Judge rules that judges rule

Judge Linda Feinberg, sitting in Trenton, ruled the increased health benefits and pension contributions that Governor Chris Christie and Democratic legislative leaders put into effect on June 28, are unconstitutional as it applies to judges, in particular Judge Paul DePascale, because it amounts to a reduction in their salaries.  The ruling does not affect state and local public employees, including teachers, police and firefighters, who are now paying the increased costs.

There are several questions this ruling brings to mind, including why judges can’t have their pay cut though other government employees can, but one stands out:

What backwater judicial fiefdom would allow such self-dealing?  It makes one pine for the good old days when judges were more guided by reason:

What Chris Christie should do is keep taking out the additional benefit contributions that judges were supposed to make, send them to some house for crack babies*, and have the judges physically walk over and pick up their checks so at least they’ll see who they’re taking the money from.



* Finding an undeniably useful function that New Jersey governments perform was the most time-consuming aspect of this blog.  I’m not even sure there is a house for crack babies that the state supports but it sounded better than paying for consultants, running musicfests, or coming up with ideas (solar panels paid with SRECs) that enrich insiders in the private sector.

20 responses to this post.

  1. Posted by briandin on October 18, 2011 at 5:56 pm

    My prediction is, if the Supreme Court upholds the new COLA limit scheme while protecting the judiciary from its impact, then the unions and private sector, hand in hand, will put forth an amendment to the constitution to “level the playing field” and remove any judicial exemption. Perhaps that is a big if, though.


  2. Posted by briandin on October 18, 2011 at 6:02 pm

    Here is an interesting read about a similar COLA/compensation discussion involving Art III of the U.S. Constitution and the Federal Constitution.


    COLAs, the Courts, and the Constitution
    Published 1, August 22, 2007

    This month, Associate Justices Stephen Breyer, Anthony Kennedy, and Antonin Scalia faced a challenge that any union field organizer could well appreciate. In a little reported opinion, these three justices lamented the failure of their colleagues to join them in taking a case over judicial compensation and reinforcing their position vis-à-vis their employer. In a case filed by federal judges, these three justices saw the case as a challenge to judicial independence by Congress but faced deafening silence from their other six colleagues. Writing a rare dissent in the Court’s declination of review in Williams v. United States, Justice Breyer revealed a solid core of support for reviewing, and possibly reshaping, a fundamental clause in Article III.

    On its face, Williams appears rather far removed from the seismic inter-branch conflicts foreseen by the Framers in the Constitutional Convention in 1787. The case was a challenge by various federal judges to the denial of annual cost-of-living adjustments (COLAs) for judicial salaries. From the outset, the case left many judges uneasy about a group of judges asking another group of judges for a decision that would financially benefit both groups. Breyer noted that, even some of his colleagues, were probably reluctant to engage another branch over such a ostensibly self-serving issue. Moreover, judicial positions look like pretty cozy work for most Americans who are struggling with basic health care concerns and low wages. District judges are currently paid $150,000 per year. Appellate judges are paid $159,100. Associate Supreme Court justices are paid $184,400 and the Chief Justice is paid $192,600. Given such base salaries and guaranteed life tenure, complaints over judicial COLAs is hardly a subject that will send large numbers of citizens into the streets in outrage.

    In reality, judicial salaries have continued to decline for decades. When inflation is considered, real salaries have declined roughly 25 percent since 1969. That fact has not been lost on many Article III judges who took their job under the belief that the Constitution barred diminishment of judicial salaries. They believed that Congress was manipulating the level of compensation for judges in violation of Article III – a practice that would erode the independence of the judiciary by making them more dependent on the good graces of the legislative branch. While a panel of the Federal Circuit disagreed in a 2-1 vote, a federal district court judge, one appellate judge, and three Supreme Court justices found merit in their arguments.

    The separation of powers doctrine is a mere pretense if there is not a body with sufficient independence and authority to block any unconstitutional or unlawful actions of the two political branches. For that reason, the Framers gave federal judges two unique protections in our constitutional system. They are guaranteed life tenure in office that could only be severed through impeachment in the House and a trial in the Senate. They were also guaranteed that their compensation will not be diminished or denied. It is the latter guarantee that was at the heart of the Williams case and the division on the Supreme Court.

