Report

of the

Commission to Review

the Compensation

of New York State Judges

March 1998

 

March 25, 1998

To: Hon. Judith S. Kaye

Chief Judge of the State

Hon. Jonathan Lippman

Chief Administrative Judge

From: John R. Dunne

Milton Mollen

We are pleased to present you with the enclosed report of the Commission to Review the Compensation of New York State Judges.

In your charge to us, you asked that we:

examine the adequacy of pay presently received by the Judiciary, taking into account the overall economic climate and prevailing salary levels in the public and private sectors, and make recommendations concerning appropriate levels of compensation for New York State Judges.

You also asked that we "give particular consideration to reformulating a mechanism to provide for reasonable periodic adjustments" in judicial salaries.

As is indicated in our report, we have found that, over the 20-year period since the State assumed responsibility for funding the court system, judges have experienced real economic loss. Judicial compensation has not kept pace with changes in the national and local economy. Nor do judges’ salaries bear a reasonable relationship to that of the pool of lawyers from whom candidates for judicial office should be drawn. We fear that, should this pattern continue, New York’s long tradition of judicial excellence will suffer.

In our report, we recommend a salary schedule that sets judicial salaries at levels that are fair and appropriate to the prevailing economy. We will spend the next several months addressing yoursecond charge to the Commission, the consideration of a possible mechanism for periodic adjustment of judicial compensation to reflect changes in the times. At the conclusion of that task, we will again report to you.

On behalf of the members of the Commission to Review the Compensation of New York State Judges, we wish to thank you for entrusting us with this most important task.

Enclosure

cc: Commission members

Table of Contents

I. Members of the Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

II. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. Commission Mandate & Method of Study . . . . . . . . . . . . . . . . . . . . . . . 3

IV. Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. History of Judicial Salary Adjustment . . . . . . . . . . . . . . . . . . . . . . 4

B. Comparison to Growth in the Cost of Living . . . . . . . . . . . . . . . . . 6

C. Comparison with the Federal Judiciary . . . . . . . . . . . . . . . . . . . . . . 7

D. Comparison to Growth in State Employee Salaries . . . . . . . . . . . . . 8

E. Comparison with Lawyer Pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

F. Comparison with Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

V. Recommendations & Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

The value of judicial compensation has been seriously eroded . . . . . . . . . . 12

The marked imbalance between State and Federal judicial salaries is

a matter of concern, and warrants an immediate adjustment

of State salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

The salary compression between judges and nonjudicial personnel poses

a serious problem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A comparison to compensation of lawyers in the private sector justifies an

increase in judicial salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A failure to adjust judicial salaries threatens the ability of the Judiciary to

recruit and retain capable men and women to serve a judges . . . . . . . . . . 17

VI. Appendices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Recommended Salary Schedule . . . . . . . . . . . . .A-1

B. Draft of Legislation to Implement

the Commission’s Recommendations. . . . . .B-1

C. Summary of Findings of Prior Commissions

on Judicial Compensation. . . . . . . . . . . . . . . C-1

D. Comparison: CPI Growth vs. Judicial

Salary Growth . . . . . . . . . . . . . . . . . . . . . . . D-1

E. Comparison: State Judicial Salaries and

Federal Judicial Salaries . . . . . . . . . . . . . . . . E-1

F. Comparison: State Employee Salary

Growth vs. Judicial Salary Growth . . . . . . . . F-1

G. Sampling of Lawyer Pay Statewide. . . . . . . . . . G-1


I. Members of the Commission

Co-Chairs

John R. Dunne is Counsel to Whiteman Osterman & Hanna and former State Senator and Chair of the Senate Judiciary Committee [Albany]

Milton Mollen is Counsel to Graubard Mollen & Miller, former New York City Deputy Mayor for Public Safety and former Presiding Justice of the Appellate Division, Second Judicial Department [New York City]

Members

Fritz W. Alexander II is Counsel to Epstein Becker & Green, P.C., former New York City Deputy Mayor for Public Safety and former Associate Judge, New York Court of Appeals [New York City]

Richard J. Bartlett is a member of Bartlett, Pontiff, Stewart & Rhodes, P.C., and former Chief Administrative Judge of the Courts [Glens Falls]

Harvey B. Besunder is in private practice [Hauppauge]

Philip M. Damashek is a member of Schneider, Kleinick, Weitz, Damashek & Shoot and former President of the New York State Trial Lawyers’ Association [New York City]

John D. Feerick is Dean of the Fordham University School of Law [New York City]

Maryann Saccomando Freedman is Counsel to Cohen & Lombardo, P.C., and former President of the New York State Bar Association [Buffalo]

