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.
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1 A SENATE RESOLUTION in the matter of Justice Roberto Rivera-

2 Soto.
3
4 WHEREAS, Article VI, Section VI, paragraph 3 of the New Jersey
5 Constitution provides, in pertinent part: “The Justices of the
6 Supreme Court . . . shall hold their offices for initial terms of 7
7 years and upon reappointment shall hold their offices during good
8 behavior;” and
9 WHEREAS, Paragraph 1 of Article VII, Section III provides: “The
10 Governor and all other State officers, while in office and for two
11 years thereafter, shall be liable to impeachment for misdemeanor
12 committed during their respective continuance in office,” and
13 paragraph 2 provides: “The General Assembly shall have the sole
14 power of impeachment by a vote of the majority of all the
15 members;” and
16 WHEREAS, On September 8, 2010, New Jersey Supreme Court Chief
17 Justice Stuart Rabner, pursuant to his constitutional authority,
18 temporarily assigned Judge Edwin Stern, Presiding Judge for
19 Administration of the Appellate Division, to the New Jersey
20 Supreme Court to fill the seat vacated by Justice John Wallace on
21 May 20, 2010; and
22 WHEREAS, Article VI, Section II, Paragraph 1 of the New Jersey
23 Constitution provides that “The Supreme Court shall consist of a
24 Chief Justice and six Associate Justices. Five members of the court
25 shall constitute a quorum. When necessary, the Chief Justice shall
26 assign the Judge or Judges of the Superior Court, senior in service,
27 as provided by rules of the Supreme Court, to serve temporarily in
28 the Supreme Court;” and
29 WHEREAS, New Jersey Supreme Court Justice Roberto Rivera-Soto
30 stated in a written opinion, Lula M. Henry v. New Jersey
31 Department of Human Services (A-69-09), decided on December
32 10, 2010, that he was abstaining from that opinion and intends to
33 abstain from participation in future court decisions and reiterated
34 that intent in David Johnson v. Molly V.G.B. Johnson (A-91-09),
35 decided on December 10, 2010; and
36 WHEREAS, Justice Rivera-Soto wrote that he believes that the
37 temporary appointment of Judge Edwin Stern to the Supreme Court
38 is unconstitutional; that the New Jersey Constitution provides for a
39 temporary appointment “when necessary”; and that at this time such
40 appointment is not “necessary” because it is not needed for the
41 court to achieve a quorum; and
42 WHEREAS, Chief Justice Rabner rejected Justice Rivera-Soto’s
43 interpretation of the New Jersey Constitution and analyzed the
44 proceedings of the 1947 Constitutional Convention, finding that
45 “[h]ad the Framers intended to limit temporary assignments to
46 meeting quorum needs, they would have said so. Instead, they
47 considered and rejected [that] very language . . . We cannot add it
48 back.” [emphasis in Henry]; and
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1 WHEREAS, The Chief Justice also stated, “[T]he parties have neither
