Judicial Reports: The Two States of Judge Pay

By John Ennis
Posted 06-01-2007

The National Center for State Courts (NCSC) issued a study this week that ranked New York’s judicial pay 48th in the nation after adjusting for cost of living. But the more compelling comparison is within New York rather than outside it. The Center declined to conduct such an analysis. So we did.

It was just a few months ago, as reported in LexMetrics on April 13th, that the NCSC's adjusted salary survey ranked New York 37th in the nation.

Why the drop from 37th to 48th? New York did not experience Weimar inflation during the last couple of months — the new survey actually used most of the same raw data as the previous report. But this time around, according to our interview with NCSC researcher David Rottman, the cost of living adjustment (COLA) was calculated differently, causing New York to fall 11 spots.

The reason for the new method is that the NCSC thought the earlier calculus treated New York and a few other states unfairly. How? In this case, by failing to factor in the extraordinarily higher cost of living in the significantly more populous New York City metropolitan region, as compared with Upstate.

New York’s Chief Judge Judith S. Kaye, who is engaged in a fierce political battle with the Legislature over a statewide judicial pay increase, immediately hailed the report: “Such a comprehensive look at the history and current state of judicial pay in New York within the national context offers the most compelling evidence to date of the dire need for judicial raises. . . . ”

Maybe. But the real lesson of the new findings is that when it comes to judicial compensation, two New Yorks emerge. A closer examination of the COLA formula shows that it’s only the judges in the Downstate region who are among the most poorly paid in the country. Their Upstate peers are in fact among the highest salaried.

New York’s general jurisdiction judges earn $136,700, ranking them 12th in the nation in absolute dollars.

So how did the NCSC’s adjustment move New York to 37th — and then to 48th?

When the NCSC computes a state’s cost of living it relies on its metropolitan areas. If a state has four metro regions, those are averaged to produce a statewide COLA.

According to the NCSC, this method creates a bias against New York and a few other states because it doesn’t adjust for each metro area’s population. And New York City’s COLA is much larger than the rest of the state (i.e., few other states have such a wide COLA gap between its metropolitan regions, combined with a similarly massive disparity in populations).

When New York’s nine metro areas are weighted equally, New York City’s influence is diminished to a further extent than most other states. As a consequence, the NCSC believes the state’s aggregate COLA is an understatement.

For this week's one-time report, which focused on New York, NCSC adjusted for population to avoid the above-mentioned discrepancy. The new COLA dropped New York 11 slots, with only Pennsylvania falling further. Some states moved up significantly, but they had squeezed in a raise since the last survey. More than half of the states (28) moved two slots or fewer.
 
(Note: Rottman said that future NCSC annual salary reports will continue to use the old method in order to maintain year-to-year consistency — this week's was done at New York's request, though it was funded by the NCSC).   

Now for the conundrum: All judges of the same court in New York enjoy the same salary, but that paycheck stretches a lot further in Schenectady than Scarsdale.

Why then compute a new state COLA and use that figure to advocate for a statewide pay increase? Why create a statewide COLA at all? If the disparity between metro regions is that great, New York City judges will remain underpaid (and upstate judges handsomely compensated) after a statewide raise — at least as compared to the other states.
 
We asked the NCSC, but they declined to compute New York’s COLA if it were split into two regions. So, Judicial Reports obtained the data directly from their source, the Council on Community and Economic Research (CCER), and attempted to replicate the methodology.

We averaged the COLA of the six Upstate metropolitan regions and treated it as a separate entity and did the same with the three Downstate areas (CCER subdivides the NYC metro area into Manhattan, Long Island and the outer boroughs). We didn’t adjust for population, because their rationale to do so no longer exists when you divide the state in two.

Downstate, by itself, would rank 49th among the 50 states. Upstate would rank 10th.

Though New York State’s judges are governed by the Unified Court System, and we know of no other state that does this, isn’t there an argument here for a two-tier pay scale to account for the fact that the COLAs statewide are so grotesquely un-uniform that the NCSC used a different system for this requested survey?

“It would neither be practical nor appropriate,” said David Bookstaver, communications director for the state’s Office of Court Administration. “Judges throughout the state have been deprived of a raise for nine years, effectively having their salaries diminished.”

True, nine years without a raise will diminish one’s salary after inflation, but haven’t the Upstate judges been quite well paid for those nine years when compared to the other states? Is it appropriate to ask the taxpayer for a raise for a subgroup of judges ranked 10th in the nation after a cost of living adjustment?

One argument against a two-tier pay scale is the question of where to draw the line. Why only differentiate between Upstate and Downstate? Surely there are differences within those regions themselves? One could argue for differential pay by judicial district or even county, so where does it end?

This could partly explain Bookstaver’s response that it’s not “practical.”

But our courts are more than accustomed to hearing slippery slope arguments. What's more, the variations in COLAs Upstate are minor. Finally, an attempt to make a system fairer should not be rejected because it doesn’t make it fair enough.

If the judges want to pick and choose when to rely on COLAs (i.e., it’s fine to make inter-state comparisons but not intra-state ones), they run the risk of marginalizing or even undermining their own arguments. Without a COLA argument, the judges are left with the fact that they’re non-adjusted pay ranks 12th among the 50 states. New York’s state and local debt burden per capita ranks third in the nation.

Try explaining the justice, fairness and necesity of an undifferentiated taxpayer-funded raise with those numbers.

Posted by Jason on May 31, 2007 07:49 PM to Judicial Reports