Robert L. Haig is a member of Kelley Drye & Warren LLP and former President of the New York County Lawyers Association [New York City]

Robert R. Kiley is President and Chief Executive Officer of the New York City Partnership and Chamber of Commerce, Inc. [New York City]

Joseph J. Kunzeman is a member of Stanley R. Waxman, P.C., and former Associate Justice of the Appellate Division, Second Judicial Department [Mineola]

Anthony R. Palermo is Counsel to Hodgson, Russ, Andrews, Woods & Goodyear, LLP, and former President of the New York State Bar Association [Rochester]

Fern Schair is Director of the Civil Justice Project of the Fund for the City of New York, and former Executive Secretary and Chief Administrative Officer of the Association of the Bar of the City of New York [New York City]

Daniel B. Walsh is President of the New York State Business Council and former Majority Leader of the New York State Assembly [Albany]

Counsel

Norma Meacham is a member of Whiteman Osterman & Hanna [Albany]

II. Summary

The Commission to Review the Compensation of New York State Judges was appointed byChief Judge Judith S. Kaye to examine the adequacy of pay received by judges, to make recommendations concerning appropriate judicial salary levels, and to consider a mechanism by which the State can make reasonable periodic adjustments in those salary levels.

The Commission recommends adjustment of the salaries paid to State-paid judges and justices of the Unified Court System to the levels set forth in Appendix A. Salaries of justices of the Supreme Court would increase from $113,000 to $135,000. Other judges would receive proportionate adjustments.

The Commission’s recommendation is based on a comprehensive study of many factors, including historic cost-of-living data, salaries paid to Federal judges, lawyers, and others law-related vocations, and the impact of current salary levels on both incumbent and potential judges. No one factor was determinative. All factors, both individually and collectively, lead to the same conclusion.

New York State judges have experienced, over many years, a decline in the real value of their salaries. Since the enactment of the Unified Court Budget Act in 1977, the salary of a justice of the Supreme Court grew 131%. During that 21-year period, the Consumer Price Index grew by 176%, and the salaries of represented State employees, including those in the court system, increased by approximately 186%. In addition, if the salaries of Supreme Court justices had been adjusted for increases in the Consumer Price Index since 1967, the date that many believe is the proper benchmark for measuring late 20th century inflation, the salary of a justice of the Supreme Court would today be $172,790, which is significantly higher than the level this Commission now recommends.

While the value of judicial salaries has steadily declined, the workload of New York judges has remained at record high levels for the past decade, with new filings now exceeding 3 million a year, and no relief in sight. In 1996, almost 3.5 million new cases were filed in New York courts, over ten times more than the number of new filings in Federal district courts throughout the entire country.

Salaries of New York State judges have not just lagged behind the inflation indices. They have also fallen behind in comparison to the salaries earned by other judges. For example, the salaries of State Supreme Court justices and Federal district court judges were, for many years, roughly the same, with the New York State justices at times earning more than their federal counterparts. Today, however, there is not even rough parity. Federal district court judges now earn 21% more than justices of the Supreme Court. In fact, Federal district court judges earn more than every New York State judge, including the Chief Judge, who earns six percent less than a Federal district judge. In addition, United States magistrate judges earn more than associate judges of the New York State Court of Appeals.

New York judges have also fallen behind in relation to State employees in the executive and legislative branches, as well as in relation to their own staffs. Over the past 20 years, the salaries of represented nonjudicial employees, along with the salaries of employees generally, have grown approximately 186%, a rate far surpassing the 131% increase in the salaries of the justices of the Supreme Court for whom many of them work. These numbers not only demonstrate the erosion of judicial salaries, but reflect a salary compression within the court system, with its attendant management problems.

The Commission recognizes that, considered in isolation, the recommended increase is substantial. Understood in context, however, the increase is fully warranted and, the Commission believes, necessary. The size of the recommended increase is consistent with the history of judicial salaries in this State, a history of long periods of no increases, interspersed with a few double-digit "catch-up" increases. Those increases, however, never made up for the economic loss suffered during the long periods between increases.

It bears noting that over the past 20 years, there have been only five salary increases and only one salary increase in the last ten years, with the last adjustment five years ago. Those increases, taken together, simply do not bring judicial salaries to where they would be today if there had been smaller, but more frequent, increases keyed to inflation. Had the salary of a justice of the Supreme Court been pegged to increases in the Consumer Price Index since enactment of the Unified Court Budget Act, that salary would today be comparable to that now recommended by this Commission. The proposed increase will merely restore, prospectively, some of the lost value of judicial salaries, without any compensation for past losses.

