferred. See, e.g., Haines, supra note 69, at 307 (noting that the United States Supreme Court in Williams v. United States, 535 U.S. 911 (2002), refused to hear a suit filed by federal judges for salary increases, including increases for Supreme Court Justices). Apparently, the Williams Court feared it would lose public support if it ignored the conflicted of interest and decided the case. Haines, supra note 69, at 307; see also Williams, supra note 71, at 15. Professor Williams argues that legitimacy issues appear more poignant when the courts assert “free-standing judicial power than when they are asserting specifically allocated judicial power, which is more clearly associated with citizens’ rights.” Id. While the court’s control over probation officers is not specifically delineated in the constitution, the constitution does endow the courts with plenary authority over the administration of the courts. It is therefore difficult to determine whether the court exercised a sort of free-standing judicial power, or one specifically allocated to it. At least one scholar has argued that state judges should declare claims that the legislature has infringed on the court’s free-standing judicial power to be nonjusticiable. See Adrian Vermeule, The Judicial Power in the State (and Federal) Courts, 2000 SUP. CT. REV. 357, 361. 74. Robert Schwaneberg, supra note 10, at 22 (quoting Robert F. Williams). 75. See Editorial, Checks and Balances, N.J.L.J., May 1, 2006, at 342 (explaining that judicial review, like the legislative veto, can be defensive in nature). But see Winberry v. Salisbury, 74 A.2d 406, 419 (N.J. 1950) (Case, J., concurring) (“If the governor exceeds his limitations, if the legislature goes beyond its powers, the courts are available to enforce the constitutional restraints. But if our Supreme Court exceeds its powers, who shall impose the check? Therein lies the danger when the court undertakes, not to construe law, but to make
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of the separation of powers any less essential to the health of a democracy.76 The framers of the New Jersey Constitution understood this, and implemented a system of checks and balances, in part to enable each branch (including the court) to protect itself from interference from the other branches.77 Indeed, if the court does not stand up for itself, no one will.78 Further, when the court fulfills its constitutional duty to protect itself from unwarranted intrusions, it preserves the integrity of the separation of it.”). Justice Case noted that if the executive or legislative branches overstretch their bounds, the court will enforce the limits of their constitutional reach. See id. However, neither of the other branches can impose a check on the court for exceeding its powers. Justice Case noted the danger in this but was optimistic and believed that the legislature would likely not have to intervene concerning the propriety of court rules of procedure. Id. at 420. Perhaps because of the criticism that would ensue if the court appears too defensive of its powers, the court does not always strike down laws that invade its powers as unconstitutional. Professor Williams delineates some tools of judicial defense that courts have employed. See Williams, supra note 71, at 13. Among these tools is the court’s ability to: (1) declare a statute unconstitutional; (2) give advice on the constitutionality of the legislation; or (3) interpret the statute as not conflicting with the authority of judicial power. Id. In Williams v. State, 895 A.2d 1128 (N.J. 2006), it seems that the court employed the first two tools: (1) the court announced its bias, see Haines supra note 69, at 307; and (2) the court later declared the Act unconstitutional all together, see Williams, 895 A.2d at 1143. 76. However, it is important to point out that while judicial protection of the court’s authority is important, the “possible appearance of power-seeking that can arise from a court asserting and enforcing its own authority should not be lost on judges.” Williams, supra note 71, at 15. 77. See Checks and Balances, supra note 75, at 342. There are two approaches to tackling separation-of-powers problems. The functionalist approach assesses whether the purported encroachment causes any actual harm, while the formalist approach advocates strong substantive separations. See Williams, supra note 71, at 8. The New Jersey Supreme Court advocates a more fluid separation-of-powers doctrine. See Williams, 895 A.2d at 1134; Knight v. City of Margate, 431 A.2d 833, 840 (N.J. 1981); State v. Leonardis, 375 A.2d 607, 612 (N.J. 1977); Winberry, 74 A.2d at 411-12. Therefore, the court seems to come down on the side of the functionalist approach because it will allow deviation from a strict separation of powers unless it impairs the “essential integrity of one of the [three] branches of government.” Williams, 895 A.2d at 1134 (alteration in original) (quoting Masset Bldg. Co. v. Bennett, 71 A.2d 327, 329 (N.J. 1950)). Formalists fear that the functionalist method of case-specific balancing will undermine the separation of powers. See Vermeule, supra note 73, at 365. It has also been argued that state judges have complete information about the judicial interests that legislation will affect, while having inadequate information concerning the aims and social consequences of the challenged legislation. Id. at 391-92. Professor Vermeule also argues that in cases which touch on the power of the judiciary, these informational and cognitive mechanisms cause judges “systematically to overweigh” their own separation-ofpowers interests. Id. at 397. 78. Checks and Balances, supra note 75, at 342; see also Williams, supra note 71, at 8 (stating that “[w]hen judicial power is at stake, the legislative encroachment calls for judicial defense”).
