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Controversy swirls around judge from Haddonfield

TRENTON - Roberto Rivera-Soto has unabashedly gone his own way over the last six years as a justice on the New Jersey Supreme Court.

TRENTON - Roberto Rivera-Soto has unabashedly gone his own way over the last six years as a justice on the New Jersey Supreme Court.

The Haddonfield Republican is the top dissenter on the bench, year after year breaking with the majority more than any other justice on decisions spanning matters of corporate liability, eminent domain and criminal court procedures.

"He's a guy who is not shy about expressing his view," said attorney Lawrence Lustberg, who has argued numerous cases before the court.

But Rivera-Soto deviated from routine professional disagreement this month when he waded into a bitter political fight between Gov. Christie, a Republican, and the Democratic-controlled Legislature.

Now, colleagues are criticizing Rivera-Soto and Democratic legislators are calling for him to resign. Some lawmakers are even talking about impeachment.

The controversy is rooted in the unprecedented refusal in May by Christie, who vowed on the campaign trial to reshape the top court, to reappoint Justice John Wallace of Gloucester County. Christie had said the court was "out of control" and legislating from the bench, though he did not point to specific cases from Wallace's six-year tenure.

Rivera-Soto, 57, two weeks ago filed an opinion saying he would abstain from participating in cases alongside a temporary judge appointed by Chief Justice Stuart Rabner, after Senate Democrats refused to schedule a confirmation hearing in the seven months since the governor nominated a replacement for Wallace, Morris County corporate lawyer Anne Patterson.

Rivera-Soto wrote that the Constitution allows the assignment of another judge to the seven-member Supreme Court only when necessary to constitute a quorum of five justices.

The assignment of a temporary judge "to fill a vacancy resulting from a political impasse between the Executive and the Legislative Branches thrusts the Judiciary into that political thicket, all the while improperly advancing one side's views in preference over the other's," Rivera-Soto wrote.

In response to his colleagues' written opinions that he was creating an artificial crisis, Rivera-Soto wrote that they were attempting to "cajole, badger or threaten submission to the majority's tyrannical view of a constitutional question," and their statements were "prattle largely . . . unworthy of the dignity of a reasoned response."

"No one would ever criticize Justice Rivera-Soto for writing dissenting opinions on these hard questions that come before the court, but this sort of rhetoric is really quite unprecedented," said Robert Williams, a law professor at Rutgers University in Camden.

Also, he said, it's unusual for Rivera-Soto to say he won't honor the decision of the majority, given that once the majority settles an issue "that ends the matter."

Rivera-Soto has sided with the majority on some of the state's most hot-button issues, including a 2006 ruling that same-sex couples must be afforded rights equal to heterosexual couples.

And in the long-running case of Abbott v. Burke, mandating that poor, urban school districts receive a larger share of state aid, Rivera-Soto has ruled with the majority in all but one of eight cases decided since he joined the court.

But as a relative conservative, Rivera-Soto has found himself on the opposite side of issues more than the other justices, dissenting about 90 times since joining the court in September 2004. Nearly one-third of those were partial dissents.

Last month, he dissented on the court's rejection of a tea party attempt to recall U.S. Senator Robert Menendez, a Democrat. Rivera-Soto wrote that the nation survives because it is built on the premise that federal government is limited, with only the power that the people choose to vest in it, and that the majority on the court was ignoring clear constitutional principles.

Rivera-Soto has dissented in favor of employers, questioning majority decisions to uphold unemployment benefits for striking nurses at Lourdes Medical Center and to grant class-action status to Wal-Mart workers who claimed they were forced to work off the clock.

When the court ruled that a foreign manufacturer that places a defective product in the stream of commerce that includes New Jersey is subject to product-liability action in a state court, Rivera-Soto disagreed, writing that the majority's decision upended constitutional decision-making and conflicted with federal principles.

He was the sole dissenter when the court ruled in favor of Mount Laurel in a decision stating that towns can seize property from developers through eminent domain if the land is used for open space.

And Rivera-Soto has dissented numerous times in favor of prosecutors over criminal defendants. In opposition to a majority ruling, for example, he maintained that when there is a reasonable belief that a suspect is armed with a concealed weapon, federal and state constitutions don't impose inflexible rules that they pat the suspect down first when doing so would jeopardize the officer's life.

But Rivera-Sotos' colleagues view his latest break with the court as the real problem.

"It is one thing to dissent from an opinion of the majority," they wrote. "It is another to refuse to participate - to vote - in matters before the Court."

The judge's seven-year term expires in September, and he would have to be reappointed by Christie, then approved by the Senate, to gain tenure on the court.

Rivera-Soto could be hurt by the Supreme Court's censure of him in 2007 after an ethics panel found that he had improperly used his title to influence a judge in a dispute between his son, Christian, and the captain of the Haddonfield Memorial High School football team.

He could even run into trouble before September, with powerful legislators including Senate President Stephen Sweeney (D., Gloucester) and Senate Judiciary Committee Chairman Nicholas Scutari (D., Union) demanding he step down, and Sen. Nia Gill (D., Essex) raising the prospect of impeachment proceedings.

Rivera-Soto, who grew up in Puerto Rico, worked for the U.S. Attorney's Office in Philadelphia and as a lawyer for the casino industry before being appointed to the court by former Gov. James McGreevey.

Though he was selected at the time with scant political involvement or connections, some are now accusing him of bringing politics to the job.

"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," said an opinion signed by justices Virginia Long, Jaynee LaVecchia and Barry Albin earlier this month.

Steven Suflas, a lawyer and longtime friend of Rivera-Soto's, countered that the justice's view had always been that it is more important to do what is right than expedient.

"The easy path would be to say, 'Who cares?'" said Suflas, referring to the controversy over selecting a new justice. "But he's chosen not to do that for sober and serious reasons, not for political reasons."

The Supreme Court judges countered that the appointment of the temporary justice, Edwin Stern, is consistent with more than 800 assignments made by chief justices over four decades. They wrote that about 2,000 matters requiring action will be presented to the court for consideration in the current term, and the assignment of a seventh judge is needed to meet their needs fairly and quickly.

But Rivera-Soto described his stance as a matter of personal conviction.

"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 un-tethered and arbitrary wishes -- that must reign supreme, and it is to the Constitution that my allegiance is bound by oath," he wrote.