Judicial Reports: Price Fight

By Jason Boog
jasonboog@judicialstudies.com
Posted 07-16-08

As the judicial salary fight reaches the final rounds, both sides are on the offense. One wants you to think of judges as high-end clerks. The other wants you to think of them as altruists who gave up a corner office at some large firm. Who are you rooting for? 

As Chief Judge Judith Kaye’s judicial pay-raise lawsuit nears the endgame — both sides will argue for dismissal or summary judgment on Thursday July 17th —  court watchers might need a spreadsheet to keep all the competing salary arguments straight.

Kaye v. Silver has generated so many briefs, affidavits and exhibits that both sides accuse the other of propping up a losing case with needless paperwork.

“Stripped of its excessive verbiage and hyperbole, Plaintiffs’ complaint makes a single argument,” wrote Richard L. Dolan, an attorney at Schlam Stone & Dolan. According to Dolan’s brief, that single claim is that the Legislative and Executive Branches have violated the State Constitution by failing to adjust Judicial Branch salaries. Click here to read New York Lawyer's archive of the brief.

But however the advocates reduce each other’s legal arguments, observers can expect a highly varied and even existential set of contentions when they next appear for arguments.

Should judges be recompensed like commissioners or like top prosecutors? Ought the system factor in the lucrative pay enjoyed by many of their fellow JDs in the private sector? And what is — or has been — the rate of pay for State jurists as compared with their federal colleagues?

Dolan represents one set of defendants: Governor David Paterson, Assembly Speaker Sheldon Silver and the Assembly, as well as the State of New York. He referred questions to Paterson’s press office, which did not return calls for comment.

David L. Lewis, a Lewis & Fiore partner, is representing the State Senate Majority Leader Joseph Bruno and the State Senate. Lewis’s office also did not return multiple interview requests.

In his brief, the Chief Judge’s counsel, Bernard W. Nussbaum, a Wachtell, Lipton, Rosen & Katz partner, criticized his adversaries for “devot[ing] their moving affidavits to establishing two largely extraneous points.”

Nussbaum argued that his opponents are attempting to divert the court from focusing on salaries by making exaggerated claims about judicial perks and focusing on how the State Senate happened to pass a judicial pay-raise bill (which the Assembly never passed).

“What’s an adequate salary for a judge? I will discuss that issue in court,” said Nussbaum in a brief interview, after which he declined to comment further.

Despite the legal bravado in those two statements, the supplementary materials actually provide a wealth of intelligence about the relative status accorded, or denied, members of the New York State bench.


In April, Judge Kaye sued the New York’s Legislative and Executive branches, hoping to force them to deliver higher pay for the 1,100-plus State judges who have received no raise for almost 10 years. In June, Supreme Court Justice Edward H. Lehner granted summary judgment in the judiciary's favor in another pay-raise lawsuit, Larabee v. The Governor of New York State, but all pay-raise litigation is on hold until Kaye’s suit is decided. (On Tuesday, the Governor and leaders of the Legislature appealed Lehner's summary judgment ruling.)

In Kaye’s suit, countless pages have been dedicated to two key related questions:  How much should judges earn? And, more evocatively, which professions should judicial salaries be measured against?  

In his brief, defendants’ counsel Dolan takes that issue head on.

“[J]udges are paid substantially more than commissioners of almost all State agencies. Indeed, only 11 agency commissioners — some whom oversee tens of thousands of employees and budgets in the billions of dollars — have their salaries set at the highest tier of $136,000, slightly below the amount received by Supreme Court Justices,” wrote Dolan in his brief.

The brief cites a set of regulations enacted in 1999 that sets six different pay grades for State officers. Click here to explore that page.


The lowest pay grade was $90,000 (paid to Commissioners of the State liquor authority, members of the workers’ compensation board, and six other officials). The highest grade, $136,000, is paid to the Commissioner of Health, the Superintendent of State Police, and 10 other officials.

State Supreme Court Justices earn $136,000, while lower court judges earn between $108,000 and $125,000.

The commissioner comparisons drew fire from Victor A. Kovner, chair of Fund for Modern Courts, who argued in an interview that judges’ professional context should place them in a different category altogether.

“[Judges] are extremely distressed,” he said. “They’ve left private practice, they’ve watched their colleagues at the same levels enjoy enormous increase over the years, but they watch their own income actually decline.”

A passionate defender of the judicial pay-raise, Kovner filed an amicus brief in Kaye vs. Silver last week. Click here to see his brief defending the judges.


