Cuomo Aide: Time Is Not Right to Raise Judges' Pay

Cuomo Aide: Time Is Not Right to Raise Judges' Pay
The New York Law Journal by Joel Stashenko  -  July 21, 2011

Although virtually all of the 33 speakers at yesterday's hearing advocated for an immediate and large pay raise for the state's 1,200 judges, Governor Cuomo's top budget adviser said the state cannot afford it, citing continuing budget shortfalls and the state's attempt to negotiate concessions with its other employees.

ALBANY, NY - Governor Andrew M. Cuomo's top budget adviser said yesterday that New York state cannot afford raises for judges in the short term.  "I think the issue as we see it right now…is that the spending is not affordable," Robert Megna told the seven members of a judicial compensation commission established to consider whether state judges should get their first raises since Jan. 1, 1999.  Mr. Megna was one of 33 speakers at the commission's first and only hearing. Virtually all of them advocated for an immediate and large pay raise for the state's 1,200 judges.  But Mr. Megna cited the state's continuing budget shortfalls and its attempt to negotiate concessions with its other employees. Members of both the Civil Service Employees Association and the Public Employees Federation, which together represent about 120,000 workers, are currently weighing new contracts that include three-year wage freezes, unpaid week-long furloughs and greater employee pension and health insurance contributions.  Mr. Megna said an immediate pay raise on the order of the 40 percent or more that the Office of Court Administration and judicial groups are proposing to make up for judges' losses to inflation since 1999 would throw the state's pay scale "out of whack."  He also noted that state cabinet-level employees, legislators and statewide-elected officials, such as Mr. Cuomo himself, have not gotten raises since 1999. Mr. Megna described it as a conscious, long-term effort to keep salaries for top judges and state officials "relatively constant."  Mr. Megna observed that the state faces a $2.4 billion budget gap in the year beginning April 1, when raises for the judges would go into effect.  William C. Thompson Jr., Mr. Cuomo's choice as chairman of the commission, said after yesterday's hearing that Mr. Megna had touched on one aspect that commission members know they have to consider: the state's ability to pay for a judicial raise, if the panel recommends one.  "He gave a strong presentation," Mr. Thompson said of Mr. Megna's comments. "But we've all been aware of [the state's fiscal woes] as an element in our deliberations."  Other factors the commission is to consider before making its report by Aug. 29 are what judges on other federal and state benches earn and the effects of inflation on judges' salaries.  Advocates for a significant raise up front included the New York State Bar Association (Read Testimony), the New York City Bar (Read Submission), the New York County Lawyers' Association (Read Submission), the Fund for Modern Courts and New York City Corporation Counsel Michael A. Cardozo (Read Testimony).  The state's chief administrative judge, Ann Pfau, argued that the public's "trust and confidence" in the Judiciary will be maintained by paying judges a realistic wage that is in keeping with what federal judges in other states or associates at large law firms make.  Judith Kaye, former New York State Chief Judge, left, and Ann Pfau, chief administrative judge, testify before the commission.  "We strongly believe that any award should be immediate and complete—that is, it should not be staggered or phased in over a period of several years in light of the state's current fiscal difficulties," Judge Pfau said. "Such a phase-in could accomplish little and damage a good deal."  Asked after the hearing about Mr. Megna's comments, Judge Pfau repeated what she told the commission, that a raise would amount to about $77 million, a minute portion of the overall state budget of some $131 billion. Judge Pfau argued that judges have been unfairly shortchanged and that the current state fiscal crisis should not preclude the commission from recommending a raise that judges deserve.  "It is a problem that has been over 12 years in the making," she said in an interview. "If judges had received regular cost-of-living increases, I would agree with him [Mr. Megna]. But I think we are in a different situation, from my perspective."  Judge Pfau was among several witnesses who contended that by denying judges the raises since 1999, the state saved more than $500 million in salaries and benefits.  Judge Pfau said she was also surprised by Mr. Megna's comments suggesting that keeping judges' salaries —and those of top state bureaucrats and legislators—at a "relatively constant" level was a conscious policy decision. The Judiciary has argued that pay raise bills have failed annually because they have become unconstitutionally encumbered by debates on unrelated public policy matters such as government ethics bills. The Court of Appeals has agreed with that assessment.  The former chief judge of the state, Judith S. Kaye, now of Skadden, Arps, Slate, Meagher & Flom, implored the commission to recommend a raise for the sake of the independence of the judiciary, despite the state's rough fiscal circumstances.  "Raises for New York judges now?" she asked commission members. "Yes, raises for New York judges now."  Ms. Kaye sued the governor and Legislature while chief judge to force passage of a raise.  Mr. Cardozo argued that the lack of a pay raise is weakening both the Judiciary and state government.  He argued that the salary has made it difficult to attract qualified applicants for the bench. Senior public services attorneys, such as prosecutors and the ones in his own office, are reluctant to accept what would represent a pay cut, he said.  "This must be corrected," Mr. Cardozo said. "Now."