# Johnson v. Johnson

> Supreme Court of New Jersey · December 10, 2010 · 204 N.J. 529

URL: https://www.frixlaw.com/law-library/cases/9770059

## 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 Albin
- **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/9770059

## 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

Justice ALBIN,
concurring.
Sadly, the Court is passing through an artificially created crisis caused by one Associate Justice who has taken the unprecedented step of challenging the Chief Justice’s constitutional authority to assign temporarily a Superior Court judge to fill a vacancy on the Supreme Court. Although a majority of the Court has determined that the Chief Justice has lawfully exercised his authority by temporarily assigning Judge Stem to the Supreme Court, one Associate Justice will not honor that decree, refusing to vote on matters before the Court and refusing to fulfill his own duties under the Constitution.
The Chief Justice is faithfully carrying out his constitutional responsibilities in accordance with the plain language of Article VI, Section II, Paragraph 1 of the New Jersey Constitution, Rule 2:13-2(a), and long-accepted custom. The Chief Justice has ex *554 pressed his reasons for calling on a Superior Court judge to serve temporarily on the Supreme Court: to secure a full Court of seven members to address the approximately “two thousand matters and issues requiring action [that] will be presented to the Court for consideration .this term,” matters involving real “people who are trying to vindicate their rights as they await justice.” Henry v. N.J. Dep’t of Human Servs., 204 N.J. 320, 340 , 9 A.3d 882, 894 (2010) (Rabner, C.J., concurring).
To undermine the Chief Justice’s authority, one Associate Justice has chosen to abstain in hundreds of cases, effectively reducing the Court to six members and depriving litigants of his vote in matters of utmost importance. He has taken the bench in cases argued before the Court, and plied the litigants with questions, all the while knowing that he would abstain. He has chosen to abstain, rather than to disqualify himself, thereby thwarting the Chief Justice from calling on another Superior Court judge to serve temporarily. He is engaging in a course of nullification knowing that a majority of the Court has endorsed the Chief Justice’s constitutional authority to make the present temporary assignment.
The present crisis is not of the Chief Justice’s making. He has merely exercised his constitutional authority in the same manner as have other Chief Justices over the past four decades. During those forty years, no Associate Justice or litigant with a case before the Court has questioned the Chief Justice’s authority to make a temporary assignment of a Superior Court judge to bring the Court to a full complement of seven members.
Our “abstaining” colleague has sat on cases in which other Chief Justices have temporarily assigned a Superior Court judge to sit on the Supreme Court, even when not necessary to constitute a quorum, and has not abstained. Id. at 344 n. 2, 9 A.3d 897 n.2 . Why now? Without a litigant challenging the Chief Justice’s authority, our colleague has chosen to do so at this peculiar time.
Judicial restraint counsels that the Court not decide an issue when there is no concrete case or controversy before it. Yet, our *555 “abstaining” colleague injects a constitutional issue not raised, argued, or briefed by any litigant—based primarily on two academic articles that he widely quotes 1 —to declaim that, in his opinion, the Court is not properly constituted. Id. at 358-63, 371 , 9 A.3d at 905-09, 913-14 (Rivera-Soto, J., abstaining). The scholarly musings of these two academics is that the Chief Justice cannot temporarily assign a Superior Court judge to serve on the Supreme Court other than to constitute a quorum. That supposition, however interesting, is at complete odds with the plain language of Article VI, Section II, Paragraph 1 of our State Constitution 2 and the consistent application of that constitutional provision for most of the modern history of our Supreme Court. 3 And the Chief Justice has dispatched that misbegotten notion with the dispositive analysis in his concurring opinion in Henry v. New Jersey Department of Human Services. Id. at 360-63, 9 A.3d at 906-09 (Rabner, C.J., concurring).
Our “abstaining” colleague has taken an inflexible position that does not account for other reasonable opinions or the possibility of *556 his own fallibility. Accepting his viewpoint compels the conclusion that Chief Justices Weintraub, Hughes, Wilentz, Poritz, and Zazzali were all mistaken and that, by making temporary appointments when not necessary for a quorum, hundreds of opinions were issued by an unconstitutionally constituted Court. The sheer number of prior Justices who have held an opinion different from his own should give him pause to consider that, perhaps, he is in error.