2 objected to the temporary assignment nor presented arguments for
3 the Court to consider. Nonetheless, in a departure from recognized
4 practice, the abstaining Justice has raised a constitutional issue on
5 his own -- at the same time, ironically, that he notes the virtue of
6 judicial restraint;” and
7 WHEREAS, The Chief Justice stated in Johnson that “It is one thing to
8 dissent from an opinion of the majority; it is another to refuse to
9 participate -- to vote -- in matters before the Court. Under our
10 system of law, holding a contrary view about a settled legal issue is
11 not a basis for abstaining;” and
12 WHEREAS, In a subsequent decision, Hopewell Valley Citizens'
13 Group, Inc. v. Berwind Prop. Group Dev. Co., L.P., 2011 N.J.
14 LEXIS 7, 37-41, decided on January 12, 2011, Justice Rivera-Soto
15 issued a dissenting opinion and took that opportunity to elaborate
16 on the extent of his planned participation in future decisions of the
17 Court; and
18 WHEREAS, Justice Rivera-Soto stated in Hopewell that he would “cast
19 a substantive vote in every case in which the judge of the Superior
20 Court temporarily assigned to serve on the Supreme Court
21 participates except for those in which the temporarily assigned
22 judge casts a vote that affects the outcome of the case;” and
23 WHEREAS, Justice Rivera-Soto declared he arrived at this “alternative
24 approach” because “[a]mong the varied reactions to Henry, a
25 particularly sober, thoughtful, measured and ultimately persuasive
26 analysis stands out, a voice that has triggered additional reflection
27 on the course I earlier charted. Although it does not modify my
28 earlier conclusion concerning the unconstitutionality of the Court's
29 present composition, that analysis has resulted in a more nuanced
30 view;” and
31 WHEREAS, Justice Rivera-Soto’s espousal of his “alternative
32 approach,” reported in just over a month’s time, in an effort to
33 minimize, as Justice Rivera-Soto stated, the “jurisprudential uproar
34 [that] a blanket abstention may create” does not alleviate the
35 concerns of this House; and
36 WHEREAS, The position of Justice of the New Jersey Supreme Court
37 requires the highest degree of integrity and the continuing actions
38 of Justice Rivera-Soto are prejudicial to the administration of
39 justice and bring the New Jersey Supreme Court into disrepute;
40 now, therefore,
41
42 BE IT RESOLVED by the Senate of the State of New Jersey:
43
44 It is the sense of the Senate that the actions of Justice Roberto
45 Rivera-Soto are prejudicial to the administration of justice and
46 constitute a serious violation of the public trust. It is also the sense
47 of the Senate that the actions of Justice Rivera-Soto may constitute
48 grounds for impeachment for misdemeanor committed during his
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1 continuance in office. It is further the sense of the Senate that in the

2 event the Assembly does not consider Articles of Impeachment,
3 Justice Roberto Rivera-Soto must resign his seat as Justice of the
4 Supreme Court of the State of New Jersey.
5
6 BE IT FURTHER RESOLVED, that duly authenticated copies of
7 this resolution, signed by the President of the Senate and attested to
8 by the Secretary, be delivered to Justice Roberto Rivera-Soto, the
9 Chief Justice and each other Associate Justice of the New Jersey
10 Supreme Court, and the Clerk of the General Assembly, and
11 transmitted to each member of the General Assembly.
12
13
14 STATEMENT
15
16 This resolution expresses the sense of the Senate that Justice
17 Roberto Rivera-Soto must resign his seat as Justice of the New
18 Jersey Supreme Court in the event that the General Assembly does
19 not proceed with the impeachment process.
20 On September 8, 2010, Chief Justice Stuart Rabner temporarily
21 assigned Judge Edwin Stern of the Appellate Division to the
22 Supreme Court to fill a vacancy. In two written opinions decided
23 on December 10, 2010, Justice Rivera-Soto stated that he intends to
24 abstain from participation in future court decisions as a result of the
25 temporary appointment which Justice Rivera-Soto finds to be
26 unconstitutional. Chief Justice Rabner and four other Justices
27 rejected Justice Rivera-Soto’s interpretation of the New Jersey
28 Constitution. Justice Helen Hoens filed a separate opinion.
29 On January 12, 2011, in Hopewell Valley Citizens' Group, Inc. v.
30 Berwind Prop. Group Dev. Co., L.P., 2011 N.J. LEXIS 7, 37-41,
31 Justice Rivera-Soto issued a dissenting opinion and took that
32 opportunity to elaborate on the extent of his planned participation in
33 future decisions of the Court. Justice Rivera-Soto stated in
34 Hopewell that he would “cast a substantive vote in every case in
35 which the judge of the Superior Court temporarily assigned to serve
36 on the Supreme Court participates except for those in which the
37 temporarily assigned judge casts a vote that affects the outcome of
38 the case.”
39 Justice Rivera-Soto declared he arrived at this “alternative
40 approach” because “[a]mong the varied reactions to Henry, a
41 particularly sober, thoughtful, measured and ultimately persuasive
42 analysis stands out, a voice that has triggered additional reflection
43 on the course I earlier charted. Although it does not modify my
44 earlier conclusion concerning the unconstitutionality of the Court's
45 present composition, that analysis has resulted in a more nuanced
46 view.”