Step Discipline: Is NJ Justice's "abstention" basis for removal or discipline?

NJ Senate Pres. Sweeney and Justice Rivera Soto

The New Jersey Supreme Court has been thrust into crisis by the rebellion of its most conservative Justice Roberto Rivera-Soto who now calls the Chief Justice a "tyrant" who violated the state constitution.   (Opinions here and here.) 


A vacancy was created by the expiration in the spring of the 7 year term of Associate Justice John Wallace a well-regarded veteran African American jurist.  


Gov. Christopher Christie (R-NJ), citing his desire to reverse the court's liberal thrust, refused to support tenure for Wallace who was 22 months short of mandatory retirement age 70.   He nominated a corporate lawyer Anne Patterson for the seat.  Stephen Sweeney, the Democratic state Senate President declared that no action would be taken on the nomination until the day that Justice Wallace would have been compelled to retire.  


Citing strains on the court's workload Chief Justice Stewart Rabner temporarily assigned the senior judge of the Appellate to fill the vacancy.  Rabner relied on the state constitution which permits such temporary assignments "when necessary".  


Rivera Soto said that only inability to muster a quorum of five made a temporary assignment "necessary".  He declared the court to be "unconstitutionally constituted" and its actions "ultra vires".  He would henceforth "abstain" from all future decisions until the temporary assignment is terminated.  The Chief Justice and three Associates denounced as defiance and dereliction of duty Rivera Soto's abstention on the first case after the majority had ratified the Chief Justice's assignment order.


Rivera Soto - whose term expires in 7 months - - has irretrievably damaged his chances of re-appointment.    He dismisses as "prattle..scarcely worthy of reasoned response" the Chief Justice's criticism of his boycott of voting as a member of the court.  He denounces as partisan the appointment of a judge on temporary assignment to give the court a full complement of judges.  He denounces the "tyranny of this particular majority", accusing the court of pursuing a "politically correct" agenda,  The Governor probably agrees with the last but it seems extremely unlikely that Christie - a former U.S. Attorney - would not share in the shock and outrage that many have expressed over Rivera Soto's vote boycott and harsh denunciations of his colleagues- and his superior.  And it is inconceivable that the Democratic majority in the state Senate would endorse a nomination.


As one who started out as a union-side labor lawyer I always think of step discipline.   Justice Rivera Soto was reprimanded by the court for misuse of the prestige of his office, flashing a business card showing his membership on the court to aid his son.  That violated Canon 2 (A and B).  [IMO Rivera Soto,  192 N.J. 109 (2007)]


If Justice Rivera Soto were a school custodian he would be suspended immediately for insubordination and abandonment of duty.  But as a judge he has the protection of NJSA § 2B:2A-10:

Suspension prior to hearing

   No hearing to remove a judge from office as provided for in this act shall be held until the cause for suspension, if the cause is a result of an independent civil, criminal or administrative action against the judge, is finally decided in a tribunal in which the judge had an opportunity to prepare his defense and was entitled to be represented by counsel.

Refusal to participate fully in the work of the court violates the oath of office, which certainly requires a judge to judge, and to accept majority rule, and, yes, precedent established by the court on which the judge sits.    Canon 2 A  issues are again presented:  

"A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

If Justice Rivera Soto defies the calls on him to resign (by the Senate president), even if the Legislature moves to impeach him, the inevitable next step is  for the Chief Justice  to refer the matter to the Advisory Committee on Judicial Conduct where the justice's continued defiance will doubtless be rebuked.  His only chance, it would seem, is the sort of apology and retraction that seems highly unlikely now.


- George Conk

New Jersey Supreme Court: Canons of Judicial Conduct
Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow family, social, political, or other relationships to influence judicial conduct or judgment. A judge should not lend the prestige of office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence. A judge shall not testify as a character witness.