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powers—one of the celebrated tenets of American democracy. Therefore, the court’s decision to hear the case was proper because it is the only branch with the authority to decide constitutional questions and because it has the constitutional responsibility to protect itself from undue intrusions from the other branches. B. Implications The supreme court’s decision to declare the Act arming probation officers unconstitutional is responsible for “one of the most serious clashes in decades between the Legislature and the courts.”79 While the supreme court has enjoyed a rich tradition of activism and independence since the adoption of the 1947 Constitution,80 this time period has been marked by cooperation between the branches.81 While it has been suggested that the court is more protective of its own powers, comity between the legislature and the courts has almost always prevailed over conflict.82 Although the court likely came to the correct decision in the case. The real danger is that its perceived overprotectiveness of its powers will cost it the respect it deserves.83 The New Jersey court system has been applauded by scholars;84 however, it may 79. Hepp, supra note 58, at 17. 80. For a history of the New Jersey Supreme Court since the inception of the 1947 State Constitution, see generally Justice Stewart G. Pollock, Foreword: Celebrating Fifty Years of Judicial Reform Under the 1947 New Jersey Constitution, 29 RUTGERS L.J. 675 (1998); see also Wefing, supra note 59, at 711 (explaining that the 1947 constitution created an efficient judicial system and, as a consequence, the court has a reputation as one of the best courts in the country). 81. See Jack M. Sabatino, Assertion and Self-Restraint: The Exercise of Governmental Powers Distributed Under the 1947 New Jersey Constitution, 29 RUTGERS L.J. 799, 826 (1998) (finding that comity usually prevails over conflict). 82. See id. Judge Sabatino has also suggested that the court is more likely to protect the judicial branch’s independence under the constitution and is more deferential to executivelegislative conflicts. Id. at 812. However, the court will rarely declare another branch’s actions an unconstitutional encroachment unless its “essential integrity” is threatened by the infringement. Id. at 806. 83. See id. at 825. Judge Sabatino warns against the backlash from broad assertions of power. Id. at 825-26. He argues that there is a danger that the public will act adversely toward the branch that asserted its power. Id. In turn, this could prompt reform that would jeopardize the branch’s existing powers. Id. To some extent, this has happened in New Jersey. See supra note 54 (legislative bill to remove probation officers from the judiciary); supra note 56 (proposed constitutional amendment to allow the transfer of probation officers from the judicial branch). 84. See, e.g., Wefing, supra note 59, at 711, 713, 715 (explaining that New Jersey courts enjoy a favorable reputation and are normally politically balanced, and that the system
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become more difficult for the court to carry on in this tradition if its legitimacy is undermined by perceived bias. It should be emphasized that battles between the courts and the legislature of this magnitude are not at all common in New Jersey.85 The legislature passed the Act despite testimony from the judiciary that arming probation officers would undermine judicial neutrality.86 The court then authorized its own lawsuit and ultimately declared the Act an unconstitutional encroachment on its powers.87 After that, the legislature pledged to transfer probation officers from the control of the judicial branch of government.88 In the meantime, the supreme court passed even more restrictive directives governing probation officers.89 In doing so, the court overrode statutes that were already on the books and which governed the same aspects of the probation officers’ duties.90 Indeed, it appears that the judiciary would rather have probation officers entirely removed from their of appointment is generally believed to keep the court more independent than a system of election). 85. See supra notes 81-82 and accompanying text; see also Wefing, supra note 59, at 717-19 (noting that, compared to other states, the New Jersey legislature rarely uses constitutional amendments to overrule the supreme court). 86. See Schwaneberg, supra note 68, at 1. It has also been suggested that the enactment of the Act could have been an “intentional slap” at the court that had more to do with legislative resentment of other Supreme Court rulings, than with arming probation officers. Id. (quoting Robert F. Williams). 87. See Williams v. State, 895 A.2d 1128, 1143 (N.J. 2006). 88. See Joe Donohue, Arm Us, Probation Officers Ask, STAR-LEDGER (Newark, N.J.), Sept. 15, 2006, at 18. State lawmakers pledged to push for the transfer of probation officers to the executive branch. Id. (“Assemblyman Richard Merkt (R-Morris) said: ‘If the Supreme Court won’t do what’s right, it’s my hope the Legislature will.’”). 