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Larabee v. Governor of the State of New York

June 2, 2009


Cross appeals from an order of the Supreme Court, New York County (Edward H. Lehner, J.), entered February 7, 2008, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the complaint to the extent of dismissing the complaint as against defendant Governor of the State of New York and dismissing plaintiffs' first cause of action as against the remaining defendants, and denied the motion to the extent it sought dismissal of the second cause of action, and order same court and Justice, entered June 11, 2008, which granted plaintiffs' motion for summary judgment on their second cause of action declaring that the remaining defendants through the practice of linkage unconstitutionally abused their power by depriving the Judiciary of any increase in compensation for approximately ten years and directing that the remaining defendants proceed in good faith to adjust judicial compensation to reflect the increase in the cost of living since 1998, with leave to apply for consideration of other remedies should the remaining defendants fail to act within 90 days.

The opinion of the court was delivered by: Tom, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Luis A. Gonzalez, P.J., Peter Tom, Eugene Nardelli, Karla Moskowitz, Dianne T. Renwick, JJ.


This is a lawsuit by members of the New York State Judiciary against various officials of the State of New York in which plaintiffs challenge the failure of the government of the State of New York to enact any enhancement in compensation for members of the State Judiciary*fn1. Although the lawsuit asserts the rights of plaintiffs, it actually constitutes a legal challenge which pits the New York Judiciary against other branches of the state government. While only the individual plaintiffs' rights are at issue in the present case, these plaintiffs' claims involve policies allegedly encroaching upon New York's Judiciary as a distinct branch of government.

Plaintiffs are two Family Court Judges, a Civil Court Judge and a Criminal Court Judge sitting in courts within New York County, whose salaries are specified in Judiciary Law § 221-e and § 221-g. Defendants include the Governor, the New York State Senate, the State Assembly, and the State of New York.

A review of some of the issues that gave rise to these lawsuits may provide a useful context to understanding not only why judges are suing the government of which they are a part, but also how the concepts of judicial independence and the doctrine of the separation of powers lie at the core of the present lawsuit. The New York Judiciary last received an increase in compensation on January 1, 1999 (L 1998, ch 630). As reported by the National Center for State Courts, this lapse of time is exceptional among state judiciaries, in that none of the others have experienced such an extensive delay in updating their salaries. Within a few years of the last enhancement of judicial compensation in New York, it became apparent that the rising cost of living in New York has consumed an increasing portion of judges' salaries. Although estimates vary, judicial salaries have lost between one-quarter and one-third of their value since the 1998 legislation was enacted.

The sheer complexity of much of New York's litigation, and its often crushing caseloads, require a fully operational, efficient and well-informed third branch of government, capable of managing its own affairs and presided over by well-qualified jurists trained to dispense justice efficiently and fairly. Many cases decided on a daily basis directly impact on all aspects of regional life, from alleviating heart-rending family crises, to depriving wrongdoers of their assets or even their liberty, to crafting decisions ensuring the continuing commercial stability of one of the world'sleading financial centers. Resolution of the full range of these disputes typically requires application of sophisticated skills to multiple tasks in order to perform the adjudicative process.

During recent decades, compensation for New York legal professionals rose dramatically, with the anomalous result that salaries of young, newly minted lawyers often exceed those of the experienced jurists before whom they appear. It became broadly recognized by the middle years of the present decade that the erosion in the value of judicial salaries might potentially bring the court system to a precipice, as a generation of experienced jurists retired or sought other employment, while younger, highly qualified, attorneys too often sought non-judicial careers. Leading members of the bench and bar began to publicly advocate in favor of adjusting judicial salaries to better account for the constant corrosive power of inflation, so as to retain experienced jurists and attract to judicial service the next generation of highly motivated lawyers.

Nevertheless, obscure and even arcane practices, primarily involving linkage of salary increases for judges to increases for legislators, have defeated the reasonable solution of increasing judicial compensation to a level commensurate with the responsibilities. Political leaders, including several governors and the leadership of each house of the Legislature, who often disagreed about many issues of government, in fact agreed on the necessity of such a measure. In 2006, the Judiciary submitted its budget request to the Governor, totaling approximately $1.6 billion, including a request for $69.5 million for judicial compensation adjustments. Pursuant to article VII, § 1 of the New York Constitution, the Governor forwarded the budget request for fiscal year 2006-2007 unaltered, and even noted his approval of the judicial salary increase.

In 2007, the Senate passed two bills to bring the salaries of New York trial judges in line with the salary of Federal District Court judges. One Senate Bill (S5313) also sought to untangle the ritual of linking judicial salary increases to legislative salary increases by the expedient of appointing a commission to recommend legislative compensation adjustments on a routine basis. The Assembly declined to pass the companion bill (A7913) when the Governor threatened to veto the measure unless the Legislature acquiesced in his demand for campaign finance reform. The Senate opposed the Governor's demand. The Assembly resisted advancing the measure because the Governor would not approve legislative pay raises. In the resulting stalemate, judicial compensation remained frozen. A second Senate bill (S6550), which omitted a legislative pay commission, passed almost unanimously in the Senate, but was not acted on by the Assembly.