For her part, Judge Kaye countered the commissioner comparisons in a 23-page affirmation brief filed last week.

Her brief explored what she saw as a historical connection between New York State judicial salaries and federal judge salaries. Using a 1909 article from The New York Times as an exhibit, Judge Kaye noted, “In 1909, Supreme Court Justices in New York City were paid $17,500 per year, whereas federal district judges earned only $6,000.”

She continued to track that historical linkage between judicial salaries through the Great Depression all the way until 1975. According to the brief, federal salaries have skyrocketed since 1986, while State judges fell behind both them and the rate of inflation. Federal salaries have increased 110 percent increase since that date, and federal judges now earn $169,000 — more than $30,000 above State judges.

Later in her brief, the Chief Judge compared judicial salaries to those of other attorneys working in the City government, highlighting a sizable pay-gap between some of the City’s brightest legal minds.

“District Attorneys in New York City earn $190,000, some $53,300 more than the Supreme Court Justices before whom they appear … The Corporation Counsel of the City of New York earns $189,700, more than $50,000 more than a Supreme Court Justice,” wrote the Chief Judge.


According to one pay expert, neither the Chief Judge nor her adversaries are using the most effective point of comparison.

“You would want to look at what the judiciary areas in comparable places with comparable caseloads are making. You want to look at as comparable places as possible,” explained Dr. Amy Henderson, vice-president of Integral Research, an economic consulting firm that provides expert testimony in salary disputes and other legal employment cases.

“You should look at pay levels in different jurisdictions adjusted for cost-of-living.” While her firm had not worked with judicial clients, she suggested that New York State judges should compare their salaries to other state courts in their arguments.

Anticipating that logic, the State court system had commissioned a study by the National Center for State Courts in 2007, judicial salaries adjusted for cost-of-living statistics in the individual states. As Kaye noted in her brief, these figures put New York State judges at the bottom of the national judiciary totem pole:

“New York has fallen to 49th among the states. Even this woeful ranking may not fully reflect the inadequacy of the compensation of many New York judges, because the ranking presupposes a statewide weighted average cost of living, and many of New York’s judges live in New York City and surrounding counties in which the cost of living is higher than the statewide average,” she wrote.  

Judicial Reports has visited this topic in depth a few times during the protracted legal battle of judicial salaries. Those articles made two points about the judicial salary research.

Upon independently comparing cost-of-living estimates within New York State, Judicial Reports discovered that Downstate judges are indeed among the most poorly paid in the country, but Upstate justices rank among the country’s best paid. Click here to read that article.

In another study, Judicial Reports measured judicial salaries against the national average for attorneys — discovering that state judges make more than the typical attorney. That article cited a study that put the 2005 average attorney salary at $110,520, a figure that jumped to $125,390 for New York state lawyers.

Click here to read these cost-of-living articles.


Besides the comparative statistics, Dolan’s brief explored fringe benefits enjoyed by the judiciary.

“[B]ase salary is only one component of the total compensation that Supreme Court Justices receive. These judges also receive pension benefits, medical and dental benefits, low-cost life insurance, vehicles and other fringe benefits that many individuals in the private sector do not receive,” read Dolan’s brief.

To prove the point, the brief enlisted the support of Chief Budget Examiner John E. Burke in a sworn affidavit. The affidavit noted that the vast majority of judges (838 of the 1166 judges on the State payroll) receive an average of more than $10,000 in health and pension benefits each year. By the examiner’s estimate, that raises judicial salaries to more than $141,000 a year.

The numbers vary by family size. The affidavit also noted that 77 percent of the judges on the State payroll have family coverage, doubling the State’s contribution to their benefits plan. A judge with an individual health plan received around $5,700 in benefits, while family plan judges receive $12,000.

It’s a handy fact, but judges use only a fraction of a system that provides health benefits for thousands of state employees every year.

While the affidavit notes that the State spends $12.7 million every year for judicial retirement plans, the figures omit a crucial fact: More than 930,000 other New York state employees participate in the state retirement fund—a massive system that reported $156 billion in net assets in 2007.

Burke’s office declined to comment for this article.

“I have to say it’s ludicrous and offensive,” said Kovner, the chair of Modern Courts, refusing to accept the perks as a defense. “[Judges] don’t have substantial perks, they have to live modestly… [but] they aren’t going into a monastery, we aren’t asking them to take vows of poverty.”



Posted by Dirk on July 16, 2008 12:07 AM to Judicial Reports