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Kaye Proposes New Measure To Boost Pay of State Judges
By Joel Stashenko - January 4, 2008 - The New York Law Journal


ALBANY — A new judicial pay raise proposal offered yesterday by Chief Judge Judith S. Kaye would surrender some ground on retroactivity while tying future increases to salaries and cost-of-living adjustments given to federal judges.

The legislation would provide for retroactive raises for state judges to Jan. 1, 2007. Previous proposals by the chief judge, most recently in the judiciary’s budget plan for the 2008-09 fiscal year, provided for retroactivity to April 1, 2005 — a time frame that was seen as an increasingly hard sell in Albany as the delay over passage of a judicial pay bill has dragged on.

In a cover letter accompanying the proposed bill, Chief Judge Kaye did ask that the Legislature at least consider the April 1, 2005, retroactivity date.

Chief Administrative Judge Ann Pfau said yesterday the new proposal is styled on a judicial pay raise bill approved by the Senate last month (NYLJ, Dec. 14, 2007). Its filing, even before the Legislature has begun its 2008 session, is timed to reaffirm that pay remains the overarching issue for the judiciary, she said.

"For us, this is our total priority legislation," Judge Pfau said yesterday in an interview. "Time can't pass. This has to be done now. We are in our tenth year without a salary increase, longer than judges in any state in the country. When adjusted for cost of living, our judges' salaries are second to last in the country."

The legislation would provide for an immediate raise for state Supreme Court justices from $136,700 to $165,200, the current salary of federal district court judges. Other state court judges would get increases based on percentages of Supreme Court justices' salaries.

The bill would also create a commission, with members to be appointed by the Legislature and the chief judge, to set future salary increases every four years.

A "default" mechanism in the legislation would decree that state judges get future increases in equal proportion to those received by federal district court judges. Judge Pfau said that would include both base salary increases and cost-of-living adjustments that federal, but not state, judges receive.

Federal judges will get cost-of-living increases of about 2.5 percent by mid-January under legislation signed by President George Bush.

Also, U.S. Supreme Court Chief Justice John G. Roberts Jr. has been lobbying Congress to raise federal court judges' salaries significantly. The House Judiciary Committee approved a bill last month to increase the salary of federal district court judges to $218,000 and the Senate Judiciary Committee was considering a similar measure when Congress adjourned until this month.

The last significant pay increase for federal judges was a 25 percent hike passed in 1989. Congress has approved cost-of-living increases for the federal judges six of the last 14 years. New York state judges received their last raise in January 1999.

State Senator John DeFrancisco, R-Syracuse, who chairs the Senate's Judiciary Committee, said he favors the idea of a bipartisan commission setting future judicial salary increases. But he said that he does not support automatically increasing judges' pay based on raises federal judges may get.

"I just think it would make more sense that we have a process where there is periodic review of these raises by someone who is controlled by the state of New York," Mr. DeFrancisco said. "We should never, I don't think, be in a position to be bound by something some other government, federal or state, thinks is best. We are abdicating our responsibility."

Albany 'Poker Game'

Kathryn Grant Madigan, president of the New York State Bar Association, is among those who said they are worried that by not being resolved before the arrival of 2008, the question of judicial pay raises has now become subject to horse trading over the next state budget and to election-year politicking. All 212 seats in the Legislature are up for election this November, and sentiment among lawmakers is high for a legislative pay raise.

"Our biggest concern is that if this doesn't happen in the relative near term, this could have to wait until after the fall elections," Ms. Madigan said.

The state bar has put a judicial pay raise at the top of its list of 2008 legislative priorities.

Neither judges nor state legislators have gotten raises since 1999. Traditionally, their pay has gone up at the same time. Also, the Legislature historically has not raised its own pay until after a November election and before the start of a new legislative session.

Mr. DeFrancisco blamed the failure of the Assembly to take up either of the judicial pay raise bills passed by the Senate last year for causing the issue to linger unresolved. He said that means a judicial pay bill is unlikely to pass until the next state budget is adopted this spring, at the earliest.

"It is back in the hopper with every other issue," Mr. DeFrancisco said. "I think that is precisely why the Assembly didn't come back, because the governor wants it as one of his chips in the never-ending poker game of Albany."

Governor Eliot Spitzer has told court administrators he wants a judicial pay increase as part of the next budget, Judge Pfau said.

Assembly Speaker Sheldon Silver, D-Manhattan, also has said he favors a judicial pay raise, but did not bring the Senate bills to a vote in his chamber. Privately, Assembly Democrats say they are opposed to a judicial pay raise unless legislators, who make a base salary of $79,500 a year, get one as well.

The Legislature meets in a joint session on Jan. 9 and begins its legislative work for the year on Jan. 14.

Judge Pfau estimated that the pay raise bill would cost $47.4 million, covering the cost of the increases retroactively to Jan. 1, 2007, through the end of the current 2007-08 fiscal year.

The judiciary continues to hold out the threat of suing the governor and the Legislature to get higher pay, according to Judge Pfau.

"It's something of last resort," she said yesterday. "We want to focus on getting this done."

Yesterday in Trenton, N.J., appropriations committees sent a bill to the floors of the New Jersey Legislature that would raise the pay of judges in that state. For judges of the Superior Court, the state's main trial-level court, pay would increase to $165,000 a year from $149,000, if the legislation becomes law.

— Joel Stashenko can be reached at jstashenko@alm.com.