By that time, the Chief Judge and others proposed a commission to regularly consider judicial salary levels as a means to, in effect, depoliticize the ritual of linkage. While both the executive branch and the legislative branch advocated for their respective agendas, the judicial branch was without a means to participate in the budgetary process. Compared with the other two branches of government, the Judiciary is at a disadvantage with respect to seeking public support for its interests, particularly as to pay raises. Nevertheless, $69.5 million was actuallyappropriated in the 2006-2007 budget for judicial salary increases and proposed retroactive payments (L 2006, ch 51, § 2), but no authorization to spend the sums was introduced or passed, nor was any bill introduced to amend Judiciary Law article 7-B to create a new schedule of judicial salaries. This inaction by the Legislature is the subject of the present appeal. The Governor also proposed judicial pay increases in the 2008-2009 executive budget that he submitted to the Legislature, but the Legislature declined to act.

The complaint, seeking declaratory and injunctive relief, set forth two causes of action. The first claim was that judicial compensation has suffered an unconstitutional diminution when measured against the substantial inflation since the last judicial pay raise, thus presenting a violation of article VI, § 25(a) of the New York Constitution, which prohibits any diminishment of the compensation of enumerated judges and justices. Plaintiffs contended that, notwithstanding that the New York courts are among the busiest in the nation, the annual compensation levels of the New York Judiciary rank 12th in the nation measured in absolute terms. However, they asserted, the more accurate measurement is the value of those wages relative to the local cost of living. By this measure, New York judicial compensation drops to 48th in the nation. Plaintiffs claimed that the 26% increase in the cost of living since 1999 was ignored by the Legislature during the ensuing decade while judicial wages remained unchanged.

In the second cause of action, plaintiffs claimed that defendants repeatedly engaged in the unconstitutional practice of "linkage," whereby the political branches of New York government combined the consideration of legislation for judicial pay raises with unrelated matters. Plaintiffs specifically alleged that the allocation of $69.5 million became legislatively "impounded" because of the vituperative battling between the Governor and the Legislature over legislative salaries and campaign finance reform, which are inherently unrelated to the consideration of what salary levels are appropriate for the Judiciary. Plaintiffs argued that the timing of increases in judicial compensation in recent decades has not been coincidental. Rather, judicial salary increases were typically accompanied by legislative salary increases. Plaintiffs asserted that such a "linkage" between increases in judicial compensation and the Legislature's enhancement of its own salary levels was never constitutionally sanctioned in any explicit sense, yet, nevertheless, became a matter of legislative habit*fn2. Plaintiffs claimed that the result of linkage in the present case was that because the Governor refused to condone legislative salary increases, the Legislature did not act on the proposed judicial salary increases notwithstanding public expressions of support. Plaintiffs asserted that the manner in which salary linkage was employed in the ongoing series of battles between the executive and legislative branches of state government economically punished the members of the judicial branch, necessarily implicating the independence of the Judiciary from those other branches of government in violation of the separation of powers doctrine.

In addition to seeking declaratory relief, the complaint sought orders compelling the disbursement of certain annual payments and enjoining defendants to hold the $69.5 million allocated for judicial salary increases in the 2006-2007 budget pending disbursement to New York judges and justices. Plaintiffs also sought to permanently enjoin defendants from linking judicial salary increases to legislative salary increases or other unrelated initiatives.

Two orders are presently under review. By pre-answer motion dated October 30, 2007, defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, which resulted in the dismissal of the first cause of action and all claims against the Governor. Subsequently, plaintiffs moved for summary judgment on the second cause of action, which the court granted.

During oral argument on both motions, the parties made several concessions narrowing the issues to be decided. During the January 10, 2008 oral argument on the CPLR 3211 motion, defendants conceded that a judicial pay increase was in order, but argued that the legislative process provided the exclusive recourse under theNew York Constitution. Although initially positing that the Legislature's action or inaction on such a measure was entirely insulated from constitutional challenge, defendants eventually conceded that the independence of the Judiciary as a discrete branch of government could be impaired, and the doctrine of separation of powers would then be violated, by inadequate judicial compensation, although it was claimed that the present salary levels did not implicate such constitutional concerns. Plaintiffs conceded that, insofar as they actually sought a legislative remedy, the Governor was not an essential party to the action.

In its order entered February 7, 2008, Supreme Court granted the CPLR 3211 motion in part. The court dismissed the complaint as against the Governor on the groundthat the actual relief sought by plaintiffs required legislative action - passing a budget bill including judicial salary increases - and did not implicate an executive function. Rather, the court found that by acting in a quasi-legislative role, the Governor was entitled to legislative immunity. The court also found that dismissal was warranted because the Governor's role was at most a technical one, basically signing the legislation.

The court next concluded that judicial salaries had not been diminished within the meaning of New York Constitution article VI, § 25, since no direct action had been taken by defendants to reduce judicial compensation. The court also found that plaintiffs had not suffered any economic impact distinct from others who were also affected by the inflation-induced erosion of compensation. However, the court denied that portion of defendants' CPLR 3211 motion seeking to dismiss the second cause of action. The court found that plaintiffs had sufficiently stated a claim that the legislative conduct at issue infringed on the independence of the Judiciary and violated the doctrine of separation of powers.

Plaintiffs then moved for summary judgment on the second cause of action. In support of their separation of powers claim, plaintiffs cited to legal publications as well as general media articles reporting widespread public and professional support for a judicial pay increase, acknowledging the public benefits of an adequately compensated Judiciary, and explaining how linkage was politically manipulated in this case to effect a stalemate between the Governor and legislative leaders that collaterally deprived plaintiffs of the already appropriated salary increase. During oral argument on the summary judgment motion, defendants reiterated the acknowledgment that members of the New York Judiciary deserved a salary increase, even conceding that defendants did not oppose an increase matching the salary paid ...

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