Seeking a path to restore order in the N.J. Supreme Court | NJ.com

Prof. Ed Hartnett
proposes rescue of Justice Rivera Soto

Justice Roberto Rivera Soto heavily relied on Seton Hall Prof. Edward Hartnett to justify his refusal to vote on cases being decided by the New Jersey Supreme Court.   In an Op-Ed piece in the Star Ledger  Hartnett offers Governor Christie a way to by-pass the State Senate, eliminating the vacancy which produced the temporary assignment to which Rivera Soto objects: a recess appointment by Gov. Chris Christie.

Seeking a path to restore order in the N.J. Supreme Court | NJ.com

My comments:


Associate Justice Rivera Soto believes that with a temporarily assigned judge voting  the New Jersey Supreme Court is illegitimate as constituted.  He refuses to participate in its judgments  so long as the court sits with such a temporary justice (except if needed for a quorum).   Prof. Hartnett seeks to excuse  Rivera Soto's boycott of court votes by saying that U.S. Supreme Court judges Brennan and Marshall consistently refused to join in their court's rulings on certain categories of issues on which they disagreed with the majority.   But they were dissenters not abstainers. And he suggests a Governor's recess appointment of stalled nominee Anne Patterson.  That would vindicate Rivera Soto - who would then return to voting on cases because the temporarily assigned judge would no longer be sitting.


It would set a terrible precedent if such a guerrilla tactic as Rivera Soto's were rewarded with success.


It is the duty of a judge to decide.  The parties and the people are owed the duty of adjudication.


Abstention by a judge is rarely appropriate but sometimes necessary.  It is employed principally when a personal conflict may prevent the judge from upholding her duty of competent and impartial judgment: as when she has an interest in the outcome, or her physical limitations threaten her ability to render fair and competent judgment.


Justice Rivera Soto cited the example of Justice Harry Blackmun to justify his refusal to judge the cases  before him.  But in his passion Justice Rivera Soto failed to determine the facts.  In 1976 Justice Harry Blackmun voted to allow executions to resume - in the belief that it could be fairly and consistently employed.  18 years later he had despaired of that.  In Callins v. Callins he declared "From this day forward I shall no longer tinker with the machinery of death."

But from that day forward Justice Blackmun did not abstain.  He participated in every case - of every kind - before the court.  And in death cases he dissented.  He dissented even from denials of certification, in what came to be known as `Callins dissents', which recited the conclusion  he had reached after twenty years of trying to fairly enforce the death penalty: that it is an impossible task and that the punishment is administered so arbitrarily that it is unconstitutional.


It would behoove Justice Rivera Soto to embrace Justice Blackmun's example.  He owes a duty to conscience to dissent on issues of principle relevant to the cases before him; and to abide by the judgment of the court thereafter.  The Court on which he sits or the judgment of the people may someday vindicate his view that the Chief Justice's interpretation of the New Jersey Constitution is wrong.   But the remedy announced by Justice Soto "abstention" is, to use his phrase, ultra vires - outside of law and precedent.  Justice Rivera Soto should without delay resume exercise of the full duties of a judge of the Supreme Court.
- GWC   12/15/10

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.

Stile: Free advice to no-show justice: Just pack it in - NorthJersey.com

Associate Justice Roberto Rivera Soto

Stile: Free advice to no-show justice: Just pack it in - NorthJersey.com

Sharp comments on Justice Rivera Soto's sit-down strike: from columnist Charles Stile in The Record (Hackensack, NJ)

Time for Justice Rivera-Soto to resign | NJ.com

Time for Justice Rivera-Soto to resign | NJ.com  Tom Moran of the Star-Ledger lays out the facts and the situation well.  He begins

State Supreme Court Justice Roberto Rivera-Soto embarrassed the court once before, over personal misbehavior that forced his fellow justices to censure him in 2007.

But now he has gone overboard. Now, he has insulted his fellow justices and accused them of partisan political motivations. More important, he is refusing to cast votes or write decisions on the cases before him.

Enough. This appointment was a mistake from the start. It is time for Rivera-Soto to resign. He is essentially refusing to do his job anyway.

This dispute has its roots in Gov. Chris Christie’s decision to remove Justice John Wallace from the court earlier this year. Until then, governors in both parties had reappointed justices in good standing, despite ideological differences. Christie was the first to attack the court’s independence by subjecting justices to a political litmus test.