From: New York Law Journal April 10, 2008
Chief Judge Kaye Sues State to Secure Judicial Pay Hike
BY: Joel Stashenko
Chief Judge Judith S. Kaye today filed a lawsuit to force the state Legislature and the governor into granting state judges their first pay raise since 1999.
Former White House counsel Bernard W. Nussbaum filed the suit, Kaye v. Silver, in Manhattan Supreme Court on the chief judge’s behalf. Mr. Nussbaum, a litigation partner at Wachtell Lipton Rosen & Katz, is representing Chief Judge Kaye pro bono.
The lawsuit filing came a day after lawmakers completed passage of another state budget without raising judges’ pay. Chief Judge Kaye had long said she was considering such a suit only as a last resort, but last week said the judiciary had run out of patience.
Legislators wrote a $48 million appropriation for a judges’ pay raise in the budget retroactive to Jan. 1, 2008. But they did not back it up with actual funding, making it “dry,” or an empty appropriation without effect.
In a short message sent to state judges this afternoon, Chief Judge Kaye and Chief Administrative Judge Ann Pfau said the latest refusal by the other two branches of government to give judges higher pay left the chief judge “with no choice but to take legal action.”
“It is regrettable that we are forced to bring this lawsuit to achieve a just result,” the judges’ message read. “We pledge to prosecute this matter vigorously and to do everything in our power to achieve a speedy resolution.”
The suit prepared by Mr. Nussbaum argues that the governor and the Legislature, by failing to enact a raise for the state’s 1,300 judges, have failed to uphold their constitutional obligation to provide for an independent judiciary. The complaint also contends that the other branches of government have effectively come to violate a provision of the state Constitution prohibiting the pay of judges from being diminished.
Over the course of the last decade, judges have seen their salaries shrink by 26 percent due to inflation, the complaint argues.
Mr. Nussbaum said he will ask the court to expedite consideration of the judges’ claim and that he will attempt to call Governor David A. Paterson, Assembly Speaker Sheldon Silver and Senate Majority Leader Joseph Bruno to the stand to have them explain why pay increase bills for judges have repeatedly been held up by disagreements on unrelated issues.
Two other suits for higher judicial pay are also before state courts. The actions, filed by individual judges and supported by some judicial organizations, are on appeal before the Appellate Divisions in the First and Third departments. Supreme Court justices allowed the claims to go forward in each case on the separation-of-powers argument that Mr. Nussbaum also makes in Chief Judge Kaye’s suit.
– Joel Stashenko can be reached at email@example.com.