    There would, of course, be little debate if Congress attempted to slash judicial salaries by 25 percent. Any first-year law student could spot the unconstitutional character of such a direct reduction of judicial compensation. Article III, Section I expressly stated that “The Judges, both of the supreme and inferior Courts, shall . . . receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” It is clear that the Framers understood that inflation could effectively reduce the value of judicial salaries but decided to leave such questions to the judgment of Congress. The more challenging question has always been collateral, or indirect, reductions through such measures as taxation or benefit changes affecting judicial officers.

    One of the most difficult questions seemed to be answered by a judicious move by Congress in 1989. Under the Ethics Reform Act, federal judges were formally protected against reductions in their compensation due to inflation. In this way, Congress dealt legislatively with a gray constitutional question over whether collateral reduction of salaries should be viewed as included in the concept of diminished compensation under Article III. While the Act also prohibited important areas of outside judicial income, Congress guaranteed that the judicial salary rate would be adjusted each year for inflation and be treated in a fashion commensurate with private employees and civil servants. However, in 1995, 1996, 1997, and 1999, Congress acted to block these salary adjustments for federal judges.

    One of the reasons that Madisonian democracy has been so successful is that it was crafted by extremely practical men. The subject of increases in judicial salary was a point of contention in the Constitutional Convention. James Madison believed that allowing increases during a judge’s service would create a dependence on the legislative branch. He wanted the compensation clause to read “no increase or diminution shall be made” to a judge’s salary during his service. On July 18, 1787, the issue came to a head when delegates argued that the prohibition on increases be struck from the clause. Governeur Morris insisted that Congress should be given the ability to raise salaries “as circumstances might require.” Other Framers like Benjamin Franklin agreed with Morris. Madison lost and the language was removed. Thus, it was resolved that salaries could not be diminished or reduced but they could be increased by Congress.

    While the terminology has changed since 1700s, the concept of inflation adjustment was not unfamiliar to the Framers. For example, Alexander Hamilton specifically raised the effect of inflation on judicial compensation in his contributions to the Federalist Papers. He noted that, while preferable, a fixed rate of compensation could not be included in the Constitution because of “fluctuations in the value of money.” He stated an expectation that Congress would “vary its provision” for judges “in conformity to the variations” in the economy.

    Of course, such expectations do not mean that there is a constitutional requirement for COLAs in judicial salaries. Framers repeatedly stressed the need for sufficient salaries and benefits to attract what Charles Pinckney called “men of the first talents.” Yet the level of compensation was left to legislative discretion. What made the Williams case interesting was the fact that these increases had been guaranteed but then suspended for federal judges, a fact of great importance for Justice Breyer and his colleagues in distinguishing Williams from past cases.

    The issue of collateral diminishment has come before the Court periodically but recent opinions indicate a growing concern on the Court. In 2001, for example, Associate Justice Antonin Scalia argued forcibly in dissent in United States v. Hatter that Congress violated the compensation clause when it repealed an exemption of judges from Medicare taxes. The denial of COLAs in Williams raised the most compelling challenge to collateral diminishment to go before the Court. This is why dissenters were understandably perplexed by the failure to review the case – regardless of its outcome. Yet, from the outset, this is a constitutional question that should have been avoided by congressional leaders. The value of the Ethics Reform Act was the creation of not just a comfortable financial buffer for judges but a comfortable constitutional buffer for the branches. The act created bright lines for both judicial conduct and legislative conduct. Just as judges were prohibited from certain activities, it was understood that Congress would avoid measures on COLAs that singled out judicial officers.

    There is a strong argument for an automatic annual adjustment for federal judges regardless of changes in other federal compensation levels. Due to what Justice Breyer called the “special nature of the judicial enterprise,” uncertainty over such adjustments removes that buffer zone between the branches. It is not good for the system to have judges organize to clamor for such compensation from Congress through the Chief Justice or the Judicial Conference. It is certainly not good for the system to have federal judges file as litigants against another branch.

