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Maron v. Silver

February 23, 2010

IN THE MATTER OF EDWARD A. MARON ET AL., APPELLANTS,
v.
SHELDON SILVER, AS SPEAKER OF THE STATE ASSEMBLY, ET AL., RESPONDENTS, ET AL., RESPONDENT.
HON. SUSAN LARABEE, ET AL., RESPONDENTS-APPELLANTS,
v.
GOVERNOR OF THE STATE OF NEW YORK, RESPONDENT,
NEW YORK STATE SENATE, ET AL., APPELLANTS-RESPONDENTS.
THE CHIEF JUDGE OF THE STATE OF NEW YORK ET AL., APPELLANTS-RESPONDENTS,
v.
THE GOVERNOR OF THE STATE OF NEW YORK, ET AL., RESPONDENTS-APPELLANTS.



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

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

The constitutional arguments raised in these judicial compensation appeals are premised upon, among other things, alleged violations of the New York State Constitution's Compensation Clause and the Separation of Powers Doctrine. Because the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis and this constitutes a violation of the Separation of Powers Doctrine.

I. Factual Background

The compensation of justices and judges of the Unified Court System, with certain exceptions not applicable here, is governed by article 7-B of the Judiciary Law (see Judiciary Law §§ 221 - 221-i). Article VI, section 25-a of the New York Constitution, also known as the "Compensation Clause", directs that the compensation of justices and judges "shall be established by law and shall not be diminished during the term of office for which he or she was elected or appointed."

The last time the Legislature adjusted judicial compensation was in 1998, through the amendment of Judiciary Law article 7-B (see L 1998, ch 630 §1, eff. Jan. 1, 1999). That adjustment increased the annual salaries of this State's Judiciary to make them commensurate with the salaries paid their federal counterparts.*fn1 Now, however, New York State ranks nearly last of the 50 states in its level of judicial compensation, adjusting for the cost of living. It is estimated that, over the last eleven years, the real value of judicial salaries has declined by approximately 25% to 33%.

At the time the roughly 1300 judges and justices who comprise the so-called "Article VI judges" (i.e. judges covered by Article VI of the New York State Constitution) received the pay raise that was enacted in 1998, they presided over 3.5 million cases. Ten years later, in 2008, the judges presided over a staggering 4.5 million cases, 38% of which were criminal (approximately 1.71 million cases), 42% civil (approximately 1.89 million cases), 17% family court (approximately 765,000 cases) and 3% surrogates court (approximately 135,000 cases)(see New York State Unified Court System, Annual Report 1998 and 2008).

In 2006, the Judiciary submitted to Governor Pataki, as part of its proposed annual budget, a request for $69.5 million to fund salary adjustments for the approximately 1300 Article VI judges, retroactive to April 1, 2005. The intention was to restore pay parity with federal judicial salaries. Although made part of the State budget (see L 2006, ch 51, §2), the Legislature failed to authorize disbursement of the appropriation, because the Legislature and the Governor could not agree on a pay increase for the legislators themselves.

The following year, Governor Spitzer included in his Executive Budget more than $111 million for judicial pay raises, retroactive to April 1, 2005, which, if implemented, would have placed salaries of State Supreme Court justices at an amount roughly on a par with federal judicial compensation. The Legislature removed that provision from the budget two months later.

In April 2007, the Senate passed a bill (2007 NY Senate Bill S5313) increasing judicial compensation, this time retroactive to January 1, 2007, and calling for the creation of a commission to review future salary increases for both judges and legislators. Governor Spitzer refused to support this legislation, however, unless the Legislature enacted campaign finance and ethics reform measures. Two months later, the Governor expressed support for a "judges only" pay bill.

Shortly thereafter, the Senate passed another bill (2007 NY Senate Bill S6550) providing for an increase in judicial salaries, this time without any corresponding increase for legislators. It also called for the establishment of a commission to examine future increases in judicial salaries taking into account the needs of the Judiciary and the State's ability to pay. The Assembly refused to act on that bill because it did not provide for an increase in legislative pay.

The following year, Governor Paterson and the Legislature approved a budget for 2008-2009 that included $48 million for judicial salary increases. Like the 2006-2007 appropriation, this was a so-called "dry appropriation" requiring further legislation before the salaries could be paid --legislation that was never enacted.

All parties to this litigation agree that Article VI justices and judges have earned and deserve a salary increase. That is what makes this litigation unique. Although the parties have been in accord regarding the need to adjust judicial compensation, the failure of the Legislature and the Executive to come to an agreement on legislation effecting a pay increase has led to the continuing inertia underlying this dispute.

II. Procedural History

Maron v Silver, et al.

The Maron petitioners -- current and former State Supreme Court Justices -- commenced this hybrid CPLR article 78 proceeding/declaratory judgment action against respondents Sheldon Silver, as Speaker of the Assembly, Joseph Bruno, then Temporary President of the Senate, Eliot Spitzer, then Governor of New York, Thomas DiNapoli in his capacity as State Comptroller, the Assembly and Senate and the Office of Court Administration.*fn2 The article 78 proceeding seeks mandamus relief compelling the Comptroller to disburse all retroactive sums and pay the budgeted raises allocated in the 2006-2007 state budget for judicial salary reform. The petition also asserts violations of the Separation of Powers Doctrine, equal protection and the state Compensation Clause.

