The judges v. the state: obtaining adequate judicial compensation and New York's current constitutional crisis.

• Author: Teff, Justin S.

1. INTRODUCTION

   Though the problem of obtaining secure and adequate compensation for judges, rightly deemed indispensable to maintaining an independent and qualified judiciary, has plagued our constitutional system since its inception, (1) the issue in New York has now reached the level of a "constitutional crisis." (2) In this year and the last, three separate lawsuits have been commenced in New York State Supreme Court by New York judges, including one brought by Chief Judge Judith S. Kaye on behalf of the judges and New York's Unified Court System, against the coordinate branches of government and their leaders, regarding the constitutionality of the near decade-long failure to provide judicial pay increases. (3) The actions present important yet novel New York State constitutional questions regarding separation of powers and judicial compensation, and the controversy in general has the potential to leave deleterious, lasting effects on New York's government and citizenry. (4)

   New York's constitutional history contains scant legislative or decisional guidance on either the Constitution's judicial compensation clause or the separation of powers doctrine as it relates to judicial compensation. (5) Yet considering what can be gleaned from state constitutional developments since the founding, the Federal Constitution and its origins, and what few cases do exist, the article reaches two primary conclusions. First, it concludes that the plaintiffs in the several judicial compensation suits have not made out a violation of the New York State Constitution's article VI, section 25 no-diminution clause. (6) Furthermore, the article concludes, reluctantly, that absent a demonstration of an actual usurpation of judicial prerogative or a purposeful or punitive attack on the judiciary's independence of will and function in fulfillment of its constitutional duties, there is likewise no cognizable separation of powers violation. (7)

   Part II examines the background of New York's current judicial pay crisis and provides comparative information regarding New York's judicial salaries. Part III reviews the three cases currently winding their way through New York's court system, the arguments of the parties, and the decisions thus far. Part IV studies the issue of judicial compensation in New York's constitutional history, and concludes, as have the courts, that legislative inaction in this instance does not constitute a violation. Part V does the same regarding separation of powers in New York's government, and concludes that it is unlikely the plaintiff judges will be able to demonstrate a violation based upon the facts as alleged. While the no-diminution clause and the doctrine of separation of powers as it relates to judicial compensation do not lend themselves to perfectly neat partition, the article treats them as separately as possible for analytical purposes. Part VI briefly discusses the question of what remedy--save for a declaration of unconstitutionality--could be ordered by the courts in a case such as this, without the remedy itself being a separation of powers violation.

2. PRELUDE TO A CRISIS

   Judges in New York State have not received a pay raise in nearly a decade, the most recent taking effect in 1999. (8) Of all the states, the compensation of New York's judges ranks forty-eighth when adjusted for cost of living, and no other judges have gone longer without a pay adjustment. (9) Since the most recent pay increase, the real "purchasing power" value of these salaries has declined by approximately twenty-seven percent due to inflation. (10)

   This situation has resulted in a severely demoralizing environment for New York's judicial officers, with a corresponding risk of losing judicial talent and experience to employment arenas such as academia and the private sector. (11) A 2007 study of the National Center for State Courts on the issue of judicial compensation, described more fully hereafter, contains numerous quotations from New York's judges, provided anonymously, regarding the ongoing pay struggle. One judge commented, "I have taught at a Law School for eleven years and have had many publications including several decisions accepted by the state reporter. For how many years will my brightest students continue to secure employment with a starting salary higher than mine?'' (12) Another remarked, "I've thought about retiring and going back to the practice of law, and quite honestly, if the raises aren't forthcoming I will have no alternative. I cannot fathom telling my daughters that their father can't pay for their wedding because 'I'm just a Supreme Court Justice.'" (13)

   The issue of funding for the judiciary has not reached this level of crisis in New York since 1991, when then-Chief Judge Sol Wachtler and Governor Mario Cuomo came to blows in a similarly epic legal battle. In The Chief Judge protested both that Governor Cuomo had reneged on promises to fund new judgeships, and that he had cut $77 million of the $966 million requested by Wachtler for the 1991-1992 judiciary budget. (15) Declaring no other options, Wachtler sued Cuomo in Wachtler v. Cuomo, alleging violation of the separation of powers doctrine; in turn, the Governor sued the Chief Judge in federal court, in Cuomo v. Wachtler. (16) At the height of the calamity, the parties were able to settle the matter, and the cut funding was restored almost entirely. (17) It has been remarked that the episode was, "according to those who were involved, among the most disagreeable experiences of their lives." (18)

