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A New York state court on Friday dismissed all but one of the grounds in a suit filed by three judges seeking their first pay increase since January 1999. Acting Supreme Court Justice Thomas J. McNamara rejected a variety of constitutional and statutory arguments made by the judges. He allowed one claim � that the lack of a pay increase has impinged on the independence of the Judiciary � to proceed to trial but indicated that the plaintiffs would face an uphill battle. “Given that legislators and senior executive branch officials have also been denied raises [since 1999], plaintiffs face a difficult task in establishing that the failure to provide salary increases is designed to influence the judiciary,” McNamara wrote in Maron v. Silver. “Even showing that political branch benign neglect is destructive of judicial independence presents a difficult task.” The judge scheduled a conference for Dec. 19 at the Albany County Courthouse to set a trial date. The suit, brought by Nassau County District Court Judge Edward A. Maron and N.Y. Supreme Court Justices Arthur Schack of Brooklyn and Joseph A. DeMaro of Nassau County, asked the court to order the disbursement of $69.5 million that was appropriated in the 2006-07 state budget to increase salaries for the state’s 1,300 judges. The money did not go for the salaries because then-Gov. George E. Pataki of New York and New York’s state Legislature did not approve provisions specifically authorizing the state to spend the money. The plaintiffs argued, among other things, that appropriating the money was tantamount to authorizing its use for salary improvements. McNamara, however, refused to order Comptroller Thomas DiNapoli to release the funds. The judge said that article VI, Section 25(a) of the N.Y. Constitution requires that judicial salaries be set by law, a prescription the Legislature “no doubt” had on its mind when it declined to amend Judiciary Law Sections 221-221-I during the process that produced the 2006-07 budget. “Inasmuch as the sections of the judiciary law which establish judicial salaries were not amended, no increase in judicial compensation can be affected despite the appropriation of funds for that purpose,” he wrote. Also unavailing, the judge held, is the plaintiffs’ argument that the Compensation Clause of the N.Y. Constitution, which prohibits judges from having their pay reduced during their term on the bench, provides for the judicial raises to protect against salary erosion due to inflation. Although federal courts have held that a similar clause in the U.S. Constitution may provide for protection of more than the nominal value of judicial compensation, McNamara wrote that courts have stopped short of ruling that the absolute value of compensation must be maintained. Scant case law in New York has not directly addressed the question, but the judge concluded that the N.Y. Constitution does not require that “the absolute purchasing power of judicial compensation must be maintained.” McNamara also rejected the plaintiffs’ contention that the Equal Protection Clause of the state Constitution has been violated by the long denial of pay increases. McNamara, who ruled from Saratoga Springs, N.Y., decided the case from the parties’ briefs. He said the information contained in those documents was insufficient to determine if the long pay raise drought has been a result of attempts by the Executive and Legislature to punish the Judiciary. The three plaintiffs contended that a series of rulings that were unpopular at the capital, such as Court of Appeals’ decisions vacating death sentences, could help explain the long interval since the last pay increase. Daniel A. Zimmerman of the Law Offices of Stephen Cohn in Carle Place, N.Y., wrote the plaintiffs’ brief. Assistant Attorney General James B. McGowan was on the brief defending the state. The suit named Assembly Speaker Sheldon Silver, Senate Majority Leader Joseph Bruno, Gov. Eliot Spitzer, DiNapoli and the Office of Court Administration as defendants. McNamara removed the individual defendants from the suit. REACTION TO DECISION Cohn said, “We are thrilled that the court felt there was substance to go forward, but with respect to those causes of action that were dismissed, we will definitely appeal. On even a summary reading, it is apparent that the determination is not predicated on what was presented to the court.” John Milgrim, a spokesman for the Attorney General’s Office, said the ruling is “under review.” Plaintiff DeMaro said, “We are disappointed with regard to those claims that were not sustained but are certainly pleased that the lawsuit was not dismissed and will proceed forward. We believe the difficulties the judge cites can be overcome.” Schack, another plaintiff, said, “I am happy the lawsuit will go forward but I would be happier if the Assembly would adopt the bill already passed by the Senate which provides for a retroactive pay raise and the establishment of a commission to set future raises so we will never have to go through this again.” The judges’ suit is one of the more extreme examples of the frustration caused by the continuing inability of the governor and Legislature to grant judges raises. A second suit has been filed in Supreme Court in Manhattan on behalf of the New York City Family Court Association, the state Family Court Judges Association, the New York City Civil Court Judges Association and the New York City Criminal Court Judges Association. Briefs are being submitted in that case, Larabee v. Silver. The state is seeking to change the venue to Albany. Thomas Bezanson of Chadbourne & Parke, who represents the plaintiff judges in the Manhattan suit, said it is “unfortunate” that McNamara rejected the claim that the lack of a raise for nine years violates the state constitutional prohibition against diminution of judges’ salaries, an argument he also has made. “I trust [McNamara's denial] can be remedied by other courts,” Bezanson said. The Supreme Court Justices Association is also considering a suit, its president, Brooklyn Supreme Court Justice Marsha L. Steinhardt, said in an interview prior to McNamara’s ruling. She said she is still holding out hope that the Legislature and Spitzer could still agree in December to a pay increase. “I don’t think the timing is right right now [for a suit],” Steinhardt said. “What are we going to do, sue them when they are on the verge of doing something?” There have been reports that the Legislature will reconvene later this month, but no deals are imminent on a salary increase. This article originally appeared in theNew York Law Journal, a publication of ALM.

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