Crafty Senator Sam Thompson wants Treasury to collect Judges “unpaid contributions” to pension and health benefit funds
While the legislature is moving forward to put a Constitutional Amendment on the ballot that will overturn the State Supreme Court’s decision that Judges don’t have to pay their fair share of their pensions and health benefits under the reform legislation enacted last year, the ever crafty senator from Old Bridge, Sam Thompson, wants to stick the Judges ruling in Depascale vs The State of New Jersey high up under their robes.
In a letter to the Treasury Department sent this morning, Thompson noted that given that the Court ruled that Judges’ “salary” includes their pensions and health care, the men and women in black have been under contributing to those funds since 1982.
In order to justify the ruling in Depascale v. State of New Jersey, the NJ Supreme Court had to first establish that salary encompasses not only wages but also benefits, specifically pension and healthcare. Their opinion goes to great length in an attempt to establish this as fact, leading ultimately to their conclusion, salary does indeed, encompass pension and healthcare. They also state unequivocally, the statutes covering pension and healthcare benefits in existence prior to enactment of Chapter 78 are constitutional.
Those statutes specified members of the Judicial Retirement System shall contribute 3% of their salary towards their pension and 1.5% of their salary towards their healthcare costs. These contributions were always calculated on the assumption that salary was only wages. Based upon the Supreme Courts’ ruling, this assumption was erroneous which leads to the conclusion all members of the judiciary have contributed less than the statutorily required amount since 1982 when the JRS Act was amended by N.J.S.A. 43:6A-34.1(b) and when healthcare contributions were mandated by L. 2007, c.103 S 22.
In accordance with the Supreme Courts’ definition, members should have been contributing initially 3% and subsequently 4.5% not only of their wages but also similar percentages of the increased value of their pensions with each additional year of service. Considering the amount judicial pensions increase with each added year of service, obviously these underpayments were significant and collecting these funds would assist in addressing the $270 million unfunded liability in the JRS.
“Be careful what you wish for, you just might get it, including the unintended consequences,” Thompson told MMM.
Thompson said that a retired judge told him that he’s have to get a second job to pay back what he owes the State, if Treasury takes Thompson’s request seriously and enforces it.
Thompson said that it would be appropriate, given the Court’s ruling defining “salaries,” for Treasury to collect the these funds from sitting and retired judges even if the proposed Constitution Amendment passes and becomes law. The amendment doesn’t change the definition of “salary.” It simply clarifies the legislature’s authority under the Constitution to enact laws that deduct contributions from the salaries of Supreme Court and Superior Court Judges to fund their benefits. “Since the Court defined salaries, Treasury should comply with the ruling,” Thompson said.
In addition to redefining “salary,” Thompson notes in his letter to Treasury that the Court invented a new term; “take home salary.” The crafty one has a solution for that too:
One final point. The justices recognized that they could not argue in their findings that Chapter 78 did diminish salary as defined in every day usage (wages), i.e. judicial salaries averaged $165,000 prior to enactment of Chapter 78, judicial salaries were unchanged and continued to average $165,000 after passage of Chapter 78.
Consequently, in their closing statement they wrote, “the constitution forbids the reduction of a justice or judges’ take-home salary during the term of his or her appointment.” “We hold that Chapter 78 violates Article VI Section 6, paragraph 6…….as applied to state justices and judges holding office at the time of its enactment.”
Take-home salary is new terminology created by the court. One always discusses take-home pay which clearly distinguishes it from salary. There is never a discussion or agreement between employees and employers regarding either take-home salaries or take-home pay.
However, this constitutional argument can be avoided in future legislation by specifying any required assessments shall not be deducted from the employees salary but instead shall be billed to the employee who shall then be responsible for remitting payment. Thus, take-home “salary” (pay) will not be impacted. In fact if we changed some laws to make some current deductions payable in this manner, the Supreme Court would have no recourse but to rule that rather than diminishing “take-home salary”, we would have actually increased same.