   Since 2003, the New York State Judiciary has asked each session of the Legislature to increase judicial salaries, but nothing has been done. (19) Governors George Pataki, Eliot Spitzer, and David Paterson all have expressed support for the raises. (20) Yet the Legislature has refused to enact an increase in judicial salaries unless it is linked to an increase in its own members' pay. (21)

   In the 2007 legislative session, Governor Spitzer proposed judicial pay increases unconnected to any legislative pay increases, but this measure was met with criticism. (22) The Senate twice passed bills providing for an increase in judicial salary, to put it on parity with the federal bench, but the Assembly failed to pass its companion measure, and the entire package of legislation went down in defeat. (23) The 2006-2007 State budget even contained a $69.5 million appropriation for increases in judicial salary, but as the salaries must be set by law, and as the Legislature and the Governor could not agree on enabling legislation, the so-called dry appropriation could not be used. (24)

   Following approval of the state budget in 2007, Chief Judge Judith S. Kaye issued a public statement at the Court of Appeals, addressing the failure of the coordinate branches to approve the raises. (25) Expressing regret at the current state of affairs, Chief Judge Kaye announced a five-point plan designed to bring about the passage of judicial salary increases. (26) The plan provided: (1) the Chief Judge would request the opportunity to speak directly to the members of the Legislature on the subject; (2) Chief Judge Kaye would invite the governor and legislative leaders to the Court of Appeals, or she would go to the Capitol, to discuss the pay crisis; (3) New York's 2007 Law Day ceremonies would be devoted to the subject of judicial independence and how it relates to compensation; (4) a request to the National Center for State Courts to conduct an independent and comparative assessment on the effect of the lapse in salary increase; and (5) the Judiciary would seek an advisory opinion from the attorney general and state comptroller on the feasibility of unilateral branch actions The NCSC report was subsequently published in May of 2007, and described glaring discrepancies between the judicial pay in New York and elsewhere, as well as a picture of a profoundly disheartened state judiciary. (28)

   On the subject of a possible lawsuit, the Chief Judge commented at the time:

   [T]here are those who urge me, as Chief Judge, immediately to bring a lawsuit against the Legislative and Executive branches. Such a step cannot be taken lightly. To my mind, bringing such a lawsuit at this moment would be ill-conceived and counterproductive, as it would impede necessary inter-governmental dealings, paralyze and distract us in executing our constitutional mission, and expose us to extended adversarial proceedings, all of this with no guarantee of achieving our goal. (29) Not content with the meanderings of the political process, Nassau County District Court Judge Edward A. Maron, together with Supreme Court Justices Arthur Schack of the Second Judicial District and Joseph A. DeMaro of the Tenth Judicial District, commenced an action in 2007 against various governmental entities and actors in Maron v. Silver. (30) The cases mentioned in this section are discussed more fully in a subsequent section. Thereafter, Manhattan Family Court Judge Susan Larabee, Cattaraugus County Family Court Judge Michael Nenno, Brooklyn Criminal Court Judge Patricia Nunez, and Manhattan Civil Court Judge Geoffrey Wright, brought a separate suit, alleging similar constitutional violations. (31) Both suits have pending appeals in various departments of the Appellate Division. (32)

   To add an additional wrinkle, several state supreme court justices began to recuse themselves from cases involving members of the Legislature and their firms, giving as a reason the pendency of the several lawsuits over judicial compensation. (33)

   The practice became pervasive and pernicious enough to cause New York's Chief Administrative Judge Jonathan Lippman to seek an opinion from the court system's Advisory Committee on Judicial Ethics regarding the propriety of these recusals. (34)

   The Committee issued Opinion 07-25, which concluded that judges should not, absent additional material conflicts, recuse themselves from such...