Justice Roberto Rivera-Soto is abstaining from decisions involving temporary appointee Judge Edwin Stern
Justice Roberto Rivera-Soto, right, has decided to abstain from decisions involving temporary Judge Edwin Stern, left, declaring his appointment unconstitutional.TRENTON — The New Jersey Supreme Court is at an impasse over its own constitutionality, a dispute stemming from Gov. Chris Christie's unprecedented decision not to reappoint Justice John Wallace in May.
Court opinions issued today reveal a disagreement between justices over whether Chief Justice Stuart Rabner was authorized to appoint a judge to temporarily fill Wallace's position, which has been left open because of a political fight between Christie and Senate Democrats.
Justice Roberto Rivera-Soto said it was not necessary to appoint a temporary justice, writing that he is abstaining from decisions because the court's current makeup is unconstitutional.
"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," he wrote. "The Constitution, sober and reflective court practice, and everyday common sense each counsels against the foolhardy steps the court today takes."
Chief Justice Stuart Rabner disagreed, writing that the framers of the New Jersey Constitution wanted more flexibility.
"The Court today has only six members — one short of its full complement — and it is unclear when that will change," he wrote. "In the interim, the current assignment is necessary to address the Court’s substantial workload and meet the needs of the public."
Justices Virginia Long, Jaynee LaVecchia and Barry T. Albin sided with Rabner, while Justice Helen Hoens expressed concerns with both arguments.
Hoens wrote that Rivera-Soto is taking too narrow a view of the chief justice's constitutional powers, but said Stern's appointment is questionable because "the only apparent reason for the temporary assignment of a judge is to have someone help the others to carry the court’s heavy workload."
The constitutional squabble was contained in two routine Supreme Court opinions issued today, one dealing with marriage arbitration and the other discussing the statute of limitations on discrimination claims. The opinions made clear that the controversy over Christie's decision to remove Justice John Wallace from the Supreme Court is still roiling the state’s judicial system.
"This is getting more interesting by the day," said Earl Maltz, a Rutgers-Camden law professor.
Christie nominated Anne Patterson, a Morristown lawyer, to fill Wallace’s spot on the court. But Senate Democrats, angered by Christie’s decision, refused to consider her nomination, leaving the seat empty. When Wallace stepped down, Chief Justice Stuart Rabner appointed Chief Appellate Judge Edwin Stern to temporarily fill his spot, making him the seventh member of the court.
The disagreement between Rabner and Rivera-Soto focuses on a phrase in the New Jersey Constitution that says: "Five members of the court shall constitute a quorum. When necessary, the chief justice shall assign" the highest-ranking Superior Court judge "to serve temporarily."
Maltz sides with Rivera-Soto, saying Rabner’s appointment of Stern is problematic because it wasn’t necessary to keep the court's required 5-member quorum.
"Simply because it's taking awhile to fill a vacancy doesn't mean it's necessary," Maltz said. "He didn't have to appoint Judge Stern in order to decide cases."
He added, "What the chief justice is doing is making an appointment when the appointment power is in the hands of the governor and the legislature."
Constitutional scholar and Rutgers law professor Frank Askin said he believes Rabner is within his rights as chief justice, but said the constitution is not "crystal clear" on the issue. But it's unclear how the dispute will be resolved, he said.
"You can't appeal to a higher court in New Jersey," Askin said. "It's a bit of a conundrum."
Today's Supreme Court decisions (PDF)