Lawsuit planned over lack of pay raise for judges

Shortly after a new state budget is adopted — for the 10th straight year without pay raises for stat

Shortly after a new state budget is adopted — for the 10th straight year without pay raises for state judges — a top Manhattan litigator plans to sue, claiming lawmakers and the governor have failed their constitutional obligation to preserve an independent judiciary.

Bernard Nussbaum’s clients are Chief Judge Judith Kaye, et al. At a gathering Monday of about 100 judges and others at New York State Bar Association headquarters in Albany, he got an ovation. Seven judges have already sued.

Nussbaum, a litigation partner at Wachtell Lipton Rosen & Katz and former counsel in the Clinton White House who will handle the judges’ case for free, promised to bring Democratic Assembly Speaker Sheldon Silver, Republican Senate Majority Leader Joseph Bruno and Gov. David Paterson to the witness stand. “Let them explain the hostage-taking,” he said.

Raises for judges have been tied by lawmakers to politically sensitive raises for the legislators themselves, while other state employees have had at least cost-of-living bumps. Kaye said the judges been “jollied along” with promises since they started pushing in 2005.

Compensation for New York’s 1,250 state-level judges now ranks 49th among states, which Kaye said is “shameful” considering the enormity and complexity of their case dockets. Most come to the bench with about 18 years of experience.

“Our state and federal constitutions provide for the critical independence of the judiciary by making clear that judicial compensation must be adequate and specifically that it cannot be diminished during a judge’s term of office,” Kaye told the judges. Those salaries haven’t budged in nine-and-a-half years, while inflation rose 26 percent, she said.

Pay ranges from $108,800 for full-time city court judges to Kaye’s $156,000, court spokesman Gary Spencer said. They propose raising the benchmark salary for state Supreme Court justices from $136,700 to the current level of federal trial judges at $169,300, with others rising proportionately.

That would cost about $39 million in the $124 billion proposed 2008 state budget. It would cost roughly $145 million including retroactive pay raises to 2005, which Kaye proposed. She held out some hope Monday lawmakers would still add funding, but that didn’t immediately happen.

“So I’m not going to sue today and I’m not going to sue tomorrow, but I’m going to sue real soon. Everything is all ready to go. The complaint is ready to go,” Kaye said, probably in April, adding it can go straight to trial without discovery, interrogatories or depositions. “Nobody is going to be immune when the judiciary sues the executive and the legislature,” she said.

Nussbaum plans to sue in state Supreme Court in Manhattan. In 1935, state judges had pay parity with senior partners in New York City law firms, and now they don’t have pay parity with freshman associates there, he said.

Two other suits were filed by four judges in Manhattan and three in Albany earlier in state Supreme Court. Both survived initial state challenges to dismiss claims the governor and lawmakers breached separation of powers doctrine by tying judicial raises to other issues. Claims that their pay was illegally cut were dismissed.

Appeals from both sides are pending before courts in the Appellate Division.

Nussbaum said Tuesday he’s simply waiting for word from Judge Kaye to file. Their new argument is the judges have been discriminated against, treated unlike all other state employees. Even the legislators get per diem payments and have outside incomes to help them keep up with the cost of living, and judges don’t, he said.

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