A New Jersey statute that increases pension and health care contributions for state employees, including judges, violates an age-old constitutional ban on diminishing judicial salaries, a divided New Jersey Supreme Court ruled Tuesday.

The 3-2 court said the 2011 Pension and Health Care Benefits Act strikes at the heart of the principle that sitting judges ought not have to fear economic retribution for their decision-making.

“A court that cannot protect its own independence is not one that can be counted on to protect the fundamental rights of others in challenging times,” Justices Jaynee LaVecchia and Barry Albin and Appellate Division Judge Dorothea Wefing said per curiam in DePascale v. New Jersey .

Justice Anne Patterson dissented, joined by Justice Helen Hoens, saying the law “cannot be viewed as an attack on judicial independence, by intent or in effect,” noting it applies to upward of 500,000 state and local government employees. She also emphasized the narrow definition of “salaries,” which is the term used by the constitutional anti-diminution clause.

The majority blasted the state’s position that the statute effects a “deduction” from salary rather than a “reduction” in salary, calling the distinction “a magical reformulation” and the loss, “regardless of the wordplay, an unconstitutional diminution.”

The 1844 constitution — which included a “no-diminution clause” for the first time and was modeled after a similar provision in the U.S. Constitution, art. III, § 1 — was “meant to protect judges from retaliation by the political branches,” the majority said, tracing the desire for an independent judiciary back to the Declaration of Independence and the Federalist Papers.

The clause carried over to the next and most recent drafting of the state constitution in 1947, and exists today in art. 6, § 6, ¶ 6.

The replacement of “compensation” with “salary” in the 1947 constitution did not amount to a change in the protections afforded, the majority said, noting that the terms had been used interchangeably and there was no discussion of record at the constitutional convention, suggesting that a substantial change was intended.

The reform legislation, known as Chapter 78, was signed by Governor Chris Christie on June 28, 2011. It phases in public workers’ contribution increases over seven years. Health care contributions for judges would be doubled and pension contributions increased fourfold, effectively reducing take-home pay by $17,000 a year, a more than 10 percent hit for most judiciary members.

Chapter 78 was the first contribution increase passed that wasn’t accompanied or preceded by a judicial salary increase, the majority said, noting that benefits deductions required for the first time in 1982 (3 percent) were offset by $15,000 salary hikes.

A prior salary increase brought about in 1965 — when a contribution requirement was briefly imposed on judges who had been sitting since before the 1947 constitution — along with increases done in tandem with health care contributions required in 1996 and 2007, “set the stage for all subsequent contributory requirements for judges,” the court said.

“Such a concert of action, over so long a period, is not a coincidence,” the justices wrote.

As for precedents, the court said: “No court of last resort — including the United States Supreme Court — has upheld the constitutionality of legislation of this kind.”

The justices pointed to the 1980 case of U.S. v. Will where the U.S. Supreme Court held that repeals of previously granted cost-of-living increases for judges violated the federal no-diminution clause.

The DePascale majority said federal case law has prohibited salary reductions, with the exception of “nondiscriminatory” taxes that all citizens must pay, such as the Medicare tax.

But Chapter 78 is “an employer-generated reduction in the take-home salaries” rather than “a tax burden that is shared in common with citizens of New Jersey generally,” the majority said.

The court acknowledged the fiscal issues facing the state, the legislation’s public policy goal and the proponents’ benign motivations, but said any such changes would have to be done within the constitutional framework.

The majority noted that all members of the judiciary appointed after the law’s enactment are subject to the increased contribution requirements.

The ruling affirms that of Mercer County Assignment Judge Linda Feinberg, who last October voided the statute’s applicability to judges. The Supreme Court took the appeal directly.

Patterson said in her dissent that the majority “imposes the burden on the wrong party, citing the state’s purported failure to present dispositive evidence of the framers’ intent and the absence of federal case law on point … as if it were the state’s burden to justify the constitutionality of Chapter 78,” Patterson wrote.

Chief Justice Stuart Rabner recused because he lobbied against the legislation in his capacity as head of the judicial branch, leaving the court with the bare quorum of five members.

Hudson County Superior Court Judge Paul DePascale had sued to challenge the law’s constitutionality.

His attorney, Justin Walder of Roseland’s Walder, Hayden & Brogan, said in a statement: “Should the people choose to diminish the principle of judicial independence, it is their right to do so. Until that time, however, today’s ruling will continue to protect the judges and justices of this state from intimidation, undue influence or domination so that they can adjudicate each case fairly and independently as the law and fact require.”

Walder added that the ruling mostly benefits the public, “promotes sound judicial administration” and “helps to ensure that the judiciary attracts and retains the most capable and experienced individuals.”

The New Jersey State Bar Association was an amicus. In a statement, President Kevin McCann said the case “on its face … was about the paycheck a judge takes home, and the court rightly found that decreasing that amount resulted in a reduction in compensation.”

“More importantly for the people of New Jersey, however, this case and this decision is about maintaining the integrity of the judiciary and confirming the right of every resident to resolve disputes in an independent court system, where experienced judges apply the law and the facts of the case objectively,” he added.

The state Attorney General’s Office argued on behalf of the state.

Christie spokesman Michael Drewniak declined comment.

Several proposed constitutional amendments were introduced during the past year in anticipation of a ruling against the statute.

One measure, SCR-110, would preserve the ban on salary decreases “except for deductions from such salaries for contributions, established by law from time to time, for pensions … health benefits, and other, similar benefits.” It won Senate Budget and Appropriations Committee approval last month.

David Gialanella is a reporter for the New Jersey Law Journal, a Legal affiliate.