NJSBA Opposes Constitutional Amendment

New Jersey Legislature Responds to DePascale  Decision

Last week, the New Jersey Supreme Court handed down its decision in Paul M. DePascale v. State of New Jersey.  The court held in a (3-2 majority) the  Pension and Health Care Benefits Act, which subjects sitting justices and judges to increases in their pension and health care contributions, violates the New Jersey Constitution.  Specifically, the court held that the Pension and Health Care Benefits Act, violates the No-Diminution Clause of the New Jersey Constitution which prohibits reducing a judges salary. The court reasoned that requiring judges and justices to financially contribute for their benefits is effectively reducing their salary. As a result of this decision, both houses of the New Jersey legislature quickly introduced legislation to amend the state’s constitution to allow for justices and judges to contribute to their employee benefits.  Both bills are making their way through their respective legislative chambers today. UPDATE:  The state Senate passed SCR 110 unanimously. (28-0). UPDATE:  The state Assembly passed ACR 152. (62-3). The New Jersey State Bar Association opposes the proposed legislation to amend our state constitution.  Below is the full text of the NJSBA’s statement regarding SCR 110 and ACR 152. THE NEW JERSEY STATE BAR ASSOCIATION OPPOSES SCR 110/ACR 152, WHICH PROPOSES A CONSTITUTIONAL AMENDMENT CLARIFYING LEGISLATURE’S AUTHORITY TO PASS LAWS TAKING CONTRIBUTIONS FROM JUSTICES’ AND CERTAIN JUDGES’ SALARIES FOR EMPLOYEE BENEFITS The New Jersey State Bar Association strongly opposes SCR 110 (Turner/Sweeney)/ACR152 (Handlin/Casagrande/Simon), which proposes a constitutional amendment to clarify the Legislature’s authority to pass laws taking contributions from justices’ and certain judges’ salaries for employee benefits. The constitutional amendment offered by these bicameral Resolutions represents a rash reaction to a Supreme Court decision and a dangerous intrusion by one branch of government into the independence of another, co-equal branch of government. Such a swift reaction – coming a mere day after the New Jersey Supreme Court ruled that the Legislature’s prior action was unconstitutional – illustrates exactly why these pending Resolutions are ill-advised. The NJSBA asks Committee members to join us in opposing this constitutional amendment and to stand up for a free, fair and independent judicial system in New Jersey. SCR110/ACR152, in essence, seeks to undo the clear words of the New Jersey Constitution which has served our great state so well since it was revised in 1947. Those words were interpreted by the state Supreme Court this week 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. Indeed, these protections are the hallmark of the free, fair and independent judicial system, which New Jerseyans rely on each and every day. The 1947 revision included the contributions of many great minds after a lengthy debate and discussion, a process that is missing from the discussion over the pending Resolutions. 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. Further, it simply ignores the very well-grounded reasons judges enjoy constitutional protections not afforded to other government employees. The exceptions to those protections proposed by these Resolutions are not permitted at the federal level and should not be approved in New Jersey. Judges are treated differently than other government employees because of the unique requirements of the position they hold in our governance structure. Judges must be free to objectively decide issues that come before them, without fear of retribution, particularly from other branches of government. The importance of an independent judiciary to the individual citizens of this state cannot be overstated. It is judges to whom citizens turn when their rights are threatened, when they are seeking fair treatment after being charged with a crime, when government is seeking removal of their children from their home and when they are injured by another. The drafters of the New Jersey Constitution, like the drafters of the federal Constitution and countless other state constitutions, understood there can be no greater threat to judges being free to resolve issues such as these in an objective, unbiased manner than to allow other branches of government, either directly or indirectly, to alter their salaries during their term of office. It is for this reason that judges, unlike any other government employee, enjoy constitutional protection against a diminution of their salaries while in office. These Resolutions seeks to erode this protection not just for purposes of enforcing the current Pension and Health Care Benefits Act in issue, but for all time. Judges are also treated differently than other government employees because of the unique restrictions placed on them while they are in office. Both the Constitution and the Code of Judicial Conduct prohibit sitting judges from earning additional income from any activity outside of their judicial duties, from participating in political activity or from organizing into an association to petition the Legislature on issues, such as this, that affect them. These restrictions represent important safeguards to an independent judiciary and justify, in part, the heightened constitutional protection afforded the judiciary. Finally, judges are not covered by any collective bargaining agreement that provides for increases in salaries or benefits over time — whether those increases are tied to cost of living increases of otherwise. Thus, there is no guarantee that judges would have an opportunity to recoup any deducted amounts over time. Judges must rely on future legislative action for any compensation increases; they should not also have to be fearful of legislative action resulting in compensation decreases. For all of these reasons, the NJSBA strongly opposes SCR110/ACR 152, and urges Committee members to vote against the Resolution’s release from Committee. The present constitutional language has served the citizens of New Jersey well since its adoption in 1947. It should not be altered hastily and without good reason.