TRENTON � Senator Nia H. Gill (D-Essex) made the following remarks today on the floor of the Senate regarding the resolution (SR-105) she sponsored expressing the sense of the Senate that in the event the Assembly does not proceed with impeachment, Justice Roberto Rivera-Soto should resign as a member of the New Jersey Supreme Court. The measure was approved by a vote of 21-3:
�Last December I spoke on the floor of the Senate about how the actions of Justice Rivera-Soto have created a constitutional crisis in our State. I regret to say that this crisis endures and that one lone Justice continues to manipulate and undermine the integrity of the Supreme Court and our Judicial System.
�As the Legislature is well aware, on December 10, 2010, Justice Rivera – Soto issued two opinions objecting to the interim appointment of Judge Stern to fill a vacancy on the New Jersey Supreme Court. In his dissenting opinion in Henry v. New Jersey Department of Human Services, not only did 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, in complete contravention of his constitutional obligations.
�A month later, Justice Rivera � Soto stated in his dissenting opinion in Hopewell Valley Citizens’ Group, Inc. v. Berwind Property Group Development Company, that �a voice has triggered [an] additional reflection on the course [that he] earlier charted. The Justice further stated that �Although it does not modify [his] earlier conclusion concerning the unconstitutionality of the Court’s present composition, that [this] analysis has resulted in a more nuanced view.�
�And exactly what is the Justice�s �more nuanced view�?
�As the Justice stated, it is that he will now �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 [cases] in which the temporarily assigned judge casts a vote that affects the outcome of the case�. Several sentences later in the same opinion, the Justice writes that in the �cases in which the judge of the Superior Court temporarily assigned to serve on the Supreme Court [, Judge Stern,] casts a vote that affects the outcome of the case � [he will] defer a decision on casting a vote and reserve the right to abstain for the reasons noted in Henry.� the Justice�s previous dissenting opinion.
�Justice Rivera-Soto�s �nuanced view� is pernicious. By �reserving the right to abstain on casting a vote� whenever the temporarily assigned judge �casts a vote that affects the outcome of the case�, Justice Rivera-Soto is neither saying he will or will not participate in a case, but that he alone will choose when to participate. Further, with no standing in law, the Justice has anointed himself the only person with the ability to decide when Judge Stern�s �vote affects the outcome of the case�. And as legislators, when we move a bill before this House, we all know that every vote cast affects the outcome.
�At what point in a case will Justice Rivera-Soto decide that Judge Sterns� vote will affect the outcome of the case? Will it be during conferences, when the Justices� discuss substantive issues on cases argued before them and the Justices� draft opinions are circulated among each member of the Court? Or will it be in the middle of oral arguments? Or even more calculating, will Justice Rivera-Soto wait for the other justices to cast their votes and then decide whether or not he will participate?
�What we do know, is that this lone Justice has provided us with a blue print as to how he can manipulate the outcome of a case before New Jersey�s Supreme Court.
�If there is a 3-3 split in a case before the Court it will be Justice Rivera-Soto�s vote or abstention that will affect the outcome of the case, not the vote of the temporarily assigned judge. For it is Justice Rivera-Soto and no one else, who will make the decision as to whether or not the temporarily assigned judge�s vote affects the outcome of a case.
�What this means, is that Justice Rivera-Soto has again created a scenario where he is able to pick and choose which cases he involves himself. Thus, Justice Rivera-Soto�s most recent actions continue to set a dangerous precedent that allows a lone justice in defiance and refusal to perform his Constitutional duties to manipulate and undermine the integrity of the Supreme Court and our Judicial System.
�The Legislature must act together on this issue, and not along partisan, political or racial divides.
�What you don’t do, said Eleanor Roosevelt, can be a destructive force.�
�And if the legislature does nothing in response to the actions of Justice Rivera-Soto, we will be abdicating our authority as an independent, coequal branch of government that is vested in New Jersey�s Constitution with the power of impeachment.
�Thank you and I ask you to vote in the affirmative for this resolution.