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Four judges filed a lawsuit Tuesday in Nassau County Supreme Court to force the governor and Legislature to raise state judges’ salaries by as much as 30 percent. The money for the raises was included in the budget for the current fiscal year, but lawmakers never voted to authorize the pay hikes. The four judges claim the budget provision is self-executing and ask for an order compelling the state comptroller to pay the increases, which would range from 13 percent to 30 percent. The judges are Supreme Court Justice Joseph DeMaro, who sits in Nassau County (See Profile), Justice Arthur Schack in Brooklyn (See Profile), Justice Alice Schlesinger in Manhattan (See Profile) and Nassau District Court Judge Edward Maron (See Profile). They also claim that the failure to implement the raises violates a state constitutional provision barring judicial salaries from being “diminished” and the separation of powers doctrine. The lawsuit, Maron v. Silver, 021984, which was filed on Friday, is assigned to former Justice Thomas A. Adams of the Appellate Division, Second Department. Justice Adams, who lost a bid for a second term in November, was appointed to the Court of Claims in December (NYLJ, Dec. 13). He has since been named an acting Supreme Court justice and assigned a civil caseload in Nassau County Supreme Court. There are 83 Court of Claims judges, 26 of whom are actually assigned to the Court of Claims. The rest are designated as acting Supreme Court justices. Of those, 47 are assigned to hear criminal cases in Supreme Court and 10 hear civil cases. Charles Carrion, a spokesman for Assembly Speaker Sheldon Silver, said his office had not seen the lawsuit and could not comment. Mark Hanson, a spokesman for Senate Majority Leader Joseph Bruno declined to comment. David Bookstaver, a spokesman for the Office of Court Administration, declined to comment upon pending litigation but said that enactment of the pay raises remains a top priority this year. The Legislature adopted the judiciary’s budget in March that contained an appropriation for $69.5 million to fund pay raises. But the pay-raise issue was linked to that of raises for legislators, and in late December, the Legislature adjourned without taking action on judges’ pay amid wrangling over civil confinement, charter schools and other issues. Although the judges’ lawsuit, as framed by their lawyer, Steven Cohn of Carle Place, Long Island, claims the pay raise is self-executing, the argument faces serious obstacles. The judiciary’s budget bill, as passed by the Legislature, contained language that was widely interpreted as requiring a change in the state law setting forth judges’ salaries, Judiciary Law §7-B, before it would take effect (NYLJ, March 14, 2006). Companion legislation submitted by Chief Judge Judith S. Kaye – which was never enacted – would have amended Judiciary Law §7-B to spell out the raises for different categories of judges. For instance, the salaries of Supreme Court justices would have risen to $165,200, from $136,700, putting them on a par with federal district court judges. The raises would have been retroactive to April 1, 2005, though at a slightly lower level. The salaries of state judges were last increased in 1999, when they were raised by 21 percent. Inflation in the Northeast has since eroded the value of judicial salaries by 33.1 percent according to the consumer price index. To have the same purchasing power as a $136,700 salary in 1999, judges would have to make $181,948 today. The judges’ claim that inflation has “diminished” the value of their salaries in violation of state Constitution Article VI, §25(a), faces difficult federal precedents involving a parallel provision in the U.S. Constitution. In Atkins v. U.S., 556 U.S. 556 F. 2d 1028 (1977), the Federal Court of Appeals ruled that for the federal diminishment clause to be implicated, a salary reduction had to be specifically aimed at the judiciary. Because inflation affects the entire population, not just the judiciary, it does not trigger the federal clause, the court ruled. In the separation of powers claim, the judges argue the Legislature has improperly linked judicial raises to raises for lawmakers and other issues such as charter schools and civil confinement. They also allege that the Legislature failed to act on raises for judges because of its “displeasure over court decisions,” including the Court of Appeals’ ruling regarding the Legislature’s budget powers versus the governor’s, capital punishment and school funding. State judges are not the only ones dissatisfied with their pay. The stagnation of salaries paid to federal judges was the sole focus of U.S. Supreme Court Chief Justice John Robert’s year-end report. The chief justice said that inadequate compensation threatens both “the viability of life tenure” and the rule of law. The report was the first in the 20 years that Chief Justice Roberts and his predecessor, Chief Justice William H. Rehnquist, have delivered to focus solely on a single topic. - Daniel Wise can be reached at [email protected].

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