Increase Ordered for New York Judges

From Judicial Reports, Supreme Court Justice Edward H. Lehner has ordered the Legislative and Executive branches of the State of New York to increase judicial salaries, “to reflect the increase in the cost of living since such pay was last adjusted in 1998,” within 90 days.

The decision in Larabee v. Governor (not to mention everybody else) of the State of New York, issued yesterday, is based upon the “linkage”, the tying of a judicial salary increase to a salary increase for legislators as well.  While the Attorney General conceded that everyone agrees that an increase in judicial salaries is appropriate, the stumbling block has been disagreement over legislative salary increases. 

The reason for this linkage is obvious:  No citizen of New York would support an increase in legislative compensation without a gun to his head.  By linking it to judicial compensation, the legislature hopes to have a handy-dandy gun.  Unfortunately, their weapon only shoots blanks.

Judge Lehner then lept from linkage to separation of powers, stating:



[W]hile the Senate and Assembly may perhaps now disagree as to whether it is appropriate for them under the current political situation to enact a legislative pay raise, the legal issue before me comes down to whether the refusalof the legislature for almost a decade to provide the supposedly co-equal third branch of government with a pay adjustment due to the aforesaid linkage to legislative pay demonstrates an abuse of power and an unconstitutional interference with the independence of the judiciary.Clearly, a conclusion that the aforesaid practice of linkage may be wrong as a matter of governmental policy does not mandate a finding that it is unconstitutional.

Yet, the court later holds:


In order to insure the public’s right to a competent and independent judiciary, this Commonwealth must maintain its ability to attract and retain the most qualified people.Due to inflation, increased tax obligations and other economic factors, it can only do so by lessening the difference in compensation between judges and lawyers with equal experience and training in the private sector.Otherwise, judicial service will not longer be viewed as a viable alternative to the private sector.Traditionally, government service offers pay scales to some extent lower than private industry for comparable positions requiring equivalent training, experience, responsibility and expertise.This disparity is deemed to be offset by the opportunity to render public service and to participate directly in the governmental process.However, this laudable motive cannot be reasonable expected to overcome the stark realities of the market place.Compensation of appreciably lower than the expected value of those services will inevitably result in the inability to obtain the quality of performance required

While the argument that separation of powers demands that disengagement of the linkage between the compensation for the judiciary and the legislature, a position that enjoys strong support as far back as Federalist No. 78, the connection between the rationale and the ruling is awfully tenuous.

Had Judge Lehner stopped at with separation of powers, and issued an order directing the Legislature to consider the compensation of the judicial branch of government without regard to the compensation of any other branch of government, his decision would have been on firm ground with a very fundamental foundation.  But he didn’t.

The holding appears to be based upon the contention that the judiciary’s independence will be undermined because qualified candidates “cannot be reasonably expected to overcome the stark realities of the market place.”  Now we’re back on shaky ground.

Is the judge saying that the crop of candidates and appointees in the past year aren’t qualified?  I don’t think so.  Is he saying that there aren’t a half dozen applicants or candidates for every opening?  Nope.  Then what is he saying?  He’s saying judges “deserve” it.

This is a mistake.  Whether or not judges deserve to be compensated with some degree of equivalence to, oh say, first year Biglaw associates is a political question, not judicial.  Worth is relative, a subjective value suited for those who can be voted out of office for their spendthrift ways.  This is even more true when the decision-maker has a horse in the race. 

If competent candidates could not be found, and Judge Lehner made such a finding, we would have a different situation.  But he didn’t, and he can’t.  The judiciary has a politics of its own, you know, and he can’t call his brethren incompetent.  It would be poor form.  Moreover, I don’t think that’s the case or the judge believes that to be the case.

Rather, it smells more like some public marketing to make the decision more palatable to the public by protecting our right to a “competent and independent” judiciary.  Unfortunately, the public doesn’t seem to be on board with the concept as whole, both from the standpoint of feeling that the judges are currently unduly burdened or that their “competence and independence” is at risk.  Indeed, some would argue that the ship on competence and independence sailed a long time ago, given some vocal challenges to the judiciary over the past decade.

The New York Times article on the ruling includes the Governor’s reaction:


“While the governor has long supported salary increases for judges, today’s opinion flies in the face of the State Constitution, which makes clear that only the Legislature has the power to set judicial salaries.”

It appears that it will be a long appeal process before there’s a surprise in our judge’s paychecks.