Members of a state appeals panel reacted skeptically yesterday afternoon to claims that judges protesting the lack of a pay raise must demonstrate actual harm to the operations and independence of the judiciary.
Although "no one disputes" that New York state judges deserve a pay raise, "[n]o one can credibly say that the functioning of the judiciary has been impaired. The judges are doing their job," said Richard H. Dolan of Schlam Stone & Dolan, who represented the state and the governor in Larabee v. Governor, 112301/07, during oral argument before five judges of the Appellate Division, First Department.
But Justice Dianne T. Renwick pressed Mr. Dolan.
"Isn't the threat of harm sufficient? Do you wait until it breaks down before you protect" separation of powers? she asked.
"The short answer is yes," Mr. Dolan replied in urging the court to overturn Supreme Court Justice Edward H. Lehner's (See Profile) June order directing the Legislature and governor to raise the pay of the state's 1,300 judges within 90 days.
The argument came just days after the Third Department dismissed Maron v. Silver, 504084, a suit filed by current and former judges who argued that the Legislature's failure to grant judges a raise since Jan. 1, 1999, amounted to a violation of the compensation clause of the state Constitution and the separation of powers and equal protection doctrines (NYLJ, Nov. 14).
In Maron, a 4-1 panel held that the plaintiffs had "failed to allege a discriminatory attack on the judicial branch that has impaired the Judiciary's independence and ability to function."
Thomas E. Bezanson of Chadbourne & Parke, the lead attorney for the four plaintiff judges in Larabee argued yesterday that Maron was "dead wrong" and asked the Manhattan-based panel to uphold Justice Lehner's grant of summary judgment to the Larabee plaintiffs.
Like the judges in Maron, the four Larabee plaintiffs - Manhattan Family Court Judge Susan Larabee (See Profile), Cattaraugus County Family Court Judge Michael Nenno (See Profile), Manhattan Civil Court Judge Geoffrey Wright (See Profile), and Manhattan Criminal Court Judge Patricia Nunez (See Profile) - contend that their $136,700 salary, which has remained static over the past decade in the wake of 30 percent inflation, has been unconstitutionally diminished in violation of the compensation clause.
Asked by Justice Karla Moskowitz to differentiate the claims in Maron from those in Larabee, Mr. Bezanson explained that his clients have not alleged that the Legislature's failure to raise judicial pay amounted to an "actual impairment" of judicial independence.
He also noted that in Larabee the defendants have admitted on the record the existence of "linkage," the legislators' practice of tying judicial pay raises to unrelated issues, such as campaign finance reform and legislative pay.
Backed by their respective judicial associations, the Larabee plaintiffs allege that the executive and legislative branches "undermined and attacked the independence of the Judiciary" by such linking. They maintain that the yearly compensation of Supreme Court justices would have had to be raised to $175,264 in 2007 to keep pace with inflation. Since 1999, their pay, when adjusted for the cost of living, has fallen to 49th in the nation, according to a study by the National Center for State Courts.
In February, on a motion to dismiss, Justice Lehner held that the judges had failed to "state a viable claim for a violation of the no-diminution clause." But in June, the judge rendered a stunning victory to the state's judges when he granted them summary judgment in Larabee.
The judge gave the defendants, whom he ruled had violated the separation of powers doctrine through the "practice of linkage" to other unrelated issues, 90 days to raise the judges' pay to reflect the rise in the cost of living since 1999.
A statutorily triggered stay went into effect when the defendants filed a notice of appeal in mid-July.
On Aug. 27, the First Department rejected a bid by the Larabee plaintiffs to vacate the stay, but agreed to establish an expedited appeal schedule (NYLJ, Aug. 28).
"Case after case notes the commonsensical view that a 30 [percent] decline in income" violates the compensation clause, Mr. Bezanson argued yesterday.
Quality of the Bench
Bernard W. Nussbaum of Wachtell, Lipton, Rosen & Katz, who represents Chief Judge Judith S. Kaye in Kaye v. Silver, 400763/08, a third pay suit, appeared as amicus curiae on behalf of the Larabee plaintiffs.
Bernard Nussbaum argues for judicial pay raises before the Appellate Division, First Department, yesterday on behalf of Chief Judge Judith S. Kaye and the court system. Seated at right is Richard H. Dolan, who appeared for the state.
"The threat of creating [a] less than qualified bench is enough," said Mr. Nussbaum.
"Basically, you are saying that the judicial salary has reached an unconstitutional level?" asked Justice Peter Tom, who presided over the panel.
"Yes," Mr. Nussbaum replied. When a chief judge of the Court of Appeals makes less than even a "summer associate at my firm," it is "impossible" to attract the "competent and intelligent people you need on the bench," he added.
But when Mr. Dolan was asked the same question by Justice Tom, Mr. Dolan replied, "There is no such level."
"[W]e all need to have a little more confidence in voters," Mr. Dolan maintained, who serve as the "ultimate check" on the balance of powers and have been "deeply skeptical" of backing a judicial pay raise.
Chief Judge Kaye, in her suit, claims Supreme Court justices' salaries should be on par with the $169,300 a year earned by federal District Court judges.
The summary judgment motion filed by the chief judge and motion to dismiss filed by the governor and legislative leaders are pending before Justice Lehner.
Justices Luis A. Gonzalez and Eugene L. Nardelli joined Justices Moskowitz, Renwick and Tom on yesterday's panel.
In addition to Mr. Bezanson, George Bundy Smith and J. Carson Pulley of Chadbourne represent the four judges.
In addition to Mr. Dolan, David J. Katz and Eric S. Groothus of Schlam Stone represent the state and Governor David A. Paterson.
Assistant Solicitor General Julie Sheridan, who represented the Assembly and Senate and did not argue before the First Department, joined in the state's papers.
Bernard Nussbaum argues in front of, from left, Judges Karla Moskowitz, Luis A. Gonzalez, Peter Tom, Eugene L. Nardelli and Dianne T. Renwick.