The recommended increase is needed not only in the interest of fairness, but also to ensure the continued quality of this State’s judiciary. The Commission believes that if the issue of adequate judicial salaries is not addressed, there is a real risk that the quality of this State’s Judiciary, a matter of great and justified pride, will be diluted.

 

III. Commission Mandate & Method of Study

In announcing the formation of the Commission to Review the Compensation of New York State Judges, Chief Judge Judith S. Kaye stated:

Judges are entitled, on an ongoing basis, to fair and adequate pay for the critically important work they perform. The failure of judicial salaries to keep pace with changing economic conditions constitutes a major problem for the future of the judiciary.

The Chief Judge then directed the Commission to examine the adequacy of pay now received by judges, taking into account the economy and prevailing salary levels in the public and privatesectors; to make recommendations concerning appropriate judicial salary levels; and to formulate a mechanism by which the State can make reasonable periodic adjustments in those salary levels.

At its inaugural meeting, the Commission determined to undertake its labors in two phases. First, it would study economic and historical information for the purpose of formulating an appropriate judicial salary schedule. Second, it would concentrate on considering a mechanism for providing ongoing adjustment in this schedule.

This report will summarize the Commission’s work on the first of these phases. A second report will be issued following conclusion of the Commission’s work on the second phase.

The Commission was aided by the William M. Mercer Company, internationally-recognized experts in the field of executive compensation. Mercer Company officials collected and analyzed relevant market data and, in a series of meetings with the Commission and with its Chairs, provided insight and guidance on the issues before the Commission.

IV. Findings

A. History of Judicial Salary Adjustment

New York State's Unified Court System consists of an appellate court of last resort, the Court of Appeals; two intermediate appellate courts, the Appellate Division of the Supreme Court, which sits in each of the State's four Judicial Departments, and the Appellate Term of the Supreme Court, which sits in the First, Second, Ninth and Tenth Judicial Districts; and 11 separate trial courts, including the Supreme Court, the Court of Claims, the County Court, the Family Court, the Surrogate's Court, the New York City Civil Court, the New York City Criminal Court, the District Court, the City Court outside of New York City, and the Town and Village Justice Courts.

Prior to April 1, 1977, the State paid the salaries of only the judges of the Court of Appeals, the justices of the Appellate Division and the Appellate Term, the justices of the Supreme Court and the judges of the Court of Claims. Judges of the other courts were paid by local governments at salaries fixed by those local governments. Local governments also paid a share of the salaries of the justices of the Supreme Court.

As of April 1, 1977, however, the State assumed responsibility for paying the full operational costs of all its courts except for the Town and Village Justice Courts. See L. 1976, c. 966 [enacting the Unified Court Budget Act]. As a result, all judges except those of the Justice Courts became State employees and were transferred to the State payroll at the rates of pay established for them by local government.

Since the Unified Court Budget Act took effect in 1977, the State has borne full responsibility for fixing levels of judicial compensation. Over the past 21 years, the State has acted five times to adjust these levels:

 

 

Over this 21-year period, there also have been four separate studies conducted on the matter of fixing appropriate levels of judicial compensation:

 

Summaries of the findings of these prior Commissions are set forth in Appendix C.

B. Comparison to Growth in the Cost of Living

Over the past 20 years, the salaries of the judges of this State have suffered an erosion in real value. Since enactment of the Unified Court Budget Act in 1977, the salaries of justices of the Supreme Court have grown at a significantly slower pace than the Consumer Price Index. While the CPI has grown by 176%, judicial salaries have grown by only 131%.

As noted above (pages 4-5), the history of judicial salaries in this State is characterized by long periods without increases, interspersed with adjustments that were often in the double-digits. Those increases, however, taken together, have not brought judicial salaries to where they would be today if there had been smaller, but more frequent increases keyed to inflation. Nor did those prospective adjustments compensate for the economic loss suffered during the long periods between increases.

Had the salary of a justice of the Supreme Court been pegged to increases in the Consumer Price Index since enactment of the Unified Court Budget Act, that salary would today be almost exactly the same as that of a judge of the Federal district court who, as the result of a recent adjustment, now earns, $136,700. Attached, as Appendix D, is a chart comparing actual growth in the salary of a justice of the Supreme Court with hypothetical growth of such a salary had it been pegged to increases in the Consumer Price Index since 1977.

In making comparisons between growth in the Consumer Price Index and judicial salary growth, one can argue that the measurement should be not from enactment of the Unified Court Budget Act, in 1977, but from 1967. The latter is the year considered by many as the appropriate base year for determining the true impact of late 20th century inflation upon the economy. Indeed, this was the view of the members of the 1988 Temporary Commission on Executive, Legislative and Judicial Compensation; and it was upon this view that they premised their recommendation that the State effectuate a seven-year program to make judicial salaries whole against the 1967 dollar.

