Insight Into Judicial Pay Panel Fiasco

Panel Agreed on Raise; Debated Timing, Amount
The New York Law Journal by John Caher and Joel Stashenko  -  March 30, 2012

With the power to finally break the 13-year salary logjam—or make it infinitely worse—a judicial pay compensation commission approached its task with the pragmatic goal of fashioning a package that was not only fair to judges, but politically doable, members of the panel said.  "We wanted to come up with something that the Legislature wouldn't overturn," said William Thompson Jr., chairman of the commission and former New York City comptroller. "The Legislature had the opportunity to overturn what we did, and the judges would not have gotten raises. So we were trying to strike a balance. We wanted to make sure the judges got raises. They had gone so long and we thought, no matter what, that is what we wanted to do. And they got substantial raises."  Several members of the Special Commission on Judicial Compensation said all seven favored increasing judges' salaries, and the debate over the amount and timing was heated. Some wanted a larger increase. Others wanted a pay hike that raised judicial salaries to immediate parity with federal judges, instead of the three-year phase-in that will increase salaries 27.3 percent by April 1, 2014. The final vote was 4-3.  But commission members were uniformly intent on vindicating the process, proving that this new and untested means of compensating judges would work. To that end they sought to avoid a worst-case scenario in which the Legislature rejected the commission's proposal, leaving the pay increase again in limbo and the process in doubt.  "Certainly, it would have been a complete breakdown if the commission produced a report that was rejected because it was unreasonable or unsound," said Mark Mulholland of Ruskin Moscou Faltischek in Uniondale, who was appointed to the panel by Senate Majority Leader Dean Skelos, R-Rockville Centre. "The path has been proven as one that does work and can succeed, so we should be able to avoid another long stretch of stagnation."  Commission member Kathryn Wylde, president of the Partnership for New York City, said the panel was cognizant of the state's precarious financial situation.  "The issue in terms of credibility was balancing the state's fiscal situation against the expectations of the judges," she said. "The big questions in my mind as a lay person were whether to adjust for cost of living in different geographic regions or for responsibilities in the different courts, but those with more experience with the judiciary said it was a non-starter."  Ms. Wylde said the commission was also mindful that legislators had gone without a raise as long as judges.  "Obviously, having the Legislature hanging out there without a salary increase was also an issue politically," she said.  The commission, comprised of unpaid appointees of the governor, chief judge and legislative leaders, was established to ensure that judges' salaries are reviewed regularly and appropriately adjusted. Under the legislation, a special panel is created every four years to "examine, evaluate and make recommendations" on judicial salaries for the next four years.  Its recommendations are binding and take effect automatically—unless the Legislature affirmatively rejects the plan.  Though untested in practical terms until 2011, the idea of a commission to handle the politically sensitive task of recommending new salaries for judges, legislators and state government agency heads was hardly new.  Assemblyman Joseph Lentol, D-Brooklyn, said his father advocated for such a commission as far back as 1966, when Edward Lentol was in the state Senate.  In addition, commissions or task forces appointed by either the Legislature or the Judiciary reached the same conclusion in separate reports in 1972, 1979, 1982, 1988, 1993 and 1998 that in addition to immediate pay increases, judicial salary boosts in the future should be decided by commissions that were not subject to the whims of politics between the governor and the Legislature.  Former Chief Judge Judith Kaye began promoting the formation of a commission in the mid-2000s, as the salary drought for judges stretched to five and six years and beyond.  As several suits filed by judges failed to break the impasse, including one filed by Ms. Kaye herself, her successor as chief judge, Jonathan Lippman, became more insistent that a commission had to be formed to take a judicial pay raise out of the realm of the political horse-trading that had caused pay increases to be linked to non-judicial ethics reform, pay increases for state legislators and other non-judicial issues.  Judge Lippman said the Legislature and governor reached a point in late 2010 where they realized "we couldn't continue on like this," that the "agonizingly long period" without giving raises to judges had become so extreme that the judiciary needed both a pay raise, and, just as importantly, a way to guarantee regular increases in the future.  "We all realized that every judge felt the necessity to have a pay increase, but that we all felt that the future of the judiciary rested with a systematic, permanent solution to this problem and that we could not be satisfied with a one-time increase," said Judge Lippman, who was credited by Mr. Lentol and other legislators with doggedly lobbying the Legislature and then-Governor David Paterson for the pay commission bill.  Mr. Paterson's former counsel, Peter Kiernan of Schiff Hardin, referred in a recent interview to Judge Lippman as someone whose "exquisite" skills as an advocate and a bureaucrat were on display during the push for creation of the pay commission.