    There are times when constitutional questions are best avoided by the unilateral action of one branch. The mere fact that the Supreme Court denied the petition for writ of certiorari in Williams does not mean that this question is settled. The opinion of these three justices fell one short of a grant of the petition and should concentrate the minds of their counterparts in the legislative branch. Perhaps the majority of the Supreme Court was hoping that its own decision to forego review would encourage a similar accommodating response from Congress in the interests of inter-branch harmony. If Congress continues to tinker with these COLAs, the Court may be close to a major new interpretation of the terms of Article III and create a sharp inter-branch conflict over a comparatively minor budget item. Just as Congress can reverse earlier increases in judicial salaries, a new majority may be emerging to treat benefits like COLAs as locked in by Article III.

    We can only hope that, in the future, Congress will tweak the budget in less ominous ways and re-commit itself to the worthy objectives of the Ethics Reform Act. There are many areas of constitutional tension that are unavoidable in the Madisonian democracy. This is not one of them. Call it the adjusted value of justice, but guaranteed and automatic judicial COLAs are a small price to pay for a system that rests ultimately on the service of independent and undistracted judges.


  3. Posted by Javagold on October 18, 2011 at 9:03 pm

    No different than judges throught this corrupt and bought country ruling on fraudclosures when their pensions are directly affected by the outcome of the fraudclosures



  4. That judicial salaries cannot be reduced by other branches of government is, I believe, in all state constitutions, for separation of powers reasons. I believe this has been the case from colonial times. The bad news is judicial oversight and sentencing guidelines have made judges more or less irrelevant.


  5. Posted by Anonymous on October 18, 2011 at 10:21 pm

    According to a footnote in Judge Feinberg’s written opinion, the AG did not argue that she (or, for that matter, the entire NJ judiciary) recuse herself despite the most glaring conflict of interest. As a sitting judge, Feinberg is obviously and directly impacted by the increased pension and health care contributions. As night follows day, Christie harped on this the following day in decrying the decision. Notice, however, that he didn’t suggest that a federal judge or judges decide the issue on appeal. Nor was he asked why his own legal representative, the AG, never made the conflict argument before Feinberg when such an argument begged to be litigated (Feinberg nonetheless addressed the issue). This, in my mind, underscores the wise move on the part of the CWA and other unions to file their challenge to the COLA freeze in federal, rather than state, court.


  6. Posted by bpaterson on October 19, 2011 at 10:57 am

    The public seeing the hubris of the court system and its greed and arrogance will finally understand that there is no one in government that is part of the people, that all of them feel they are above the law. There is a disconnect and that the govt is of the people by the people no more.

    This is one more step toward chaos and civilunrest in New Jersey. The residents who are footing this huge state government bill will finally stand up against an out of control government. (probably wishfull thinking at best since most of the residents have been indoctrinated the last 10 years to become sheeple.) Christie is our last hope, we have to stand with him.


  7. […] From John Bury’s pension blog: Judge Linda Feinberg, sitting in Trenton, ruled the increased health benefits and pension contributions that Governor Chris Christie and Democratic legislative leaders put into effect on June 28, are unconstitutional as it applies to judges, in particular Judge Paul DePascale, because it amounts to a reduction in their salaries.  The ruling does not affect state and local public employees, including teachers, police and firefighters, who are now paying the increased costs. […]


  8. Posted by speedo on October 20, 2011 at 2:07 pm

    When the state instituted paid family leave ,do out judges not pay into this fund ,it was pass by our legislature in 2008 . I know it’s a smaller amount but is it not precedent ?


  9. Posted by Tough Love on October 20, 2011 at 2:41 pm

    This is complete self-interest on the part of NJ’s judges.

    Why is this change illegal, but not the $dollar amount of their previous healthcare premium increases (which, determined as a % of pay increase with salary) ?


  10. Posted by muni-man on October 20, 2011 at 3:53 pm

    NJ Constitution – Article VI, Section VI, Para. 6
    6. The 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, which shall not be diminished during the term of their appointment. They shall not, while in office, engage in the practice of law or other gainful pursuit.

    Seems like the good judge is playing fast and loose with the term salary. A salary is a fixed amount paid to exempt employees (i.e. those not eligible for overtime payments). Non-exempt employees are eligible for overtime and are paid wages. Total compensation is the whole enchilada (salary+benefits+bonuses+perks+special amenities, etc.). The article clearly says SALARY which is not being affected, but rather total compensation which is being negatively affected. I guess the only real surprise though would have been if she had ruled against her own.