The present Commission, however, has taken a more conservative approach and recommends 1977 as the appropriate benchmark. In making the substantial salary adjustments that comprised the 1979 judicial pay raise, including adjustments that were retroactive to 1978, the State was fixing salaries at what it believed to be reasonable levels. This being so, the success or failure to maintain judicial salaries should be measured from 1977. The Commission notes, however, that if 1967 were the benchmark, and if the salaries of Supreme Court justices had been adjusted for increases in the Consumer Price Index since that date, the salary of a justice of the Supreme Court would today be $172,790, or significantly higher than the level this Commission now recommends.

C. Comparison with the Federal Judiciary

Over the past nine years, the historic parity between the salaries of New York State and Federal judges has been lost, and there has been an increasingly wide gap between New York and Federal judicial compensation. The salaries of the judges of the Federal courts now exceed by a wide margin those of New York State judges in positions of comparable responsibilities. Not only is there this wide gap between Federal and State salaries, but Federal judicial salaries at every level exceed the salaries of even the highest ranking New York jurists. Federal district court judges earn more than every New York State judge, surpassing even the Chief Judge of the State of New York by $7700.

United States magistrate judges, who have a far more limited jurisdiction, are paid significantly more than justices of the New York State Supreme Court. In fact, magistrate judges now earn more than Associate Judges of the Court of Appeals. The salary of only one New York State judge, the Chief Judge of the State of New York, exceeds that of a U. S. magistrate judge, and then only by only a small margin.

The following comparisons illustrate the degree to which Federal and State salaries are now imbalanced:

Position Current Salary Amount by Which Federal Salary Exceeds State Salary Percent by Which Federal Salary Exceeds State Salary
U.S. District Court Judge $136,700 $23,700 more than NY Justices of
Supreme Court
21% greater than NY Justices of
Supreme Court
U.S. District Court Judge $136,700 $7,700 more than NY Chief Judge

6% greater than
NY Chief Judge

U.S. Magistrate Judge $125,764 $12,764 more than NY Justices of
Supreme Court

11% greater than
NY Justices of
Supreme Court

U.S. Magistrate Judge
$125,765
$725 more than Assoc. Judges of NY Court of Appeals .6 % greater than Assoc. Judges of NY Court of Appeals

These significant discrepancies in compensation between the Federal and State Judiciaries represent a dramatic departure from the past. (Attached, as Appendix E, is a chart comparing thesalaries of Federal judges and high-ranking State judges over the past three decades.) As recently as 1989, State judicial salaries were higher than Federal salaries. Over the prior 20 years, the salary differentials had remained fairly small, with New York State judicial salaries exceeding the Federal salaries for a number of those years.

In considering these salary discrepancies, the substantial, and growing, caseload of the New York State courts must be kept in mind. In 1996, almost 3.5 million new cases were filed in New York courts, over ten times more than the number of new filings in Federal district courts throughout the entire country.

D. Comparison to Growth in State Employee Salaries

The salaries of represented court employees have grown at a rate far surpassing that of the salaries of the justices of the Supreme Court. The former have grown by approximately 186%, an increase that exceeds the 176% increase in the cost of living over the same time frame. In contrast, the salary of Supreme Court justices has significantly trailed the cost of living index, with an increase of only 131% over 21 years. (Attached, as Appendix F, is a chart comparing actual growth in the salary of a justice of the Supreme Court with growth of such a salary had it been pegged to growth of the salaries of nonjudicial employees of the courts over the past 20 years.)

As a direct consequence of this disparity, there is a growing salary compression at the high end of the court system’s nonjudicial pay scale. Traditional salary relationships are being seriously distorted with the result that it grows increasingly difficult, if not impossible, for court managers to maintain employment relationships that fairly reflect levels of supervisory responsibility.

E. Comparison with Lawyer Pay

The Commission also examined the compensation of a sampling of lawyers in New York. Attached, as Appendix G, is a chart showing pay information provided the Commission concerning the compensation of partners in law firms and the compensation of senior attorneys employed as in-house legal staff in businesses and other non-law firm settings. This chart reveals that, across the sampling used, law partners in the 50 th percentile earned total cash compensation of more than$260,000 while law partners in the 75th percentile earned total cash compensation of nearly $446,000 — well beyond that earned by the local State trial judges before whom these lawyers could be expected to appear.

