NJ Supreme Court Justice Abstains from Decisions
In Protest, Citing Professor Edward Hartnett in Constitutional Struggle Over Temporary Appointments to Bench
New Jersey Supreme Court Justice Rivera-Soto has abstained from rendering a decision in cases before the Court at present, and has indicated that he will continue to abstain from rendering decisions going forward, claiming unconstitutional the temporary appointment of an Appellate Division judge to fill the vacancy left on the Court when Governor Chris Christie chose to not reappoint Justice Wallace earlier this year. Justice Rivera-Soto relies heavily on Professor Edward Hartnett’s scholarship in his opinion, and in reply to Justice Rivera-Soto, Chief Justice Rabner cites Professor Hartnett as well.
Professor Hartnett has long espoused the view that the New Jersey Supreme Court’s temporary appointment power, as practiced, is unconstitutional. He published Ties in the Supreme Court of New Jersey, 32 SETON HALL L. REV. 735 (2003) and, more recently, an Op-ed piece on the subject in the New Jersey Law Journal entitled “Conventional Wisdom Is Wrong on N.J. Supreme Court Appointments.” Both the law review article and the Op-ed piece were cited by the Justices. In the Op-ed piece, Professor Hartnett writes:
Court Rule 2:13-2 purports to give the chief justice the power to temporarily assign an Appellate Division judge or a retired justice in order to "expedite the business of the court." But the rule claims more power than the Constitution authorizes. Art. VI, sec. 2, para. 1 states, "Five members of the court shall constitute a quorum. When necessary, the Chief Justice shall assign the Judge or Judges of the Superior Court, senior in service … to serve temporarily in the Supreme Court." The text, its context and its implementation for the first two decades of practice under the 1947 Constitution demonstrate that this assignment power is available only when the Court would otherwise lack a quorum and that only Superior Court judges may be assigned.
Justice Soto-Rivera writes:
Today, while constituted as one Chief Justice, five Associate Justices and a Judge of the Appellate Division selected unilaterally by the Chief Justice, the Court has rendered a decision in this matter. The Court as so constituted is unconstitutional and its acts are ultra vires for three principal reasons. First, the Constitution allows the assignment of a Superior Court Judge to serve on the Supreme Court only “when necessary,” and any such assignment at this juncture simply is not necessary. Further, the methodology this Court has adopted for the selection of who is to serve on assignment to the Supreme Court does not comport with the clear constitutional mandate. Finally, 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. For each of those reasons, I abstain.
The opinion may be found here below; Justice Rivera-Soto’s Abstention begins on page 51 of the PDF. Chief Justice Rabner’s Concurrence, which addresses Justice Rivera-Soto’s abstention and cites Professor Hartnett as well, begins on page 29 of the PDF. In addition, the articles to which the Justices cited may be found below.