Henry v. New Jersey Dep’t of Human Services, 204 N.J. 320 (2010), and Johnson v. Johnson, 204 N.J. 529 (2010). These two decisions will not be remembered for the facts or holdings of the cases. One involves the Law Against Discrimination and the other deals with arbitration of a matrimonial dispute.
Instead, the cases will be memorable for the debate among the Justices as to the constitutionality of the appointment of Judge Edwin Stern to fill the vacancy left in the wake of Governor Christie’s decision not to reappoint Justice Wallace, and the Senate’s decision not to vote on Anne Patterson, the Governor’s nominee to fill Justice Wallace’s seat.
In Henry, a concurring opinion by Chief Justice Rabner, joined by Justices Long, Lavecchia, and Albin, concludes that the appointment of Judge Stern was valid. Justice Rivera-Soto filed a lengthy opinion abstaining from the decision on the merits and contending that the appointment of Judge Stern was unconstitutional. Justice Hoens filed her own opinion “dubitante,” expressing doubt about the majority’s view of the issue but not joining Justice Rivera-Soto in firm opposition.
In Johnson, where Justice Rivera-Soto again filed an “abstaining” opinion, Chief Justice Rabner and Justice Albin filed concurring opinions, each joining the other’s concurrence, in support of the appropriateness of the appointment of Judge Stern. Justices Long and Lavecchia joined both concurrences. Justice Hoens did not speak on the appointment issue or join in either the concurrences or the abstaining opinion. She merely joined the opinion of Justice Long on the merits of the Johnson case.
The issue revolves around Article 6, section II, paragraph 1 of the New Jersey Constitution. That paragraph states:
The Supreme Court shall consist of a Chief Justice and six Associate Justices. 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, as provided by rules of the Supreme Court, to serve temporarily in the Supreme Court.
In essence, Justice Rivera-Soto contends that “[w]hen necessary” means “when necessary to constitute a quorum.” Chief Justice Rabner and the concurring Justices believe that “when necessary” gives the Chief Justice broad discretion to determine necessity in circumstances beyond the absence of a quorum.
The latter view appears to be the better supported one. Among other things, Justice Rivera-Soto’s view requires rewriting of the constitutional provision, while the majority’s view takes that provision as written. Moreover, the weight of over forty years of practical construction by Chief Justices, who have made temporary appointments in hundreds of instances, supports the majority. Additionally, an expansive view of the Chief Justice’s power in this regard would comport with the expansive power of the Chief Justice to assign and transfer judges in the Superior Court, a power conferred by Article 6, section VII, paragraph 2 of the Constitution.
Justice Rivera-Soto does raise some valid concerns about Rule 2:13-2(a), which was designed to implement Article 6, section II, paragraph 1. For example, that Rule permits the Chief Justice to appoint a retired Justice of the Supreme Court to fill a vacancy on the Court, an idea in direct conflict with the constitutional requirement that vacancies be filled by a “Judge or Judges of the Superior Court, senior in service.” The appointment of Judge Stern, however, does not implicate this conflict that Justice Rivera-Soto identifies.
Apart from the merits, Justice Rivera-Soto announced in these appeals a policy of abstaining from voting on any appeal, in light of his view that the Court is now unlawfully constituted. The loss of a Justice’s vote is, at best, unfortunate for the judicial system and for litigants. Justice Rivera-Soto’s posture also appears to be internally inconsistent, since he continues to sit with the Court at oral argument, an action that is seemingly at odds with his view that the Court is improperly constituted. Justice Rivera-Soto cites no other instance in which a judge refused to participate in any decision of that judge’s court.
Regrettably, the debate among the Justices is shot through with strident language and harsh personal attacks. Such conduct has never been a characteristic of the Court, which has always prided itself on collegiality despite any differences in judicial outlook. In that regard, the Court had been a role model for counsel, who too often are quarrelsome and uncivil despite their obligation to conduct themselves professionally.
Overall, it is a sad day for the Supreme Court of New Jersey.