Tuesday, June 2, 2009

Judicial Compensation In New York

The New York Appellate Division for the First Judicial Department today held that a commission created for the purpose, rather than the courts, should address issues relating to judicial compensation:

The judicial system is at its best when it stands above and apart from the political interactions that more typically characterize the other two branches of government. Yet, the third branch of government is effectively dependent on the other two branches in matters of compensation. The political branches of government must discharge the responsibility of considering, and acting upon, an enhancement in judicial salaries on its objective merit.

The intersection of the separation of powers and judicial compensation has a lengthy history. Salary disputes that pitted a Legislature against the Judiciary have occurred since the early days of the Republic. Certain general themes have emerged which underscore the delicate intragovernmental relations that are threatened when legislative bodies, on the basis of various motives and agendas, act in ways that financially burden judges as they perform their duties, even if their compensation is not, nominally, "diminished," and even if the burden does not directly distort the performance of those duties.

Shortly after the ratification of the United States Constitution, the judges of the Virginia Court of Appeals, in a "respectful remonstrance" directed to the Virginia Assembly, cautioned that the unique role undertaken by the Judiciary, to protect the people from the powers of government if need be, required that relations between the branches of government be managed "to exclude a dependence on the legislature." Those judges warned that a dependency contrary to the newly crafted scheme of government could easily arise as a consequence of the subordination of the Judiciary to the Legislature in matters of compensation (Cases of the Judges of the Court of Appeals, 8 Va 135, 141, 143-145 [1788]).

During the early part of the twentieth century, the United States Supreme Court noted the importance of ensuring a judge's "sure and continuing right to the compensation, whereon he confidently may rely for his support during his continuance in office." Adequate judicial compensation was analyzed not as a benefit to the judge, but "as a limitation imposed in the public interest" so as "to attract good and competent men to the bench and to promote that independence of action" necessary to the administration of the system of justice (Evans v Gore, 253 US at 249, 253). Elsewhere, also in the context of a compensation dispute, the Supreme Court characterized the peculiarly American scheme of government as a "separation [which] is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital ... to preclude a commingling of these essentially different powers of government in the same hands" (O'Donoghue v United States, 289 US 516, 530 [1933]). There, the Supreme Court cautioned that each branch of government "should be kept completely independent of the others" in the sense that none should be subjected to duress by either of the other branches. The Supreme Court therein noted the "anxiety of the framers of the Constitution to preserve the independence especially of the judicial department" (id. at 530-531). Hence, American jurisprudence recognized early that matters of judicial compensation are inextricably intertwined with judicial independence vis-a-vis the legislative branch of government, requiring "a continuing guaranty of an independent judicial administration for the benefit of the whole people" (id. at 533). More recently, in a pay dispute, the Supreme Court described the separation of powers doctrine, albeit under different circumstances, as

"a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features ... it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict" (Plaut v Spendthrift Farm, Inc., 514 US 211, 239 [1995]).

An erosion of the functional independence of the Judiciary may be incremental, and subtle, yet, unlike the political branches of government, the judicial branch is not empowered to assert its interests by means of politics. If the acts of another branch of government threaten the functional independence of the Judiciary as an institution, then the "separateness" of those branches may become illusory.

Here, there has been a violation of the doctrine of separation of powers. We assume, as did the Supreme Court in Hatter, that there is no legislative ill will toward the Judiciary in the events giving rise to this litigation, and we need not find that the Legislature intentionally intruded upon the independence of the judicial branch of government. Our conclusion also does not require evidence relating to the integrity of judging in individual cases, and, indeed, there is no record evidence of undue influence. Rather, we are concerned with the integrity, in a structural sense, of the judicial system as an independent institution, in that New York's constitutional architecture prohibits the subordination of the judicial branch to the other branches of government either in practice or in principle. More significantly, the political maneuvering by the other branches of government, by reducing the issue of judicial compensation to a tactical weapon, consequentially subordinated the status of the Judiciary to that of an inferior governmental entity. Linkage, as employed in these circumstances, manifested an abandonment of any pretense to an objective consideration of judicial compensation unimpeded by extraneous political considerations. These acts and their ramifications necessarily undermine the carefully constructed architecture of New York government.

The litigation had been brought by a number of judges against a number of public officials. The court concludes:

We conclude with the observation already made above that, consistent with our concern that judicial compensation should be as far removed as is practicable from political considerations, it makes sound sense to delegate the issue of judicial compensation to a commission created for that purpose, to analyze and make recommendations to the Legislature on the timing and scope of future increases in judicial salaries, a device that had utility in Campaign for Fiscal Equity v State of New York (100 NY2d 893 [2003]; 8 NY3d 14 [2006]).

(Mike Frisch)


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