# Johnson v. Johnson > Supreme Court of New Jersey · December 10, 2010 · 204 N.J. 529 URL: https://www.frixlaw.com/law-library/cases/9770058 ## Case - **Full name:** David Johnson, Plaintiff-Appellant, v. Molly V.G.B. Johnson, Defendant-Respondent - **Court:** Supreme Court of New Jersey - **Decided:** December 10, 2010 - **Citations:** 204 N.J. 529; 9 A.3d 1003 - **Precedential status:** Published - **Opinion:** Concurrence by Rabner - **Judges:** Albin, Long, Rabner, Rivera-Soto - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9770058 ## How later opinions describe it (automated extraction) - stating “potential harm to a child is the constitutional imperative that allows the State to intervene into the otherwise private and protected realm of parent-child relations.” - holding Fawzy set forth "the prerequisites for an enforceable arbitration agreement and the methodology by which an arbitration award in the child custody setting may be judicially reviewed" ## Opinion text Chief Justice RABNER, concurring. In Henry v. New Jersey Department of Human Services, 204 N.J. 320 , 9 A.3d 882 (2010), also decided today, the Court addressed the meaning and history of the Temporary Assignment clause of the New Jersey Constitution. See N.J. Const. art. VI, § 2, H1. The Court determined that the temporary appointment of the Honorable Edwin H. Stern, P.J.A.D., to the Supreme Court was constitutional. Henry, supra, 204 N.J. at 341 , 9 A.3d 895 (Rabner, C.J., concurring). As often occurs, an Associate Justice expressed a view that differed from the majority of the Court. Although he may continue to believe that the issue considered in Henry should have been decided differently, the constitutional question is now settled. Our colleague has nonetheless abstained from voting in this case for the reasons he expressed in Henry . 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. Respect for precedent is one reason that weighs against abstaining. Only months ago, in Flomerfelt v. Cardiello, two Justices concurred in a judgment of the Court because it was consistent *550 with an earlier, controlling decision. 202 N.J. 432, 458 , 997 A.2d 991 (2010) (LaVecchia & Rivera-Soto, JJ., concurring) (citing The Salem Group v. Oliver, 128 N.J. 1 , 607 A.2d 138 (1992)). They did so even though they believed a different outcome, as expressed by the dissent in the prior case, Salem Group, was preferable. Flomerfelt, supra, 202 N.J. at 462 , 997 A.2d 991 . They elegantly explained their concurring vote as follows: “although [we] do not embrace the reasoning espoused by the majority in Salem Group, it nevertheless remains precedent deserving of respect. That respect for stare decisis is the simple, and sole, reason for [our] concurrence in the judgment reached today.” Id. at 463 , 997 A.2d 991 . Stare decisis “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.” Vasquez v. Hillery, 474 U.S. 254, 265-66 , 106 S.Ct. 617, 624-25 , 88 L.Ed.2d 598, 610 (1986). Notwithstanding that deep-seated principle, our abstaining colleague declines to vote now because he has a different belief about the Temporary Assignment clause. By abstaining, he ignores settled precedent and discards stare decisis. 1 *551 Of equal importance, a justice has a fundamental duty to participate to the fullest extent possible in all matters presented to the Court. As then-Justice Rehnquist observed in a memorandum opinion in Laird v. Tatum, 409 U.S. 824, 837 , 93 S.Ct. 7, 15 , 34 L.Ed.2d 50, 60 (1972), a “judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.” Ibid, (citations omitted) (emphasis in original); see also United States v. Snyder, 235 F.3d 42 , 46 n. 1 (1st Cir.2000) (noting continued viability of Laird’s “duty to sit” doctrine after statutory amendment). Other states have also recognized the duty to sit. See State v. Hernandez, 115 N.M. 6 , 846 P.2d 312, 326 (1993); Tennant v. Marion Health Care Found., 194 W.Va. 97 , 459 S.E.2d 374, 385 (1995); see also United States Term Limits v. Hill, 315 Ark. 685 , 870 S.W.2d 383, 384-85 (1994) (Dudley, J.); Peterson v. Borst, 784 N.E.2d 934, 935 (Ind.2003) (Boehm, J.); State v. Henley, 322 Wis.2d 1 , 778 N.W.2d 853, 862 (2009) (Roggensack, J.). This Court, likewise, has warned that it is improper for judges to err on the side of caution and recuse themselves unless there is a true basis that requires disqualification. State v. Marshall, 148 N.J. 89, 276 , 690 A.2d 1 (1997). Conflicts in individual cases may of course warrant recusal or disqualification. See, e.g., Code of Judicial Conduct, Canon 3(C)(1) (“A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned____”); R. 1:12—1(f) (instructing judges not to sit in any matter “when there is any ... reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so”). Absent such a reason, though, judges have an obligation both to hear and vote on cases. Judges are appointed to render decisions—not to sit on the sidelines. *552 Nowhere in the ethics rules or prior case law is there support for the notion that a judge may abstain or recuse from voting because his or her view has not prevailed on the merits of a legal question. 