As the Supreme Court of New Jersey continues its annual August recess, speculation continues on whether Governor Chris Christie has influenced the Court with his recent non-appointment of a non-tenured Associate Justice.
This morning, columnist Bob Braun of The Star-Ledger (Newark) discussed the Supreme Court's recent 3-3 vote to dismiss a motion-in-aid-of-litigants'-rights in the case of Lewis v. Harris, the famous homosexual "marriage" case. The court stated in that case that such a motion was out-of-order absent "an appropriate trial-like record" and encouraged the movants to file a fresh lawsuit in Superior Court in order to argue that New Jersey's Civil Unions Act was unconstitutional.
The real issue was the breakdown of that vote. Chief Justice Stuart Rabner wrote the order, in which Associates Robert Rivera-Soto and Helen Hoens joined. Associate Virginia Long wrote a stinging dissent, in which Associates Barry Albin and Jaynee LaVecchia joined. The seventh chair on the court is empty, since the departure of Associate Justice John E. Wallace, whom Christie refused to reappoint. And more to the point, Rabner, Hoens, and Rivera-Soto are all serving their initial seven-year terms, while Albin, LaVecchia and Long all have tenure--though Long will turn 70 in 2012 and will have to leave the Court then.
Braun today quoted Senator Ray Lesniak (D-Union), Assemblyman John D. McKeon (D-Essex), and Professor Frank Askin of the Rutgers University School of Law, as suggesting that Christie's refusal to reappoint Wallace was the deciding factor in swaying the opinions of Rabner, Rivera-Soto, and Hoens. (Paul Mulshine said the same thing on the day that the decision came down.) They may have a point: of the three, Rivera-Soto was the only one who was on the Court then, and his vote against the motion is a clear change from his earlier vote with the unanimous majority in the original Lewis case.
Most of the speculation today centered on the failed Lewis motion, and the implications for New Jersey of the "Proposition 8 decision" in California, now on appeal to the Ninth Circuit. But another case, that of Committee to Recall Robert Menendez from the Office of United States Senator v. Wells and Giles, is still pending and could represent another test of the effect of Christie's action. Sources who were present when that case came to oral argument said that the same three Justices who dissented from Rabner's recent order in Lewis, also displayed open partiality toward Senator Robert Menendez (D-NJ) and his legal team, and against the recall committee and its advocates. On the other hand, Rabner and especially Rivera-Soto seemed sympathetic to the committee's arguments, and indeed Rivera-Soto asked scathingly whether Menendez' lawyers wished the Court to invalidate part of the State's own constitution. Those same sources said that Helen Hoens sat, silent and sphinx-like, throughout the proceedings, asking no questions and giving no clue to her leanings.
The absence of Justice Wallace, who was notified that he would be leaving the Court shortly after the Court had scheduled oral argument in the recall case, is the clearest reason why the Court has handed down no decision in the matter, this although it set deadlines for briefing that knowledgeable sources described as among the tightest in Court history. Had Wallace remained, he might well have joined Albin, LaVecchia and Long to rule that United States Senators are not subject to a State-initiated recall vote, or indeed any sanction other than expulsion by the Senate itself. However, the continued delay almost certainly means that at least one Justice remains undecided--because if the Court splits its vote down the middle, then by default it affirms the decision that any appellant or "cert petitioner" brought before it.
Rivera-Soto is up for tenure review in April of 2011. Long will leave the Court on March 1, 2012--her seventieth birthday. Hoens will come up for tenure review in September of 2013, and Rabner in June of 2014. Rabner is the only member of the Court who can wait through another governor's race for his tenure review. Albin and LaVecchia will remain on the Court until the years 2022 and 2024, respectively.
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Comments
Did you attend the telephone conference tonight Terry? Very informative and well done. Good coverage on your column ;) Thanks Terry.
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