Move over, NJEA. The New Jersey Supreme Court is now Public Enemy No. 1 and could remain so for the next few months.
Infuriated by a Supreme Court ruling that the New Jersey Constitution barred the governor and legislature from requiring judges to pay more for their pension and health care, the state Senate and Assembly took less than an hour yesterday to put a constitutional amendment on the November ballot that would overturn that decision.
"Rarely has the public seen such unanimity between the legislative and executive branches that the judicial branch was dead wrong,” said Republican Christie, who has increasingly focused his wrath on the Supreme Court for its “liberal” bias and “judicial activism” in recent months.
“I congratulate the legislature for their decisive, bipartisan action that lives up to the promise of our historical pension and benefit reform by making sure everyone is treated fairly,” the governor said. “I pledge to do all I can this fall to ensure passage of this amendment to our constitution and truly believe that New Jersey voters will deliver the same message of fairness to the judiciary as well."
For Christie, campaigning for voters to approve passage of the constitutional amendment enables him not only to attack the current Supreme Court and the judiciary as self-serving, but also to remind voters why he wants the Democratic-controlled Legislature to approve his nominees to fill two vacancies on the seven-member court to create a conservative majority that would overturn the Abbott v. Burke school funding requirements and other progressive rulings.
Yesterday’s vote doesn’t mean that Christie and Senate President Stephen Sweeney (D-Gloucester) are any closer to resolving their dispute over Supreme Court appointments, but they were clearly in agreement that judges should not be the only state and local government employees not required to make higher pension and health benefit payments.
Associate Justice Jaynee LaVecchia, who authored the 3-2 Abbott decision that ordered the state to restore $500 million in funding to urban school districts last year, wrote the controversial 3-2 majority opinion last week in the case brought by Superior Court Judge Paul DePascale. LaVecchia agreed with DePascale’s argument that a clause in the 1947 New Jersey Constitution barring any cut in judicial pay precluded Christie and the Legislature from requiring judges to pay an estimated $14,000 more toward their pensions and health benefits.
It is the question of whether LaVecchia is an independent or a Republican that is at the heart of Christie’s dispute with Sweeney over whether the governor should be entitled to appoint two Republicans to the court, or whether he has to appoint one Republican and one Democrat, as Sweeney insists. The partisan makeup of the court was the real underlying issue in the Senate Judiciary Committee’s unprecedented rejection of Christie’s last two nominees, Philip Kwon and Bruce Harris, in March and May.
But yesterday, the most powerful duo in New Jersey government were back on the same page on how to make sure the pension and health benefits legislation they pushed through in June 2011 would apply equally to all state and local government employees.
It was Sweeney who introduced the constitutional amendment legislation months ago in the expectation that the Supreme Court might find it unconstitutional to apply his pension and health benefits bill to judges.
Sweeney and Christie had plenty of bipartisan company yesterday, as the Senate voted 28-0 and the Assembly 62-3 to place the constitutional amendment on the November ballot. The 28 votes in the Senate were one more than the three-fifths majority needed in the 40-member house, while the Assembly passed the measure with 14 votes to spare.
“Judges should not be considered different than anyone else in public service in terms of their pension and benefit contributions,” Sweeney said. “In fact, the poor health the judicial pension system is largely due to judges contributing so little while collecting greater benefits, and we can’t allow this system -- or any pension -- to go bankrupt. We need to correct this out of fairness and out of the need to put our fiscal house back in order.”
Senate Democrats said the Judicial Retirement System’s $280.5 million unfunded liability makes it the most unstable of the state’s six public employee pension systems; the judicial pension system currently is able to meet only 52.1 percent of its obligations. While the Legislature’s Democratic majority was deeply divided over the bill pushed by Sweeney and Christie last June that increased pension and health care contributions for all state and local government employees, including teachers, police and firefighters, most Democrats supported yesterday’s constitutional amendment on the basis of fairness.
Significantly, Senator Shirley Turner (D-Mercer), a staunch supporter of the interests of state employees, who make up a large percentage of her district, was a prime sponsor and vocal supporter of yesterday’s measure.
“The law should apply equally to everyone. No one is better than anyone else,” Turner asserted. “The pension reform law is critical to returning our pension systems to health and the ability to deliver on their promises. With the Judicial Retirement System in such poor shape, our judges need to swallow hard and take their medicine, or else run the very real risk of seeing their pension system run aground.”
Assemblywoman Amy Handlin (R-Monmouth), who sponsored a similar constitutional amendment in the Assembly, made the same argument.
“A fair balance of responsibility is the core element of the historic public employee pension and benefit reform that will save taxpayers $120 billion,” Handlin said. Unless every category of public employee picks up their oars and rows together, New Jersey’s fiscal ship will capsize.
If approved by voters in November, the constitutional amendment would give the legislative and executive branches of government the authority to enact laws that change the pension and health benefit deductions of the judicial branch.
Only one legislator, Assemblyman Joseph Cryan (D-Union), expressed concern yesterday that the constitutional amendment would undermine the intent of the authors of the 1947 Constitution to insulate judges against potential political pressure by governors or legislators who might seek to lower their pay in retaliation for court decisions they did not like.
Cryan, who cast one of three no votes against the bill, argued that passage of the constitutional amendment would indeed “put the independent judiciary at risk.” He suggested that the amendment should be limited to allow the governor and Legislature the authority to adjust judicial pension and health benefit deductions only in this particular instance.
Assembly Speaker Sheila Oliver (D-Essex) insisted, “This is not about penalizing judges.”
For some longtime foes of the New Jersey Supreme Court, yesterday’s vote was particularly sweet.
Senator Gerald Cardinale (D-Bergen), a sharp critic of the Supreme Court’s Abbott school funding cases and Mount Laurel decisions requiring the construction of low-cost housing in the suburbs, said yesterday’s vote was in every way about “smacking down” the state’s highest court.
However, Senator Raymond Lesniak (D-Union), who lauded the Supreme Court yesterday for its Abbott and Mount Laurel decisions and other ground-breaking decisions, nevertheless supported the amendment. “A constitution is a living document meant to be amended from time to time,” Lesniak said. “Over the past decade and more, our legislatures and governors have allowed our pension and health benefits funds to be grossly underfunded, threatening the most precious of benefits earned by working men and women of our state and putting a great strain on our taxpayers.
“Amending our constitution to make judges pay more will not threaten the independence of our judiciary, as long as we do not use it as a bat to strike at judicial decisions with which we disagree … Not re-appointing Supreme Court and superior court judges for political reasons threatens the independence of our judiciary,” Lesniak said, taking a shot at Christie for his decision two years ago not to reappoint Associate Justice John Wallace, a decision that triggered the governor’s battle with Sweeney over the partisan makeup of the court. “This amendment will not.”