Our “abstaining” colleague makes the thinly veiled, seemingly scandalous charge that the Chief Justice is playing politics, even though he has acted no differently than other Chief Justices facing similar circumstances. See id. at 369-70 , 9 A.3d at 912-13 (Rivera-Soto, J., abstaining). The discordant echo of polities rings from our “abstaining” colleague’s opinion, not from the Chief Justice’s stated reasons for making a temporary assignment. Our “abstaining” colleague says that the Chief Justice’s filling a vacancy on the Court will be construed as the Court “having chosen sides in [an] impasse” between the Legislative and Executive branches of government, with the Court “having cast its lot—and that of the Judiciary as a whole—with the Legislature.” Id. at 369-70 , 9 A.3d at 913 . By that strained logic, by making no temporary assignment, the Chief Justice would be casting his and the Court’s lot with the Executive, still unavoidably entering what our colleague describes as a “political thicket.” See id. at 370 , 9 A.3d at 913 . The Chief Justice cannot escape his constitutional responsibilities—one of which is to make temporary assignments to the Court “when necessary.”
The appointment power of the Executive and the Legislature’s role in passing on nominations is not the business of this Court, although our “abstaining” colleague has made it his business. He has engaged in the wild and corrosive supposition that the Chief Justice, by carrying out his mandated constitutional responsibilities, is empowering and emboldening “the Legislature to withhold, for whatever period it deems appropriate, consideration of any candidate nominated by the Governor.” See id. at 370 , 9 A.3d at *557 913 . There is no basis for that speculative conclusion that invites a disparaging view of the judicial function. More importantly, as Justices, we cannot and must not calculate how we should decide a matter based on public perception, and surely not on how one of our rulings may be wrongly perceived, even by one of the other branches of government. It is our “abstaining” colleague who has needlessly politicized an independent, non-partisan decision by the Chief Justice, and he alone bears responsibility for the collateral damage done to the image of the judiciary.
At issue, ultimately, is whether a Justice of this Court has an obligation to respect the will of the majority. This Court—when four members speak with one voice—is the final authority on the interpretation of the State Constitution. The rule of law requires that every litigant, every citizen, and every government official abide by the decisions of this Court. Respect for the law—even one with which we disagree—must be a first principle for those serving on the highest Court of this State. No one is above the law, not even a Supreme Court Justice.
Filling a temporary vacancy on the Supreme Court is a responsibility vested by the Constitution in the Chief Justice. So long as he does so in accordance with the rules of the Supreme Court, the authority to determine when it is “necessary” to make a temporary assignment is his—no one else’s.
Those of us privileged to serve on the Supreme Court do so not on behalf of any political party or cause, or partisan agenda. We serve to render impartial justice, to the extent humanly possible, without favoring any side or fearing the consequences. To falsely suggest that politics enters into our deliberations and to impugn the good faith of the Chief Justice as he fulfills his constitutional duties is a slur on the entire judiciary.
A majority of the Court has interpreted the Constitution as authorizing the Chief Justice to appoint Judge Stern to serve temporarily on the Supreme Court. Although a Justice may *558 disagree with that decision, he may not defy it. No one is above the law.
Justice RIVERA-SOTO,
abstaining.
I abstain for the reasons set forth in my opinion in Henry v. New Jersey Department of Human Services, 204 N.J. 320 , 9 A.3d 882 (2010) (Rivera-Soto, J., abstaining), namely that the Court, presently “constituted as one Chief Justice, five Associate Justices and a Judge of the Appellate Division selected unilaterally by the Chief Justice, ... is unconstitutional and its acts are ultra vires[.]” Ibid. at 354 , 9 A.3d at 903 . I add, however, the following.
My determination to highlight the unconstitutional composition of the Court and the reasons therefor have triggered an overheated paroxysm of judicial hysteria. In this appeal alone, two separate concurring opinions attempt—albeit unsuccessfully—to either cajole, badger or threaten submission to the majority’s tyrannical view of a constitutional question. Although that prattle largely is unworthy of the dignity of a reasoned response, some specific rejoinders are in order.
I.
Having asserted the logical and plain conclusion that of necessity flows from the Court being unconstitutionally constituted, I stand accused of “ignoring] settled precedent and discarding] stare decisis.” Ante at 550 (Rabner, C.J., concurring) 9 A.3d at 1018 . The so-called “settled precedent” is, as noted in Henry , anything but settled and that concurrence’s assertion is fundamentally misleading.
