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NJSBA urges NO on Public Question No. 2

Posted by Richard DeMichele | Nov 05, 2012 | 0 Comments

Voters to Decide Elected Officials and State Constitutional Amendment

Tomorrow is election day. This day will draw to conclusion the countless television ads, radio ads and mainstream commentary on what should be a very close presidential election.  Our citizens, in addition to voting for elected officials from President of the United States to municipal officials, will be asked to decide public questions or referendums.  Public question number two deals with a New Jersey State Constitutional amendment to allow the legislature to determine contributions toward health and pension benefits for the states judges.  The New Jersey State Bar Association opposes this constitutional amendment. The bar's president, Kevin McCann, has issued a statement in opposition to the proposed amendment.

Check back on Wednesday to find out if the voters approved this public question. We will post the results of this referendum.

The full text of Kevin McCann's statement is below:

Message from the President

Protect judicial independence; vote ‘no' on judicial pension public question

By Kevin P. McCann This November, the latest in a series of attacks on judicial independence in New Jersey will appear in our election booths as Public Question No. 2. That question asks voters to approve a constitutional amendment aimed at allowing the Legislature to require increased contributions toward health and pension benefits from the state's judges. The New Jersey State Bar Association opposes the proposed amendment and encourages you, as a member, to vote against the proposal, as it is ill-advised, unwarranted and threatens the integrity of the judiciary. The NJSBA encourages all of its members to vote against Public Question No. 2 and in favor of protecting the integrity of our judiciary. The NJSBA website will also be periodically updated with additional information at Here is the NJSBA's action statement on Public Question 2: THE NJSBA URGES YOU TO VOTE “NO” ON PUBLIC QUESTION NO. 2, WHICH PROPOSES A CONSTITUTIONAL AMENDMENT PERMITTING THE LEGISLATURE TO REQUIRE CONTRIBUTIONS FROM JUDGES' SALARIES FOR EMPLOYEE BENEFITS The New Jersey State Bar Association strongly opposes Public Question No. 2, which proposes a constitutional amendment to clarify the Legislature's authority to require contributions from certain judges' salaries for employee benefits. The constitutional amendment proposed by this question represents a rash reaction to a Supreme Court decision and a dangerous intrusion by one branch of government into the independence of another, co-equal branch of government. Such a swift reaction – passed by the Legislature a mere few days after the New Jersey Supreme Court ruled that the Legislature's prior action on pension and health benefits reform was unconstitutional – illustrates exactly why this proposal is ill-advised. The NJSBA asks you to join us in opposing this constitutional amendment and to stand up for a free, fair and independent judicial system in New Jersey. Public Question No. 2, in essence, seeks to undo the clear words of the New Jersey Constitution which has served our great state so well since it was revised in 1947. Those words were interpreted by the state Supreme Court in its recent decision in DePascale v. State to protect the judicial branch of our state government from possible political interference and/or retaliation by another separate and co-equal branch of government. Indeed, these protections are the hallmark of the free, fair and independent judicial system which New Jerseyans rely on each and every day. The 1947 revision included the contributions of many great minds after a lengthy debate and discussion, a process that was missing from the legislative consideration of this public question. While this proposal purports to put judges together with other government employees in connection with deductions from salaries for pensions, health benefits and other similar benefits, it actually represents a stark change in our state government and upends an historical protection that has kept the judicial system of our state free from partisan politics. In fact, the actual language of the proposed amendment is so broad that it could permit the Legislature to specifically target judges' contributions in the future even at times when other public employee contributions are remaining static. Furthermore, the measure simply ignores the very well-grounded reasons judges enjoy constitutional protections not afforded to other government employees. The exceptions to those protections contained in this proposal are not permitted at the federal level and should not be approved in New Jersey. Judges are treated differently than other government employees because of the unique requirements of the position they hold in our governance structure. Judges must be free to objectively decide issues that come before them, without fear of retribution, particularly from other branches of government. The importance of an independent judiciary to the individual citizens of this state cannot be overstated. It is judges to whom citizens turn when their rights are threatened, when they are seeking fair treatment after being charged with a crime, when government is seeking removal of their children from their home and when they are injured by another. The drafters of the New Jersey Constitution, like the drafters of the federal Constitution and countless other state constitutions, understood there can be no greater threat to judges being free to resolve issues such as these in an objective, unbiased manner than to allow other branches of government, either directly or indirectly, to alter their salaries during their term of office. It is for this reason that judges, unlike any other government employee, enjoy constitutional protection against a diminution of their salaries while in office. This proposal seeks to erode that protection not just for purposes of enforcing the current pension and health care benefit deductions at issue, but for all time. Judges are also treated differently than other government employees because of the unique restrictions placed on them while they are in office. Both the Constitution and the Code of Judicial Conduct prohibit sitting judges from earning additional income from any activity outside of their judicial duties, from participating in political activity or from organizing into an association to petition the Legislature on issues, such as this, that affect them. These restrictions represent important safeguards to an independent judiciary and justify, in part, the heightened constitutional protection afforded the judiciary. It is important to note as well that judges are not covered by any collective bargaining agreement or statute that provides for increases in salaries or benefits over time — whether those increases are tied to cost of living increases or otherwise. Judges must rely on future legislative action for any compensation increases; they should not also have to be fearful of legislative action resulting in compensation decreases. For all of these reasons, the NJSBA strongly opposes Public Question No. 2 and urges you to vote against it on Election Day. The present constitutional language has served the citizens of New Jersey well since its adoption in 1947. It should not be altered hastily and without good reason.

About the Author

Richard DeMichele

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.


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