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Friday, April 13, 2012

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




wondering said...

If we pay our judges junk, shouldn't we expect to get- and deserve to get- JUNK JUSTICE ?!?!?!

Anonymous said...

Greedy crooks asking other crooks to increase their share. David Demarest is an example of one who should not receive extra cash for his corruption.

Anonymous said...

If they do receive retro raises then they must deduct the $20,000 they received as general funds @ $10,000 per yr..illegally awarded because they were not getting raises..only right thing return what was unjustly given to you, which would be considered by law as double dipping if you gain the back raises!

Kevin Avard said...

Anonymous said...

While the state wants to fire workers and cut back it is outragrous to give judges more money. ALL the unions that the Gov. has asked for givebacks should be againt judges getting more money. The Gov lays off court staff and yet he wants to give the jusges more money. If cut backs are going to be made it should be made accros the board. Judges should not use the court system force the state to give them more money. Any N.Y judge should not be allowed to decide to give themself raise. That is also a conflict of interest because they would gain additional money for themselves.
they should alow voters to decide if they should get more money when the state wants cuts from everyone else.
If they are not happy with the pay they have the right to go work for someone else.

Anonymous said...

Ask the judges to say what they get in benifits and healthcare. What they put into and what they get out of deals. Ask them what they get towards pension. they are of every holiday. and how much vacation time they get.
Ask Judges to actually say who many hours a week they work for what they get.
Are the benefits that they get are better than other state workers. They brought that issue up because they did not want to draw attention to it. They should have to say what they get. They are happy to say what they get in pay and cry about it. So say what they get in benefits also.

jail4judges said...

Fire them ALL and then put them in JAIL where they belong

Anonymous said...

Having worked with many judges for a long dull time ...most of them work 4 hrs a day if they work full time..with Fridays being only 2 hrs, and many who do not show up at all...then vacation is 6 weeks to 6 months a year..that is fact for almost the past 25 yrs.
I would love the judges to dispute this claim.
And to think they want $176,000.
If most even knew the very basic laws and applied them during those few hrs a week..I might want them to make $125,000 at the most.

Just read an article in the news yesterday that most Americans do not respect about that..and America does nothing to address this issue that has created the dismal America we have today due to weak judicial decisions..all political and all from ignorant minds!

Anonymous said...

the system must be reformed and judges held accountable for their decisions and bias against people and if they fail to be impartial they must be forced off the case and to pay damages. Put in media disciplining of judges and get rid of judges with more than compliants stop politicians from selecting judges so they can rob the surrogates court, receiverships and guardianships and to churn divorce cases for years set term limits of 4 years for administrative and supervisory judges such as district attorney and rotate law guardians, forensics, 18 b lawyers, clerks between courts annually and rotate judges every two years to different courts cut back on so many security guards cut in half as they do nothing but get into peoples business get rid of referees unless folks can chose to as they have rights to under the law to have their cases heard by a judge charges must be brought against judges maryellen fitzmaurice, judge sid strauss, judge liebowitz, judge bogacz, referee stanton, contaratis, kiershblum as they fail to adhere to the law and make rash decisions
go out of jurisdiction and abuse discretion. fire bogacz, stanton, strauss and get jackman brown to decide cases within a year and for all of them to decide cases within a year, have caps on what divorce lawyers can make, and allow recusal if parties find them biased and ensure time certain appointments and must work

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