NY State Judges Are Not Political Footballs! - A Progress Report

Editor: Briefly describe the current economic plight of New York State Judges.

Bezanson: State court judges in New York have failed to receive a pay raise for over nine years. If they had been given appropriate cost of living increases to keep pace with inflation their pay would presently be in excess of $170,000. This has put our judges at severe economic disadvantage - and it's a disadvantage that is not in the interest of the public

Editor: I understand that both of you have been involved on a probono basis in litigation designed to correct this injustice. Please tell us about it.

Bezanson: We represent four New York judges in the case of Larabee v.Spitzer. The summons was filed on Sept. 12, 2007 against New York's governor, the two branches of its legislature and the State. In that case, we asserted a claim that the independence of the judiciary in this State was unconstitutionally threatened by the way the legislature and the governor have handled the compensation issue. We maintained that it is particularly inappropriate to link the compensation of the judiciary to that of legislators, thereby holding the judiciary hostage to political issues that have nothing whatever to do with the judiciary. This flies in the face of separation of powers and notions of insulating justices from political considerations.

The State filed a motion to dismiss our claims and to change the venue to Albany. After a lengthy oral argument before Justice Lehner in the New York Supreme Court in Manhattan, he denied defendants' motion for a change of venue to Albany. However, he granted their motion to dismiss one of our two claims, namely the claim that had been based upon the compensation clause of the New York Constitution, but denied their motion to dismiss based upon our separation of powers claim which is based on the fact that the legislature has made judicial pay increases conditional upon their own.

Since then the State has filed an appeal and shortly thereafter we filed our cross appeal. Eventually all the issues will be considered by the Appellate Division First Department here in Manhattan.

Editor: How do you feel about the chances of success on appeal?

Bezanson: We are confident that we'll be able to prevail not just on the interpretation of our separation of powers claim as not requiring the production of additional evidence, but also on our compensation clause claim. It is hard for anyone to argue that the over $30,000 effective reduction in the value of judges pay is not a violation of the Compensation Clause which requires that sitting judges' compensation cannot be diminished. The $136,700 that the judges are currently paid is worth about $100,000 in 1999 dollars.

Justice Lehner's opinion is the first to recognize that tying judicial salaries to those of a legislature is in itself a violation of the separation of powers principle. This is a milestone in the development of the law.

Editor: Describe the Maron case and what has transpired in that case.

Bezanson: The Maron case is on appeal to the Appellate Division for the Third Department in Albany by both parties. Although there are only two causes of action in the Larabee cases, there are more in the Maron case. As in Larabee , it also includes a claim under the compensation clause and the separation of powers principle. In Maron , Acting Justice Thomas J. McNamara dismissed all of the plaintiffs' claims except those relating to separation of powers. However, unlike Judge Lehner, he required a showing that there had been an actual adverse impact on judicial independence. He said that "Given the fact that legislators and senior Executive branch officials have also been denied raises, plaintiffs face a difficult task establishing that failure to provide salary increases is designed to influence the judiciary. Even showing that political branch benign neglect is destructive of judicial independence presents a difficult task."

Editor: In late January, it was reported that Chief Judge Kaye had retained Bernard W. Nussbaum to sue on behalf of the court system.

Bezanson: Governor Paterson unfortunately has stated that it would be very difficult to adopt a pay raise for judges this year. This is not a good start for his term as Governor.

Editor: Do you wish to comment on the possible effect of Governor Paterson's statement on Chief Judge Kaye's decision to move forward with her litigation?

Smith: They have not yet filed suit. They have said that they may file suit if the Governor and Legislature don't act soon to remedy the present deplorable state of affairs. There's plenty of room for judges from all over the State at every level to stand up for themselves in this matter and I wouldn't discourage the Chief Judge or anyone else for standing up for themselves and for their brothers and sisters of the court.

It does no harm for as many judges as possible to focus on the best legal arguments for righting an obvious wrong. From long experience, I know that the wording of a complaint can affect the outcome by putting a different slant on the argument.

Editor: If there is clear evidence that action will not be taken this year, could this be a basis for urging the First and Third Departments of the Appellate Division to accelerate their consideration of the two cases now before them on appeal?

Bezanson: The sooner that a just result can be achieved, the better. We will try to move our case along expeditiously.

Editor: If somehow this mess is straightened out and the legislature acts on judicial compensation, is there a long range solution which will avoid having this problem arise in the future?

Smith: A Commission should be established to deal with both judicial and legislative salaries as Chief Judge Kaye and others have suggested. This would go a long way towards solving the problem not only for this year but for years to come.

Bezanson: I would also endorse the suggestions by the Chief Judge that any new legislation provide for automatic cost of living increases in judicial compensation. To make them no longer contingent on legislative increases would be a great help and as Judge Smith just said, and as the Chief Judge has suggested, to have an independent commission periodically assess compensation would add a good deal of predictability and regularity to an otherwise just deplorable state of affairs.

Editor: One of the greatest concerns of corporate counsel is the fact that many state courts are underfunded resulting in too few judges to handle complex business cases. Although this may not be the situation in New York, does your research suggest that the failure of state legislatures to provide sufficient funding to assure a fair result in business cases may raise actionable constitutional questions?

Bezanson: There have been cases in Pennsylvania, Illinois, New York and other states that hold that it is the duty of the legislature to adequately fund the judicial system. U.S. Supreme Court Justice Kennedy recently made that point in his testimony before the Congress. The legislature has the power to tax and disburse funds, but along with that power comes a constitutional duty to see to it that the three branches of government operate on a co-equal basis in accordance with the doctrine of separation of powers. So there is certainly a case to be made that courts must be adequately funded in order to properly fulfill their functions. It's right to raise that issue now because, while the budgets of many judicial systems around the country are being reduced in response to the economic downturn, they are also very heavily stressed by increasing numbers of very time consuming complex business cases.

Editor: Why is New York able to handle complex business cases more effectively than other states that have an underfunding problem?

Smith: The New York Supreme Court, which is a trial court, has Commercial Divisions in several parts of the State and those divisions of the Supreme Court specialize in business cases. The judges get good training in those commercial cases. Practitioners in those courts, which Chief Judge Kaye has promoted, will tell you that they have worked to the advantage of businesses and commercial litigators. In New York State we have an excellent judiciary; I think by and large the judges across the State are very hard working and they work against some very difficult odds and do the best they can under the circumstances.

Bezanson: We litigate in states throughout the nation and you can find excellent judges anywhere and everywhere; however in New York, as Judge Smith just said, we have institutionalized a very good judicial system for commercial disputes with the creation of the Commercial Division and I think other states may want to look closely at that model.

Editor: Is there anything else you would like to add?

Bezanson: Of course the judiciary is the third branch of government, and it's the branch of government that sees to it that all citizens of this country are treated fairly both in resolving disputes among private parties and with our government and so the judiciary is of crucial importance to each and every one of us. Unfortunately, the judiciary has no power of the purse and is entirely dependent for financial support from the various state legislatures - with no real voice in those legislatures. This is at the heart of the problem.

Smith: The legislature and the judiciary ought to have fair pay increases, but we don't think that the judicial pay raises ought to be linked to legislative pay raises. We are seeking to achieve this goal in the Larabee case.

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