Judicial Independence and Politics in the Berg Case

NJ Spotlight has been the best source for news of importance to New Jerseyans for some time now.  Today they have stories on (1) New Jersey’s beleaguered Chief Justice supported by attendees at last week’s State Bar Association meeting* since a real possibility exists that he will not get renominated:

“The fact that there exists today any possible question about his (Rabner) renomination as the chief justice of the New Jersey Supreme Court should be a signal to every lawyer here and to every lawyer and judge throughout the state that the statute, the reputation, and the independence of New Jersey’s judiciary is seriously at risk,” said [Gary] Stein, a Republican who was a Supreme Court justice for 17 years and, prior to that, director of policy and planning for Republican Gov. Thomas H. Kean.

and (2) closing a budget gap by further shortchanging the state pension system:

If Christie cannot find $807 million in “one shot” budget maneuvers or last-minute spending cuts to balance the current budget, and therefore decides to push off a portion of the $1.558 billion pension payment past June 30 into the following fiscal year, any court challenge to the deferral by the state’s public employee unions would most likely not be decided for months.

That would give Christie the window he needs to at least push off his budget problem until next year, when he planned to make long-term pension and retiree health benefits a centerpiece of the FY16 budget battle. By then, the state’s appeals courts also would have issued their final ruling in a legal challenge to the 2011 law’s elimination of $74 billion in cost-of-living increases over 30 years.

There appears to be a link between the Rabner renomination and the decision in the COLA case.

On January 28, 2014 a three-judge panel held a hearing in Berg v. Christie (Berg) which challenged whether the state had the right to summarily eliminate cost-of-living adjustments (COLAs) to pensions.  Further briefs were requested but typically a decision should have come down by now.  However, some speculate (reasonably to my mind) that the decision is being delayed pending a resolution of Rabner’s status.

This is the situation as it was explained to me and I welcome any comments/corrections from those who know more:

Any decision in Berg will be appealed to the State Supreme Court which may have seven judges but currently has five:

Name Sworn in Term expiration Mandatory retirement Appointing Governor Party membership
Chief Justice Stuart Rabner 29 June 2007 29 June 2014 30 June 2030 Jon Corzine, Democrat Democrat[29]
Jaynee LaVecchia February 1, 2000 None – Tenured October 9, 2024 Christine Todd Whitman, Republican Independent[30]
Barry T. Albin September 18, 2002 None – Tenured July 7, 2022 Jim McGreevey, Democrat Democratic[31]
Anne M. Patterson September 1, 2011 September 1, 2018 April 15, 2029 Chris Christie, Republican Republican[32]
Faustino J. Fernandez-Vina November 19, 2013 November 19, 2020 February 15, 2022 Chris Christie, Republican Republican[33]


The vote of three judges is necessary to hear an appeal and assuming that the two non-tenured Christie appointees will back the governor that leaves Rabner as the swing vote in any decision to hear an appeal. If the Appeals Court sides with Berg and calls for the reinstatement of COLAs then a Supreme Court with Rabner will not hear an appeal whereas if the Appeals Court sides with Christie and refuses to overturn the Hurd ruling then a Supreme Court with Rabner will hear an appeal – and vice versa for a court without Rabner.  Assuming the three-judge Appeals Court panel would not like to see their own decision appealed it comes down to:

Rabner in: Berg wins and COLAs are back

Rabner out: Christie wins and COLAs are gone

It could be just that simple and have nothing at all to do with justice.



* Speaking of that State Bar Association meeting last week one of the distinguished speakers at the event was a colleague:


tina state bar

and the topic:

njsba-media law 2014

10 responses to this post.

  1. Posted by FormerJerseyan on May 19, 2014 at 12:03 pm

    Does hearing an appeal automatically mean that the Court of Appeals would be overturned? Why would the State Senate confirm any Christie appointment to take Rabner’s place? If anything, I would expect the position to remain vacant at least for as long as necessary for the period for an appeal to be made. Of course, I may be missing something here.

    Anyway, “justice” as you put it would require getting rid of COLAs and public sector pensions and/or taxing, today, that portion of their net present value which is paid for by State Funds.

    The latter would do nothing to offset the existing retiree base (though COLA and retiree health care elimination should bring that down to a reasonable basis).


  2. Posted by Tough Love on May 19, 2014 at 12:58 pm

    Depends on how one defines “justice”. If one starts from the very reasonable position that current pensions granted NJ’s Public Sector workers are grossly excessive and have come to exist as such only due to the collusion between the Public Sector Unions and our elected officials (i.e., the former BUYING the votes of the latter), then “justice” indeed requires a very material reduction in these promised pensions …. by any and all tactics necessary to accomplish that very necessary and FAIR (to Taxpayers) goal.


  3. Posted by Anonymous on May 19, 2014 at 2:21 pm

    John, isnt it true that one of the main reasons Christie is not making the pension payment is because that money would have come from the suspension of COLAs Which will be reintroduced shortly. In other words that is where he got the money to make the payment in the first place? By the way when the COLAs be reinstated? And will they be retroactive. Thanks John.


    • The pension payment has nothing to do with the COLA decision. Sadly, Christie can pick whatever number he wants to deposit. That there is a low-ball number that the actuaries come up with (and then the state applies a 3/7ths fraction to) is window dressing giving the false impression that the actuaries have any say. They don’t.

      If the premise in this blog is correct then a possible scenario is that Rabner the announcement on Rabner’s reappointment comes June 4 and the COLA decision comes soon thereafter, though not so soon as to appear unseemly.


  4. Posted by Anonymous on May 19, 2014 at 4:09 pm

    You cant trust politicians so stop fooling yourselves.


  5. Posted by Anonymous on May 19, 2014 at 4:12 pm

    John are you sure Christie cannot exact revenge on those who dont go along with his agenda anymore He seems to be made of teflon.


  6. […] he was nominating Chief Justice Stuart Rabner for tenure on the NJ Supreme Court (which might mean COLAs come back) where he ventured into several areas that provided an opportunity to bash perceived opponents.  […]


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