New York Judges Order Raises for Themselves

Appellate Division Backs Pay Raise for Judges
The New York Law Journal by Noeleen Walder - June 2, 2009

A state appeals court today unanimously affirmed a lower court order giving the Legislature 90 days to raise the pay of the state’s 1,300 judges. The decision comes one year after Manhattan Supreme Court Justice Edward H. Lehner held that the Legislature and the governor had “unconstitutionally abused their power” by tying judicial pay raises to unrelated issues, such as campaign reform and legislative pay. Justice Lehner’s order was stayed in July 2008 pending today’s decision by the Appellate Division, First Department.

In a unanimous ruling written by Justice Peter Tom, the panel agreed the Legislature violated the separation of powers doctrine “by reducing the issue of judicial compensation to a tactical weapon” and consequently “subordinat[ing] the status of the Judiciary to that of an inferior governmental entity.”  “Linkage, as employed in these circumstances, manifested an abandonment of any pretense to an objective consideration of judicial compensation unimpeded by extraneous political considerations. These acts and their ramifications necessarily undermine the carefully constructed architecture of New York government,” Justice Tom wrote in Larabee v. Governor, 4761-4761A. The panel affirmed an earlier order dismissing the action against the governor, saying he was not responsible for inaction on the pay hike. The four Larabee plaintiffs also claimed their $136,700 annual salary has been unconstitutionally diminished in light of 30 percent inflation in violation of the compensation clause of the state Constitution. The plaintiffs are 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. Like Justice Lehner, the First Department rejected that claim. Rather, the appeals panel concluded that the Legislature had violated the separation of powers doctrine “by subordinating the Judiciary to its whims and caprices in matters of salary adjustments.”

Larabee is one of three suits brought over the issue of judicial pay raises. The Third Department last year dismissed Maron v. Silver, 504084, which was filed by current and former judges who also argued that the Legislature’s failure to grant judges a raise since Jan. 1, 1999, amounted to a violation of the compensation clause of the state Constitution and the separation of powers and equal protection doctrines (NYLJ, Nov. 14). In Maron, a 4-1 Third Department panel held that the plaintiffs had “failed to allege a discriminatory attack on the judicial branch that has impaired the Judiciary’s independence and ability to function.”  In a third suit, Kaye v. Silver, 400763/08, former Chief Judge Judith S. Kaye claimed that Supreme Court justices’ salaries should be on par with the $169,300 earned annually by federal district court judges. Motions for summary judgment and to dismiss currently are pending in that case before Justice Lehner. Thomas E. Bezanson of Cohen & Gresser, the lead attorney for the four judges in Larabee, praised the First Department panel.  “Today the state can celebrate the vindication of the separation of powers and judicial independence under the state Constitution. It’s a great day for state, Constitution, Judiciary and the people it serves,” Mr. Bezanson said in an interview. In addition to Justice Tom, the First Department panel included Presiding Justice Luis A. Gonzalez and Justices Eugene Nardelli, Karla Moskowitz, and Dianne T. Renwick. The panel heard arguments on Nov. 18. Noeleen.Walder@incisivemedia.com