Thursday night Gov. Chris Christie slammed N.J. Supreme Court Justice Barry Albin after the justice inquired about reinstating the millionaire’s tax earlier this week during oral arguments over school funding.
Christie has continuously attacked the court for legislating from the bench, and last night he threw up his arms and said, “Judges have lost their sense of place in our democracy.”
Was the rant warranted?
Rutgers Law Professor Robert Williams, an expert in constitutional law, told State Street Wire Friday that it was not.
“I think it’s fair (for Albin to raise the tax question) because the whole argument (the state is making) is about (school funding in the context of a balanced budget),” Williams said.
Oral arguments were given before the court on Wednesday in another of nearly two dozen rounds of Abbott v. Burke, the school funding case.
During the arguments, Albin inquired as to whether the re-instatement of the surtax on the wealthy – and the revenue’s application toward education – would allow for fuller funding of schools by the state and whether it should be taken into consideration in the case.
Republicans such as state Sen. Joe Pennacchio, (R-26), of Pine Brook, immediately lashed out against the judge for “unconstitutionally ‘legislating’ state fiscal and public policy” from the bench, “challenging us on what taxes must be raised to satisfy their thirst for judicial activism.”
“As a legislator of a co-equal branch of government,” Pennacchio said in a statement, “I do not presume to tell the Supreme Court what to do…Abraham Lincoln asked whether we as people wanted to be ruled by a ‘tribunal of men dressed in black robes.’ I share his frustrations.”
Responding to Albin’s inquiry, Christie spoke to Eric Scott on N.J. 101.5’s “Ask the Governor” program Thursday night.
“(Albin) was advocating yesterday to put his hand in the pockets of the taxpayer of New Jersey, take money out of it, and determine himself how that money should be spent,” the governor told Scott.
Williams, who has authored numerous books on state constitutional law, said, “The whole nature of the legal argument (by the state) is that there’s a financial crisis. We have a ‘balanced budget’ requirement in the New Jersey Constitution, and there’s not enough money to fund education in the (fullest sense),” he said. “When the state comes forward with that argument – that we don’t have the money – and the state has foregone that revenue source (i.e. the millionaire’s tax),” Williams said, then the question can be appropriately asked from the bench.
On the radio, Christie said the state wanted the court to understand the context of the school funding case; that is, without raising taxes – as Christie has promised not to do – the only areas where the money can come from are hospitals and towns.
Among the areas Christie mentioned were hospital stabilization funding, charity care re-imbursement, Medicaid funding, and municipal aid – areas where cuts would lead to hospitals closing, sick people with nowhere to turn, and layoffs for municipal employees, like cops and firefighters.
“You will see many hospitals across New Jersey close within a month,” Christie said.
Williams said although the context of the budget is a problem in a practical sense, it’s not a constitutional problem.
“Essentially all of the other functions of state government are not mandated by the state constitution,” he said. “As a practical matter (other services need to be provided), but as a legal matter, education is special.”
That means educational funding can be legally enforced where other fundings cannot, he said. “Money has to be found either somewhere else in the budget…or taxes have to be raised.”
But with Christie laying down the law – no new taxes, no tax hikes – does that mean that the court should only opine on possible funding in the budget, not outside the budget?
“If you make a political decision to not take in any more money – ‘I can’t, my hands are tied’ – it’s a fair question (for the court) to come back and say, ‘Too bad, you tied your own hands.’ ”
Although the court is within its rights to inquire about taxes, according to Williams, they have never mandated a tax.
He expects, if the court decides that more funding is required, that they’ll allow the principals of the case to figure out themselves how that should be done.
Either that, or “constitutional crisis,” he said.
Christie very candidly said last night that the state would consider ignoring the decision of the court if it is mandated to pay an additional $1.6 billion into education.
The last time this happened was 1976, Williams said, when the Legislature and Gov. Brendan Byrne decided against following a court order.
“The court ordered the schools closed,” Williams said. “But it was over the summer, and it was largely symbolic. That’s the year we got the income tax.”
Williams said the same scenario could play out – although he finds it an unlikely outcome. “The court doesn’t have a lot of tools (of enforcement),” he said. “President Andy Jackson said once, ‘Does the Supreme Court have an army?’ And there’s a lot of truth to it. They have contempt orders and things like that, (but nothing significant).”
That Christie is pushing back against the court comes as no surprise to anyone, including Williams.
“He campaigned for office against the court,” Williams recalls, because of their “legislating from the bench.” Then when Christie did not re-nominate Justice John Wallace, he showed his first instance of thumbing his nose at that body and their long-held practice of being granted tenure when sitting as justices – politics aside.
Asked if it would be hard of the members of the court to ignore these circumstances when they make their decision on Christie’s school funding problem, Williams said, “I’m sure they think about it every day, but they have an oath of office.”
Christie’s handling of Wallace sent a shock through the court, he said, but Chief Justice Stuart Rabner, who is also untenured, immediately tried to calm the storm by sending a letter to the other jurists, Williams said.
“Do your job, don’t let this bother you,” Williams recalls the letter stating. “Do what you were appointed to do.”
But whether Christie’s open criticism of the court will have an effect, Williams said, “The truth is, we’re never going to know.”
Before the Wallace issue, yanking a sitting member “just wasn’t in the conversation in this state,” Williams said. Now all decisions will lead to some speculation over the political ramifications that the judges may or may not have had in mind.
Are they trying to impress Christie for tenure, he said, or are they getting back at the governor for his actions.
“That’s the problem: No matter what they do now, people are going to think real politics influenced it,” Williams said.
Either way, he believes the whole spectra of political motivations are, simply, “a negative thing.” Being judicious, he said: “But, I know people who think it’s terrific” what Christie has done.
One thing is certain: “It’s a highly politicized atmosphere (in which) to render legal decisions.”