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July 7, 1995


The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.


 Presently before the Court are plaintiff's and defendants' cross-motions for summary judgment arising out of an Article 78 petition filed in the New York State Supreme Court, Broome County. The Article 78 petition alleged various state procedural violations and also purported to allege federal and state Constitutional violations. Defendants' removed the action to this Court based on federal question jurisdiction. 28 U.S.C. § 1441(b). Plaintiff later amended his petition to include a request for attorneys' fees under 42 U.S.C. § 1988.


 The Town of Fenton, population 9,000, presently employs two Town Justices, Justice Benjamin and Justice Martin. Up until January 1, 1995 both Justices were paid the same salary, which most recently reached $ 11,906 annually. From as early as 1992, the Town Board raised concerns about the cost of their local government and, as part of these concerns, discussed lowering their Town Justices' salaries. The Justices were able to fend off salary cuts in 1993 and 1994 and actually received a 4.5% pay raise and a pay freeze in those years respectively.

 One reason that the Justices' salaries were not reduced in 1994 was that an attorney for the Justices informed the Town Board of a recent legal precedent that held that "a reduction in salary of a Town Justice during the Justice's elective term constitutes an impermissible encroachment upon the independence of the judiciary." Catanise v. Town of Fayette, 148 A.D.2d 210, 543 N.Y.S.2d 825 (A.D. 1989). At that time both Justices were mid-term -- Justice Benjamin's term would conclude at the end of 1994 and Justice Martin's at the end of 1996.

 As the end of 1994 approached, the Justices' salaries were discussed again, with particular regard to Justice Benjamin's position, which was about to start a new term. Justice Benjamin won re-election to his post on November 8, 1994. The next day a public hearing was held regarding the Town's preliminary budget for 1995. At that meeting, the proposed budget listed the salary for Justice Benjamin's position as $ 11,906. No discussions were held concerning that salary. One week later another public meeting was held, ostensibly for the purpose of discussing a zoning issue. At that meeting, on November 16, 1994, the Board voted to reduce Justice Benjamin's salary from $ 11,906 to $ 6,500, *fn1" and ultimately adopted the lower salary as part of the final budget. In the final budget, the other Town Justice's salary was frozen at the previous year's rate of $ 11,906, the Town Councilmen's salary was frozen at $ 6,500 and the Town Supervisor's salary was frozen at $ 14,085.

 Justice Benjamin claims that the salary disparity between himself and Justice Martin violates his rights to equal protection and due process of laws, he also claims that the Board's decision was arbitrary and capricious, exceeded their authority and was done in error of law and lawful procedure.

 Defendants claim that the salary disparity is rationally related to the legitimate state purpose of fiscal responsibility and was procedurally proper.



 Summary judgment is appropriate only when the moving party shows that no genuine issue of material fact exists as a matter of law. See, e.g., Fed.R.Civ.Proc. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An unresolved factual issue is one that a reasonable fact-finder could decide in favor of either party. Anderson, 477 U.S. at 250.


 The Court notes at the outset that although the plaintiff has not specifically alleged a 42 U.S.C. § 1983 action, the amended petition added a request for attorneys' fees under 42 U.S.C. § 1988 and also alleged that jurisdiction is based on 28 U.S.C. § 1343, the statute that provides federal courts with original jurisdiction over actions based on civil rights statutes. Accordingly, despite plaintiff's unartful pleading, the Court will treat the petition as alleging a claim under 42 U.S.C. § 1983 for violation of federal equal protection and due process rights, and alleging state law claims for violation of state equal protection and due process rights and for Article 78 review. See, e.g., Conrad v. County of ...

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