N.J. Constitution Allows Changes to Judges' Benefits

N.J. Constitution allows changes to judges' benefits
The Asbury Park Press by Thomas M. Johnson, Jr. - March 30, 2012

The New Jersey Supreme Court heard arguments this week in DePascale v. New Jersey, a case that will decide whether judges have the final say on how much they pay into their own health care and pension plans.  The case involves a challenge to bipartisan reform legislation passed last year by Gov. Chris Christie and the state Legislature, which required all public employees (including judges) to kick in an additional percentage of income to help keep the state’s underfunded benefit plans solvent and relieve the burden on the New Jersey taxpayer.  Attorneys for the plaintiff and the New Jersey Bar Association argued on Monday that the new law cannot be applied to judges because the state constitution prohibits reductions in judicial “salaries.”  The justices appeared divided on how to resolve the case, but all agreed on the critical question: Did the framers of the 1947 New Jersey Constitution intend for the protection of judicial “salaries” to extend to health care and pension benefits? A close examination of history shows that the framers likely did not intend for the protection to sweep that far.  At English common law, the benefits of public office were property rights that could be inherited and enforced in royal courts. But the state of New Jersey abandoned this aristocratic tradition when it broke with the Crown.  When New Jersey first started experimenting with public pension plans during the Progressive Era, its courts made clear that participants had no property (or “vested”) rights in those benefits unless and until the payments in retirement came due. Until then, the Legislature could adjust the benefits provided by statute — including the amount of any “compulsory deductions” from salary — as necessary to respond to changing economic conditions.  The delegates to the 1947 Constitutional Convention were familiar with, and reaffirmed, these background legal principles. Having recently experienced depression and world war, and aware of the occasional need for collective sacrifices, the delegates rejected a proposal borrowed from the New York Constitution that would have made state pension benefits a vested right that the Legislature could not diminish or impair. They also rejected proposals modeled after the Louisiana Constitution that would have guaranteed judges an annual pension at full, two-thirds, or half their annual salary. Thomas M. Johnson Jr. is a Washington attorney who specializes in appellate and employment litigation.