NJ Supreme Court Rules Pension Legislation Violates Constitution as to Judge's Compensation

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The New Jersey Supreme Court rules July 24 that P.L.2011 c.78 more commonly known as the pensions and benefits reform legislation violates the New Jersey Constitution as to the compensation of currently sitting judges and justices. The split 3-2 decision in Paul M. DePascale v. State of New Jersey focused on whether the new law violated the New Jersey constitution by diminishing the salaries of currently sitting justices and judges during the term of their appointment.

The Opinion

A divided New Jersey Supreme Court found that P.L.2012 c.78 requiring judges and justices among other employees to contribute more toward their pension and health benefits is unconstitutional for judges and justices because it cuts or “diminishes” their salaries – a violation of the no diminution clause in the NJ Constitution which applies solely to judges and justices. That provision was included to ensure that judges could not be punished by members of the other two branches of government for unpopular decisions.

The state contended that pension and health benefits are part of an overall compensation package for all public employees and that the increased contributions do not reduce the judicial salaries.

“This is a deduction not a reduction in pay” Assistant Attorney General Robert Lougy who represented the state said in oral argument before the Supreme Court March 26.

But Justices Barry Albin Jaynee LaVecchia and Judge Dorothea Wefing said the terms “salary” and “compensation” were used interchangeably by the framers of the state Constitution in 1947. They also noted that every time the state Legislature imposed pension requirements on judges it included a corresponding pay raise for them.

“…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 court said. “The Constitution forbids the reduction of a justice or judge’s take-home salary during the term of his or her appointment.”

Justices Anne Patterson and Helen Hoens who dissented said health benefits and pension payments are not considered part of the salaries.

State law allows judges to hear cases that directly affect them when there is no other appropriate court to address the matter. The case did not go to U.S. District Court because it does not involve any federal allegations.

Path to the Supreme Court

The question of whether judges should pay 9 percent more toward their pensions and contribute more toward their health benefits was heard by the New Jersey Supreme Court back in March. The case was brought by Superior Court Judge Paul DePascale of Hudson County.

Under the 2011 pension and benefit law DePascale’s pension deductions jumped by $14849 by 2017 when he would be paying $418137 into the pension system he said in court filings (Governor Signs Pension and Benefit Legislation into Law June 28 June 28 2011). DePascale who earns $165000 a year said his contribution for health benefits would more than double to $5230.86. The increased deductions were scheduled to take effect Oct. 14. Judicial salaries set by law range from $165000 for Superior Court trial judges including DePascale to $192795 for Supreme Court Chief Justice Stuart Rabner. DePascale also argued that the cut in salaries threatened judicial independence

When the state constitution was drafted it 1947 it included a provision preventing the salaries of judges and justices from being “diminished” in an attempt to protect them from political interference from the legislative and executive branches.

A group of 80 tenured judges across the state filed suit back in July of last year over the recent pension and benefits reforms passed by the Legislature and signed by Gov. Chris Christie in late June (Governor Signs Pension and Benefit Legislation into Law June 28 June 28 2011). Superior Court Assignment Judge Linda Feinberg ruled back in October of last year that Superior Court judges and Supreme Court justices were protected by the state Constitution from salary reductions while in office and were therefore exempt from new pension and health benefits changes requiring them to contribute a larger share of their salary.

Feinberg concluded in her October decision that the increased contributions required of judges and almost 700000 current and retired state employees is an indirect reduction in pay that the Constitution specifically forbids for judges and justices. Feinberg also rejected the state’s contention that the increase is similar to a tax and is not discriminatory because it applies to all state employees. She said contributions to health benefits and pensions are no different from paid vacations sick days and personal time; they all comprise compensation for work done.


NJPSA's suit filed in coordination with other public employees continues to wend its way thru the justice system. That suit challenges both the loss of cost of living adjustments for current employees as well as the arbitrary delineation at 20 years of service or more as to who is permitted to free health benefits in retirement (NJPSA Joins Suit on Behalf of Members on Pension & Benefit Changes August 31 2011).

In addition NJPSA and its sister organizations filed an appeal to Judge Hurd's opinion back in May that was brought by county prosectuors in Berg v. Christie (Judge Rules COLA Hold Up Ok May 31 2012).