What that concurrence conveniently ignores is that the question of when it is “necessary” to temporarily assign a judge of the Superior Court for service in the Supreme Court in fact was raised as early as May 2007 and was largely resolved by December 2007. At that point, the Court considered the question of temporary assignments in two discrete settings: individual case *559 assignments and general assignments. As noted in a December 12, 2007 memorandum from the Clerk of the Court to the Supreme Court, “in respect of individual case callups, the Court has decided to limit temporary assignments from the Appellate Division to cases in which the assignments are necessary to establish a five-person quorum.” (emphasis in original). That memorandum also noted a second scenario: “a general assignment to replace a member of the Court who is unable to participate in the Court’s activities.” (emphasis in original). In that instance, “[t]emporary assignments in this category are intended to result in a full complement of seven Justices.” As the memorandum points out, this second scenario does not arise willy-nilly, but is limited to those instances where the “longterm unavailability of a Justice [is] due to illness or accident[.]” Neither of those admit the circumstances with which the Court presently is confronted: a vacancy in the Court arising out of a political stalemate. 1
If there is, then, “settled precedent,” it is straightforward but contrary to what the concurrence asserts: temporary assignments are constitutional either to satisfy the Constitution’s five-person quorum requirement, N.J. Const. art. VI, § II, 1[ 1, or when a constitutionally nominated and confirmed Justice is unavailable, long-term, due to illness or accident. Neither applies here.
The Court also has decreed that it may act unconstitutionally and, under stare decisis, everyone must accept that decree and *560 follow the party line. That is an unfortunate miseharacterization of the doctrine of stare decisis. The doctrine does not require slavish adherence to abhorrent principles. As this Court recently noted:
To be sure, stare decisis—following precedent—provides stability and certainty to the law. Those governed by decisions of this Court must know that they can rely on our pronouncements. For that reason, we do not lightly alter one of our rulings. Stare decisis, however, is not an unyielding doctrine.....Stare decisis does not compel us to continue on a mistaken path or to adhere blindly to rules that have lost their reason for being.
[Pinto v. Spectrum, Chems. & Lab. Prods., 200 N.J. 580, 598 , 985 A.2d 1239 (2010) (citations and internal quotation marks omitted).]
In an early case of this Court, Chief Justice Vanderbilt, in a ringing dissent, noted that “[t]he doctrine of stare decisis neither renders the courts impotent to correct their past errors nor requires them to adhere blindly to rules that have lost their reason for being.” Fox v. Snow, 6 N.J. 12, 23 , 76 A.2d 877 (1950) (Vanderbilt, C.J., dissenting). He emphasized that “[t]he common law would be sapped of its life blood if stare decisis were to become a god instead of a guide. The doctrine when properly applied operates only to control change, not to prevent it.” Ibid. Prophetically, Chief Justice Vanderbilt’s view, although expressed then in dissent, has become this Court’s standard. White v. Twp. of N. Bergen, 77 N.J. 538, 551-52 , 391 A.2d 911 (1978) (“However unpersuasive it was to the Fox court majority in 1950, [Vanderbilt’s] philosophy has clearly guided this Court since, as exemplified in many of its decisions. We have agreed with the Vanderbilt thesis that the process of justice is not bound, as though by some strange sort of Mendelian law, to accept the hereditary transfer of now visible defects in justice, from generation to generation; that no such inevitability is required by the principle of stare decisis, and that the Court ... has authority to intervene against operation of any such fallacy.”).
In contrast, when a Justice historically has refused to abide by court decisions solely on the basis of what can only be called a politically correct notion, the hue and cry of stare decisis curiously is not raised. For example, dissenting from the denial of a writ of *561 certiorari in a capital case, Justice Blackmun unilaterally concluded that capital punishment was unconstitutional, dramatically announcing that “Lflrom this day forward, I no longer shall tinker with the machinery of death.” Callins v. Collins, 510 U.S. 1141, 1145 , 114 S.Ct. 1127, 1130 , 127 L.Ed.2d 435, 438 (1994). Yet, despite the unquestioned fact that a majority of the Supreme Court of the United States repeatedly reaffirmed the constitutionality of the death penalty, Justice Blackmun never wavered from his deeply held view and, more to the point, none of his colleagues ever displayed the naked arrogance of castigating him for, purportedly, ignoring stare decisis.
