DePascale v. State of New Jersey, 211 N.J. 40 (2012). Article VI, section 6, paragraph 6 of the New Jersey Constitution states that “[t]he 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, and which shall not be diminished during the terms of their appointment.” A key objective of that provision was to preserve judicial independence, since the Governor and Legislature might seek to punish judges for their decisions by hitting them in the pocketbook.
In 2011, the Legislature passed and Governor Christie signed a law that required state and local government employees, including judges and Justices, to increase their contributions to their pensions and to pay more for health insurance. Over seven years, the effect was “a more than four hundred percent increase in [Superior Court trial level judges’] pension contributions and a more than one-hundred percent increase in their health care contributions,” with no corresponding increase in pay. Judge Paul DePascale challenged that law, asserting that becuase the law’s effect was to reduce take-home salaries of judges and Justices by $17,000, it violated the New Jersey Constitution. The Law Division agreed. The State appealed, and the Supreme Court granted direct certification, given the importance of the issue. Today, the Court issued its ruling, holding by a vote of 3-2 that the legislation was unconstitutional. In an extraordinary development, the majority opinion was issued jointly by Justices Lavecchia and Albin, and Judge Wefing. Justice Patterson dissented, in an opinion joined by Justice Hoens. Chief Justice Rabner did not participate.
The first question was why the Supreme Court, which consists of Justices who themselves are affected by the issues raised, heard this case. As the majority explained near the beginning of its opinion, the answer is the rule of necessity, a doctrine that holds, in essence, that if every judge is disqualified from hearing a case, litigants cannot get their day in court. As a result, since someone had to hear this case, the judicial system (first, the Law Division, and ultimately, the Supreme Court) took it up.
At oral argument, the members of the Court appeared divided, with the Justices lining up as they did today. Judge Wefing seemed to be the swing vote, as she indeed turned out to be. The interest in preserving judicial independence and restricting the other branches from imposing financial penalties on judges ran squarely into the fact that the New Jersey Constitution provides only that judges’ “salaries” may not be reduced. The United States Constitution, which contains a comparable provision in Article III, section 1, uses the term “compensation,” a broader word than “salaries.” Similarly, the Delaware Constitution refers to “salary and emoluments,” a phrase that, again, covers more ground than “salaries.”
The case thus devolved, to some extent, into a clash between competing principles of interpretation. Plain language is the first recourse in interpreting a provision of the Constitution, a statute, or a contract, as numerous cases state. But when literal application of language produces an unintended result, courts can avoid that result and reach the outcome intended by those who used the language in question (here, the framers of the New Jersey Constitution).
The majority focused strongly on the framers’ goal of preserving an independent judiciary. “Because one of the core functions of the judiciary is to serve as the guardian of the fundamental rights of the people– rights enshrined in the Constitution– the judiciary, at times, must restrain legislative initiatives or executive actions that may threaten those rights and violate the Constitution. By barring the Legislature and Exeuctive from diminishing the salaries of sitting justices and judges, the Framers intended to prevent those branches from placing a chokehold on the livelihood of jurists who might be required to oppose their actions. The constitutional restraint on diminishing judicial salaries is not for the benefit of judges, but for the benefit of the public. The public is the ultimate beneficiary of a fearless and independent judiciary, for a timid and subservient judiciary will be an uncertain guarantor of fundamental rights.”
The majority also noted the State’s concession that a $17,000 reduction in salary would be unconstitutional. The majority then rejected as mere “wordplay” the State’s argument that the health care and pension payments were mere “deductions” from salary. This “magical reformulation” did not salvage the law, regardless of “[w]hatever good motives the Legislature might have.”
The majority then turned to the language of the Constitution. As background, the majority observed that the 1776 New Jersey Constitution was silent on this subject, while the 1844 Constitution that replaced it tracked the langauge of the United States Constitution, mandating that judical “compensation” not be reduced during a judge’s service. In the 1947 Constitution, the drafters “carried over the No-Diminution Clause from the 1844 Constitution.” The records of the framers’ deliberations “are replete with references about judicial independence and the need to attract quality lawyers to serve as judges.”
The majority next addressed the change from “compensation” in the 1844 Constitution to “salaries” in the 1947 Constitution. “Although the term ‘salary’ replaced ‘compensation’ in the Clause as it reappeared in the Judicial Article of the 1947 Constitution, that was done without any intention to alter the protections afforded to the members of the judiciary under the 1844 Constitution. Nothing in the minutes of the 1947 Constitutional Convention supports the conclusion that a meaningful difference was intended by replacing ‘compensation’ with ‘salary.'” The terms wrere used interchangeably in the convention’s debates, and both terms appear in the 1947 Constitution itself, again seemingly without any difference in meaning being intended.
