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ALBANY -� Chief Judge Judith S. Kaye yesterday proposed a public official compensation plan designed to remove the specter of politics from the controversial salary issue and to ensure that judges � and, critically, lawmakers and executive department heads � receive annual cost-of-living pay hikes. The chief judge’s proposal, revealed yesterday in her annual State of the Judiciary address was drafted to eliminate a political problem that prevented judges from receiving pay raises last year, and which is largely responsible for the fact that judges have received only two salary hikes in the last 18 years. It represents an extraordinary entreaty in that the chief judge is not only calling for salary hikes for judges, but for officials in the other branches as well. And not only is Chief Judge Kaye calling for across-the-board pay hikes in all three branches of government, she also has devised a specific plan already reduced to bill form to achieve her objective. Under her proposal, a bipartisan committee comprised mainly of people outside government would meet after each gubernatorial election to set salaries for the next four years. The panel would examine the cost-of-living raises provided to members of Congress and the federal judiciary, the negotiated increases in public employee union contracts and private sector salaries to determine how much of an annual increase is necessary to maintain the purchasing power in the salaries paid to New York officials. Those increases would take effect automatically, without action by the Legislature or the executive. However, the governor and lawmakers would have the flexibility to change or reject raises in any particular year, perhaps in response to a fiscal crisis. If enacted � and early reviews were positive � the bill would doubly benefit lawmakers in providing them with both the salary hike they feel they deserve, as well as political cover. Traditionally, judicial salaries are increased only when lawmakers increase their own salaries. However, legislators are loathe to vote themselves pay raises because of the inevitable political fallout. So Assembly and Senate members � and judges since their pay is virtually always linked to those of legislators � go years without a pay increase before they rather sheepishly, and frequently in the dead of night, vote themselves a raise. Typically, lawmakers wait until the judges are up in arms over the decreasing purchasing power of their salaries and then use the Judiciary as cover to increase their own salaries. Last year, even though Governor George E. Pataki and lawmakers from both houses and both parties strongly supported a judicial pay hike, judges were once again denied an increase because lawmakers were not willing to break the link between their salaries and those of the judges, and they were not willing to vote themselves a raise coming into a year when all 212 members of the Legislature are up for election. Chief Judge Kaye, relying on her credibility as leader of the non-political branch, has come up with a plan that officials at the Capitol yesterday characterized as a stroke of political genius. If her plan is accepted, lawmakers would receive regular cost-of-living pay hikes without having to vote for their own salary increase. And the judges would no longer have to engage in what they view as an unseemly exercise of lobbying the Legislature to ensure that their pay keeps pace with inflation. “As the head of the Third Branch, the nonpolitical branch, perhaps it’s easiest for me to say what every single one of us knows to be true: New York’s system for determining compensation for its public officials needs reform,” Chief Judge Kaye said in her address at Court of Appeals Hall. Chief Judge Kaye’s bill calls for the creation of a panel, consisting of 13 unpaid appointees of the governor, the Judiciary and legislative leaders. The Quadrennial Commission on Executive, Legislative and Judicial Compensation would meet for only a few months every four years. It would recommend cost-of-living increases for the following four years, and those salary boosts would take effect automatically unless the Legislature eliminated or changed them. If for some reason the commission could not or would not make a recommendation, state officials would receive an increase indexed to the federal cost of living figure. The proposal comes on the heels of what the chief judge called a “highly unusual step to draw attention to the inequitable treatment of judicial compensation” � namely, inclusion in her proposed 2006-2007 budget of $69.5 million to increase judicial salaries retroactive to last April. Under the proposal advanced yesterday, judges would receive the budgeted retroactive pay increase, an issue now before the Legislature, as well as a cost of living raise on April 1, 2007. “It is a comprehensive approach,” the chief judge said during a press conference following her hour-long address. “I wouldn’t have proposed something I didn’t think was feasible. I not only think it is feasible, I think it is rational. It is accountable. It is transparent.” Chief Judge Kaye noted that the public would know in advance how much of a cost-of-living increase would be afforded public officials, and stressed that the Legislature would always retain the flexibility to overrule the recommendations