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ALBANY -� Governor George E. Pataki yesterday signed off on a judiciary budget that includes $69.5 million for retroactive judicial pay raises, although additional legislation is needed before that money can be spent and salaries are actually increased. Although the judges are still a step away from securing the pay hike they have been denied since 1999, they are also a step closer. Mr. Pataki’s decision to leave the judiciary budget alone, especially when he is highly critical of legislative spending and used his line-item veto power to slash 202 items costing some $2.9 billion, is a positive sign for the judges. And just as significantly, Mr. Pataki indicated he will support the entire pay proposal, including the retroactive portion and provisions that include Housing Court judges, despite his earlier opposition to those elements. “It’s more than I would have liked, but I am approving it,” Mr. Pataki told a news conference yesterday. The judiciary, however, faces one last hurdle � perhaps the highest � before it can claim victory in what has become a concerted and unprecedented effort to secure raises. It must still convince the Legislature to pass a spending bill. To date, there has been no outward opposition, but lawmakers may well demand a salary increase for themselves. If an allocation bill for judicial salaries is coupled with one raising legislative pay, observers suspect Mr. Pataki may take a different stance. The governor has consistently opposed legislative pay hikes, and if the salaries of Assembly and Senate members are inextricably tethered to those of the judges, all raises could be in jeopardy, observers say. But if the measure is approved intact, with both the monetary appropriation and the enabling language untouched, state Supreme Court justices would see their salaries immediately increased to $165,200, from $136,700. They also would receive retroactive pay to April 2005, mainly at a rate of $162,100. Other judges also would get raises ranging from roughly 14 percent for Chief Judge Judith S. Kaye to approximately 28 percent for some lower court judges. Further, judges and other officials, including legislators, would receive regular cost of living pay increases based on various indices. Mr. Pataki’s proposal would have resulted in proactive-only raises of approximately 19 percent, with no cost of living boost and no increase for Housing Court judges. Chief Administrative Judge Jonathan Lippman yesterday said he is strongly encouraged by the governor’s action � or more precisely lack of veto action � and by Mr. Pataki’s comments at the news conference. “We are very pleased that the $69.5 million was left in the budget, and we are turning our attention to ensuring that enabling legislation is passed this year to give judges a much deserved pay increase retroactive to April 1, 2005,” Judge Lippman said. The judiciary budget totals about $2.9 billion, representing an 11 percent increase when all expenditures, including those for salaries, are tallied. Line-Item Veto While Mr. Pataki’s commentary on the judiciary budget was conciliatory, he took direct aim at an overall state spending plan that he has said spends too much and reforms too little. In using his line-item veto, Mr. Pataki latched on to two recent Court of Appeals opinions that grant the executive extraordinary power over the public fisc. Two years ago in Silver v. Pataki, 4 NY3d 75, a deeply divided Court of Appeals said the Legislature cannot substitute its judgment for that of the governor in a budget bill. More recently, in City Council of New York v. Bloomberg, 2006 NY LEXIS 149, the Court said the executive can refuse to implement legislation that he deems unconstitutional. Mr. Pataki, in a pile of veto messages released this week, invoked both Court of Appeals decisions, claiming that many of his vetoes cannot be overridden. While the judiciary emerged unscathed � so far � from what is becoming a continuing battle between the governor and a Legislature intent on countering at least some of his vetoes with an override vote, the New York State Bar Association, the Capital Defender Office and the New York State Defenders Association were not as fortunate. Mr. Pataki vetoed a line-item that would have allocated $100,000 to the state bar for an experimental program in electronic recording of custodial interrogations, a $500,000 appropriation for the Capital Defender Office and a $400,000 allocation for the New York State Defenders Association. On the state bar and state defenders matters, Mr. Pataki used identical language in his veto messages and essentially said overall spending is too high and the state must cut back. He did not address the merits of either proposal. However, on the Capital Defender measure, the governor said that without an effective death penalty, he “strongly object[s] to providing the Capital Defender Office with additional funding for capital defense services,” suggesting such services are unnecessary until and unless the Legislature restores capital punishment. At the press conference yesterday, he signaled out the Legislature’s increased appropriation for the Capital Defender Office as a particularly egregious waste of taxpayer money. Since June 2004, when the Court of Appeals in People v. LaValle, 3 NY3d 88, declared part of the death penalty statute unconstitutional, the governor has promoted corrective legislation, which the Democratic-controlled Assembly will not pass. The LaValle problem centers on a mandatory charge in which the trial judge must tell a penalty-phase jury that failure to reach unanimous agreement on a sentence of either death or life without parole will result in a parole-eligible term. In a 4-3 vote, the Court of Appeals found the deadlock provision unconstitutionally coercive and unseverable, which effectively rendered the capital punish statute unenforceable. ‘Taylor’ on Horizon Sometime next year, the Court will have an opportunity to revisit LaValle when it hears People v. Taylor, the so-called “Wendy’s murder” case. John Taylor was convicted of killing five employees of a Wendy’s restaurant in Queens and was condemned to death by a jury seated before Supreme Court Justice Stephen W. Fisher, now of the Appellate Division, Second Department. Justice Fischer, anticipating the Court of Appeals’ ruling in LaValle, did not deliver the mandatory charge that the Court later said was constitutionally infirm. Mr. Pataki and key Republican senators have suggested that if the Assembly Democratic leadership will not pass legislation to address the LaValle problem, a newly configured Court of Appeals may well reinstate capital punishment. Two judges in the LaValle majority could be gone by the time the Court hears Taylor, and one of them would be replaced by Mr. Pataki. Judge George Bundy Smith’s term expires in September, and while the veteran jurist has said he will re-apply, allies to the governor have made clear the administration has no intention of reappointing Judge Smith. If Judge Smith, who has consistently opposed the death penalty, is replaced by a pro capital punishment jurist, it could swing the Court. Additionally, Judge Albert M. Rosenblatt, who voted with the LaValle majority, is retiring Jan. 1, 2007. But he will be replaced by the next governor. Mr. Pataki is not seeking re-election. The two Republicans seeking to succeed Mr. Pataki, former Massachusetts Governor William Weld and former Assemblyman John Faso, strongly support the death penalty and have vowed to bring it back if elected. Democratic Attorney General Eliot Spitzer, who is running for governor and well ahead of all potential challengers in the polls, supports capital punishment, but only in extraordinary cases. Democrat Thomas Suozzi of Long Island, who is challenging Mr. Spitzer for the party’s gubernatorial nomination, opposes the death penalty. Meanwhile, the staff of the Capital Defender Office has been cut from 59 to seven, with four attorneys left on staff. Its budget is a fraction of what it was a few years ago, and last year the administration barred the agency from spending about half of the money that it had been allocated. “The governor along with his prosecutorial allies wants to have his cake and eat it,” said Capital Defender Kevin M. Doyle. “There is the declared intention of seeing the death penalty judicially revived when John Taylor’s case is heard by a reconstituted Court of Appeals. With this veto, we are being cut at our roots. We are in grave danger of the LaValle decision having brought merely a cease-fire during which there was a unilateral disarmament.” Scott Reif, a spokesman for the governor, said Mr. Pataki “has made clear that absent the death penalty, which he has repeatedly urged the Assembly to fix, this isn’t a good appropriation.” � John Caher can be reached at [email protected].

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