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Abstention From Duty
We are appalled at the behavior of New Jersey Supreme Court Justice Roberto Rivera-Soto. In two unrelated cases, Henry v. Department of Human Services and Johnson v. Johnson , he has unleashed an unprecedented attack upon the Court on which he sits, unnecessarily and wrongheadedly dragging the Court into the political impasse over appointments between the Republican governor and the Democratic-controlled Senate.
Worse, in refusing to acknowledge the legitimacy of the Court's majority conclusion that temporary assignments of judges to fill vacancies are permitted under the state constitution even when there is a quorum, he has declared the Court's composition to be illegitimate and unconstitutional and has announced he will abstain from future votes as long as the appointee in question, Judge Edwin Stern, sits with the Court. His actions go far beyond the bounds of legitimate disagreement among appellate judges
The New Jersey Constitution's Temporary Assignment Clause, art. VI, § 2, ¶ 1, allows the chief justice to appoint a replacement justice "when necessary." Reasonable minds can differ whether that language means that appointment can be made whenever there is a vacancy or only when there is a lack of a quorum. Since the Court's inception in 1948, chief justices have made hundreds of these appointments, most of them when the Court had five or more sitting members and a quorum was not at issue. We recently agreed with the Court's interpretation that temporary assignments could be made to fill any vacancy and argued that this should be done consistently to avoid tie votes.
However, we strongly disagree with the academic argument on which Justice Rivera-Soto relied, which is that "when necessary" means only when essential to create a quorum so that the Court may act. From the earliest days of federal constitutional law, it has been understood that "necessary" is a broad grant of power to act when useful or desirable, rather than a limitation to act only when essential. The drafting history of the Temporary Assignment Clause, set out in Chief Justice Stuart Rabner's concurrence in Henry , demonstrates that the framers of the 1947 constitution understood "necessary" as a grant of power rather than a limitation, which is consistent with their overall intent to create a powerful and autonomous judiciary. While there is a place for honest debate on the point, there is none for acting above the law.
History shows us that angry and frustrated dissenters can attack not only the reasoning but also the intellectual honesty of their colleagues. Had Justice Rivera-Soto simply issued a reasoned dissent — even a vehement and personally offensive one — critical of appointing judges to vacancies on the high court when there was no lack of quorum, he would have been well within the bounds of judicial behavior. But his "abstaining opinions" go far beyond what is proper in two respects.
First, he issued a broadside accusing the chief justice and the majority of the Court of taking sides in the political impasse between the governor and the Senate over the nomination of Anne Patterson to replace Justice John Wallace Jr. by appointing Judge Stern, the senior appellate judge, to fill the vacancy temporarily. Second, he attacked the legitimacy of his own institution, refusing to abide by the decision of the majority with which he disagreed and announcing a sit-down strike, refusing to act while Judge Stern sits.
When one strips away the veneer of legal argument about the Temporary Assignment Clause, it is clear that Justice Rivera-Soto's main argument is that by easing the Court's workload, assuring a tie-breaking vote and adding a seventh member, the chief justice's action emboldened the Senate Democrats to continue their refusal to consider the Patterson nomination. Justice Rivera-Soto is wrong. The Senate does not have a duty, as he implies, to accede to the governor's nomination or even to consider it. Its duty to advise and consent includes the power to exercise independent political judgment, albeit negative, as to the Court's future composition. There is no obligation to fill vacancies until the two political branches reach agreement.
In the meantime, the Court's business must be carried on. The chief justice's power to empanel a full court and to keep it functioning strengthens the Court's autonomy in the face of the impasse between the other branches. "The appointing power of the Executive and the Legislature's role in passing on nominations is not the business of this Court, although our 'abstaining' colleague has made it his business," Justice Barry Albin wrote in his Johnson concurrence. "It is our 'abstaining' colleague who has needlessly politicized an independent, nonpartisan decision by the Chief Justice, and he alone bears responsibility for the collateral damage done to the image of the judiciary."
Most importantly, Justice Rivera-Soto is wrong because he has defied the fundamental principle that a majority decision of the Court is binding unless and until reversed by another majority. The Temporary Assignment Clause has been interpreted by a majority of the Court in accord with the practice under five previous chief justices and now decided by a majority of the Court, and that interpretation is the law until changed by the regular process of the law. It is Justice Rivera-Soto's duty to respect the decision of the majority, however much he may disagree, and to abide by that decision. He announced inJohnson that he would continue to participate in argument and issue opinions, but would not vote.
His refusal to perform the duties of his office — while still drawing his salary — is a direct attack on the legitimacy of the institution on which he sits. His verbal attack denouncing the "tyrannical majority," for insisting he follow the rule of law and do his duty as a justice by fully participating, calling opinions critical of him "prattle," further belittles his position and makes it appear as if he is waving his newly unveiled "strict constructionist," confrontational persona as if it were an updated résumé for reappointment, if not a blatant appeal to a wider audience where such strident absolutism is immensely popular.
There have already been calls for Justice Rivera-Soto's resignation, and even for his impeachment, for refusing to do his appointed duty and vote on cases. This is not the first time Justice Rivera-Soto has brought the Court into disrepute, having been reprimanded for his use of his position in advancing his son's cause in a dispute at a public school, and having violated an order sealing evidence in a criminal appeal. He has now further damaged an institution already anxious over the prospect of future partisan intrusion.
We believe that his presence on the Court, which he has so disrespected by his refusal to vote and abide by the majority, will inevitably distract from the Court's business if he continues his course of conduct. There is room on every court for contrary opinions, and Justice Rivera-Soto, aside from the majority decisions he has written, has served an important role in writing many dissents and challenging the majority in the course of substantive legal discussion. But however important his role has been, if he cannot reconcile himself to respect the majority's decision and perform his duties as a justice, he should resign.
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