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November 13, 2014


Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0349-13.

Evan L. Goldman argued the cause for appellant (Schiffman, Abraham, Kaufman & Ritter, P.C., attorneys; Mr. Goldman, on the brief).

Susan M. Scott, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Ms. Scott, on the brief).


Plaintiff Michael P. Mullen, a former workers' compensation judge, appeals from an August 9, 2013 Law Division order dismissing his wrongful termination complaint, which he filed in January 2013 after Governor Chris Christie's office informed him that he would not be reappointed, thus ending his hold-over status. For the reasons that follow, we affirm.

In 2004, Governor James McGreevey appointed plaintiff to an initial three-year term as a workers' compensation judge, pursuant to N.J.S.A. 34:15-49a, and the State Senate approved the nomination. Plaintiff claims he was appointed to the position notwithstanding the fact that he was having financial problems, which he fully disclosed.

Governor Jon Corzine was in office when plaintiff's term expired. If reappointed, plaintiff would have received tenure as a workers' compensation judge. Ibid. According to plaintiff, his renomination process began in early 2007 when he had discussions with Melissa Lieberman, Governor Corzine's appointments counsel.

Plaintiff's previous financial problems continued and caused him to file for bankruptcy in September 2007. Plaintiff claims the renomination process came to a halt after he told Lieberman that he was filing for bankruptcy. However, plaintiff continued to serve as a workers' compensation judge, in holdover status, for another three and one-half years. In March 2011, Governor Christie's office advised plaintiff that the Governor was not reappointing him, and he was immediately removed from his position.

Plaintiff then filed this lawsuit, claiming that he was wrongfully terminated from his position in violation of the anti-discrimination provision of the United States Bankruptcy Code (Code), 11 U.S.C.A. 525(a), which makes it unlawful to terminate a person solely because that person is or has been a debtor under the Code. Plaintiff claims that State employees below the level of Governor quashed his renomination solely because of his status as a bankrupt debtor.

The State moved to dismiss the complaint, arguing that plaintiff was essentially challenging the Governors' decisions not to reappoint him. The State maintained that plaintiff's claim presented a non-justiciable political question. After considering the factors identified in Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663, 686 (1962), Judge Heidi Currier dismissed plaintiff's complaint, concluding that plaintiff's wrongful termination claim presented a non-justiciable political question. This appeal followed.


We review a grant of a motion to dismiss a complaint for failure to state a cause of action de novo, applying the same standard under Rule 4:6-2(e) that governed the motion court. See Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011). Such review "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). "[I]f the complaint states no basis for relief and discovery would not provide one, dismissal is the appropriate remedy." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005).

In New Jersey, "an employee has a cause of action for wrongful discharge when the discharge is contrary to a clear mandate of public policy. The sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions." Mehlman v. Mobil Oil Corp., 153 N.J. 163, 181 (1998) (quoting Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980)). Even "[f]ederal law and policy can constitute New Jersey's clear mandate of public policy." D'Agostino v. Johnson & Johnson, 133 N.J. 516, 528 (1993). Plaintiff's amended complaint alleges that 11 U.S.C.A. 525(a) provides such a clear mandate in this case.

While section 525(a) of the Code prohibits employers, including governmental units, from terminating a person solely because that person is or has been a debtor under the Code, 11 U.S.C.A. 525(a), the statute does not prohibit consideration of other factors, such as financial responsibility or ability, so long as they are not applied in a manner that is discriminatory to bankrupt debtors. See In re Exquisito Servs., Inc., 823 F.2d 151, 153 (5th Cir. 1987). "Only discrimination based solely on the debtor's status is precluded." Id.

Judge Currier dismissed the amended complaint because she concluded the failure to renominate plaintiff was a non-justiciable political question, immune from judicial scrutiny. Plaintiff argues that his complaint "does not present a . . . political question," because it alleges "that the State, not the Governor, discriminated against [him]." However, the State can only be held liable on the basis of the Governor's actions since the Legislature delegated to him the authority to appoint workers' compensation judges. The question thus remains whether the Governor's decision not to renominate plaintiff is subject to judicial review.

As the court correctly observed in Clark v. Byrne, 165 N.J. Super. 98, 110 (Law Div.), aff'd, 165 N.J. Super. 16 (App. Div. 1978),

the matter of appointment of judges and other public officers by the Governor and their confirmation by the Senate is a political question, committed to the exclusive discretion of the Executive and Legislative Branches. See, e.g., Passaic C[n]ty. Bar Ass'n v. Hughes, 108 N.J. Super. 161 (Ch. Div. 1969); cf. State v. Robinson, 140 N.J. Super. 459, 470 (Law Div. 1976). There may be an infinite number of good reasons for a Governor not to make judicial appointments, or for a Legislature not to confirm appointments which have been made. These reasons are exclusively within the province of the Executive and Legislative Branches and not reviewable by the courts.

"'The nonjusticiability of a political question is primarily a function of the separation of powers[,]'" Gilbert v. Gladden, 87 N.J. 275, 281 (1981) (quoting Baker, supra, 369 U.S. at 210, 82 S. Ct. at 706, 7 L. Ed. 2d at 682), which is "expressly established in Article III, paragraph 1 of the state Constitution[.]" Ibid.

