COA hearing pay arguments today

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The New York State Court of Appeals will hear oral arguments today in three cases challenging the state’s longtime failure to give judges a pay raise.
Judges have not received a pay increase since 1998. When adjusted for cost of living, only five states pay their trial court judges less than New York, according to the National Center for State Courts — Vermont, Maine, Montana, Oregon and Hawaii.
The average salary for general jurisdiction New York trial court judges is $136,700. The Chief Judge of the Court of Appeals earns about $155,000.
Those dollars go further Upstate than in New York City, former Court of Appeals Associate Judge George Bundy Smith acknowledged during a telephone interview Monday morning.
As a member of the state’s highest court, the former judge’s salary was about $150,000 — which is less than a first-year associate at his current law firm, Chadbourne & Parke LLP, is paid. Smith said Chadbourne pays new law school graduates who have not yet passed the bar a starting salary of $160,000.
“In some firms, it’s even more,” Smith said. “If a person has to put kids through college, whether they’re state or private colleges … that person is going to be discouraged from going on the bench” in New York, Smith said.
Although many large firms Downstate have reduced or cut back partners’ salaries, deferred offers of employment and reduced their summer programs, Smith rejected the suggestion that private firm salaries might drop to the level of judicial salaries.
“In my firm, we think that the corner has been turned economically,” Smith said.
He said that, at the height of the Great Depression in the 1930s, the U.S. Supreme Court also rejected an argument that public salaries should be put on hold due to financial stress.
Smith said the amount of money necessary to pay the New York judges’ cost of living adjustments for the past 10 years would total less than 3 percent of the state budget.
“The fact that judicial salaries have been paired to legislative salaries has gone a long way toward demoralizing the judiciary,” Smith said, adding that the Legislature’s failure to increase pay violates the separation of powers doctrine.
Each case before the Court of Appeals contends both the executive and legislative branches are in violation of the state constitution by linking judicial salaries to the salaries of legislators and senior officials, as well as to other political issues.
The plaintiffs also argue judicial salaries have been unconstitutionally diminished and that a budget law authorizing raises should be implemented, even without enabling legislation.
The Appellate Division, First Department affirmed summary judgment rulings for the plaintiff judges in Larabee v. Governor and Chief Judge v. Governor.
“Linkage, as employed in these circumstances, manifested an abandonment of any pretense to an objective consideration of judicial compensation unimpeded by extraneous political considerations,” the First Department panel determined in its Larabee decision. “These acts and their ramifications necessarily undermine the carefully constructed architecture of New York government.”
In Matter of Maron v. Silver, the Appellate Division, Third Department dismissed the linkage claim, and found no cause of action based on the separation of powers because the judges “failed to allege a discriminatory attack on the judicial branch that has impaired or imminently threatened the judiciary’s independence and ability to function.”
The Third Department also rejected a lengthy argument that a 2006 state budget law authorizing $69.5 million for judicial salaries should be enacted since the enabling legislation never was adopted.
“It’s an authorization, but without an appropriation [under a separate chapter law], it’s a nothing,” attorney Richard Maron of Schlam Stone & Dolan LLP said Monday. Maron represents the state in all three matters before the Court of Appeals.
Plaintiffs in all three cases also argue judicial compensation was diminished unconstitutionally because they received no cost of living increase, even as the cost of living rose by an estimated 26 to 30 percent over the past 10 years. That claim was rejected by both the First and Third Departments.
Court of Appeals spokesman Gary Spencer said the cases most likely will be decided together, since they raise very similar issues and seek very similar relief on behalf of the same people.
Today’s arguments will be broadcast live online at www.nycourts.gov/courts/ appeals.
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