Though the problem of obtaining secure and adequate compensation for judges, rightly deemed indispensable to maintaining an independent and qualified judiciary, has plagued our constitutional system since its inception, (1) the issue in New York has now reached the level of a "constitutional crisis." (2) In this year and the last, three separate lawsuits have been commenced in New York State Supreme Court by New York judges, including one brought by Chief Judge Judith S. Kaye on behalf of the judges and New York's Unified Court System, against the coordinate branches of government and their leaders, regarding the constitutionality of the near decade-long failure to provide judicial pay increases. (3) The actions present important yet novel New York State constitutional questions regarding separation of powers and judicial compensation, and the controversy in general has the potential to leave deleterious, lasting effects on New York's government and citizenry. (4)
New York's constitutional history contains scant legislative or decisional guidance on either the Constitution's judicial compensation clause or the separation of powers doctrine as it relates to judicial compensation. (5) Yet considering what can be gleaned from state constitutional developments since the founding, the Federal Constitution and its origins, and what few cases do exist, the article reaches two primary conclusions. First, it concludes that the plaintiffs in the several judicial compensation suits have not made out a violation of the New York State Constitution's article VI, section 25 no-diminution clause. (6) Furthermore, the article concludes, reluctantly, that absent a demonstration of an actual usurpation of judicial prerogative or a purposeful or punitive attack on the judiciary's independence of will and function in fulfillment of its constitutional duties, there is likewise no cognizable separation of powers violation. (7)
Part II examines the background of New York's current judicial pay crisis and provides comparative information regarding New York's judicial salaries. Part III reviews the three cases currently winding their way through New York's court system, the arguments of the parties, and the decisions thus far. Part IV studies the issue of judicial compensation in New York's constitutional history, and concludes, as have the courts, that legislative inaction in this instance does not constitute a violation. Part V does the same regarding separation of powers in New York's government, and concludes that it is unlikely the plaintiff judges will be able to demonstrate a violation based upon the facts as alleged. While the no-diminution clause and the doctrine of separation of powers as it relates to judicial compensation do not lend themselves to perfectly neat partition, the article treats them as separately as possible for analytical purposes. Part VI briefly discusses the question of what remedy--save for a declaration of unconstitutionality--could be ordered by the courts in a case such as this, without the remedy itself being a separation of powers violation.
II. PRELUDE TO A CRISIS
Judges in New York State have not received a pay raise in nearly a decade, the most recent taking effect in 1999. (8) Of all the states, the compensation of New York's judges ranks forty-eighth when adjusted for cost of living, and no other judges have gone longer without a pay adjustment. (9) Since the most recent pay increase, the real "purchasing power" value of these salaries has declined by approximately twenty-seven percent due to inflation. (10)
This situation has resulted in a severely demoralizing environment for New York's judicial officers, with a corresponding risk of losing judicial talent and experience to employment arenas such as academia and the private sector. (11) A 2007 study of the National Center for State Courts on the issue of judicial compensation, described more fully hereafter, contains numerous quotations from New York's judges, provided anonymously, regarding the ongoing pay struggle. …