Supreme Court, Albany County, partially granted defendants' motion to dismiss the petition for failure to state a cause of action, leaving intact the separation of powers claim. The court further held that Silver, Bruno and Spitzer were immune from suit because setting judicial salaries is a legislative act, and concluded that to the extent the petition alleged a constitutional violation against the Assembly and Senate, those allegations constituted claims against the State.*fn3

In a 4-1 decision, the Appellate Division dismissed the petition, holding, among other things, that the Maron petitioners' failure "to allege a discriminatory attack on the judicial branch that has impaired or imminently threatened the Judiciary's independence and ability to function" was fatal to their separation of powers claim (Maron v Silver, 58 AD3d 102, 123 [3d Dept 2008]).

The Maron petitioners appealed to this Court as of right on the constitutional questions presented. This Court retained jurisdiction over the appeal and denied leave to appeal as unnecessary (see Maron v Silver, 12 NY3d 909 [2009]).

Larabee v Governor, et al.

The Larabee plaintiffs -- members of the New York State Judiciary -- commenced this declaratory judgment action against Eliot Spitzer, in his capacity as Governor, the New York State Assembly and Senate, and the State, alleging violations of the state Compensation Clause and the Separation of Powers Doctrine.

Supreme Court, New York County, granted the State defendants' motion to dismiss the Compensation Clause cause of action but, similar to the Supreme Court in Maron, concluded that the Larabee plaintiffs had sufficiently pleaded a separation of powers claim (see Larabee v Spitzer, 19 Misc 3d 226, 231-237 [Sup Ct, New York County 2008]). Supreme Court dismissed the complaint in its entirety as against Governor Spitzer, noting that the Larabee plaintiffs conceded that he was not an "essential party" to the action, all parties having agreed that the Assembly, Senate and State were proper parties (see id. at 237-239).

Supreme Court subsequently granted the Larabee plaintiffs summary judgment on the separation of powers cause of action (see Larabee v Governor, 20 Misc 3d 866, 877 [Sup Ct, New York County 2008]). The State defendants appealed from that order and the Larabee plaintiffs cross-appealed from Supreme Court's order dismissing their Compensation Clause claim.

The Appellate Division affirmed both orders (Larabee v Governor, 65 AD3d 74 [1st Dept 2009]). The Larabee plaintiffs and State defendants appealed as of right and we retained jurisdiction.

Chief Judge v Governor, et al.

The Chief Judge plaintiffs -- former Chief Judge Judith S. Kaye*fn4 and the New York State Unified Court System -- commenced this declaratory judgment action asserting three causes of action against David Paterson, Sheldon Silver, Joseph Bruno, all in their respective official capacities, and the Assembly, Senate and State.

The complaint asserts one cause of action premised on a violation of the state Compensation Clause under a different theory than that posed by the Maron and Larabee plaintiffs; namely, that the diminution in judicial salaries has had a discriminatory effect on the Judiciary, rendering unconstitutional the salaries codified in Judiciary Law §§ 221 through 221-i. The two remaining claims are grounded on the Separation of Powers Doctrine. One of the claims is similar to those raised in the Maron and Larabee litigation; the other is premised on the theory that the Judiciary cannot function as a co-equal branch if it is not assured of receiving "adequate compensation," and that the judicial salaries codified in Judiciary Law §§ 221 - 221-i are constitutionally insufficient.

The State defendants moved to dismiss the complaint for failure to state a cause of action. Supreme Court, New York County, searched the record and granted the Chief Judge plaintiffs summary judgment on the separation of powers claim that was similar to the one raised in Larabee, but dismissed the remaining causes of action attacking the constitutionality of Judiciary Law §§ 221 - 221-i (see Chief Judge v Governor, 25 Misc 3d 268, 271-273 [Sup Ct, New York County [2009]). As in Larabee, Supreme Court dismissed the complaint in its entirety as against the Governor (see id. at 271-272). The State defendants appealed to the Appellate Division, which affirmed for the reasons stated in Larabee (see Chief Judge v Governor, 65 AD3d 898, 898 [1st Dept 2009]).

The Chief Judge plaintiffs appealed Supreme Court's order directly to this Court pursuant to CPLR 5601(b)(2) and we retained jurisdiction over the appeal. Because the Chief Judge plaintiffs challenged the constitutionality of the judicial salaries set forth in Judiciary Law §§ 221 - 221-i, the direct appeal from the order of Supreme Court was proper.*fn5 The State defendants appealed as of right from the Appellate Division's affirmance of Supreme Court's order granting the Chief Judge plaintiffs summary judgment on the separation of powers claim.

III. Rule of Necessity

Members of the Court of Appeals are paid via the salary schedule delineated in Judiciary Law ยง 221 and therefore will be affected by the outcome of these appeals. Ordinarily, when a judge has an interest in litigation, recusal is warranted. But this case falls within a narrow exception to that rule. Because no other judicial body with jurisdiction exists to hear the constitutional issues raised herein, this Court must hear and dispose of these issues pursuant to the Rule of Necessity (see Maresca v Cuomo, 64 NY2d 242, 247 n 1 [1984], appeal dismissed 474 US 802 [1985] [addressing a challenge to ...


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