Justice Edward H. Lehner has taken the ultimate form of judicial notice. His salary is too small so he has ordered the legislature to give him and the rest of the state’s 1,250 judges a raise within 90 days.
The New York judges are upset that they have not been given a raise in 10 years. That led various judges, including Patricia M. Nuñez of New York City Criminal Court, Michael L. Nenno of Cattaraugus County Family Court, Susan R. Larabee of New York City Family Court and Geoffrey D. Wright of New York City Civil Court to file a complaint that the failure constitutes a constitutional violation. they claim that the legislature is unconstitutionally linking their salaries to legislative salaries — a not uncommon practice. They insist that the Constitution guarantees an “adequate” salary and the current salary of $136,700 is not adequate.
Lehner held that the legislature has used “judicial pay as a pawn in dealing with the unresolved political issue of legislative compensation” and that it constitutes “an abuse of power by defendants and constitutes an unconstitutional interference upon the independence of the judiciary.”
The judges are seeking an award of $600,000 for each judge, an amount that would account for cost of living increases since 2000.
I am very sympathetic to the complaint and believe that judicial salaries are generally too low in both state and federal systems. However, this lawsuit is extremely problematic. While low, it would be very strange to have the judges determine the adequacy of their own salaries. Moreover, since these salaries are shared with legislatures, it is difficult to see how they are inadequate for judges but adequate for legislatures. Most importantly, this is a question of public policy — the ultimate political question of resources.
The case should be appealed and reversed — and then the judges should be given a raise (without the lump sum payment).