We acknowledge that the Supreme Court has noted in dicta that powers wholly within the purview of the Legislative Branch may be subject to judicial scrutiny if their exercise in a particular instance is arbitrary and capricious, as might be the case if a violation of the Equal Protection Clause were established. McKenney v. Byrne, 82 N.J. 304, 319 n.5 (1980) (citing Baker, supra, 369 U.S. at 226, 82 S. Ct. at 714, 7 L. Ed. 2d at 691). For the most part, however, our courts have declined to interfere where to do so would diminish executive or legislative discretion in the performance of executive or legislative functions. See, e.g., De Vesa v. Dorsey, 134 N.J. 420 (1993) (dismissing challenge to the practice of senatorial courtesy as non-justiciable); Gilbert, supra, 87 N.J. 275 (dismissing challenge to the Governor's pocket veto power as non-justiciable); In re Gilmore, 340 N.J. Super. 303 (App. Div. 2001) (dismissing challenge to the mechanics used for identifying a quorum as non-justiciable); Loigman v. Trombadore, 228 N.J. Super. 437 (App. Div. 1988) (dismissing challenge to the Governor's reliance on certain outside advisors during the judicial appointments process).

For cases like the one under review, where there is no authority on point, the Supreme Court has adopted the six-part analysis set forth in Baker for determining whether a particular case presents a non-justiciable political question

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

[Gilbert, supra, 87 N.J. at 282 (citing Baker, supra, 369 U.S. at 217, 82 S. Ct. at 710, 7 L. Ed. 2d at 686).]

If any one of the aforementioned criteria is "inextricable from the facts and circumstances of the case in question," then the case is nonjusticiable, and dismissal is proper. Ibid.

The first factor cited in Baker does not apply in this case. Though the Constitution commits the power of certain judicial appointments to the Governor, N.J. Const. art. VI, 6, 1, that power does not extend to workers' compensation judges. The method for appointing workers' compensation judges comes from the text of the New Jersey Statutes, N.J.S.A. 34:15-49, rather than the text of the Constitution. Thus, there is no "textually demonstrable constitutional commitment of the issue to a coordinate political department" other than the judiciary. Baker, supra, 369 U.S. at 217, 82 S. Ct. at 710, 7 L. Ed. 2d at 686 (emphasis added); see also Cnty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 249 n.24, 105 S. Ct. 1245, 1259 n.24, 84 L. Ed. 2d 169, 188 n.24 (1985) ("Congress' delegation to the President is not a 'textually demonstrable constitutional commitment,' but rather a statutory commitment of authority." (citation omitted)).

Indeed, "[i]t is firmly settled that, although the judges of compensation exercise functions which are somewhat akin to those exercised in the courts, they are in no sense members of the judicial department but are rather members of an administrative agency within the executive department." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 574 (1963); see also Bonafield v. Cahill, 125 N.J. Super. 78, 83-84 (Ch. Div. 1973), aff d, 127 N.J. Super. 149 (App. Div. 1974). Since the text of the Constitution does not commit the power to renominate workers' compensation judges to the Executive Branch, the power rests with the Legislature, which has seen fit to delegate that power, and to provide the Governor with broad discretion in its exercise. See N.J.S.A. 34:15-49.

We conclude, however, that the fourth factor cited in Baker clearly does apply in this case, namely "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government[.]" Baker, supra, 369 U.S. at 217, 82 S. Ct. at 710, 7 L. Ed. 2d at 686. Denial of the State's motion would allow the judiciary to pry into the renomination process of the holder of a quasi-judicial position to determine if the individual was not renominated solely because of his status as a bankruptcy debtor.

We conclude such review would violate the Constitution's separation of powers clause. N.J. Const. art. III, 1.

"The framers of the 1947 Constitution distributed powers among the three branches of State Government in a fashion that recognizes both the need for, on the one hand, primacy and clarity of governmental functions, but also, on the other hand, the importance of inter-branch accommodation." Commc'ns Workers of Am., AFL-CIO v. Christie, 413 N.J. Super. 229, 256 (App. Div. 2010). Article III, paragraph 1, provides

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. art. III, 1.]

The act of imposing damages where an appointee is not renominated by the Governor would "express[] [a] lack of the respect due coordinate branches of government[.]" See Baker, supra, 369 U.S. at 217, 82 S. Ct. at 710, 7 L. Ed. 2d at 686. This is particularly so where, as here, the decision would allow the courts to pry into the renomination process of the holder of a quasi-judicial position.

When, as in this case, the employer in question is an administrative agency within the executive department, and the employee in question is appointed by the Governor and vested with a measure of authority to implement policy, we conclude the determination called for is unfit for judicial discretion. To allow for common law tort liability when the Governor fails to renominate a workers' compensation judge would improperly interfere with the determination of the Legislature to delegate the authority to appoint such judges to the Governor, as well as the Governor's exercise of that authority. Such a proclamation would circumscribe the Governor's reappointment discretion to the consideration of factors implicitly deemed appropriate by the judiciary.

We therefore conclude that Judge Currier properly dismissed plaintiff's amended complaint as presenting a non-justiciable political question.