Judge Feinberg’s decision yesterday finding unconstitutional a law that purported to increase the amount that sitting Superior Court judges and Supreme Court Justices must pay toward their pensions and health care has already aroused the predictable uninformed response from talk radio personalities and others. This morning, a talk radio host not only attacked Judge Feinberg, but pre-emptively took on the Supreme Court, asserting that all judges and Justices are “foxes in the henhouse” when it comes to this issue. Governor Christie asserted that Judge Feinberg’s decision “is why the public has grown to have such little faith in the objectivity of the judiciary.”
At a superficial level, it may seem strange that judges could rule on an issue that affects them personally. But the “rule of necessity” has long held that a judge is required to hear such cases, since “if every judge is disqualified from hearing a case, the litigant will be denied the right to have his case adjudicated.” Judge Feinberg expressly addressed this issue near the outset of her opinion, and concluded, relying extensively on United States v. Will, 440 U.S. 200 (1980), that she not only could but was required to decide the case. She also cited a number of appellate decisions from other states that held, under the rule of necessity, that judges were to rule on cases involving judicial salaries or retirement benefits.
Though Judge Feinberg did not cite New Jersey cases on the rule of necessity, our Supreme Court has recognized and applied the rule, most recently in the unanimous ruling in In re P.L. 2001, Chapter 362, 186 N.J. 368 (2006). The Court concluded that opinion by stating: “As the ultimate state tribunal authorized to decide the constitutionality of legislation, we can only hope that the public understands that judges, to the extent humanly possible, interpret the Constitution fairly, fearlessly, and independently, even when the issue touches on the judiciary’s institutional concerns. See, e.g., Pasqua v. Council, 186 N.J. 127, 892 A.2d 663 (2006) (ruling against judiciary and holding that indigent parents facing incarceration at child support enforcement hearings are constitutionally entitled to appointed counsel); R.M. v. Supreme Court, 185 N.J. 208, 883 A.2d 369 (2005) (declaring unconstitutional Supreme Court rule that restricted client’s right to disclose grievance filed against attorney).” 186 N.J. at 393-94.
Governor Christie, a lawyer himself, should have known about the rule of necessity. His lawyers, including the Assistant Attorney General who handled the briefing for the State, certainly knew about it. Judge Feinberg’s opinion states that “[n]either party challenges the propriety of this court to adjudicate the matter.” The State rightly did not contest Judge Feinberg’s ability to act in this case. Nor, presumably, would the State argue that the Appellate Division or Supreme Court could not hear the matter. Whatever the ultimate results on the merits, the cynical notion notion that there is something improper about a judge deciding this case is legally groundless.