Amending the state constitution is not something that happens every day in Trenton, nor should it. More often than not, it is unclear how changing one thing that some might consider broken can dramatically alter something seemingly unrelated that is not broken. The current topic for a constitutional amendment is the application of the New Jersey pension reform law on the Judiciary.
The New Jersey Supreme Court recently held that New Jersey’s pension reform law is unconstitutional as applied to the state’s judiciary. But, of course, that is only the latest chapter in this epic battle over judicial salaries in New Jersey. Efforts to amend the New Jersey constitution are now moving at a feverish pace to meet the deadlines for the November ballot.
In DePascale v. New Jersey, the New Jersey Supreme Court concluded that the pension reform law would seriously undermine judicial independence. “We can no more uphold a law that violates the Judicial Article of the Constitution than one that violates the right to free speech or freedom of the press or the right to due process and equal protection. 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,” the majority wrote.
As the court further noted, “Whatever good motivation the Legislature may have had when enacting Chapter 78 with its broad application to all state public employees, the Framers’ message is clear. The Constitution forbids the reduction of a justice or judge’s take-home salary during the term of his or her appointment.”
In response to the decision, lawmakers are pushing ahead with a legislative solution in both the Senate and the Assembly. The proposed constitutional amendment would amend the New Jersey Constitution to still prohibit the Legislature from diminishing the salaries of sitting justices and judges, but also allow for “deductions from such salaries for contributions, established by law from time to time, for pensions … health benefits, and other, similar benefits.”
So how does it all work? In order to pass a constitutional amendment, lawmakers must first hold a public hearing on the issue. The Senate Labor Committee held a brief hearing on the proposed amendment last week.
Following a public hearing, the New Jersey Legislature can vote on the constitutional amendment. If the proposed amendment is approved by three-fifths of all the members of each of the respective houses, the amendment will be submitted to the people. If the bill is approved by less then three-fifths but nevertheless by a majority of all the members of each of the respective houses, the proposed amendment is referred to the Legislature in the next legislative year. If the bill again passes by a majority, it can be submitted to the people.
All proposed constitutional amendments must also be published at least once in one or more newspapers of each county at least three months prior to a public vote. This is why lawmakers scrambled to hold a vote on the proposed amendment as soon as possible. Election day is scheduled for November 6, so we are already closing in on the three-month window.
Finally, New Jersey voters must approve the constitutional amendment. If the proposed amendment is approved by a majority of those voting, it will become part of the New Jersey Constitution. However, if it is not approved, lawmakers may be out of luck, at least for a while. The amendment (or one like it) cannot again be placed on the ballot before the third subsequent general election.
For more background on the debate over New Jersey judicial salaries, please see Should Judicial Pay Be Left to New Jersey Voters?
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.
