The state Court of Appeals declined Thursday to hear an appeal as of right to the denial of the attempt by state judges to win a retroactive salary increase between 2005 and 2009.

The court said in Pines v. State of New York, SSD 24, that no substantial constitutional question was involved in the appeal. Chief Judge Jonathan Lippman took no part in the determination.

The plaintiffs have one more avenue of appeal before the court—to file a motion for leave to appeal. That challenge would encompass all non-constitutional aspects of the plaintiffs’ objections to the lower court’s decision.

In Pines, six plaintiff-judges led by Suffolk County Supreme Court Justice Emily Pines argued that the Legislature validly approved a $51 million appropriation when adopting the 2009-10 state budget that included a raise for state judges retroactive to 2005. For Supreme Court justices, the retroactive increases totaled about $150,000, they said.

But an Appellate Division, Second Department, panel ruled in Pines v. State of New York, 115 AD3d 80 (2014), that the 2009 funding for judges’ pay raises was a “dry appropriation” that did not have the force of law because lawmakers never followed it up with “enabling” legislation spelling out precisely how the raises were to be allocated (NYLJ, Jan. 22, 2014).

Steven Cohn of Carle Place argued for the plaintiffs. Assistant Solicitor General Julie Sheridan represented the state.

State judges finally received a pay increase in 2012, their first since 1999, upon the recommendation of a judicial pay commission created by the Legislature and former Gov. David Paterson.