New York State Chief Judge Judith S. Kaye filed a lawsuit yesterday against Assembly Speaker Sheldon Silver, Senate Majority Leader Joseph L. Bruno and Governor David A. Patterson on behalf of the 1,300-plus judges on the state payroll.

The Chief Judge’s counsel, Bernard W. Nussbaum — the former Clinton White House Counsel who is now a Wachtell, Lipton, Rosen & Katz partner — held a press conference Thursday after filing the suit.

“By freezing judicial salaries for the last decade, judges have been singled out and held hostage — and that’s unconstitutional,” he said, wearing a dapper fedora on the sun-drenched courthouse steps at 60 Centre Street. The court filing called for immediate action, requesting that the trial “commence on or about May 14, 2008.”

The 30-page suit makes three primary claims: that the New York judiciary is entitled to “adequate compensation,” that State judges were unfairly discriminated against by the State Legislature, and that the judicial branch pay raises are unfairly attached to Legislative pay raises.

“We are seeking a salary identical to what federal judges across the street are making,” concluded Nussbaum. Federal District Court Judges earn about $165,000, a year, and the State judges are asking for retroactive pay back to January 2005.

Filed in New York State Supreme Court, the suit presents an immediate ethical conundrum — can judges decide the fate of their own salaries?

On the courthouse steps, the attorney asserted that Kaye might be the only state judge who must recuse herself, citing the rarely applied “rule of necessity.” This legal doctrine allows obviously biased jurists to hear a case that affects all judges’ interests, since necessity dictates that some judge must hear the suit.

(Kaye’s is the only proper name among the plaintiffs, who are otherwise labeled collectively under “The New York State Unified Court System.”)

“So many judges have a financial issue in this,” cautioned Burt Neuborne, a law professor at New York University School of Law, in a telephone interview after the suit was filed. “There will be a much harder series of questions asked about how to constitute a truly neutral bench.”

What's more, there is precedent within New York. In the early 1990s then-Chief Judge Sol Wachtler and then-Governor Mario Cuomo fought a bitter legal battle over court funding that was regarded as a "Constitutional crisis" and which resulted in the judiciary eventually winning something of a political compromise when funding was restored to its earlier levels.

The lawsuit cited enough cases to fill a law textbook, referring to Illinois’s Jorgensen vs. Blagojevich multiple times.

Reached a few days ago, Illinois attorney Kevin M. Forde said he will never forget the overwhelming experience of helping his state’s judges litigate that suit — which helped secure cost-of-living salary adjustments. He added that the high-stakes litigation swallowed his whole practice in Illinois for an extended period.  

“It was the highest level of pressure I’ve ever felt,” Forde said. “It’s all consuming, because the case is being scrutinized by the profession, by the judiciary by the media — it needs to be done right. While you’re working on it, you don’t work on much else.”

Forde joined two other attorneys as the class action suit landed in the Illinois Supreme Court, forcing that bench to rule on its own salaries in 2004. They ultimately allowed more than 900 judges to keep promised cost-of-living raises.

In that decision, the Illinois high court wrote a passionate defense of its own position in the American government. “The judicial branch is the most vulnerable. It has no treasury. It possesses no power to impose or collect taxes. It commands no militia. To sustain itself financially and to implement its decisions, it is dependent on the legislative and executive branches.”


Despite that precedent, New York judges won’t have it easy.

The legal argument in the Illinois suit hinged on a constitutional mandate that required the State to fulfill pay-raise promises once made. The Illinois Supreme Court quoted the law: “Judges shall receive salaries provided by law which shall not be diminished to take effect during their terms of office.”

The New York State Constitution contains a similar provision, as does the U.S. Constitution — the so-called Judicial Compensation Clause.

However, New York judges are in the unique position of asking for salaries that are in-line with inflation and the salaries of other state employees — not clearly “diminished” that the Constitutional clause demands.

Here, the lawsuit makes a crucial conceptual leap, citing the case United States v. Hatter as its foundation. In that 2001 case, a group of Federal District Court Judges sued the United States over the application of Social Security taxes.  

The Supreme Court ruled that the Social Security tax “effectively singled out then-sitting Federal Judges for unfavorable treatment.” In the same way, Kaye’s suit argues that since the salaries of “virtually all other State employees” have been adjusted for inflation, the State judiciary is being discriminated against just like the Hatter judges.

When asked about this discrimination claim, Professor Neuborne was intrigued. “That’s a plausible argument,” he said.

“The judiciary is a competing power source, and it doesn’t have the ability to hit back. The judges are the least dangerous branch because they don’t have any policemen. . . . The Legislature can effectively push them around by cutting their salaries.”


In 2005, the Pennsylvania judiciary hit the same milestone that New York judges confront now — it had been 10 years since they had received a raise. That summer, the State Legislature finally approved a salary increase, attaching the adjustment to a legislative pay raise.

Following popular outcry over that decision, the Legislature made a surprise repeal of the raise that same year. A number of judges around the state promptly mounted lawsuits against the State Senate, Legislature and Treasurer, two of which ended up in State Supreme Court

“A number of judges approached us,” explained Jane Leslie Dalton, a Duane Morris partner who helped steer the litigation. “We were very careful in identifying plaintiffs that were not only from Philadelphia but from all over the state. This was a statewide issue, and we wanted to implicitly reaffirm that fact.”

In New York, judges from around the State have already taken versions of this case to court.

In 2007, an Albany Supreme Court judge ruled that three Upstate judges could proceed with their pay raise lawsuit, Maron v. Silver. Similarly, a Manhattan judge ruled in February 2008 that four Downstate judges could continue with their pay suit, Larabee v. Spitzer.

Once the lawsuits were filed in Pennsylvania, the State Senate hired outside counsel to handle matters, engaging the services of John P. Krill, Jr., a partner at Kirkpatrick & Lockhart Preston Gates Ellis.

Above all else, Krill advises the New York State Legislature (and any other state with judicial pay raise problems) to plan ahead for judicial litigation. “Start thinking about that litigation before the legislative session ends,” he said.

“If you want to secure a certain outcome, the litigation should be part of your planning. You have to give some thought to how you couch your legislation to have it survive in what will be an unusually contentious environment.”

The political-legal dynamic played out in Pennsylvania in ways that might prove instructive.

Invoking Pennsylvania’s so-called King’s Bench statute — an old rule that allowed the state’s highest court to hear cases of immediate public interest — the State Supreme Court accepted the cases and consolidated the disparate suits under a single ruling in Stilp v. Commonwealth.

In September 2006, the court ordered the State to deliver the promised pay raises — despite the Legislature’s revocation of them. The decision cited a State Constitutional mandate:

“Justices, judges and justices of the peace [now magisterial district judges] shall be compensated by the Commonwealth as provided by law.  Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.”

According to Dalton, the political fever that gripped her state has abated. “The elections returned to normal, and judges were retained,” she noted, citing a 2007 retention election in which activists failed to kick out judges.

“I don’t sense any lingering hostility,” agreed Krill. “I didn’t even sense hostility at the time. I made an argument to the Supreme Court that basically said ‘I’m in favor of you guys taking a pay cut,’ and I was treated as courteously as ever any lawyer was. The litigation was conducted on a professional plane both by counsel and by the justices.”