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Impact on N.Y. Judges of No Raise Is 'Key' to Case
New York Law Journal
June 02, 2008
Justice Edward Lehner
The critical issue standing between New York's 1,300 judges and a ruling that would entitle them to some form of pay relief is a determination of how much proof is needed to show that their independence has been undermined, a Manhattan judge said Thursday during an hourlong oral argument.
That question is "the key to the whole case," said Supreme Court Justice Edward H. Lehner, who was hearing arguments on a motion for summary judgment in a lawsuit brought by four individual judges.
The Legislature and Gov. David A. Paterson have argued that the judges must show that their independence has been impaired in some fashion by the lack of a raise. The plaintiffs claim they only need to show that legislative and executive inaction has threatened their independence.
Lehner observed that the defendants have failed to present any evidence that would put the factual predicate for the four judges' separation of powers claim in dispute -- at least as of September 2007, when the lawsuit was filed. But he said it was an open question whether that was still the case.
Lehner also expressed strong reservations about the damages requested by the plaintiffs in Larabee v. Governor, 112301/07, which was backed by the judges' judicial associations.
The judges are requesting declaratory relief that the failure to adjust their pay to offset the effects of inflation violates the separation of powers -- an order permanently enjoining the linkage of judges' salary increases to legislative salary increases as well as to other unrelated legislative and executive initiatives. They also are requesting $651,000 as damages in the form of cost-of-living adjustments for the period beginning Jan. 1, 2000, through the date of the final judgment.
The four Larabee plaintiffs are Susan Larabee, a Family Court judge in Manhattan, Michael Nenno, a Family Court judge in Cattaraugus County, Geoffrey Wright, a Civil Court judge in Manhattan, and Patricia Nunez, a Criminal Court judge in Brooklyn. Each of the judges belongs to a different judicial association, all of which back the lawsuit: the Family Court Judges Association of the State of New York; the New York City Family Court Judges Association; the Board of Judges of the Civil Court of the City of New York; and the Association of Criminal Court Judges of the City of New York.
As Thursday's argument drew to a close, Justice Lehner told Thomas E. Bezanson of Chadbourne & Parke, who represents the plaintiffs, that "the concept of back pay is not likely to happen." The judge gave Bezanson until Tuesday to submit a letter suggesting "other remedies."
Lehner also told the two sides he would make "every effort" to issue a ruling before he goes on vacation June 24 and, if possible, "well before then."
With Thursday's arguments, the Larabee case became the first of three suits seeking to force a pay raise to become ripe for a ruling on the merits.
The first of the trio, Maron v. Silver, 4108/07, with three other individual judges as plaintiffs, was filed in January 2007. That case is before Acting Supreme Court Justice Thomas J. McNamara, who sits in Albany, N.Y.
The third suit, which is also before Lehner, was filed by Chief Judge Judith S. Kaye and the Unified Court System on April 10. It seeks an order raising the salaries of all state judges.
All three cases claim the failure to raise judicial salaries in New York for nearly a decade resulted in a level of pay that is constitutionally deficient. According to the plaintiffs in Larabee, inflation has eroded the buying power of judges' salaries by 30 percent since 1999. During that time, judges in New York have gone without a raise for longer than the judges of any other state, and the level of pay of New York's judges has slipped to 49th in the nation when adjusted for the cost of living, according to a study by the National Center for State Courts.
Chief Judge Kaye has submitted a proposal to the Legislature mirroring the relief sought in her lawsuit, Kaye v. Silver, 40076/08, which would raise the salaries of Supreme Court justices from $136,700 to the $169,300 annually paid to federal district court judges, retroactive at least to April 1, 2005. The pay of judges sitting on other courts would be adjusted proportionately. The cost of that proposal has been set at $143 million.
The case of the four judges in Larabee has leapfrogged ahead of Maron to a summary judgment motion, even though Larabee was filed nine months later -- in September 2007.
In both cases, the trial judges have decided that the plaintiffs could move forward with their separation of powers claims but dismissed their claims that the no-diminishment clause of the New York Constitution, Article VI §25, barring reductions in judicial salaries, had been violated.
But only the Maron plaintiffs have pursued their appeal to the point of filing an appellate brief at the Appellate Division, 3rd Department, where arguments will be heard in September.
Both sides in Maron agreed that the case should be stayed pending resolution of the appeal and obtained a stay from the 3rd Department after McNamara sought to set a trial date this spring.
By contrast, even though both sides in Larabee have filed notices of appeal, neither side has requested a stay nor has yet filed a brief with the 1st Department.
LINKAGE DEBATE
The threshold factual issue on the separation of powers claim in Larabee is whether the Legislature and executive have linked action on judicial raises to other extraneous issues, such as raises for lawmakers themselves.
As of when Larabee was filed, Justice Lehner said, "I feel there is no dispute" on linkage.
Lehner referred to public statements from then-Gov. Eliot Spitzer and the two legislative leaders who had the effect of creating a gridlock. Assembly Speaker Sheldon Silver, D-Manhattan, insisted on raises for legislators, as well as judges, Lehner recalled. Spitzer also refused to approve a raise for legislators unless they acceded to a campaign finance reform bill, an issue upon which Senate Majority Leader Joseph Bruno, R-Brunswick, was not willing to yield.
More importantly, Lehner pointed out, the attorney general's office in defending the action had not submitted an affidavit from any New York state official contradicting the assertion in the Larabee complaint that the effort to move pay-raise legislation had been stymied by tying it to extraneous issues.
Lehner, however, added that it is an open question as to whether the operative facts are those that existed in September 2007 when the case was filed or the facts that exist presently.
The critical factual difference between those two dates is that Spitzer resigned on March 14 following the disclosure that he had used a high-end call girl service.
Assistant Attorney General Joel Graber, who is representing the governor and the two legislative houses, said Spitzer's successor, Paterson, has cited a wholly independent reason for not raising judicial salaries: New York's multibillion-dollar budget deficit.
The Larabee plaintiffs offered their own quote from Paterson, which acknowledges the existence of linkage but criticizes its approach.
In their summary judgment brief, the Larabee plaintiffs quoted Paterson as saying "linkage has not worked to this point," and it should be broken.
EFFECT ON INDEPENDENCE
The two sides had very different answers to Lehner's question as to what the four Larabee judges must show to establish that legislative inaction on raises had affected judicial independence.
Bezanson said Thursday that a string of separation of powers precedents do not require a showing that independence has been impaired but, merely, that it has been threatened.
The cases stand for the proposition, Bezanson argued, that the separation of powers doctrine requires the "prevention" of the "remotest" threat to the independence of the judiciary "direct or indirect" from the other two branches of government.
"Nothing," Bezanson continued, "contributes more to an independent judiciary than secure finances."
But Graber countered that "there must be a showing that the independence of the judiciary has been infringed."
It may be "distasteful" for judges to show how the lack of raises have had "an adverse impact" upon their lives, he added, but they "can't get a free pass on that."
In his Feb. 5 ruling on the motion to dismiss, Lehner made two observations that had bearing on the issue.
First, he wrote, that tying a pay raise to other legislative issues "raises an issue as to whether the two other branches have abused their power and thus unconstitutionally interfered with the separation of powers."
Lehner also observed in that ruling that judges "do not have to violate their oath of office" to show that their independence has been impaired.
Several times during the argument Lehner noted that Chief Judge Kaye has stated that, though the state's judges have been demoralized by the pay stalemate, there has been no negative impact upon the operation of the judiciary.
