Court of Appeals: Judicial Salaries

The New York Court of Appeals sat for three days of oral arguments last week, and will sit for three days of arguments this week. The next oral arguments will be in February.

Of the thirteen cases the Court will hear this week, the most compelling from a legal as well as a political point of view are the three cases to be argued tomorrow which bring up for review the question of the Legislature's failure to raise judicial salaries since 1999.

The issue is "linkage": the Legislature has refused to raise judicial salaries unless it also raises legislators' salaries. The question is whether linking raises in the two salaries violates the State Constitution. The Appellate Division, Third Department, concluded that linkage does not violate the State Constitution, while the Appellate Division, First Department, concluded that it does.

Chief Judge Lippman has recused himself because he was a plaintiff in one of the cases when he was Presiding Justice of the Appellate Division, First Department. The remaining six judges of the Court will hear the case based on the "rule of necessity": when judges should recuse themselves because of a conflict of interest (as here where judges will pass judgment on their own salaries) they will, nevertheless, decide the case because they are the only judges who can decide the case.

While judges are plainly entitled to a salary increase, I have not been persuaded by the legal claims against linkage. The State Constitution's Compensation Clause, like the same clause in the Federal Constitution, prohibits the legislative branch from reducing judges' salaries. The First and Third Departments concluded, as the United States Supreme Court concluded when interpreting the Federal Constitution, that the Compensation Clause is not violated when unchanged judicial salaries are eroded by inflation.

The argument is made under the Separation of Powers Doctrine that by failing to increase judges' salaries the Legislature is undermining the independence of a co-equal branch of government. But the independence of the judiciary is explicitly protected by the Compensation Clause which prohibits the Legislature from retaliating against judicial decisions by reducing judges' salaries. In light of the explicit Compensation Clause, I do not think that from the State Constitution's scheme of separation of powers an inference can be drawn that there is a constitutional obligation imposed on the Legislature to increase judicial salaries. A judge's salary is a matter for the political process.

Oral argument begins tomorrow at 2 p.m. You can watch the webcast by going to the Court's website which can be found here.

Supreme Court Note: beginning today the United States Supreme Court will hear three days of oral argument this week, and two days of arguments next week. Among the cases to be heard are Abbott v. Abbott which addresses the application of provisions of the Hague Convention on International Child Abductions when one parent takes a child to another country without the consent of the other parent; American Needle v. National Football League which addresses whether the NFL is exempt from the Sherman Antitrust Act; and Briscoe v. Virginia which will give the Court a further occasion to explore the full reach of Crawford v. Washington, 541 U.S. 36 (2004), the Court's seminal ruling on the Right of Confrontation.

Court Rules Failure to Increase Judicial Salaries Violates State Constitution

The Appellate Division, First Department, ruled unanimously today that the refusal of the state legislature to increase judicial salaries since 1999 violates the separation of powers under the State Constitution.

In Larabee v. Governor of the State of New York the Court concludes that the legislative practice of "linkage'--judicial salaries are increased only if legislators' salaries are increased--undermines the independence of the judiciary by making judges' salaries wholly dependent on political considerations extraneous to the question of what a judge's salary should be. Judicial compensation has become a "tactical weapon" in political conflicts between the Governor and the Legislature. "When judicial compensation becomes politicized, a line has been crossed in contravention of the warnings long articulated in what has become a deeply rooted constitutional jurisprudence. The basic tenet of the separation of powers doctrine, to promote and maintain the independence and stability of each branch of government, has been violated." 

The ruling affirms an order of Supreme Court, New York County, which directed the Legislature to proceed in good faith, within 90 days, to adjust judicial compensation to reflect the increased cost of living since 1998.

The decision rejects the conclusion of the Appellate Division, Third Department, that the separation of powers has not been violated by "linkage."  Maron v. Silver, 58 A.D.3d 102. In the view of the Third Department there is no valid separation-of-powers claim because there is no proof that the judicial branch has actually been harmed by the failure to increase judges' salaries, and no claim that the failure to increase judges' salaries is designed to undercut the autonomy of the judicial branch. It is simply the result of the political process. The conflict ultimately will be resolved by the Court of Appeals.