In its implications, the concurrence seemingly asserts that the doctrine of stare decisis does not differ in any material respect from the divine right of kings, that is, a decision reached by the brute force of numbers of this Court cannot be questioned or challenged; it is to be accepted without question. That reading of the doctrine of stare decisis is grotesquely overbroad, and the notion that a majority headcount standing alone can silence permanently a discordant voice is simply too absurd for words. For example, if the doctrine is as broad as the concurrence would have it, the state of the law in this country would still be that separate but equal facilities for different races is constitutional, Plessy v. Ferguson, 163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896), and Justice Harlan’s exhortations in dissent, id. at 552 , 16 S.Ct. at 1144 , 41 L.Ed. at 261 , would be relegated to the dustbin of rousing but unpersuasive rhetoric. Constitutional history teaches otherwise, and the constitutional history of this State, in particular, is replete with contrary examples. See, e.g., Lewis v. Harris, 188 N.J. 415 , 908 A.2d 196 (2006) (recognizing, for first time, constitutional basis for governmental sanction of same-sex unions); State v. Peña-Flores, 198 N.J. 6 , 965 A.2d 114 (2009) (rejecting constitutional basis for automobile exception to warrant requirement otherwise recognized in every other American jurisdiction); State v. Hempele, 120 N.J. 182 , 576 A.2d 793 (1990) (recognizing, for first time, a constitutionally protected expectation of privacy in trash left at curbside unique to New Jersey). That contrary *562 history—one of which this Court often proudly crows—lays forgotten in the din raised by the concurrence.
II.
In a separate concurrence, the position I have advanced has been called an “artificially created erisis[,]” one in which I have “refus[ed] to vote on matters before the Court and refusfed] to fulfill [my] own duties under the Constitution.” Ante at 553 (Albín, J., concurring) 9 A.3d at 1017 . The stridency of that concurrence provides its own response.
That said, that concurrence chides me for having “sat on cases in which other Chief Justices have temporarily assigned a Superi- or Court judge to sit on the Supreme Court, even when not necessary to constitute a quorum, and has not abstained.” Id. at 554, 9 A.3d at 1018 . One is sorely tempted blithely to reply— tongue firmly planted in one’s cheek—with what Justice Clifford referred to as either “that reassuring old turkey” or “that old chestnut”: “ ‘The matter does not appear to me now as it appears to have appeared to me then.’ Bramwell, B., in Andrews v. Styrap, 26 L.T.R. (n.s.) 704, 706 (Ex. 1872)[.]” Tretina v. Fitzpatrick & Assocs., 135 N.J. 349, 367 , 640 A.2d 788 (1994) (Clifford, J., concurring); Moraca v. Ford Motor Co., 66 N.J. 454, 466 , 332 A.2d 599 (1975) (Clifford, J., dissenting). In a light-hearted vein, that is the extent of any needed reply.
There is, however, a more serious and pointed response. As noted earlier, the process by which this Court re-examined temporary assignments to the Court was subject to review three years ago, a review prompted by deeply felt and strongly held concerns that the until-then process of temporary appointments contravened the explicit language of the Constitution. Also as noted earlier, those concerns resulted in a Court determination that a temporary assignment would be made only in two circumstances: on an individual ease basis to meet the quorum requirement, and on a general basis due to the long-term unavailability of a Justice due to illness or accident. Once that ship was righted, there was *563 no need to raise again that issue, as the Court steadfastly—and in the face of public opposition—hewed to those principles. It is only now that, for reasons that have nothing to do with the “necessity” required by the Constitution, those principles have been cast aside, resulting in a Court that presently is unconstitutionally constituted. 2
That concurrence also asserts, in rather colorful terms, that my refusal to bow down to the majority’s will—or to the tyranny of this particular majority—somehow violates precepts of good judging. 3 In so doing, that concurrence plainly ignores the rather stark difference between acknowledging a decision of this Court and opposing it. My opposition to the Court’s wrongful exercise *564 of the temporary assignment power consists of: participating ftilly in each matter before the Court, just like any other Justice; explaining my views and how I reach them in each such instance, again just like any other Justice; but abstaining from any decision thereon, a decision—how a Justice easts his or her vote—that is uniquely personal and, more to the point, immune from any other Justice’s views. In that context, that concurrence’s feigned horror at that latter part—a vote of abstention—is, in its proper context, laughable.
That concurrence happily ignores that abstentions from decisions of the Court have been registered for years and, yet, no “artificially created crisis” has arisen. For example, each time the Court is presented with an application seeking the recall of a judge of the Superior Court who is older than seventy, I have abstained from that decision. In my view, the plain constitutional proscription that “justices and judges shall be retired upon attaining the age of 70 years[,]” N.J. Const. art. VI, § VI, 113 (emphasis supplied), is clear and brooks no different interpretation. Yet, this Court repeatedly has recalled and continues to recall to service judges who are older than seventy and, curiously, has arbitrarily set its own limit on recall at age eighty. Stated in starker terms, the Court blithely ignores a clear constitutional mandate in preference for an arbitrary one of its own making. Although the aggregate number of those abstentions now must be rather significant, inexplicably they have not stirred the invective that concurrence now musters.
III.