    • Posted by brian on October 21, 2011 at 9:21 am

      Indeed, if these benefits are deemed “salaries” for purposes of the constitution, I renew my standing proposal to treat them the same way for income tax purposes based on their net present value. Otherwise, these folks leave the state as soon as they collect their pensions and are then beyond the reach of NJ’s taxing authorities.

      Naturally, there won’t be much take home pay left, and we will be returned to the good old days of true “public servants” rather than “some are more equal than others” slopping at the trough.


      • Posted by muni-man on October 21, 2011 at 10:08 am

        And using her convoluted, ‘manufactured’ logic, judges would then also be exempt from any NJ tax increases that would ‘diminish’ their salaries and I suppose if carried to a totally ludicrous level, that NJ would actually have to make them whole for any salary shortfall they might incur if the Fed ever raised their tax rates. The ruling is a travesty.


    • Posted by briandin on October 26, 2011 at 1:13 pm

      And now it looks like Christie is ready to seek an amendment to the Constitution to “fix” the problem only elitist judges can see. Should be fun.



  11. Posted by Dave S on October 24, 2011 at 5:56 am

    The State’s case defining judicial compensation is a lot stronger than the case for freezing the COLA pension adjustment for State employees. A negotiated settlement as I have suggested would be in the interests of all parties. The administration continues to underfund the pensions as the Star Ledger reported, simply pushing the fiscal issue to the next administration. A better course would be to largely meet the pre-existing obligations and decide if continuing a defined benefit program is appropriate.


    • Posted by Tough Love on October 24, 2011 at 12:25 pm

      Your last sentence hits the nail on the head.

      With ..

      (a) the slow 1/7, 2/7, 3/7, etc. grade-in to appropriate funding … INCREASING the unfunded liability
      (b) too aggressive (too high) interest rates for discounting Plan liabilities … resulting in a significant understatement of the true unfunded liability
      (c) $50-$100 Billion of completely unfunded OPEB benefits (e.g., retiree healthcare)
      (d) continued granting of pension accruals based on formulas and provisions (e.g., too early full retirement ages, too liberal definitions of “pensionable compensation”) that are way too generous, unaffordable, unfair to taxpayers called upon to pay for 8090% of total pension costs, and 2, 4, even 6 times greater in value than what comparably-paid Private Sector workers get from their employers

      We are driving NJ to insolvency and disaster for the employees when these Plans will surely fail.

      Shouldn’t the first step be to stop digging the hole deeper? As you suggested, deciding if a continuation of the current DB Plans is appropriate should be on the table now.


      • Posted by muni-man on October 24, 2011 at 1:43 pm

        When these scholars in Trenton ultimately see the futility of trying to keep this pension albatross flying, they’re likely to do something along the lines of what R.I. did – pass a law putting bondholders at the top of the priority list for claims against state revenues, because if they don’t, they know they’ll be largely and permanently shutting the state out of the financial capital markets which would have huge negative repercussions for the state. As a quid pro quo, they’ll toss whatever crumbs are left to the funds and do a big benefits reset downward.


        • Posted by Tough Love on October 24, 2011 at 2:57 pm

          Agreed (not just in Nj, but also Il, Mi, Ca, etc.).

          But reducing the rate of pension accrual for future service, let alone reductions for those already retired is going to be a lot tougher fight in NJ.

          RI’s Gov. and Treasurer were in sinc .. not so here. Also, the Central Falls bankruptcy was a reality check for what would like happen throughout the State if they didn’t fix it.

          We need a significant local bankruptcy here before the NJ gov’t Unions and workers will take notice. There OVERSTUFFED pensions need AT LEAST a 50% reduction in the accrual rate ….. and even that does nothing to address or solve the huge current unfunded liability for PAST service accruals and OPEB benefits/


  12. […] of Improving theSing SkyLinusWashington – Postal Prices Going Up For Express, Priority MailJudge rules that judges ruleNew Jersey needs minimum funding rulesTravel tips: How to survive long-haul flightsAny Reason for […]


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