My distinguished colleague Senator Nia Gill presented the following appeal to the Senate. The speech is posted on today's blog with Senator Gill's blessing.
Senator Nia H. Gill
Senate Floor -December 20, 2010
I rise today to speak to you about an action that has created a constitutional crisis in our State. As this body is aware, a little over a week ago, Associate Justice Rivera - Soto issued two opinions objecting to the interim appointment of Judge Stern to fill a vacancy on the New Jersey Supreme Court. Not only did Associate Justice Rivera-Soto state his opposition to the appointment, he also unilaterally decided to abstain from all future cases heard before the State’s Supreme Court. And thus, one lone Associate Justice, in defiance and refusal to perform his Constitutional duties has manipulated and undermined the integrity of the Supreme Court and our Judicial System.
As we know, the Chief Justice, not only presides over the Supreme Court, but is also the administrative head for the State’s court system. What this means, is that the Associate Justice has told his boss that he will not sit or participate on cases that he, the Associate Justice, has determined. However, the Associate Justice will still be paid $185,000 a year for reducing his Supreme Court position to a no show job.
If this happened in your legislative office, where we, as Senators, are the Chief Administrative Officer, and your Chief of Staff came to you and said Senator, I’m not going to work on the following issues because I believe the positions you hold are unconstitutional. What would you do? You would fire the person in a blink of an eye. And that is what is happening in this case. For a salary of $185,000 a year, this lone Justice will decide when, under what conditions, and if he is going to work. This action is an affront to the Chief Administrative Officer of the Court.
And you may ask - how does this lone Justice’s defiance and refusal to perform his constitutional duties manipulate and undermine the integrity of the Supreme Court and our Judicial System?
The Supreme Court, much like our caucuses prior to a voting session, get together and conference. During this time, they discuss substantive issues on cases argued before them and the Chief Justice assigns an Associate Justice for decision writing. Subsequent to discussion and before a final decision has been reached; draft opinions are circulated among the Court.
What this means, is that Associate Justice Rivera-Soto has created a scenario where he is able to pick and choose which cases he involves himself. Thus, the Associate Justice can make a calculated political decision as to whether or not he wants to participate in a case before the Court, based upon information he learns while attending the conferences, as well as oral arguments.
If the Justice decides that he wants the lower courts’ option to stand, all he has to do is abstain from voting and thus permit a 3-3 split decision by the Supreme Court, therefore, allowing the lower Court’s decision to prevail.
Conversely, if this lone Justice does want a lower Court’s opinion to be overturned all he would have to do is participate in the decision and thus create a enough votes to over turn the decision. At his whim and at his will.
His actions pointedly undermine the people’s trust of the Supreme Court and our Judicial System, particularly when you look at the breath of cases the Supreme Court is scheduled to hear in the next 10 months, before Associate Justice Rivera Soto’s term expires. Let’s look at the Johnson case, this case involves sensitive issues of child custody, parental issues and visitation rights. However, the Associate Justice in his dissenting opinion decided to abstain, stating that the court is unconstitutional as comprised.
Imagine, you are a litigant; you are before the Supreme Court on issues that affect you, your life and your children. And an Associate Justice of the Supreme Court writes a dissenting opinion saying, in essence to the litigants -the findings of the Court are unconditional because the Court is unconstitutional. Therefore, this lone Justice can manipulate, without a written opinion, the potential outcome of a case. That goes to the trust and integrity of our judicial system.
Let us look at the kinds of cases the Court will decide in the next 10 months. We know the Abbott v. Burke School funding case is scheduled for oral arguments on January 4th.
So if this Justice, for whatever reason, decides after conferences and potentially participating in asking questions during oral arguments, that the case is going one way or another, he can simply by abstaining hope to sway and skew the Court’s opinion.
In the next 10 months, the Court will hear cases on, if a blogger has the Constitutional right to receive the First Amendment protections as a journalist. I invite you to look at the Supreme Court’s website to see the kinds of cases that are up before the Court, they touch every facet of our lives.
If Associate Justice Rivera-Soto continues to abstain from all cases he will have been allowed to create a precedent that would permit any current and any future Supreme Court Justice, as well as, the State’s Superior Court judges, to not hear or participate in a case because he or she disagrees with a decision made by the Chief Justice.
I want to be clear. I am not talking about the Governor’s Constitutional authority to not reappoint, nor the Senate President’s Constitutional right to not hold a hearing on the Governor’s appointments and it is certainly not about the use of Senatorial Courtesy. It is about permitting this process that undermines the trust and integrity of the Supreme Court and the entire judiciary to continue.
It does not matter to me that we are discussing Associate Justice Rivera-Soto; it does matter to me that you can allow a lone Justice to defy the Constitution and the people of this State.
In response to Justice Rivera-Soto’s abstention, the Chief Justice, wrote “It is one thing to dissent from an opinion of the majority; it is another to refuse to participate -- to vote -- in matters before the Court. Under our system of law, holding a contrary view about a settled legal issue is not a basis for abstaining”.
The Constitution grants to the Supreme Court the authority to remove a Superior Court Judge and the Supreme Court has established the Advisory Committee on Judicial Conduct, better known as ACJC, to assist the Court by investigating allegations of unethical judicial conduct and by referring to the Court matters that the Committee considers to require public disciplinary action. Through the ACJC’s investigations, the Supreme Court has reprimanded, censured and removed Superior Court Judges.
However, the Supreme Court only has the authority to reprimand or censure a Supreme Court Justice because the framers of New Jersey’s Constitution expressly vested the power to remove a Justice with the Legislature, through the process of impeachment. Therefore, by the
Legislature not acting to remove Associate Justice Rivera-Soto, we are abdicating our Constitutional duty and allowing a lone Justice, in defiance and refusal to perform his Constitutional duties, to manipulate and undermine the integrity of the Supreme Court and the people’s trust in our judicial system. This is an issue of impeachment, because Associate Justice Rivera-Soto has openly defied and abdicated his Constitutional responsibilities.
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