89. Probation Field Supervision and Safety Standards, N.J. Directive No. 14-06 (Aug. 3, 2006). The court issued the Directive to “reflect our perspectives on arrests as in Williams v. State.” Id. The Directive forbids probation officers from arresting probationers by physically taking the person into custody. Id. If a probation officers wishes to arrest a probationer, law enforcement must be called to effectuate the arrest and transport the offender. Id. Additionally, the Directive forbids probation officers from conducting warrantless searches and seizures without the presence of law enforcement. Id. The new Directive has been described as an “unwarranted pull-back” from state statutes that have long given probation officers the authority to do these things. Editorial, Probation Officers, Not Police, STARLEDGER (Newark, N.J.), Aug. 4, 2006, at 18. 90. See N.J. STAT. ANN. § 2C: 45-3(a)(2) (West 2000) (providing authority for probation officers to arrest probationers who fail to comply with terms of probation), invalidated to the extent inconsistent with Williams, 895 A.2d 1128; id. § 2C:45-1 (West 2000) (amended 2007) (authorizing probation officers to conduct warrantless searches and seizures); see also State v. Bollinger, 405 A.2d 432 (N.J. Super. Ct. Law Div. 1979) (discussing search and seizure conducted by probation officer).
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positions as judicial employees than to cede control over the officers to the legislature.91 The casual observer might therefore suggest that the judiciary compromise in order to salvage its control over probation officers as judicial employees. However, that assumes that the judiciary is seeking power.92 This is not necessarily the case because, in protecting itself against an unconstitutional infringement on its powers, the judiciary is simultaneously protecting the integrity of the separation-of-powers doctrine. However, it could be true that the judiciary feels very strongly about the proper position of probation officers and does not want them to deviate from these standards.93 It is tempting to argue that the court should have declared the Act constitutional, regardless of its position on arming probation officers, because it is what the populace, as reflected in legislative representation, desired. But that is not the function of the courts. When an Act touches on judicial power, the court is well within its rights to disagree with the legislature about what constitutes sound public policy.94 Despite this, many members of the public, as well as probationers, already view probation officers as aligned with law enforcement.95 Furthermore, the court’s new directives instruct probation officers to work intimately with law enforcement.96 For example, law enforcement must now be present if a 91. See supra note 54 (Justice Zazzali suggested transfering probation officers from the judiciary if the legislature wishes to arm them). Additionally, the court stated that practices of other states were irrelevant to its decision because probation officers are part of the executive branch in most states. See Williams, 895 A.2d at 1140 n.5. However, probation officers in New Jersey stand with the minority in regard to the prohibition on firearms. As of 2006, out of fifty jurisdictions, only sixteen do not allow adult probation officers to carry firearms. See generally AM. PROB. AND PAROLE ASS’N, ADULT AND JUVENILE PROBATION AND PAROLE NATIONAL FIREARM SURVEY (2d ed. 2006), available at http://www.appa-net.org/resources/ surveys/National_Firearms/docs/APPA_Firearms_Survey_2nd_Ed.pdf. 92. See, e.g., supra note 54 and accompanying text (Justice Zazzali explaining that if the legislature wants to arms probation officers, they should be transferred to the executive branch). 93. See supra note 64 (discussing the court’s view of the role of probation officers). 94. See Checks and Balances, supra note 75, at 342 (concluding that the decision in Williams, 895 A.2d 1128, carries out the intent of the 1947 Constitution that the judiciary should control its own administration). 95. See Henry Gottlieb, A Full-Court Press Against Gun-Toting Probation Officers, N.J.L.J., May 6, 2002, at 445. However, according to some, the only difference perceived between police officers and probation officers is that probationers know that probation officers are unarmed. See Debate Rages on Guns for Probation Officers, supra note 58, at 26. 96. See Probation Field Supervision and Safety Standards, N.J. Directive No. 14-06 (Aug. 3, 2006) (advising probation officers to call and notify local police departments when they will be doing field work in the community). Individuals have voiced concern that local police officers will not have the time or resources to carry out their own duties and
