Friday, October 19, 2012

NJ State Bar: Protect judicial independence; vote ‘no’ on judicial pension public question

Three months ago a divided New Jersey Supreme Court defied Governor Chris Christie and affirmed a trial judge's ruling in DePascale, J.S.C. v. State that State Constitution's no diminution clause barred a legislated increase in the pension and health benefit contributions of the state's appointed judiciary.  When Christie denounced the lower court judge as a protector and member of a "little cliquey club of 423" the State Bar Association rose to the defense of judicial independence and Assignment Judge Linda Feinberg, the Trenton judge whose court was the mandatory venue for Judge Paul DePascale's challenge.
When the Supreme Court ruled that take-home pay could not be diminished the Governor and Legislature promptly proposed and placed on the ballot Public Question No. 2.  It would amend the constitution.  Voters - 70% of whom - a recent Rutgers Eagleton poll reports - favor the measure overwhelmingly - will be asked:
Do you approve an amendment to the New Jersey Constitution, as agreed to by the Legislature, to allow contributions set by law to be taken from the salaries of Supreme Court Justices and Superior Court Judges for their employee benefits?
 New Jersey judges are nominated by the Governor, confirmed by the State Senate for a seven year term, then repeat the process, receiving tenure until the mandatory retirement age of 70.  During Christie's three year tenure there has been a standoff between Governor and Legislature, leaving two vacancies on the high court.  (Christie has vowed to remake the Supreme Court which he considers to be too liberal.)  But here the branches are united in budget-cutting zeal.  Though it may be spitting into the wind,  the State Bar has again responded strongly, seeing the measure as a threat to the independence of judges who already must twice run the political gauntlet of nomination and confirmation.  NJSBA President Kevin P. McCann's letter follows:


The New Jersey State Bar Association strongly opposes Public Question No. 2, which proposes a constitutional amendment to clarify the Legislature's authority to require contributions from certain judges' salaries for employee benefits.    The constitutional amendment proposed by this question 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 – passed by the Legislature a mere few days after the New Jersey Supreme Court ruled that the Legislature's prior action on pension and health benefits reform was unconstitutional - illustrates exactly why this proposal is ill-advised.   The NJSBA asks you to join us in opposing this constitutional amendment and to stand up for a free, fair and independent judicial system in New Jersey.   Public Question No. 2, 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 in its recent decision in DePascale v. State 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 was missing from the legislative consideration of this public question.  While this 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 free from partisan politics. In fact, the actual language of the proposed amendment is so broad that it could permit the Legislature to specifically target judges’ contributions in the future even at times when other public employee contributions are remaining static.  Furthermore, the measure simply ignores the very well-grounded reasons judges enjoy constitutional protections not afforded to other government employees.  The exceptions to those protections contained in this proposal 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. This proposal seeks to erode that protection not just for purposes of enforcing the current pension and health care benefit deductions at 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.  It is important to note as well that judges are not covered by any collective bargaining agreement or statute that provides for increases in salaries or benefits over time -- whether those increases are tied to cost of living increases or otherwise.  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 Public Question No. 2 and urges you to vote against it on Election Day.  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.

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