Editor: Could you share your backgrounds with us?
Smith: I was a judge for 31 years serving successively on the Civil and Supreme Courts and then on the Appellate Division, First Department, and most recently I completed a 14-year term on the Court of Appeals. I am now with Chadbourne & Parke. I've had the chance to observe and know the quality of judges at all levels in New York State. I think we have an excellent judiciary.
Bezanson: I've been a litigator here at Chadbourne & Parke since 1974, and this is where I've enjoyed staking out my career.
As a citizen I've been appalled and embarrassed by the lack of any pay raise for the State judiciary for almost nine years. As lawyers, Judge Smith and I are in a position to try to get justice done for those who mete out justice every day. What we are doing is in keeping with our firm's proud pro bono tradition, which was one of the first firms to have a partner, Bernie McCarthy, fully dedicated to managing the firm's pro bono efforts. Bernie helped elevate the awareness and dedication to pro bono practice not just here at the firm, but throughout the City.
Editor: You filed a summons on Sept. 12, 2007 against the New York's governor, the two branches of its legislature and the State on behalf of four New York judges. Why did you feel this was necessary?
Bezanson: The independence of the judiciary in this State is being threatened by the way the legislature and the governor have handled the compensation issue. It's particularly inappropriate that the compensation of the judiciary has been linked to that of legislators, thereby holding the judiciary hostage to political issues that have nothing whatever to do with the judiciary. This just stands separation of powers and notions of insulating justices from political considerations right on its head.
Smith: One of the objectives of the lawsuit is to separate judicial pay raises from legislative pay raises and we hope to get such a declaration from the court.
Editor: What is the current status of that proceeding?
Bezanson: The State has filed a motion to dismiss and/or for a change of venue to Albany and we'll be filing an opposition to that motion on November 30. I'm confident that we'll prevail in defeating that motion.
Editor: What is the likelihood of success?
Smith: In a case brought in Illinois on similar facts, the Illinois Supreme Court ruled in favor of the judges. We think we've got some very good arguments. We think the case is strong, but, as a judge for 31 years, Ican say that you never know how a judge or judges will rule.
Bezanson: We'll put on what we believe to be a convincing and authoritative case, but we will take nothing for granted.
Editor: Have you gotten or do you expect amicus or other support from corporate counsel organizations, bar and business associations and other sources?
Bezanson: As we get further into the case, we might get some amicus interest because I know that the city, county and state bar associations are very exercised about the legislators' and governors' failure to adjust compensation for almost nine years, so it's possible that one of these groups or other groups would come forward and wish to file an amicus brief.
Smith: I think every bar association in the State of New York, certainly most of them, have come out in favor of pay raises for judges as have most of the major newspapers across New York State. So there are many voices urging the legislature to do the right thing so we hope that it will happen.
Editor: Have the leading administrative judges been involved in supporting legislative efforts to get adequate compensation for the judiciary?
Smith: Former Chief Administrative Judge, Jonathan Lippman, who is now the Presiding Justice of the Appellate Division, First Department; Chief Judge Judith Kaye and Ann Pfau, the new Chief Administrative Judge, have gone to the legislators time and time again trying to get a pay raises for judges. I think they have done about everything they can to urge the legislature and the governor to give judges the needed and long overdue pay raise.
Editor: This litigation seems only to address the withholding of budgeted amounts and the withholding of increases based on the cost of living. It does not seem to address the fact that even if the issues mentioned in the litigation are satisfactorily resolved, judicial compensation may still not be sufficient to attract and retain the most qualified candidates.
Bezanson: You are right that judicial pay is lagging far behind what the judges could be earning elsewhere. Their pay is even lagging behind the pay of some of the judges' staff. Our case addresses the following compensation issues: $69.5 million was appropriated in the 2006 budget, but it was never spent. But that's just an example of the failure over the these past nine years of the State to grant pay increases. It also seeks compensation adjustments at least equivalent to the increased cost of living in New York State, which has been in the order of 26 percent over this time period. We have many judges who, if they held that position over the past nine years, have had a 26 percent cut in pay, and I don't think any responsible employer would allow that to happen to people on his or her payroll.
Editor: How strong is the argument for disentangling judicial compensation from that of legislators?
Bezanson: It's a very strong argument. Judicial independence means, among other things, that the judiciary will not be subject to the influence of politicians or political disputes. If the relief requested in this case is granted, judges will be free to rule on cases, as Judge Smith was saying, impartially. To link the judiciary to political issues in the legislature violates that principle
Smith: If you take another look at the Federalist Papers, you'll see that Alexander Hamilton discussed this issue way back then and said that the judiciary had to be independent of the legislature and of the executive, because otherwise there could be a tendency to a lack of impartiality or independence on the part of judges. So the issue goes back to the beginnings of the American republic and we want to put that thinking back on the table and back into play.
Bezanson: The New York constitution emphasizes this point. It has separate compensation provisions for the executive, for the legislature and for the judiciary, with different elements in each. Tying judicial compensation to that of the legislature or the executive is contrary to the clear intent of the constitution.
Editor: What are the consequences for New York and the nation in having New York's judicial compensation fall so far behind not only that of other states but also of other countries that are its major international competitors?
Smith: Lawyers just starting out in some of the so-called better law firms are being paid more than judges, including the chief judge of the State of New York, and that simply can't be fair. Some of those associates have not even taken or passed the New York bar examinations.
All of this has to be factored into the great stake that New York has in continuing to be the commercial capital not only of the United States but of the world. It is clear that one of the most important considerations entering into decisions by global companies to do business and engage in transactions in a particular place is whether the rule of law applies.
Bezanson: New York is a jurisdiction where litigants can expect an intelligent, fair and informed hearing on complex commercial or corporate matters. I think that adds greatly to the well being of the State and the City because it encourages corporations to do business here or to designate in their contracts New York law as a choice of law or New York as the venue for any litigation. This is now at risk.
Editor: Do you find that, unable to live on judicial compensation, many of the more talented and experienced judges are moving into the private sector. For example, the compensation of arbitrators can far exceed that of judges?
Bezanson: We're seeing increasing numbers of judges retiring from the bench in order to provide for their families. One would like to think of judges as serving for a good many years. That is now less tenable with judges counting on or facing the necessity of getting a better paying job before their careers end so they can care for their families.
Editor: Are there better ways to set standards for compensation of judges that would enable New York to continue to attract the quality of judges needed to keep New York competitive with other commercial centers both nationally and internationally?
Smith: There have been proposals to have a commission review the salaries of judges, the executive, and the legislature every two or three years. I think it's absolutely essential that some sort of commission review those salaries periodically to get away from the current politicized process.
Bezanson: Just ask yourself: how would you like to have your compensation depend upon the resolution of some political dispute in the legislature? You would not find that a very attractive situation. Endorsing what Judge Smith just said, it is necessary to introduce greater objectivity, neutrality, and predictability into the process. One way to do that is to have an automatic cost-of-living increase each year. A fair and impartial commission should review judges' compensation on a regular basis to make any adjustments in compensation necessary to continue the New York judiciary's role in the nation and the world.
Published December 1, 2007.