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Voters Will Rule on Whether Judges Should Pay More for Benefits

Linda Federico-O'Murchu | November 2, 2012

Proponents portray increase as issue of fairness; opponents cite constitutional protections.

A decision by the state Legislature last summer means voters will decide Tuesday whether New Jersey judges should have to pay more for their pensions and benefits, as other public employees do, or whether a clause in the state constitution means they are exempt.

The issue became a subject of debate after the state Supreme Court ruled that judges’ salaries were exempt from revisions imposed by Gov. Chris Christie on public employees’ pensions and health care benefits. In the past, judges paid only 3 percent of their salaries toward their pensions and benefits, leaving taxpayers to pick up the remainder of the tab. In July, the court decided that, in the interest of fairness, sitting judges would have to pay 12 percent, the same as teachers, police officers and other state employees. The ruling did not apply to tenured judges.

Reacting swiftly to the decision, State Superior Court Judge Paul DePascale of Hudson County sued, citing a clause in the state constitution protecting judges from having their salaries reduced during their terms.

Open to interpretation was the issue of whether the judges, in paying more for their pensions and benefits, were in fact having their salaries “reduced.” Another point of contention was how binding such a clause was, given the fact that the state constitution was written before pensions and health insurance even existed.

The DePasquale lawsuit successfully overturned the law six days after it was passed, on the grounds that it was unconstitutional. One day later, a constitutional amendment was introduced to clarify the extent of the Legislature’s authority over the judiciary.

That proposed amendment is on Tuesday’s ballot.

“The ballot actually is to clarify that the Legislature has the power to mandate that judges be included in the new pension reform law,” said Republican Assemblywoman Caroline Casagrande, one of the sponsors of the bill that overturned the original Supreme Court ruling. “In order for that to happen -- because of some absurd, self-serving decision such as the DePasquale matter -- we need to amend the New Jersey Constitution.”

As far as the New Jersey State Bar Association is concerned, the Legislature is dangerously overstepping its own boundaries by even considering it. A written statement on the NJSBA’s website says that amending the state constitution opens the door for political interests to interfere with a fair and unbiased judicial process, and calls on the Supreme Court to remember its obligation to “protect the judicial branch of our state government from possible political interference and/or retaliation by another separate and co-equal branch of government.”

“These protections are the hallmark of the free, fair and independent judicial system, which New Jerseyans rely on each and every day,” the statement reads. “While this legislative proposal purports to put judges together with other government employees in connection with deductions from salaries for pensions, health benefits and other similar benefits, it actually represents a stark change in our state government and upends an historical protection that has kept the judicial system of our state from partisan politics.”

“The political people cannot reduce judges’ salaries,” insisted Kevin McCann, president of the NJ State Bar Association. “That’s why the Constitution was drafted that way several hundred years ago, so the politicians couldn’t say to the judges, ‘we don’t like your decisions, we’re going to reduce your salary’.”

“That’s absurd,” countered Casagrande, who denied that it was anything more than a dollars-and-cents issue.

“Anyone who understands even basic math gets that this is not a sustainable system. It is absolutely within the purview of the Legislature to make sure that all public servants have a solvent pension system, whether we’re talking about judges, teachers, police officers or any other public employee. Just because you wear a black robe doesn’t mean you’re exempt from making the same shared sacrifices that all other public employees in New Jersey have made over the last several years. This is the purest form of democracy.”

McCann emphatically disagreed, on the grounds that employment regulations do not apply equally to all public employees.

“Judges can’t be lumped together with other governmental employees,” he declared. “Teachers can have summer jobs, teachers can have night jobs, teachers can work in a liquor store. Teachers get pay raises every year. Cops moonlight, cops go in and negotiate their contracts every three years. Cops can retire at age 46 and go back into doing something else.

“Judges don’t have any of those things. A judge off the bench can’t go back to practicing law. If (judges) are collecting a pension, they’re restricted from the work they can do.”

Regardless, Casagrande maintains that the pension system needs to be overhauled to ease the burden on taxpayers.

“I would just like people to understand that the average salary for judges is $166,000 and they contribute 3 percent of their salaries toward their pension. Which on average means that they receive about $107,000 annually upon retirement,” she said. “But the payout that taxpayers are on the hook for is approximately $2.3 million. So the average lifetime payout to a retired judge is $2.3 million in benefits, while their contribution – the money they actually pay into the system – is $59,300.”

McCann called the practice of rescinding constitutional rights “the slippery slope” and warned voters to remember that there is more at stake than money when they pull the lever in November. Still, he surmised that the “fairness” issue would likely eclipse the more critical issue raised by amending the state constitution -- namely, the threat to judicial independence.

Linda Federico-O'Murchu is a freelance reporter, writer and photographer living in New Jersey. A former editor at Patch.com, she currently works for the Today Show website, Today Moms, and Montclair State University.

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