Sneaky, Back-Door Acts, the OCA Way

Is $5,000 stipend boost a back-door pay hike?
Chief judge doubles payment to $10,000 as judiciary still in salary fight with Legislature
The Albany Times Union by IRENE JAY LIU - October 28, 2009

ALBANY, NY -- As the Legislature and governor tackle New York's $3 billion budget deficit, the state's third branch of government has doubled judges' stipends, which will cost an additional $6 million per year. Citing the judges' decade-long lack of a pay raise, Court of Appeals Chief Judge Jonathan Lippman announced during an Oct. 14 webcast that he would double judges' supplemental allowance from $5,000 to $10,000, to cover items such as uncovered medical expenses, robe dry cleaning, travel, judicial license plates and marriage counseling. Lippman said in an interview with the New York Law Journal, which first reported the allowance increase, that he was "pleased to be able to double" the support. "We are not giving judges (added) salary," he said. " …We have finite resources. I think it's an appropriate reimbursement of judges for expenses of all different kinds."

Judges have been locked in a battle with the Legislature over judicial pay, which has been locked at $136,700 for the past 11 years. The Legislature, which must approve judicial pay raises, has historically tied them to their own salary increases -- a practice that the judiciary has called unconstitutional. The Court of Appeals will hear arguments in three separate cases about the issue early next year. Legislative leaders and the governor have been named as defendants in the three lawsuits. Responding to the judges' lack of a pay raise, former Chief Judge Judith Kaye in 2008 created the Judicial Supplemental Support Fund, which would provide full-time judges with a $5,000 annual stipend for "services and goods to support them in the performance of their judicial responsibilities," according to a 2009 bulletin from the state comptroller's office. Judges can receive the stipend in two ways: They can file receipts for reimbursement of expenses, or they can take a lump-sum payment which is taxable as income and does not require judges to file receipts. More than 90 percent of judges take the full $5,000 allowance, according to the Office of Court Administration, costing the state roughly $6 million. Doubling the allowance will cost another $6 million per year, according to OCA spokesman David Bookstaver. The expanded allowance will become effective Nov. 1, but checks reflecting the added funds will not be cut until April 15, 2010. The expansion will be added to next year's budget, said Bookstaver. Bookstaver emphasized that the increased allowance was not in lieu of a raise. "We have to keep the best and the brightest on the bench. And frankly, some of them are leaving because they can't make ends meet," he said. "This is really to make the judges lives slightly more tenable in an untenable situation." Bookstaver added that the judiciary may reconsider the expanded benefit if judges receive a pay raise before April 15. "If the salaries are increased, we'll certainly take a second look at the judicial supplement support fund," he said.

Reaction from state leaders to the judiciary's planned increase was muted, even as Gov. David Paterson, Assembly Speaker Sheldon Silver and Senate Democratic Conference Leader John Sampson tackle the state's estimated $3 billion current-year budget shortfall. "It's our policy not to comment on next year's budget submission until it's formally introduced," said Division of the Budget spokesman Matt Anderson. "New York judges are overworked and underpaid, and while we are in a fiscal crisis, we have to ensure the administration of justice is never compromised," Sampson said. Silver's office declined to comment on the issue. While state leaders have stayed largely silent on the issue, the allowance expansion was met with consternation in some quarters of the legislature. "In the scheme of the larger budget problem, $6 million is symbolic ... but it is indicative of them having too much money to spend. They obviously have the money and they want to spend it," said Assemblyman William Parment, D-Chautauqua County, who has questioned the judiciary's significant budget expansion over the past few years. The judiciary's budget has grown about 45 percent over the past seven years, from $1.7 billion in the 2002-2003 budget to $2.5 billion in the current-year budget. "Is it not symbolic or symptomatic of a larger, more troubling problem within the judiciary?," asked Parment of the stipend expansion, particularly given the state's current economic crisis. Paterson did not propose cuts to the judiciary's $2.5 billion budget in his deficit reduction plan, which proposes cuts in almost every corner of state government in an attempt to save $5 billion over two years. "I don't see how the governor can expect the Legislature to cut school teachers and leave the judicial budget unscathed," Parment said. "The governor does not typically put forward proposed spending reductions for other coequal branches of government when submitting his initial budget recommendations," Anderson said. Irene Jay Liu can be reached at 454-5081 or iliu@timesunion.com.