NJ Supreme Court Justices Put On Their Boxing Gloves Over Abstention by Associate Justice
Argues Chief Justice did not have power to fill vacant seat
In an unprecedented move that jolted New Jersey's legal community, on December 10, 2010 New Jersey Supreme Court Justice Roberto A. Rivera-Soto announced that he will abstain from the New Jersey Supreme Court's decisions claiming that the Court's Chief Justice, the Honorable Stuart Rabner, did not have the constitutional power to appoint a temporary justice (appeals court Justice Edwin Stern) to temporarily fill a vacant seat on the seven-member Court.
The dispute stems from a controversy that has been boiling since May 2010 when Republican New Jersey Governor Christie refused to renominate Democratic-appointed Justice John Wallace to the Court and, instead, nominated Anne Patterson, a Morristown attorney and a Republican.
Democratic legislative leaders charged that Governer Christie's action was unparalleled and Senate President Stephen M. Sweeney (D-Gloucester) declared the upper house of the New Jersey legislature would not consider a replacement for Wallace until he would have retired from the court in March 2012. Chief Justice Rabner then appointed an appeals court judge to temporarily fill Wallace's seat.
In two routine decision made public on December 10, 2010, Rivera-Soto declared it was not necessary to appoint a temporary justice, and announced that he is abstaining from decisions because the Court's current makeup is unconstitutional. He argued that only the governor has the power to appoint a NJ Supreme Court justice.
"The assignment of a Superior Court judge to serve on this Court to fill a vacancy resulting from a political impasse between the executive and the legislative branches thrusts the judiciary into that political thicket, all the while improperly advancing one side's views in preference over the other's,"
Justice Rivera-Soto wrote. "The Constitution, sober and reflective court practice, and everyday common sense each counsels against the foolhardy steps the Court today takes," Justice Rivera-Sota remarked.
Chief Justice Rabner, in obvious disagreement with Justice Rivera-Soto's responded that the creators of the state's Constitution did not make an ironclad standard that only the governor could name a justice.
"The court today has only six members — one short of its full complement — and it is unclear when that will change," Chief Justice Rabner wrote. "In the interim, the current assignment is necessary to address the court's substantial workload and meet the needs of the public."
Justice Hoens stated that her colleague Rivera-Soto is taking a narrow view of Rabner's constitutional powers, but added that Stern's appointment is questionable because "the only apparent reason for the temporary assignment of a judge is to have someone help the others to carry the court's heavy workload."
The state Constitution declares, "Five members of the court shall constitute a quorum. When necessary, the chief justice shall assign" the highest-ranking Superior Court judge "to serve temporarily."
The Supreme Court's year ends June 30th. Rivera-Soto was appointed to the court by Democratic Gov. James E. McGreevey in 2004. Indeed, politics is alive and well in New Jersey's jurisprudence.
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