The majority described the history, from ratification of the 1947 Constitution until the law that was the subject of this case, of legislative enactments increasing payments by judges for their pensions or health care payments. Every such law also provided a salary increase, so as not to decrease judicial salaries during judges’ tenure. “Such a concert of action, over so long a period, is not a coincidence.” Instead, that history showed the Legislature’s recognition that increasing pension or health care contributions without a concomitant salary increase would violate the Constitution.
Finally, the majority rebuffed the State’s argument that jurists were merely being treated in the same manner as other public employees under the statute at issue. “That law does not discriminate between justices and judges and other public employees, but the State Constitution does. The Framers of the Constitution prohibited the Legislature from diminishing the salaries of sitting justices and judges– not other public employees.” Nor did federal cases cited by the State help its cause. The majority reviewed the precedents of the Supreme Court of the United States, including one case that had voided the applicabilty to judges of a Social Security tax while upholding a Medicare tax (which, unlike the Social Security tax, applied equally to judges “and the rest of the citizenry”), and found no support for the State’s position. “[T]he [United States] Supreme Court has not varied from its pronouncement that the reduction of public employees’ compensation in general ‘does not insulate a direct diminution of judges’ salaries ….” (quoting United States v. Will, 449 U.S. 200, 226 (1980)). Nor could the State point to any other state high court decision that had approved the diminution of judicial take-home pay in similar circumstances under a comparable constitutional provision.
Justice Patterson’s dissent began with the plain language of the Constitution, the use of “salaries” instead of “compensation,” “emoluments,” “benefits” or “pensions.” In her view, because there was no indication in the deliberations of the 1947 Constitutional Convention of what the framers intended when they chose the term “salaries,” that “absence of direct evidence” should be construed against plaintiff, who (as the majority conceded) bore the heavy burden of demonstrating that the statute was unconstitutional. “The Framers’ discussion of related provisions regarding judicial pensions reveals their unequivocal intent that the Legislature not be constrained by constitutional language from effective response to economic conditions.” Justice Patterson also criticized the majority for failing to give significance to the change from “compensation” in the 1844 Constitution to “salaries” in the 1947 Constitution.
The dissenters also took a different view of the federal cases that the majority had dismissed. “There is no federal decision that directly addresses the issue presented by this case; the United States Supreme Court decisions construe a provision of the United States Constitution that involves ‘compensation,’ not ‘salaries,’ and no such decision reviews a pension and benefit statute such as [this] as applied to judges.” Justice Patterson believed that the “general principles” articulated by the Supreme Court of the United States supported the constitutionality of this statute, as the State had contended, since those principles vindicated “a non-discriminatory general statute … even if it indirectly affects the ‘compensation’ of a judge.”
The dissent rejected any notion that the statute at issue was, “by intent or effect,” an attack on judges or judicial independence. The law “governs the pension and health benefit contributions of more than one-half million state and local government employees. It does not discriminate against justices and judges.” As a result, Justice Patterson concluded, judicial independence was “not even implicated” in this case.
Both the majority and the dissenting opinions are lengthy, studded with citations to support their reasoning, and worthy of a full reading. Though cynics will assert that the members of the Court reached their decision based on political motivations (for example, the majority consists of two Justices who already have tenure, plus Judge Wefing, who is a temporary appointee to the Court and will soon reach retirement age, while Justice Hoens does not have tenure and Justice Patterson is an appointee of Governor Christie), nothing of the sort has happened here. Rather, as stated above, a clash between “plain language” and “unintended result” principles of interpretation produced two opposing views, each of which bears validity. Indeed, the majority comprises a mix of political affiliations, negating any notion that the Court acted out of politics.
The idea that, especially in these difficult fiscal times, judges should be subject to the same financial sacrifices as other public employees has broad appeal. The principle of judicial independence, in contrast, is abstract and challenging to defend in the court of public opinion. One thing is certain: this decision will be fodder for much discussion, some of it accurate and well-intentioned and some of it purely demagogic. The case may also revive discussions about an amendment to the Constitution that some in the Executive and Legislative branch had begun to seek even before this ruling came down. While the statute at issue in today’s decision seemingly was not aimed at judges, a constitutional amendment may well pose the risk of jeopardizing judicial independence.