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probation officer wishes to search the probationer.97 If the court is worried about an appearance of alignment with law enforcement, it seems that arming probation officers might not be as harmful as requiring or encouraging probation officers to work as a team with law enforcement.98 It may be more difficult for probationers to trust their probation officers if the police are present during meetings.99 A close working relationship between probation officers and police officers could undermine the probation department’s independence. As a result, probationers may perceive the police and probation officers as partners, rather than distinct entities. The court’s decision has had far-reaching repercussions. Both the legislature and the court have reacted strongly in the wake of the court’s ruling.100 It is important for the separation-of-powers doctrine to withstand cries of bias and it is also important for the court to enforce its own rights additionally assist probation officers. See, e.g., Debate Rages on Guns for Probation Officers, supra note 58, at 26. 97. See Probation Field Supervision and Safety Standards, N.J. Directive No. 14-06 (Aug. 3, 2006). It seems that the Directive, mandating that police officers come to the aid of probation officers, may bestow duties on local law enforcement that it does not wish to have. It is possible that this Directive could then also be construed as a violation of the separation of powers because the Directive encroaches on the executive branch. In fact, the court previously held that a law which attempted to dictate how the Governor should make staffing decisions violated the separation-of-powers doctrine. See Commc’ns Workers of Am. v. Florio, 617 A.2d 233, 235 (N.J. 1992). There, the court declared that the legislature could not micromanage and regulate the executive branch in administering its own functions. Id. at 23335. 98. See Editorial, Arm Probation Officers, STAR-LEDGER (Newark, N.J.), Jan. 9, 2006, at 14. Robert Putro, a retired probation officer from New Jersey, suggests arming probation officers for self-defense purposes rather than law enforcement purposes. Id. Indeed, Supreme Court Directive 14-06 calls for probation officers to carry pepper-spray and wear bullet-proof vests. See Probation Field Supervision and Safety Standards, N.J. Directive No. 14-06 (Aug. 3, 2006). While perhaps not as intimidating as a firearm, pepper-spray and bullet proof vests still assume that an adversarial relationship exists between a probationer and the probation officers. 99. See Williams, 895 A.2d at 1139 (explaining that probation officers are akin to counselors). 100. See supra notes 54, 56, 96, 97. Furthermore, there are no signs of agreement on the horizon. George Christie, the President of the PANJ, wrote a letter to the Chief Justice of the N.J. Supreme Court in response to Supreme Court Directive 14-06, urging it to reconsider the Directive, which “stripped probation officers of the authority to search and seize, to make arrests and to transport prisoners even in the presence of criminal behavior.” Letter from George P. Christie, PANJ President, to Chief Justice Deborah Poritz, New Jersey Supreme Court (Sept. 13, 2006), available at http://www.panj.org/pdf/PANJLTR.CJ2006.pdf. The letter states, in part: “The statute . . . that empowered probation officers was created by legislators who strongly believed that the role of the probation officer is to protect the public from being victimized by probationers.” Id. at 1.
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and decide constitutional questions. Regrettably, the public may paint a different picture, and the legitimacy of the courts as an institution is animated by the public’s perception.101 Therefore, although it may seem paradoxical, perhaps the court should pick its battles more wisely.102 If the legitimacy of the courts and the separation-of-powers doctrine are at stake, the court’s decision to hear the case and declare the Act unconstitutional may erode the very principles that it set out to protect. V. CONCLUSION The Supreme Court of New Jersey was correct in concluding that the Probation Officer Community Safety Act encroached upon its plenary rulemaking authority over the administration of the courts therefore violating the separation-of-powers doctrine. Furthermore, the court was correct in asserting its constitutional responsibility to hear the case, despite being accused of having a personal stake in its outcome. Nevertheless, the court’s decision may not have been prudent, because the appearance of a bias has the propensity to diminish the legitimacy of both the courts and the separationof-powers doctrine. The full impact of the court’s decision and the resulting clash between the judicial and legislative branches has yet to be seen.
101. See supra note 83 and accompanying text. While the argument that the court will lose legitimacy if the public perceives that it overzealously guards its own powers is persuasive, it should be noted that it is questionable whether the public at large is even aware of the court’s decision in this case. Additionally, if the public does not recognize the purported conflict of interest latent in deciding the case, there will be no deleterious effect on the legitimacy of the courts. 102. I do not contend that probation is not an important issue for the judiciary. However, I submit that it may not be worth risking legitimacy and public support to ensure probation officers do not carry firearms. This is especially true because probation officers are not so integral a part of the judiciary that they could not be removed to another branch of government. In fact, Justice Zazzali suggested such an action. See discussion supra note 54. However, Cynthia Jacobs, the attorney who represented the judiciary in its challenge of the Act, stated that the removal of probation officers to the executive branch could “hobble” the judiciary. Gottlieb et al., supra note 58, at 247.
