A ruling that the new pension reform law is unconstitutional as applied to judges sparked a broadside this week by Gov. Chris Christie against the authoring judge — and judges at large.
Calling Judge Linda Feinberg “self-interested” and “elitist,” Christie vowed not only to appeal but also to seek a constitutional amendment to fine-tune the existing prohibition against reducing judges salaries while in office.
Feinberg ruled last Monday, in DePascale v. State, MER-L-1893-11, that the Pension and Health Care Benefit Act, enacted in June, violates that stricture by increasing judges’ contributions to their pension and health-benefit plans, thus leaving them less disposable income.
In a statement shortly after the ruling, and at a press conference on Tuesday, Christie called it a “self-serving decision, where a judge is protecting her own pocketbook and those of her colleagues.”
“These political appointees, who are the most lavishly paid public workers, with the richest lifetime benefits, have now had one of their own rule that they are above the law and should be treated preferentially,” Christie said. “We trust that the Supreme Court will reverse this ridiculous decision and find that judges should have to pay their fair share, just like every other public employee.”
The average judge, Christie said, pays $59,000 in pension contributions and, in return, receives $2.3 million in pension benefits. Other public employees, he said, pay far more in contributions for less in benefits.
It was not so much Christie’s condemnation of the ruling as his vitriol leveled at Feinberg, and by extension all judges, that drew criticism, principally by the State Bar Association.
“Gov. Chris Christie’s comments today are yet another attempt to intimidate the courts and unduly influence the judicial process,” State Bar President Susan Feeney said in a statement Tuesday after the governor’s press conference.
Feeney harkened to — but did not mention — Christie’s skirmish last year with the judiciary and legislators over his refusal to reappoint Justice John Wallace Jr. to the Supreme Court. Christie said Wallace was emblematic of what he decried as an activist Court. Wallace’s seat remains vacant, as Senate Democrats have refused to consider a replacement for the balance of what would have been his remaining term.
“The governor’s continued attack on the judiciary denigrates the separation of powers and the independence of the judiciary as a separate branch of government,” Feeney said on Tuesday.
Feeney also called Christie’s criticism of Feinberg “unwarranted and irresponsible.”
Christie took Feinberg to task for her refusal, on Oct. 5, to consolidate the DePascale case with another suit, Powell v. State, MER-L-2284-11, filed by other public sector workers challenging the law. She said DePascale’s challenge is purely constitutional, while the public sector workers also challenge the law on contractual grounds.
Christie called that action by Feinberg “elitist,” saying “her friends, the judges, the people she goes to dinners with, the people who vote on giving each other awards, the little cliquey club of 432, they are the only ones who can receive these extraordinary benefits.”
But Feeney said, “Judge Feinberg did exactly what a judge is supposed to do: she applied the law — without concern for political retribution or the ‘pocketbook’ interests of herself and her colleagues.”
Feinberg acknowledged in her ruling that it affects her personally. “Traditional canons of ethics require that a judge with a personal interest in the outcome of a case disqualify herself and follow the administrative process to assign the case to an impartial judge,” she said. The problem is that every state judge in New Jersey is affected by the outcome, so the rule of necessity applies, she added.
The pension reform law, known as Chapter 78, was challenged by Paul DePascale, a tenured Hudson County judge who is due to retire in 2019. His suit seeks a declaratory judgment as well as refunds for amounts deducted from judicial paychecks under the law.
DePascale argued that the prohibition against diminishing judges’ salaries — art. VI, sec. 6, para. 6 — applies not only to direct cuts but also to indirect ones resulting from raising benefit contributions.
Judges now pay 1.5 percent annually of their salary for health benefits. The new law charges judges 35 percent of the cost of premiums. DePascale argued that deductions will “increase steadily and dramatically” during the next seven years, starting with an increase from $3,287 to $5,408 in 2011 for pension alone. By 2017, the pension deduction will grow to $18,137, he said.
No New Jersey court had ruled on the issue, but Feinberg cited the Delaware Supreme Court’s decision in Carper v. Stiftel, 384 A.2d 2 (Del. 1977), finding legislation requiring judges to contribute more toward their pensions violated a state constitutional provision, which read: “No law shall extend the term of any public officer or diminish his salary or emoluments after his election or appointment.”
Though the New Jersey constitution doesn’t speak of “emoluments,” DePascale argued that the constitutional framers’ intent was to include all forms of compensation in the term “salaries.”
Feinberg rejected the state’s arguments that pension and health-care contributions should be treated as income taxes. “Clearly, plaintiff’s salary is being diminished — not by a tax imposed on all citizens of the State of New Jersey, but by legislative action that mandates higher pension and health-care contributions in contravention of the Constitution,” she said.
Feinberg also rejected arguments that the state’s dire fiscal condition warranted asking judges to contribute more to their benefits packages. “While the recently enacted legislation may be a response to the present economic conditions, nonetheless, it does not amend, nullify or even negate the mandate of the New Jersey Constitution,” she said.
Christie said Tuesday that while an appeal is pursued, he will ask the Legislature to put a question on the November 2012 ballot to nullify it. The amendment would say that salary means salary and not pension or health benefits or other emoluments of office.
“We’re not going to leave this in the hands of a self-interested judiciary,” he said, adding that having it on the ballot in 2012 is important because that is a presidential election year, when more people are likely to be voting.
New Jersey trial judges are paid $165,000 a year, assignment judges $171,131, appellate judges $175,534, associate justices $185,482 and the chief justice $192,795.