Four judges, backed by their judicial associations, filed suit in Manhattan on Wednesday to compel an immediate 26 percent pay raise, plus smaller increases, retroactive to 2000.
The four are Family Court Judge Susan Larabee, who sits in Manhattan and is a member of the New York City Family Court Association; Family Court Judge Michael L. Nenno, who sits in Cattaraugus County and is a member of the statewide Family Court Judges Association; New York City Civil Court Judge Geoffrey Wright; and New York City Criminal Court Judge Patricia Nunez.At a press conference Wednesday announcing the filing of the declaratory judgment action, one of the plaintiffs lawyers, former Court of Appeals Judge George Bundy Smith, said that, “after waiting so long for a simple pay raise,” many judges feel that the point has been reached where there was “no other alternative” but to sue. The four judges are also represented by Thomas Bezanson, who like Smith, is a partner at Chadbourne & Parke. Bezanson said the suit is being brought to “end the outrageous fact” that the state’s judges have not received a raise since January 1999. The firm is handling the suit pro bono. Spokesmen for the three defendants — Gov. Eliot Spitzer, the state Assembly and state Senate — all said they supported a pay increase for judges but declined to comment upon the legislative impasse that continues to stall enactment of a raise. Chief Administrative Judge Ann T. Pfau said she would not comment on a lawsuit filed by independent judicial associations. The relief raised in the lawsuit, Larabee v. Spitzer, 112301/07, closely parallels the pay raise legislation submitted by Chief Judge Judith S. Kaye. The judges contend the 26 percent increase they are seeking reflects the rise in the cost of living since they last received an increase nearly nine years ago. Family Court judges in New York City earn $136,700; Civil and Criminal Court judges earn $125,600. The complaint does not give a salary for upstate Family Court judges. Kaye’s bill would put the salary of Supreme Court justices on par with the $165,200, a year earned by federal district court judges, an increase of 21 percent. Salaries of other judges would be adjusted proportionately. The measure would also create a commission to propose regular adjustments of salaries of judges, legislators and top executive branch officials. The lawsuit filed Wednesday seeks an order requiring annual cost-of-living adjustments. Kaye’s bill also provided that the increase be retroactive to April 1, 2005, while the four judges asked for an order providing retroactive pay to 2000. The complaint does not cite a specific figure, but Bezanson said at the press conference that the judges will ask for back pay in yearly increments of 3.5 percent compounded. SIMILAR TO PREVIOUS SUITThe four judges’ legal claims are similar to claims raised by three judges in a lawsuit filed late last year, which is now pending in Albany County. Like the judges in that suit, Maron v. Silver, 21984/06, the latest complaint charges that the failure to offset the ravages of inflation violates Article VI �25(a) of the state Constitution, which says that the salary of judges should not be reduced during their terms of office. The judges also claim that “political in-fighting” between the governor and the two houses of the Legislature, particularly the linkage to extraneous issues such as campaign finance reform and pay raises for legislators, violates the separation of powers doctrine and compromises the independence of the judiciary. New York Attorney General Andrew Cuomo’s office did not return a request for comment, but in its brief filed in the Maron case, it argued that the no-diminution clause was not designed to protect judges from the effects of inflation.The state has asserted in Maron that the no-diminution clause only “prohibits the diminution of judicial salaries by the government” and that inflation is “not a pay cut for judges” prohibited within the meaning of the clause. The briefing in Maron has been completed except for one remaining reply brief, which is to be filed Friday by the attorney general’s office. The case is expected to be decided on the papers, without oral argument, by Albany Acting Justice Thomas J. McNamara. The plaintiffs in Maron are Brooklyn Justice Arthur Schack, Nassau County Supreme Court Justice Joseph A. DeMaro and Nassau County District Court Judge Edward A. Maron.Wednesday’s lawsuit had been talked about for months, but was deferred because of concerns that taking legal action could be counter-productive, several sources said. Though the judicial groups could have brought the suit in their own names, instead they each passed resolutions supporting the action by their individual members, said Bezanson. A LAST STRAW Kaye has repeatedly said that litigation should be an option of last resort, and Spitzer has said that it would be a mistake for the judiciary to file a suit to force a pay raise. But at Wednesday’s press conference, Bezanson said the judges had “waited a long, long time” and when the Legislature adjourned without a clear date to come back, it was “the straw that broke the camel’s back.” Last week, the executive committee of the Supreme Court Justices Association voted at its fall meeting in Saratoga Springs to defer a lawsuit until after lawmakers return, though it authorized the filing of a suit within one week of the end of the session if no action is taken on a pay raise. No date has been set for the Legislature to return. The group’s president, Brooklyn Supreme Court Justice Marcia Steinhardt, said she had been in touch with groups planning Wednesday’s lawsuit, and told them that her association would maintain its own lawyer and file its own suit, but that it might move to have the cases consolidated. She added that the justices’ group had decided against suing at this time because that is “the most prudent course of action.” Action on a pay raise has been stalled by Spitzer’s insistence on campaign finance reform legislation, and the Legislature’s demand that pay raises for its members be linked to any raises approved for judges. Shortly after lawmakers recessed in June, the prospects for a deal looked promising but that window slammed shut following a report issued by the attorney general’s office finding that Spitzer’s staff had misused state police resources in gathering information for negative newspaper articles about Senate Majority Leader Joseph Bruno’s use of state aircraft for trips that consisted mostly, but not entirely, of political business. Though Cuomo’s office found that no crime had been committed, probes are now proceeding by the Albany district attorney’s office and the state Ethics Commission. The Legislature is expected to return later this month or in early October. It is unclear whether the poisonous political atmosphere that has engulfed Albany will derail the basic outlines of an accord reached earlier this summer or prevent the different sides from fleshing out the details of those agreements.