2 , 3 The reason for that is straightforward: no judge is a law unto himself or herself. Every person-—even members of this Court—must accept the rule of law. If a member of this Court is unwilling to abide by the judgment of the majority, what message does that send to others who may respectfully disagree with a particular decision? Important, practical consequences flow from those precepts. Judges have a duty to uphold statutes that have been found to be constitutional even if, as legislators or individuals, they would have voted against the laws. Cf. Masse v. Pub. Employees’ Ret. Sys., 87 N.J. 252, 264 , 432 A.2d 1339 (1981) (“It is not a judge’s function to read into a statute what the legislators ought to have agreed *553 upon if they had possessed his wisdom and courage____[C]ourts should adhere to the legislation as written.”) In other words, judges may not abstain from applying laws they disagree with. Judges have the same obligation regarding provisions in the State Constitution. They are obliged to uphold and abide by constitutional practices despite differing personal views. Those concepts are fundamental to the rule of law. In an ordered society, citizens are entitled to rely on the words in the Constitution, statutory codes, and reported decisions. Judges, in turn, must accept and apply settled principles of law. Although precedent may be overturned when appropriate, a judge’s participation in the interim is not optional. One additional reason counsels against continued abstention: our abstaining colleague’s considered views as a voting Justice are worthy of consideration by fellow members of this Court and the litigants who appear before it. For all of those reasons, he should fully participate in this matter and all others presented for the Court’s review. JUSTICES LONG, LaVECCHIA, and ALBIN, join in this opinion. The abstaining opinion suggests that the issue of temporary assignments "was largely resolved by December 2007.” Post at 558, 9 A.3d at 1020 (Rivera-Soto, J., abstaining). For support, he relies on an internal memorandum from the Clerk of the Court to the Supreme Court, which referenced ongoing, internal discussions about the court rule for temporary assignments, but was never adopted. It is a departure from this Court’s practice to cite to internal memos in opinions—or to cite them out of context in a way that alters their meaning. Courts do not enact rule changes or resolve constitutional issues through internal memos, and memos from the Clerk cannot substitute for precedential court rulings. Beyond that, the particular memo the abstaining opinion cites did not, in fact, resolve the issue. At a later conference, the full Court did not adopt the proposals under consideration or offer any rule changes for public comment because a majority, both then and now, did not consider a quorum-only rule proper for individual cases or lengthier assignments. (Moreover, the circum *551 stances that exist now were not contemplated by the Court in 2007.) Thus, the existing court rule, R. 2:13-2(a), remained in place. Nor is there any justification for participating in oral argument yet not voting. In support of his position, our abstaining colleague cites to Justice Black-mun's views in death penalty cases. Post at 561, 9 A.3d at 1022 (Rivera-Soto, J., abstaining). Six months before retiring from the U.S. Supreme Court, Justice Blackmun dissented from the denial of a death row inmate’s petition for a writ of certiorari. Callins v. Collins, 510 U.S. 1141 , 114 S.Ct. 1127 , 127 L.Ed.2d 435 (1994). He wrote that "no sentence of death may be constitutionally imposed under our death penalty scheme.” Id. at 1146 n. 2, 114 S.Ct. at 1130 n. 2, 127 L.Ed.2d at 439 n. 2. During the following six months, he dissented from denials of stay motions, certiorari petitions, and petitions for rehearing in more than 150 cases filed by death row inmates. Notably, Justice Blackmun did not abstain from voting in those cases. He also continued to participate fully in death penalty cases the Court considered. See Tuilaepa v. California, 512 U.S. 967, 984 , 114 S.Ct. 2630, 2641 , 129 L.Ed.2d 750, 767 (1994) (Blackmun, J., dissenting) (citing Callins and also addressing merits); Romano v. Oklahoma, 512 U.S. 1, 15 , 114 S.Ct. 2004, 2013 , 129 L.Ed.2d 1, 15 (1994) (Blackmun, J., dissenting) (joining Justice Ginsburg’s dissent and separately citing Callins); Victor v. Nebraska, 511 U.S. 1, 28 , 114 S.Ct. 1239, 1254 , 127 L.Ed.2d 583, 604 (1994) (Blackmun, J., concurring in part and dissenting in part) (addressing merits and citing Callins). Justice Blackmun's approach, thus, does not provide a basis for judges to abstain from voting. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770058. Public record. Not legal advice.