On Eve of Pay raise, Many Judges Say 17 Percent Hike is 'Too Little, Too Late'
The New York Law Journal by John Caher and Joel Stashenko - March 30, 2012
After 13 years of frustration, false hope and broken promises, the arrival on April 1 of a pay raise is a relief, but not necessarily a salve, for deep wounds inflicted financially and personally on the state's Judiciary. That seems to be the consensus of judges around the state as they anticipate a 17 percent pay bump, set by a special commission on judicial compensation, with the start of the new state fiscal year. By 2014, the raise will grow to 27 percent. Several judges remain bitter, some say it's too little and too late, and many are relieved that the new commission process should prevent the Third Branch from ever again being held hostage to legislative politics in Albany. But no one seems especially pleased. "It will get better every day," Chief Judge Jonathan Lippman said in an interview this week. "What is helpful is that judges will actually start to get the salary increases in their checks, and then the next one and the next one after that. I think that will be the magic elixir." But Judge Lippman acknowledged that judges have been put into a "terrible situation" since 1999 and that it will take some time for many of them to realize that they have what he calls the "best job in the world." "I think that this will shortly be in the rear-view mirror," the chief judge said. "For many of our judges, it already is. Some are very embittered about what happened. But I think the vast majority of the judges believe that the future is indeed bright and that the [salary] nightmare is over." Others are not so sure. Justice David B. Saxe of the Appellate Division, First Department, said judges are not satisfied with the size of the raise or the fact that they will have to wait three years to get the entire pay boost. "I guess there is a feeling of resignation," Justice Saxe said. "No one is doing a jig. No one is feeling we got adequate recompense. But it is what it is and we know the chief judge worked tirelessly for us." Brooklyn Supreme Court Justice Martin Solomon, a former Democratic state senator, said the pay raise approved by the judicial compensation commission was being regarded as the "first step" to bringing the pay levels of Supreme Court justices in line with federal district court judges. "There are a lot of hard feelings. Some of it has subsided," Justice Solomon said in an interview. "Some of it is still there. Many people thought we should have gone immediately to what the federal judges are earning. What we have lost, we will never make up." Judges and judicial organizations argue that the Judiciary has lost 41 percent to inflation since last getting a raise in January 1999 and that a 27 percent increase over the next three years will not fully recoup that setback. Justice Saxe said there is a strong sentiment among the judges that a $10,000 stipend granted to the judges for office expenses should continue, and if it does not, then the 17 percent raise that kicks in April 1 is actually much less. But Justice Saxe said he is hopeful that with the new commission process, the judges' pay will never again be hostage to state Capitol politics. Judge Lippman said he would make no guarantees about the stipends. "After the salary increases are in place, we said we will review it and take a look at that," he said. "This was an extraordinary solution to an extraordinary problem. We don't look at things with tunnel vision as to what makes sense to the court system at that particular time." Senator John A. DeFrancisco, a Syracuse Republican who formerly chaired the Judiciary Committee and is now head of the powerful Finance Committee, said that retaining the stipend in addition to the salary increase would not go over well in Albany. "The only reason the stipends were given was because there were no pay raises," Mr. DeFrancisco said. "It would be over-reaching after a substantial pay raise to also retain what was a stop-gap. I don't think it would be a wise decision to insist on that."
'We Feel Powerless'
Justice John M. Leventhal of the Appellate Division, Second Department, said the judges are thankful for a raise and "thankful that it has been taken out of the political process, to some extent." But he said the experience has left the judges feeling defenseless. "We feel as a Third Branch of government that we don't have an equal voice because we are not at the bargaining table, but we also respect the rule of law," Justice Leventhal said. "We felt powerless to do anything, and it seemed no one really cared. There was a feeling of helplessness, and if there is frustration, that is the source of it. We are happy we have a commission, and hopeful that this won't happen again."
Manhattan Supreme Court Justice Eileen E. Bransten, president of the Supreme Court Justices Association of the State of New York, expressed similar sentiments.
"None of us were happy with the actual recommendation of the salary commission," she said. "We were hoping for a great deal more because we feel that the increased cost of living was not taken into account. Nevertheless, we are very happy with the process. The commission was a wonderful idea and we will live by what the commission recommended."
Supreme Court Justice Richard T. Aulisi of Fulton County said a raise is always welcome, but suggested the Judiciary had to settle for less than would have been appropriate after so long a wait.
"Yes, it is gratifying that they have seen fit to give us an increase in our salary after 13 years," he said. "I certainly think we deserve some bump in our raises. Considering the economic climate this is probably as good as could be expected."
In Queens, Rudolph Greco Jr., a former Civil Court judge elected to Supreme Court last year, said that while he welcomes the pay raise, if the salary had not been enough, "I wouldn't have taken the job to begin with."
Justice Greco said that despite the lack of a raise, the judges have continued to pull their weight.
"The judges are wonderful," he said. "I have never heard of a judge doing less because of the money situation. I am very proud of the judges. They are doing more and more and more with less."
Justice Greco said that while there have been few judges who left the bench over the salary issue, he suspects many attorneys have not pursued judicial posts because of the pay.
"There are people who can't afford to become judges," Justice Greco said.
Supreme Court Justice Herbert Kramer of Brooklyn said it will never be known how many lawyers, especially those in successful private practices, stopped finding the Judiciary a viable employment option during the salary drought.
"There is no question in my mind that we have lost probably a generation of lawyers coming from private practice," Justice Kramer said.
Manhattan Supreme Court Justice Alice Schlesinger said she is ready to let bygones be bygones.