The Nobel Laureate and dramatist George Bernard Shaw once observed that “[t]he reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore, all progress depends on the unreasonable man.” George Bernard Shaw, Quotations, available at http:// www.quotationspage.com/quote/2097.html. No doubt, some have claimed and undoubtedly will claim that, viewing uncritically and *565 abstractly this Court’s prior history and practice, the position I have advanced as to the Constitution’s strictures may be unreasonable and, perhaps, even incorrect. Although the views I have espoused may arouse passionate responses, one thing remains clear: the positions I have taken in this matter align far more closely with the explicit mandates of our Constitution than the unvarnished arbitrariness at the core of both concurrences. For me, the choice between going along and asserting a heartfelt belief or between collegiality and constitutionality is no choice at all. In either event, it is the Constitution—and not this Court’s constitutionally untethered and arbitrary wishes—that must reign supreme, and it is to the Constitution that my allegiance is bound by oath.
For each of those reasons, I abstain.
For Reversal and Reinstatement—Chief Justice RABNER and Justices LONG, LaVECCHIA, ALBIN, HOENS, and STERN—6.
For Abstaintment—Justice RIVERA-SOTO-1.
Opposed—None.
The first of the publications to which our "abstaining” colleague cites is an article in the Seton Hall Law Review. Edward A. Hartnett, Ties in the Supreme Court of New Jersey, 32 Seton Hall L.Rev. 735 (2003). The other is a piece posted to the website of the Federalist Society. Earl M. Maltz, Temporary Assignments to Fill Vacancies on the New Jersey Supreme Court (2010), available at http:// www.fed-soc.org/doclib/20100920_NewJerseyWP.pdf.
"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.” N.J. Const. art. VI, § 2, U 1.
Interestingly, Justice Jacobs—who served on the New Jersey Supreme Court from 1952 to 1975—was the Vice-Chairman for the Committee on the Judiciary at the 1947 Constitutional Convention, which was responsible for drafting the very constitutional provision in dispute. See 4 Proceedings of the Constitutional Convention of1947, at iii. He also served on the Court in 1967 when the current rule, now denominated Rule 2:13-2(a), was promulgated, giving the Chief Justice specific authority to assign temporarily a Superior Court judge to serve on the Supreme Court in circumstances other than to constitute a quorum. See R.R. 1:1—5(b) (1967) (current version at R. 2:13-2(a)). He evidently saw no contradiction between the Constitution and the rule.
As this historical summary makes clear, the proper exercise of the temporary appointment power has been raised for several years and, for all intents and purposes, was resolved three years ago. To claim, as both concurrences do, that the issue is being raised as if for the first time is a threadbare rhetorical device that is both misleading and unworthy of this Court.
To be sure, as the concurrence notes, the December 12, 2007 memorandum’s contents were not formally adopted by the Court or incorporated into changes to Rule 2:13-2(a). Ante at 555 n. 1, 9 A.3d at 1018 n. 1. However, since that time and as amply evidenced by later events, until now the Court has acted in a manner entirely consistent with those changes; to denigrate those changes by asserting that they were not formally adopted—all the while abiding by them— demonstrates an inconsistency irrationally devoid of reason.
The vacancy that has caused this uproar has existed since May 2010, yet no Superior Court judge was temporarily assigned to the Court until September 2010. In the interim, the Court was more than able to address its business, hear arguments, render decisions, and meet its constitutional obligations while comprised of one Chief Justice and five—not six—Justices, including a case of significant constitutional import. See Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 204 N.J. 79, 7 A.3d 720 (2010). During that period, the work of the Court was completed and the wheels of justice did not come to a screeching halt. Against that factual backdrop, how the temporary appointment of a Superior Court judge is at all "necessary” remains both unexplained and, more to the point, unexplainable.
in this respect, the concurrence's insistence on its majoritarian will is nothing more than pure cynicism, a bankrupt view shared by like minds:
[U.S. Supreme Court Justice William J.] Brennan liked to greet his new clerks each fall by asking them what they thought was the most important thing they needed to know as they began their work in his chambers. The pair of stumped novices would watch quizzically as Brennan held up five fingers. Brennan then explained that with five votes [a majority of the Court], you could accomplish anything.
Seth Stern & Stephen Wermiel, Justice Brennan: Liberal Champion 196 (2010).
That obscenely cynical view arises because " '[s]ome well-meaning people apparently believe that the judicial rather than the political process is more likely to breed better solutions of pressing or thorny problems. This is a compliment to the judiciary but untrue to democratic principle^]' ” Harlan Cautions on Role of Court; Warns of Growing Reliance on Judiciary by Society, N.Y. Times, Aug. 14, 1963 at 18.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770059. Public record. Not legal advice.