The New Jersey Supreme Court ruled today in a 3-2 decision that it’s unconstitutional to make judges pay more toward their pensions and benefits because it is effectively a decrease in salary. Former Supreme Court Justice Peter Verniero discussed the decision with NJ Today Managing Editor Mike Schneider.
Verniero said the court was very divided on the issue of constitutionality. “At issue before the court was what does the word salary mean as used in the Constitution? There is a clause in our Constitution that says that a judge’s ‘salary’ cannot be diminished during the term of his or her traditional office. And so that was the question,” he explained. “The majority opinion said that it was, the dissenting opinion said no, contributions to health benefits and pensions are not salaries.”
When challenging a statute, Verniero explained it is presumed constitutional and it is the person arguing against constitutionality that has the burden of proof to show the statute is unconstitutional. “The majority believed that burden was met and the dissension said very clearly it was not met,” he said.
Some were concerned that the Supreme Court justices were ruling on a case that affected judges. Verniero said it was unavoidable. “There’s no way around it in the state system. This is the highest court in the state. Every member of the court is affected in some way. Many members of the judiciary are affected in some way,” he said. “Under a so-called rule of necessity, the court has to act. And the court did.”
Verniero said he doesn’t believe the case will make it to the U.S. Supreme Court. “The only avenue left is for an amendment to the Constitution to be made and that’s a legislative process and whether that happens or not remains to be seen,” he said.
While the decision states current judges cannot be made to put more money toward pensions and benefits, future judges can be required to do so. Verniero said those considering a position in the judiciary would have to consider the changes in compensation. “I don’t think that point was ever in doubt, that new members would have to pay this increased contribution,” he said. “So presumably those seeking the judiciary have already factored that into their decision.”
Since the court justices were divided, Verniero said the decision was controversial, but he doesn’t think it will necessarily hurt the court’s reputation. “The court is used to making controversial decisions. It has in the past,” he said. “And hopefully its reputation will not be affected one way or the other.”
Verniero didn’t feel comfortable saying how he would have ruled as a justice. “I did not read the briefs as carefully as I would have had I been on the court and so I would reserve decision until I did that,” he said.