"I am certainly relieved," Justice Schlesinger said. "Should it have been higher? Should it have happened years before? Of course. But why look to the past? My feeling is we are finally getting a raise. It is long overdue, but I am choosing to feel pleased about the whole thing. Finally, finally, finally there was a recognition of this really outrageous situation." The lack of retroactivity is "obviously a disappointment, but I really prefer to concentrate on the positive aspects," Justice Schlesinger said. "It has been a long dry spell, I must say that, but I prefer to just be happy and relieved, no bitterness."
Justice Solomon said he felt particularly badly for the aging judges who have served out the final years of their careers amid the salary freeze. If their retirement is imminent, they will see little benefit in their pensions from raises that finally take effect April 1, Justice Solomon said. Judges' pensions are based, in part, on the 36 consecutive months on the bench in which they made the most money. Justice Kramer, who is facing mandatory retirement at the end of this year after 32 years on the bench, said he will receive only the benefit of eight months of higher salary to apply toward his pension. Pensions are also dependent on how many years of service judges have in the court system overall and on certain pension options they have opted to take. "The pay raise itself for me will be at best bittersweet," Justice Kramer said. "It is not meaningful in terms of the economic impact on me." Judges who have retired before April 1 will see no benefit from the raise in terms of bolstering their salaries for pension purposes. Several former or retiring judges are hopeful that a lawsuit filed by judges seeking higher pay,Pines v. State of New York, could provide them with some relief. The suit, now before the Appellate Division, would make a pay raise for judges retroactive to April 1, 2009, on the grounds that the Legislature and governor that year properly allocated the money for a raise, albeit unintentionally. Other suits filed by judges to compel the governor and Legislature to grant a raise have either been ineffectual at forcing an increase or have been deemed unwinnable and have been abandoned or placed on hold. Among the recent retirees who feel shortchanged is Samuel L. Green, who was forced to retire last year from the Appellate Division, Fourth Department. Mr. Green, who spent 32 years as a Supreme Court justice, nearly all of them on the appellate panel, served until he turned 70 and then continued for all three of the allowable two-year stints as a certificated jurist. But since the raise is not retroactive, Mr. Green's pension will not reflect what he believes should have been regular cost-of-living increments during his last dozen years on the bench. "For 13 years, I was denied a raise and they did nothing to make it up to us, no retroactivity," Mr. Green said. "We were just thrown out the door with nothing. I have talked to others who retired and they are upset as well."
Another judge said that if the raise had not come through this year, he would have retired. But with a chance to boost his pension benefits, and a few years remaining before he reaches the mandatory retirement age of 70, the judge said he will stick around for a while. He is particularly sympathetic, though, to judges who were mandatorily retired in recent years and had no opportunity to make up in their pension what they lost in regular income. "There are a lot of judges who are hostile, resentful and feel that the issue has not been addressed," the judge said. "We have been treated very unfairly." Supreme Court Justice Lucy A. Billings of Manhattan said the pay raise is "too little, too late," but she said that what she finds "most distressing" is the lingering bitterness of the judges "and how upset all my colleagues have been." Interviews with several other judges suggest an undercurrent of anger and resentment. "The pay raise is a slap in the face of every hardworking, dedicated judge in the state of New York," said Sullivan County Judge Frank J. LaBuda. "After 13 years of no pay raise, we get basically less than cost of living with no retroactivity. I don't know of any other state worker, public servant or teacher that has received such one-sided treatment by the employer. It didn't do a whole lot for my morale."
Judge LaBuda said the only difference the raise will make in his standard of living is to "help me from sinking further into debt." He said it would be an insult if the $10,000 stipend is eliminated. "I have spent my whole life providing fair and equal treatment to tens of thousands of litigants and I don't believe I have been treated fairly or honestly," Judge LaBuda said. "The bottom line is I am disappointed and suspect it affects morale. What it doesn't affect is the performance and dedication of the working judges in the judiciary. They continue to work, as I see it, certainly at full pace." Mr. Green said the sentiment among sitting judges he keeps in contact with seems to be that "they are not overjoyed about it, but glad they got something. They all think it was too little, too late." Howard Levine, who retired from the Court of Appeals in 2003 after nine years on the high court, said that the phase-in of the raise was "unfortunate," but the commission system holds out the possibility of avoiding another prolonged pay freeze. "I think there will be lingering resentment among judges, and with some justification," said Mr. Levine, who is now with Whiteman Osterman & Hanna. One upstate Supreme Court justice said his resentment is rooted more in what he views as a lack of respect than the lack of a raise. "We have been looked down upon and our own judicial administration has not carried the ball for us," the judge said. "Everybody I talk to is madder than hell. We all expected at least a raise to the federal district court level. I think everyone thought it would be at least that." A trial judge from another part of the state said court administrators did not push hard enough for a raise over the past several years, and then sold the judges short just to get a token bump in salary. "Everybody is very upset about the size of the pay raise, and a lot of people think [Chief Judge Lippman] let them down," the judge said. But Supreme Court Justice Sharon Townsend of Buffalo just wants to put the past in the past. "I am just so happy that we are finally getting positive news," she said. "I am very pleased and optimistic." William F. Kocher, a Family Court judge in Ontario County, said that if nothing else, the "chatter" which was previously endless on the internal judicial communications system "has stopped," suggesting that judges, as discontented as they may be, are eager to move on and stop fighting. "Nobody is inclined to turn down the pay raise," Judge Kocher said. John Caher can be reached at firstname.lastname@example.org. Joel Stashenko can be reached at email@example.com.
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Many Judges Say Pay Hike is 'Too Little, Too Late'
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