Confluence of Events

The Judiciary also profited by a confluence of events that scrambled Albany's leadership structure in 2010.  Mr. Paterson was a lame duck with little to lose politically by embracing a judicial pay increase because he had bowed out of the race for governor.  He was both sympathetic to the need for higher judicial pay and had a good working relationship with Judge Lippman, the man Mr. Paterson installed as chief judge in 2009. Mr. Paterson proposed a bill creating a commission along the lines of one Judge Lippman, and Ms. Kaye before him, had been discussing for years.  The commission did not include pay raise proposals for the Legislature because, sources familiar with passage of the bill at the time said, legislative leaders did not think the time was right to try to sell a raise for lawmakers to the public.  Disarray in the leadership of the state Senate also appeared to help the Judiciary and Judge Lippman.  A coup earlier in the year by maverick Democrats had thrown leadership and the operations of the chamber into near-chaos. Mr. Paterson's office began proposing agendas of bills daily to the Senate for its consideration, but the chamber usually ignored them.  But Mr. Kiernan said Mr. Paterson instructed him to include a pay commission bill proposed by the governor.  "So every day we had to send a new agenda to the Legislature," Mr. Kiernan said. "I just kept putting it on there and putting it on there. The seed was planted."  Democrats were still in the majority when the commission was created, but they lost their advantage in the Senate to Republicans in the November 2010 election and would fall back into the minority in January 2011. Judge Lippman thus was able to lobby both Democrats and Republicans when the Senate returned into session in late November 2010, with each side still competing to dictate the passage of legislation.  Neither side appeared to want to be blamed for another failure of a pay raise bill.  Once through the Senate, Assembly Speaker Sheldon Silver, D-Manhattan, supported the bill among his Democratic majority, many of whom had privately been opposed to giving judges any raise if they themselves did not get one.  Mr. Silver had said he supported pay raises for both legislators and judges, and his backing of a pay raise commission bill for judges has been widely seen since 2010 as a precursor of his eventual advocacy for a similar bill for lawmakers, perhaps following the November 2012 elections.  By law, legislators are prohibited from raising their own pay in the two-year sessions in which they have been elected. They have traditionally preferred to convene after elections and make arrangements for higher pay that would take effect in succeeding sessions.  "As far as the public is concerned, we still have an economic situation that may militate against their feeling that the Legislature is entitled to a raise," Mr. Lentol said. "But I think it is very open and very possible to be done this year."

Quick Recommendations

Once its seven members were appointed by Governor Andrew Cuomo, Judge Lippman and legislative leaders, the commission made relatively quick work of making its recommendations. It took the commission just over two months to approve a plan that, barring any last minute action by the Legislature, will kick in on April 1.  While seven members supported a raise, Mr. Mulholland joined Chief Judge Lippman's two appointees to the panel—Robert Fiske Jr., a senior counsel at Davis Polk & Wardwell and former Southern District U.S. attorney, and Ms. Wylde—in opposing the amount.  Voting in favor were Mr. Thompson; investment advisor William Mulrow; Richard Cotton, general counsel of NBC-Universal; and former Assembly Democratic Majority Leader James Tallon. All were appointed by Mr. Cuomo, except Mr. Tallon, who was appointed by Mr. Silver.  Mr. Fiske said he would have immediately increased the salaries of Supreme Court justices to $195,000—a raise of nearly 43 percent—to restore the purchasing power judges lost when their salaries were frozen for 13 years. The salaries of other judges would have increased proportionately.  "At the final meeting, on the last day, the governor's people and [the Assembly speaker's] person said it should be the same as the federal judges, but not right away and should be phased in over three years with no increase in the fourth year," said Mr. Fiske. "I thought it should be [$195,000] but I didn't think it was unreasonable to say it should be the same as the federal judges, although I did think it was unreasonable to phase it in over two years."  But while Mr. Fiske did not care for the result, he did approve of the process.  "It certainly was vastly preferable to what would have happened if there hadn't been a commission," Mr. Fiske said. "If there hadn't been a commission, there might not have been any increase, and I certainly think there was a better increase with the commission than there would have been without it."  Mr. Mulholland said he found the recommendation "exasperating" because it takes three years for Supreme Court justices to reach the pay grade of federal district judges, who have not received a raise for three years.  "We were asked to cure an imbalance and what we really did was perpetuate it," Mr. Mulholland said. "Just based on inflation, [the raise to federal court parity] will be six years outdated."  Mr. Tallon said he was put on the panel because of his knowledge of the Legislature and Albany politics, and insight into what could cause lawmakers to balk at the panel's recommendation.  "The speaker made clear to me that this was on my shoulders," said Mr. Tallon. "The goal I had personally in all this was to get to a reasonable number, and not get to a place where this would result in a re-opening of a controversy. Once you re-open a controversy, we were just going to default back into the inability to do a decision."  Mr. Mulholland said that while he was mindful of avoiding a recommendation that was so far-fetched that it would be rejected by the Legislature, the commission could have done much more for the judges without reaching that point.  "To raise the judicial salaries out of proportion certainly would have been inappropriate and unreasonable," Mr. Mulholland said. "But the higher numbers that some members—myself included—were pushing for were not unreasonable."  Still, Mr. Mulholland said the process proved workable.  "The enabling legislation was excellent in that it endowed the commission with broad and sweeping powers to call in witnesses and use the other resources of government to collect information, to go around the state and canvass different parts of the population," he said.  Mr. Mulholland suggested that next time around there should be more public sessions. But he stressed, as did other commission members, that nothing was done privately or in secret.  Ms. Wylde said the only thing she would change procedurally going forward would be to start earlier, affording more opportunity for public input and analysis.  "I would hopefully have a little more time, but I think this set a positive precedent," Ms. Wylde said. "I think the judiciary was generally satisfied with the outcome. They would have liked more, but it seemed everyone felt the process was far preferable to the kind of political logjam that existed before."  Mr. Tallon said the commission was relatively unique in that it included representation from all three branches of government, reflecting "myriad motivations."  "It worked reasonably well because we all understood that we wanted to get to 'yes,'" he said. "How to define 'yes' was a legitimate and open debate. We had some differences of opinion and they were expressed publicly. After a long period in the wilderness, the process got us to 'yes.'"  John Caher can be contacted at jcaher@alm.com. Joel Stashenko can be contacted at jstashenko@alm.com.