Should Judicial Pay Be Left to New Jersey Voters?

In November, voters could be asked to decide if the salaries of New Jersey judges can be reduced by the state legislature, breaking a long-standing rule that protects judicial salaries from legislative interference. The Senate Budget Committee recently approved a resolution that would support a constitutional amendment clarifying that a judge’s “salary” does not encompass pension payments and other benefits, thereby allowing lawmakers to reduce judicial pay in order to fund benefits.

A constitutional amendment is required because the New Jersey constitution contains a previously untested and relatively unknown provision that prevents judges’ salaries from being decreased during their term. Under Article VI of the New Jersey Constitution, “The Justices of the Supreme Court and the Judges of the Superior Court shall receive for their services such salaries as may be provided by law, which shall not be diminished during the term of their appointment.” The provision was intended to preserve the autonomy of judges and eliminate threats to reduce their salaries from lawmakers who opposed their decisions.

The proposed amendment aims to ensure that the 2011 Pension and Health Care Benefit Act would apply to New Jersey judges. The law increases pension contributions and health care premiums for all state employees in an effort to bolster the state’s depleted pension system. In the past, the Legislature concurrently increased judges’ salaries to compensate for the additional deductions. However, it failed to do so in 2011.

The legality of the New Jersey pension law—as it applies to judges—is currently pending before the New Jersey Supreme Court. Superior Court Judge Paul DePascale filed a lawsuit arguing that the increased contributions constitute a reduction in salary, in violation of the New Jersey Constitution. Last fall, Judge Linda Feinberg blocked the state from collecting the increased pension contributions or health care premiums pending a decision by the state’s highest court.

Meanwhile, the State argues that pensions and health care are not considered “salary,” but rather “compensation.” As such, they can be increased without running afoul of the state constitution. Attorneys for the State further maintain that the increased pension contributions do not offend the rationale behind the constitutional ban on altering judges’ salary—judicial independence—because the judges will ultimately recoup the funds when they draw from their pensions.

The New Jersey Supreme Court is expected to issue a decision soon. If the Court concludes the Pension and Health Care Benefit Act is constitutional as applied to judges, an amendment would likely not be needed.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs. Should Judicial Pay Be Left to New Jersey Voters?