Lippman Attempts to Sugarcoat OCA's Dysfunction

Despite Outcome, Lippman Says Pay 'Nightmare Is Over'
The New York Law Journal by John Caher  -  August 31, 2011

In a webcast address yesterday, Chief Judge Jonathan Lippman told the state's judges that while the pay raises recommended by a special commission are not what he had hoped for or what he believes would be fair, "the nightmare is over" and jurists should never again endure a lengthy period without a raise.  "While we cannot change the fact that by any standard we have not been treated fairly or respectfully over the last dozen years…the miserable situation that we have endured for so long will shortly be a thing of the past," Judge Lippman said.  The webcast was an attempt to add context to Friday's vote of the Special Commission on Judicial Compensation. The panel voted 4-3 to endorse a proposal to boost salaries of state-paid Supreme Court justices to $160,000 from $136,700 next April and then to $167,000 on April 1, 2013, and $174,000 as of April 1, 2014. Other judges would receive the same 27 percent pay raise over three years. Unless the state Legislature passes a bill to undo the action and Governor Andrew M. Cuomo signs it, the raises will take effect by force of law.  For many judges, however, it is too little and too late, and several have complained bitterly that the raises will not even restore their cost of living. Judge Lippman told the judges yesterday that he understands and shares that sentiment.  "We are all understandably disappointed that our judiciary was not made whole, not even close, for the long, torturous 12 year ordeal that we have experienced," the chief judge told his colleagues. But Judge Lippman said "judicial salaries will no longer be out of whack with judicial compensation around the country" and that with the first raise, New York's judges will be paid more than judges in 42 states.  He said that with the commission recommendations the salaries of New York's judges will "be almost on par with our colleagues in neighboring northeastern high-cost-of-living states, New Jersey and Pennsylvania, higher than our colleagues in neighboring Connecticut and significantly higher than judges in Massachusetts." The chief judge suggested that as important, or perhaps even more important, than the phased-in raises is the fact that there now exists a process requiring the political branches to evaluate judicial salaries on a regular basis.  Under that process, a special commission, comprised of appointees of the chief judge, governor and legislative leaders, is created every four years to "examine, evaluate and make recommendations" on judicial salaries for the next four years.  The first commission, chaired by former New York City Comptroller William C. Thompson Jr., expired with the submission of its final report on Monday. The report evinced deep divisions among commission members on the size of the raise, but significantly the debate was solely over the amount and not whether judges should get raises at all. No one suggested that judges did not deserve a raise, or that the raise should result in anything less than parity with federal judges.  The four-member majority, led by Mr. Thompson, concluded that Supreme Court justices in New York should have pay parity within three years, for a total increase of 27.3 percent by April 1, 2014. But the three dissenters, Robert B. Fiske Jr. and Kathryn S. Wylde, who were appointees of the chief judge, and Mark S. Mulholland, an appointee of Senate Majority Leader Dean Skelos, R-Rockville Centre, said in separate statements that the commission proposal does not go far enough.  Mr. Fiske, a senior counsel at Davis Polk & Wardwell and former Southern District U.S. attorney, said that to simply restore the purchasing power judges had in 1999, the last time they received a raise, would require a salary of $195,754. He said the state has saved about $515 million by not giving judges a raise in 12 years, and it would cost about $75 million to restore their purchasing power.  Mr. Mulholland, managing partner at Ruskin Moscou Faltischek, chastised his colleagues for failing to "seize the moment" and said they should have at least provided the judges with the equivalent of a 12-year cost-of-living adjustment, bringing their salaries to $192,000.  "Our mission was to end the neglect—not perpetuate it," Mr. Mulholland said in dissent.  And Ms. Wylde, president of the Partnership for New York City, a non-profit business advocacy group, would bring New York judges to immediate parity with their federal counterparts rather than phasing the increase over three years.  "For 12 years, judicial salaries were held hostage to tangential considerations, exposing judicial leadership to public humiliation and diminishing their status," she wrote.  Judge Lippman stressed in his webcast that the hostage days—in the past, legislators would link judicial pay to their own—are over.  "While many of us may find the salary package unfair and inadequate in the context of the long wage freeze we have suffered, the plain fact of the matter is: without the salary commission in place, whether or not we like the final number or the phase-in, there would without question be no salary increase for many years to come," he said.  Justice John M. Leventhal of the Appellate Division, Second Department, said the chief judge clearly articulated his disappointment with the amount of the raise, while beseeching his colleagues to recognize the progress that it represents and move forward.  "He knows we deserved more and put the best face on it he could," Justice Leventhal said. "We are all appreciative of what he did and we know if it was within his power we would have gotten what we deserved and never would have been put in this position in the first place. He is one of us and he has our back and I'm sure no one is more disappointed than he."  Manhattan Supreme Court Justice Sherry Klein Heitler said the chief judge "told it exactly the way it is" and "covered all the bases."  "It certainly was not an easy speech to give, but it is important that he reached out to the judiciary," she said. "It is important when you are a leader to reach out to the people you are leading."  John Caher can be contacted at jcaher@alm.com.