of the Quadrennial Commission. Enthusiastic Reaction Mr. Pataki and legislative leaders have all supported a judicial pay raise, although the governor has opposed retroactivity and cost of living increases. But yesterday’s proposal was received enthusiastically by key lawmakers in both houses of the Legislature. Assemblywoman Helene E. Weinstein, D-Brooklyn, described the chief judge’s proposal as a politically astute remedy, perhaps the precise remedy needed to spur legislative action. While Ms. Weinstein acknowledged it is unusual and unlikely for the chief judge to in effect advocate for legislative pay raises, she said that as long as the two salaries remain linked there is no other way to assist the judges. “Certainly, it is difficult for legislators to say publicly that our salaries should be raised,” said Ms. Weinstein, chairwoman of the Judiciary Committee. “The chief judge has tremendous respect and credibility in our state and she is not subject to political pressure or the latest public opinion poll. Hers is a very rational and unbiased and nonpartisan statement. It is a reasonable and sensible approach by someone who is able to say it without having political fallout.” Senator John A. DeFrancisco, a Syracuse Republican who chairs the Judiciary Committee in the upper chamber, agreed. “It is well known in political circles that every time there has been a pay raise for the judge it is somehow tied to the legislators, and the fact that legislators are extremely reluctant to raise their salaries means the judges get stuck, too,” he said. “[Chief Judge Kaye] makes an excellent point . . . to take it out of the political realm. It is an extremely smart way to do this.” New York State Bar Association President A. Vincent Buzard of Harris Beach in Rochester said a system providing regular judicial pay increases is crucial to maintaining the independence of the Judiciary. “The Constitution says you can’t cut a judge’s salary during the course of his or her term, and yet every year that there is no increase the salary is in effect being cut,” Mr. Buzard said. “For the Judiciary to have to go up to the hill and walk around asking for money has very significant implications for judicial independence and separation of powers.” Also in the State of the Judiciary, the second to last one she will deliver before her term expires next March, Chief Judge Kaye: • Released a major report on judicial selection in which a commission headed by former Fordham Dean John Feerick calls for substantial reform of the convention process for selecting candidates for Supreme Court. (See related story on page 1.) • Reported that her Commission on the Future of Indigent Defense Services co-chaired by Brooklyn Law School Professor William Hellerstein and former Bronx Administrative Judge Burton Roberts is about to call for a state-funded indigent defense commission that would oversee the delivery of services statewide. Chief Judge Kaye said she supports that recommendation. Judge Roberts and Mr. Hellerstein, both of whom attended the State of the Judiciary, said a lengthy probe by their commission revealed gross disparities in the way indigent defense services are provided across the state. “The state has been derelict in providing money for indigent defense,” Judge Roberts said. “How much is due process worth? How do you evaluate due process? Indigent defendants in some communities are not getting their due process.” The proposal for a statewide indigent defense commission was promptly applauded by defense advocates. Norman L. Reimer, president of the New York County Lawyers’ Association, which has promoted a statewide public defense system for decades, yesterday said, “In the annals of New York legal history, this day will be marked as the one that launched us on the path to reform of our ailing indigent defense system.” Additionally, the state Committee for an Independent Public Defense Commission headed by Michael Whiteman of Whiteman Osterman & Hanna in Albany said in a statement that the current system is on the brink of collapse. “The United States Constitution guarantees every citizen a right to counsel, yet across the state, defense services are not meeting this constitutional standard,” the group said. • Revealed that the Judiciary will send to the Legislature a proposal that would make the fee schedules under the Surrogate’s Court Procedure Act binding, while retaining a measure of discretion so higher legal fees can be awarded upon a showing of good cause. • Released a long-awaited report of the Matrimonial Commission chaired by former Appellate Division, Second Department, Justice Sondra Miller, calling for a “cultural revolution” in matrimonial law. Chief Judge Kaye said she is “happy to say” the report calls for no-fault divorce. • Announced the formation of a Special Committee on the Future of the New York State Courts to study structural court reform. Court restructuring has been the elusive goal of the last several chief judges, none more so than Chief Judge Kaye. “I am discouraged, but not deterred, by the fact that my perennial call for this reform remains unheeded,” she said. “Given the frustrations we’ve experienced in getting court reform off the ground, I’m convinced that its time for a new approach.” � John Caher can be reached at [email protected]

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