Judges Press Claim for Retroactive Pay Based on 2009-10 Budget

Judges Press Claim for Retroactive Pay Based on 2009-10 Budget
The New York Law Journal by Joel Stashenko  -  April 13, 2012

State judges, who received their first raises in more than 13 years this week, are entitled to retroactive pay because of an increase appropriated in 2009, six judges are arguing before the Appellate Division, Second Department.  The evidence is "clear and indisputable" that the 2009-10 state budget, approved by the Legislature and governor, included $51 million to provide raises beginning on April 1, 2009, the judges argue in a brief submitted April 11. That money was never spent.  The judges claim that neither the subsequent disavowal of the appropriation by state legislators nor the setting of a pay raise by the Special Commission for Judicial Compensation changes the core issue in Pines v. State of New York, 2011-02821—that the Laws of 2009, Chapter 51, §3, directed the state to give judges a pay hike.  "This case is simply an attempt to enforce a clear and unambiguous adjustment of judicial compensation in the 2009-2010 budget, granted by the Legislature and signed into law by the Governor, which had no strings attached and no language of limitation," writes Steven Cohn of Carle Place, who represents the judges pro bono.

In an interview, Cohn said many judges believe Pines is their best chance for retroactive pay to make up for purchasing power lost since their last pay hike on Jan. 1, 1999. Under that interpretation, Supreme Court justices should have received a salary of $174,000 on April 1, 2009.  The commission's recommendation is for a 27 percent pay raise over three years beginning with a 17 percent bump on April 1, 2012 (NYLJ, March 30). With no provision for retroactivity, Supreme Court justices are not scheduled to get $174,000 until April 1, 2013.  The plaintiffs in Pines asked the court to affirm a decision by Nassau County Supreme Court Justice Karen Murphy, who backed their arguments for retroactivity. But in an appeal filed late last year, the state argues that Murphy misinterpreted the Legislature's historical budget-setting procedures.

The judges argue that the striking of the words "pursuant to" and the absence of enabling legislation from the 2009-10 budget indicated that the Legislature intended for the raise to take effect.  But Assistant Solicitor General Julie Sheridan argues in the state's brief that lump sums appropriated by the Legislature cannot be spent unless the spending is "pursuant to" accompanying legislation that details how the funds will be disbursed.  She cites statements on the floors of the Legislature by Assembly Ways and Means Committee Chairman Herman Farrell, D-Manhattan, and Senate Judiciary Committee Chairman John Sampson, D-Brooklyn, that while the money had been appropriated for a raise, it was not the Legislature's intention to authorize one.  Farrell read from a prepared statement in the Assembly that under the state Constitution, judicial salary increases are set by Article VII(B) of the Judiciary Law.

No amendment to the Judiciary Law was made in 2009 to detail new salary levels for judges, Farrell said. The "notion" that the Judiciary had been granted a pay raise "by some words stricken from an appropriation is 100 percent incorrect," he said (NYLJ, April 3, 2009).  "Simply stated, some redundant words were removed, but these words could be replaced if that was deemed necessary to eliminate any contrived confusion in a chapter amendment," Farrell added.  Sheridan notes in the state's brief that no other legislators challenged the statements by either Sampson or Farrell saying the 2009 appropriation was invalid.  "In sum, there is ample and unequivocal support in the language of the appropriation, legislative history and floor debate to establish that the Legislature did not intend Chapter 51, §3, to be a judicial salary increase, and Supreme Court erred in concluding to the contrary," Sheridan writes.  She also argues that events subsequent to the adoption of the 2009-10 budget belie the judges' arguments that they got a pay raise in 2009.  She notes that the Court of Appeals took up Maron v. Silver, 14 NY3d 230, in 2010 under the premise that the judges' pay freeze was still a legal controversy. And she says there would have been no reason to form the pay commission if the 2009 increases were valid.  Finally, she argues that the $51 million continued to be reappropriated in Judiciary budgets, indicating the inability of the courts to allocate the money for the raises based on the 2009 budget adoption.  The executive summary to the Judiciary's budget in 2009-10 indicated that the appropriation of $51,006,759 was based on a retroactive raise dating back to April 1, 2005. It was to be enacted on April 1, 2009, according to the appropriation mentioned in the budget, which did not include the customary "pursuant to" clause.

Under the Judiciary's plans for the $51 million allocation, a Supreme Court justice then making $136,700, was to get a salary increase to $162,100 (18.5 percent) effective April 1, 2005; to $165,200 (2 percent) effective April 1, 2006; to $169,300 (2.5 percent) effective April 1, 2008; and to $174,000 (2.8 percent) effective April 1, 2009.  Overall, the pay increase schedule called for a 27 percent pay boost for all judges between April 1, 2005, and April 1, 2009.  The increases recommended by the pay commission provide for Supreme Court justices' pay to increase from $136,700 to $160,000 beginning on April 1, 2012; to $167,000 beginning on April 1, 2013, and to $174,000 starting on April 1, 2014.  The current fiscal year budget, for 2012-13, contains $27.7 million to fund the first year of raises.  The Legislature and governor can still block the scheduled raises in 2013 and 2014.  In the one decision encompassing three judicial pay cases led by Maron v. Silver, the Court of Appeals rejected an argument similar to that in Pines that a $69.5 million appropriation in the 2006-07 budget was also valid. The Court of Appeals held that the funding that year was "explicitly made contingent" on enabling legislation as part of the budget (NYLJ, Feb. 24, 2010).  In her 2011 ruling, Murphy distinguished Pines from Maron. She said the fact that the enabling legislation was struck from Chapter 51 of the Laws of 2009 provided what she called "overwhelming and irrefutable evidence that such additional legislation is not required to effect the salary increase" (NYLJ, Feb. 14, 2011).  The plaintiffs in Pines v. State of New York are Suffolk County Supreme Court Justice Emily Pines, St. Lawrence County Supreme Court Justice David Demarest, Acting Queens Supreme Court Justice Jeffrey Lebowitz, Saratoga County Supreme Court Justice Stephen Ferradino, Niagara County Supreme Court Justice Ralph Boniello and Nassau County Court Judge Joseph Calabrese.  Oral arguments have not yet been scheduled.  The Office of Court Administration, which took an active role in litigating one of the cases decided at the time of Maron, Chief Judge v. State of New York, has not been involved in Pines.  Joel Stashenko can be contacted at jstashenko@alm.com.


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