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Legislative Leaders Vow Constitutional Amendment to Make Judges Pay

Supreme Court ruling exempts judges from higher pension and health benefit payments pushed through by Christie and Sweeney.

Top legislative leaders yesterday vowed to enact a constitutional amendment to require judges to pay more toward their pensions and health benefits. The move would effectively nullify yesterday’s ruling by the state Supreme Court that the New Jersey Constitution bars any reduction in compensation for judges.

The Supreme Court’s 3-2 split decision was on a lawsuit brought by Superior Court Judge Paul DePascale. The narrow ruling was decided on the grounds that the estimated $14,000 of additional pension and health benefit contributions required of state judges under legislation passed last June would amount to a reduction in compensation in violation of the 1947 state constitution.

The specific clause only covers judges, so the ruling would have no bearing on similar lawsuits brought by teachers, police, firefighters, and state and local government workers affected by the same bill. The controversial law, which split the Democratic Party and the labor movement, raised pension and health benefit payments by as much as 9 percent of employee pay and barred public sector workers from negotiating over health benefits for four years.

Swift Reaction from Lawmakers

Yesterday’s Supreme Court ruling brought forth virtually unanimous condemnation by Democratic and Republican lawmakers who spent much of the spring in partisan battles over appointments to the state’s highest court.

“While I am disappointed in the court’s ruling, it will not be the final word on this issue,” vowed Senate President Stephen Sweeney (D-Gloucester), who already has introduced a constitutional amendment to make it clear that the executive and legislative branches of government have the authority to regulate the benefits enjoyed by the judiciary.

Assembly Speaker Sheila Oliver (D-Essex) pledged that “the Assembly will move swiftly to consider a constitutional amendment that will resolve the court’s legal concerns while enabling us to move forward with a fiscally responsible plan to shore up our pension systems.”

Sweeney and Oliver, who head the Democratic majorities in both house of the Legislature, can clearly count on Republican support to provide the supermajorities needed to pass the constitutional amendment next month in order to place it on the ballot this November.

Senator Joseph M. Kyrillos (R-Monmouth), who is running for the U.S. Senate this November, spoke for the GOP when he declared that “judicial independence does not mean judicial supremacy and exceptionalism. The judicial pension system is in arguably the worst financial shape of all the state's retirement accounts, and judges pay the least of all state employees for the best benefits. “Judges should be treated no differently than any other state employee or private sector worker,” Kyrillos concluded. “The cost of bailing out their troubled benefits plans should not fall exclusively to the taxpayers of New Jersey. If righting this wrong requires changing the state constitution, let's do it.”

It doesn’t take the governor’s signature to put a constitutional amendment on the ballot, but Republican Gov. Chris Christie has left no doubt where he stands. Christie told a town hall meeting in Hunterdon County in June that he was betting that the judges would try to “find a way to get out of paying their fair share.”

Christie, who has sharply criticized the New Jersey Supreme Court for what he regards as its liberal bias and judicial activism, will have plenty more to criticize after yesterday’s ruling. There are two vacancies on the Supreme Court, and Christie has watched his nominations of Philip Kwon and Bruce Harris go down to defeat in the Democratic-controlled Senate Judiciary Committee. If either or both had been seated on the court, yesterday’s decision might very well have turned out differently.

How the State’s Highest Court Ruled

Yesterday, Associate Justice Jaynee LaVecchia once again demonstrated her judicial independence by writing the majority opinion on behalf of Associate Justice Barry Albin and Appellate Division Judge Dorothea Wefing, who was temporarily assigned to the case after Chief Justice Stuart Rabner recused himself.

The majority lineup mirrored the diminished three-judge majority in the court decision written by LaVecchia last year that required the Christie administration to restore $500 million in state aid cut from 31 predominantly urban school districts covered by the original Abbott v. Burke school funding litigation.

Christie denounced that decision by a court majority made up of LaVecchia, Democrat Albin, and Edwin Stern, another Appellate Division judge temporarily elevated to the high court to hear a specific case, as just the latest example of an overreaching activist court sending out “invoices” for the governor and Legislature to pay.

Yesterday, as in the school funding case, Associate Justice Helen Hoens, a Republican whose husband serves as a senior policy adviser to Christie, and Associate Justice Anne Patterson, a Republican nominated by Christie, voted against the LaVecchia-led majority.

Ironically, it is the question of whether LaVecchia is an independent or a Republican that is at the heart of the political dispute that has left two seats on the Supreme Court unfilled. Under an unwritten practice that has been honored by governors since passage of the 1947 Constitution, no more than four of the seven justices have come from the same party.

Christie wants to appoint two Republicans to join Hoens and Patterson, arguing that LaVecchia is a registered independent. Democrats insist on counting LaVecchia as a Republican, noting that she served in senior positions for Republican Governors Tom Kean and Christine Todd Whitman, who nominated her to the high court, and that she has made campaign contributions to Republicans. Rabner and Albin are both registered Democrats.

Sweeney is insisting that Christie nominate a Democrat to one of the two seats, while Christie is now insisting on sending in one nominee at a time, reportedly starting with Superior Court Judge Lee Solomon, a former well-liked state assemblyman whose nomination would probably be as palatable to Democratic legislators as almost any Republican choice Christie could make. While unpopular with Christie – and with Sweeney as well, for that matter -- LaVecchia’s decision yesterday will only enhance the judicial reputation she has built in the legal community and among constitutional scholars as an independent-minded justice inured to political pressure.

LaVecchia's Opinion

"The issue before us is not whether justices and judges should contribute to their pension and health care insurance plans,” LaVecchia wrote in her majority opinion. “They do. The issue is not whether the new law applies to justices and judges appointed after the date of the legislation’s enactment. It does. The issue is not whether any future judicial pay raise can be dedicated to increased pension and health care contributions by justices and judges. It may,” reads the majority decision.

“Rather, the issue is whether Chapter 78 violates the New Jersey Constitution by diminishing the salaries of justices and judges during the terms of their appointments. We conclude that it does,” she wrote.

Hoens and Patterson disagreed, asserting that contributions to pensions and health benefits should not be considered “salaries,” even if the increase in those benefit contributions lead to a net reduction in take-home pay for judges.

The lawsuit filed by Judge DePascale noted that the increase in pension and health care contributions for judges from 3 percent of salary to about 12 percent of salary would have increased his biweekly deductions for pensions and health benefits from $126 to $698 over the seven-year phase-in of the legislation. He argued that the decrease constituted a reduction in salary in violation of the state constitutional prohibition against reducing the salary of sitting judges.

The State of New Jersey’s lawyer argued that benefits should be regarded not as salary or fixed compensation, but as an optional payroll item like overtime pay. DePascale’s lawyer asserted that the intent of the New Jersey Constitution’s authors in providing a specific protection for judges was to protect them against political intimidation by taking away from future governors and legislators the power to reduce their pay in retribution for unpopular decisions.

Yesterday, the Supreme Court agreed, by a 3-2 vote, that the intent of the constitution was clear.

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