Bill Text: NJ SR105 | 2010-2011 | Regular Session | Introduced


Bill Title: Expresses sense of Senate that in the event the General Assembly does not proceed with impeachment Justice Roberto Rivera-Soto should resign as Justice of the New Jersey Supreme Court.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Passed) 2011-02-18 - Filed with Secretary of State [SR105 Detail]

Download: New_Jersey-2010-SR105-Introduced.html

SENATE RESOLUTION No. 105

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED FEBRUARY 7, 2011

 


 

Sponsored by:

Senator  NIA H. GILL

District 34 (Essex and Passaic)

 

 

 

 

SYNOPSIS

     Expresses sense of Senate that in the event the General Assembly does not proceed with impeachment Justice Roberto Rivera-Soto should resign as Justice of the New Jersey Supreme Court.

 

CURRENT VERSION OF TEXT

     As introduced.

  


A Senate Resolution in the matter of Justice Roberto Rivera-Soto.

 

Whereas, Article VI, Section VI, paragraph 3 of the New Jersey Constitution provides, in pertinent part: "The Justices of the Supreme Court . . . shall hold their offices for initial terms of 7 years and upon reappointment shall hold their offices during good behavior;" and

Whereas, Paragraph 1 of Article VII, Section III provides: "The Governor and all other State officers, while in office and for two years thereafter, shall be liable to impeachment for misdemeanor committed during their respective continuance in office," and paragraph 2 provides: "The General Assembly shall have the sole power of impeachment by a vote of the majority of all the members;" and

Whereas, On September 8, 2010, New Jersey Supreme Court Chief Justice Stuart Rabner, pursuant to his constitutional authority,  temporarily assigned Judge Edwin Stern, Presiding Judge for Administration of the Appellate Division, to the New Jersey Supreme Court to fill the seat vacated by Justice John Wallace on May 20, 2010; and

Whereas, Article VI, Section II, Paragraph 1 of the New Jersey Constitution provides that "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;" and

Whereas, New Jersey Supreme Court Justice Roberto Rivera-Soto stated in a written opinion, Lula M. Henry v. New Jersey Department of Human Services (A-69-09),  decided on December 10, 2010, that he was abstaining from that opinion and intends to abstain from participation in future court decisions and reiterated that intent in David Johnson v. Molly V.G.B. Johnson (A-91-09), decided on December 10, 2010; and

Whereas, Justice Rivera-Soto wrote that he believes that the  temporary appointment of Judge Edwin Stern to the Supreme Court is unconstitutional; that the New Jersey Constitution provides for a temporary appointment "when necessary"; and that at this time such appointment is not "necessary" because it is not needed for the court to achieve a quorum; and

Whereas, Chief Justice Rabner rejected Justice Rivera-Soto's interpretation of the New Jersey Constitution and analyzed the proceedings of the 1947 Constitutional Convention, finding that  "[h]ad the Framers intended to limit temporary assignments to meeting quorum needs, they would have said so. Instead, they considered and rejected [that] very language . . . We cannot add it back." [emphasis in Henry]; and

Whereas, The Chief Justice also stated, "[T]he parties have neither objected to the temporary assignment nor presented arguments for the Court to consider. Nonetheless, in a departure from recognized practice, the abstaining Justice has raised a constitutional issue on his own -- at the same time, ironically, that he notes the virtue of judicial restraint;" and

Whereas,  The Chief Justice stated in Johnson that "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;" and

Whereas, In a subsequent decision, Hopewell Valley Citizens' Group, Inc. v. Berwind Prop. Group Dev. Co., L.P., 2011 N.J. LEXIS 7, 37-41, decided on  January 12, 2011, Justice Rivera-Soto issued a dissenting opinion and took that opportunity to elaborate on the extent of his planned participation in future decisions of the Court; and

Whereas, Justice Rivera-Soto stated in Hopewell that he would "cast a substantive vote in every case in which the judge of the Superior Court temporarily assigned to serve on the Supreme Court participates except for those in which the temporarily assigned judge casts a vote that affects the outcome of the case;" and

Whereas, Justice Rivera-Soto declared he arrived at this "alternative approach" because "[a]mong the varied reactions to Henry, a particularly sober, thoughtful, measured and ultimately persuasive analysis stands out, a voice that has triggered additional reflection on the course I earlier charted. Although it does not modify my earlier conclusion concerning the unconstitutionality of the Court's present composition, that analysis has resulted in a more nuanced view;" and

Whereas, Justice Rivera-Soto's espousal of his "alternative approach," reported in just over a month's time, in an effort to minimize, as Justice Rivera-Soto stated, the "jurisprudential uproar [that] a blanket abstention may create" does not alleviate the concerns of this House; and  

Whereas, The position of Justice of the New Jersey Supreme Court requires the highest degree of integrity and the continuing actions of Justice Rivera-Soto are prejudicial to the administration of justice and bring the New Jersey Supreme Court into disrepute; now, therefore,

 

     Be It Resolved by the Senate of the State of New Jersey:

 

     It is the sense of the Senate that the actions of Justice Roberto Rivera-Soto are prejudicial to the administration of justice and constitute a serious violation of the public trust. It is also the sense of the Senate that the actions of Justice Rivera-Soto may constitute grounds for impeachment for misdemeanor committed during his continuance in office. It is further the sense of the Senate that in the event the Assembly does not consider Articles of Impeachment, Justice Roberto Rivera-Soto must resign his seat as Justice of the Supreme Court of the State of New Jersey.

 

     Be It further Resolved, that duly authenticated copies of this resolution, signed by the President of the Senate and attested to by the Secretary, be delivered to Justice Roberto Rivera-Soto, the Chief Justice and each other Associate Justice of the New Jersey Supreme Court, and the Clerk of the General Assembly, and transmitted to each member of the General Assembly.

 

 

STATEMENT

 

     This resolution expresses the sense of the Senate that Justice Roberto Rivera-Soto must resign his seat as Justice of the New Jersey Supreme Court in the event that the General Assembly does not proceed with the impeachment process.

     On September 8, 2010, Chief Justice Stuart Rabner temporarily assigned Judge Edwin Stern of the Appellate Division to the Supreme Court to fill a vacancy.  In two  written opinions decided on December 10, 2010, Justice Rivera-Soto stated that he intends to abstain from participation in future court decisions as a result of the temporary appointment which Justice Rivera-Soto finds to be unconstitutional. Chief Justice Rabner and four other Justices rejected Justice Rivera-Soto's interpretation of the New Jersey Constitution.  Justice Helen Hoens filed a separate opinion.

     On January 12, 2011, in Hopewell Valley Citizens' Group, Inc. v. Berwind Prop. Group Dev. Co., L.P., 2011 N.J. LEXIS 7, 37-41,  Justice Rivera-Soto issued a dissenting opinion and took that opportunity to elaborate on the extent of his planned participation in future decisions of the Court.  Justice Rivera-Soto stated in Hopewell that he would "cast a substantive vote in every case in which the judge of the Superior Court temporarily assigned to serve on the Supreme Court participates except for those in which the temporarily assigned judge casts a vote that affects the outcome of the case."

     Justice Rivera-Soto declared he arrived at this "alternative approach" because "[a]mong the varied reactions to Henry, a particularly sober, thoughtful, measured and ultimately persuasive analysis stands out, a voice that has triggered additional reflection on the course I earlier charted. Although it does not modify my earlier conclusion concerning the unconstitutionality of the Court's present composition, that analysis has resulted in a more nuanced view."

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