Chief Justice Rabner Elevates Judges Rodriguez and Cuff to the Supreme Court

In an Order issued yesterday, Chief Justice Rabner announced the elevation of Judges Rodriguez and Cuff to the Supreme Court effective October 1, 2012.  The Chief Justice acted pursuant to the authority of Article VI, section 2, paragraph 1 of the New Jersey Constitution and Rule 2:13-2(a).  The two judges will fill a vacant seat and the seat currently occupied by Judge Wefing, who will reach the mandatory retirement age on October 28, 2012 and who, the Order recites, has “waived her continued assignment to the Court effective October 1, 2012.”  Judge Wefing will not participate in cases that are argued in September 2012 since it is unlikely that they would be decided before she leaves the Court.

The Order states that, in the Term just concluded, the Court “resolved 1,148 petitions for certification, 596 motions, and 115 disciplinary and character matters; heard arguments in 90 appeals and 30 attorney and judicial disciplinary matters; and filed 98 majority, per curiam, concurring, and dissenting opinions.”  With no expectation that this workload will decrease in the coming Term, and with no firm prospect that the Governor will nominate and the Senate will confirm anyone to fill the two seats in question, Chief Justice Rabner acted to give the Court its full complement of members. 

Judges Rodriguez and Cuff are, as the Order notes, “senior in service” on the Appellate Division.  Their appointment follows Chief Justice Rabner’s pattern of elevating first Judge Stern and then, when Judge Stern reached retirement age, Judge Wefing, each of whom was then the most senior in service on the Appellate Division, to Supreme Court seats.

In Henry v. New Jersey Dep’t of Human Services, 204 N.J. 320 (2010), and Johnson v. Johnson, 204 N.J. 529 (2010), discussed here, then-Justice Rivera-Soto asserted that the appointment of a judge of the Appellate Division to the Supreme Court in this fashion was unconstitutional.  The majority of the Court disagreed.  Justice Hoens, however, filed an opinion “dubitante,” expressing doubt about the majority’s view but not joining Justice Rivera-Soto’s opinion.  Now, with not just one but two seats to be filled temporarily by Appellate Division judges, it will be interesting to see whether Justice Hoens finds any difficulty in that.