Judicial pay issue could be heard at N.Y. Court of Appeals

Daily Record (Rochester, NY), Jun 5, 2009 by Elizabeth Stull

The last of three cases challenging New York's longtime failure to give state judges a raise will be argued Tuesday.

Justice Edward Lehner in New York City scheduled oral arguments in the case of Kaye v. Silver, 400763/08, after an appellate court upheld a decision in a similar case, Patricia Dillon, the judge's confidential secretary said.

The First Department panel on Tuesday unanimously upheld Justice Lehner's decision in Larabee v. Governor, 4761-4761A, and gave the state Legislature 90 days to enact a 30 percent cost-of-living increase in state judges' pay.

In a 25-page decision written by Appellate Justice Peter Tom, the court concluded that although judicial compensation was not diminished unconstitutionally, the Legislature had breached the separation of powers doctrine by making judicial pay dependent on legislative salary requests.

It seems likely the issue is now headed for the Court of Appeals.

In a conflicting decision issued last year, the Third Department dismissed a similar lawsuit. Maron v. Silver, 58 AD 3d 102.

If the Legislature fails to comply with the court order issued Tuesday, an attorney for the plaintiffs has said that he will take the case to the state's highest court.

The governor's office did not return calls for comment at press time. A spokesman for Assembly Speaker Sheldon Silver said he was reviewing the decision and a spokesman for the Office of Court Administration declined to comment on pending litigation but said, "The decision speaks for itself."

Judges have not received a pay increase or a cost of living adjustment since 1998.

The estimated increase in the cost of living since that time ranges from 26 to 30 percent, according to court papers. Trial judges continue to earn $136,700, which is less than many first- year associates in Manhattan.

The plaintiffs in Larabee -- Manhattan Family Court Judge Susan Larabee, Cattaraugus County Family Court Judge Michael Nenno, Manhattan Civil Court Judge Geoffrey Wright and Manhattan Criminal Court Judge Patricia Nunez -- argued that judicial salaries in New York have fallen so far behind inflation that their pay was unconstitutionally diminished, violating New York Constitution Art. VI, [section]25.

Like Justice Lehner and the Third Department in Maron, the First Department rejected that claim, finding no affirmative reduction of judicial salaries.

Unlike the Third Department, the First Department rejected the defendants' claim of legislative immunity under state Constitution Article III, [section]11.

"The original purpose of legislative immunity was to insulate legislators from intimidation by the executive branch as well as protect them from being held accountable for their acts by a possibly hostile Judiciary," Justice Tom wrote, citing case law.

The panel in Larabee concluded that "the overtly political manner in which linkage was employed" was not entitled to legislative immunity.

"[F]ailure to increase judicial compensation can only be explained by reference to the political conflicts between the legislature and the chief executive, which had no relation to budgetary considerations pertaining to judicial compensation," Justice Tom wrote.

"The judiciary was not intended to be subordinated to legislative whim on matters of compensation," even though no state money may be spent without a budget appropriation, Justice Tom's decision also states.

He cited New York's "constitutional architecture." Judicial compensation provisions are specified under a separate article for the judiciary.

The First Department decision also disagrees with the Third Department's conclusion that there was no separation of powers claim in Maron because the judicial system was not impaired.

"The threat to judicial independence arises ... not only from specific instances of legislative or executive overreaching, but also when political jousting erodes the institutional barricades which protect the judicial branch," Justice Tom wrote. "If the acts of another branch of government threaten the functional independence of the Judiciary as an institution, then the 'separateness' of those branches may become illusory,."

The First Department dismissed an action against the governor, finding his office blameless for the Legislature's continued failure to act.

Plaintiff/Judge Nenno said on Thursday that he was "very pleased" with the First Department's decision.

So, too, was former Fourth Department Justice Robert Lunn, of the Lunn Trotto Law Firm in Greece.

Lunn traveled to Albany in 2005 to work with now Chief Administrative Judge Ann Pfau and former Chief Administrative Judge Jonathan Lippman on getting more pay for judges.

"If [state legislators] do the right thing, they'll simply accept the decision and pay the judges and move forward," Lunn said.