As for in-house legal staff in non-law firm settings, lawyers in the 50th and 75th percentiles earned an annual average base salary of $124,300 and $129,500 respectively, in the New York City metropolitan area and $111,900 and $116,600 respectively, in the upstate region. The average annual total cash compensation package for lawyers in the 50th and 75 th percentiles in the New York metropolitan area was $134,300 and $152,000 respectively, while the average annual total cash compensation for upstate lawyers in the 50th and 75th percentiles was $120,900 and $136,900 respectively.

The Commission notes that this wide disparity in compensation has led to the resignation of highly qualified members of the Judiciary.

F. Comparison with Other States

The Commission compared judicial salaries in New York with those paid by other states and finds the following: New York ranks fifth highest among the states in the salary it pays associate judges of its appellate court of last resort:

Florida $137,314
New Jersey $132,250
California $131,086
Illinois $126,578
New York $125,000
Pennsylvania $122,864
Michigan $121,727

New York ranks sixth highest among the states in the salary it pays associate judges of its intermediate appellate court:

New Jersey $124,200
Florida $123,583
California $122,893
Illinois $119,133
Pennsylvania $119,016
New York $119,000
Georgia $118,771
Alabama $114,615

New York ranks second highest among the states in the salary it pays judges of its trial court of general jurisdiction:

New Jersey $115,000
New York $113,000
Michigan $109,257
Pennsylvania $108,786
Florida $107,768
California $107,390
Illinois $101,875

The Commission notes that there is currently a bill pending in the New Jersey Legislature to substantially raise judicial salaries in that state.

In considering the salaries paid in other states, the Commission also notes that the cost of living in New York is significantly higher than in most of the rest of the nation.

V. Recommendations & Analysis

Based on the foregoing findings, the Commission unanimously recommends revision of the current judicial salary schedule, as follows:

Trial Court Judges

Judgeship Present Salary Proposed Salary $ Change % Change
NYS Supreme Court $113,000 $135,000 $22,000 19.5%
Court of Claims $113,000 $135,000 $22,000 19.5%
County Court $99,000-$113,000 $118,300-$135,000 $19,300-$22,000 19.5%
Family Court $99,000-$113,000 $118,300-$135,000 $19,300-$22,000 19.5%
Surrogate $99,000-$113,000 $118,300-$135,000 $19,300-$22,000 19.5%
NYC Civil Court $103,800 $124,000 $20,200 19.5%
NYC Criminal Court $103,800 $124,000 $20,200 19.5%
District Court $101,400 $121,200 $19,800 19.5%
City Court (FT) $89,945-$97,793 $107,500-$116,900 $17,555-$19,107 19.5%
City Court (PT) $4,829-$44,973 $5,771- $53,743 $942-$8,770 19.5%

Appellate Court Judges

Judgeship Present Salary Proposed Salary $ Change % Change
Court of Appeals, Chief Judge $129,000 $154,200 $25,200 19.5%
Court of Appeals, Associate Judge $125,000 $149,400 $24,400 19.5%
App. Div., Presiding Justice $122,000 $145,800 $23,800 19.5%
App. Div., Associate Justice $119,000 $142,200 $23,200 19.5%
App. Term, Presiding Justice $118,000 $141,000 $23,000 19.5%
App. Term, Associate Justice $115,500 $138,000 $22,500 19.5%

Attached, as Appendix A, is a chart that sets forth the specific salary recommendation for each judgeship, together with the number of judges affected and the fiscal impact of the specific recommended adjustments. Also attached, as Appendix B, is the text of implementing legislation to put these salary recommendations into effect.

In devising this salary schedule, the Commission was guided by a number of different considerations and factors. No one factor was determinative. All the factors, individually and in the aggregate, pointed the Commission to its conclusion. These factors are:

The value of judicial compensation has been seriously eroded.

The starting point for the Commission’s work was an understanding of the history of judicial salary adjustments. The Commission’s review of this issue lead to a number of fundamental observations:

Over the 21 years since enactment of the Unified Court Budget Act, the salaries of justices of the Supreme Court have grown at a significantly slower pace than the Consumer Price Index.

Attached, as Appendix D, is a chart comparing actual growth in the salary of a justice of the Supreme Court with hypothetical growth of such a salary had it been pegged to increases in the Consumer Price Index since 1977.

Not only have the five prior judicial salary adjustments failed to keep pace with inflation, but the manner and timing of the adjustments resulted in further loss to the judges. The history of judicial salary adjustment in New York is marked by double digit pay increases separated by long periods during which the economy changed and the value of a judicial salary progressively diminished. While judges may ultimately secure a pay increase that restores some value to their compensation, that increase invariably is prospective. The judges forever lose the use of the dollars lost to inflation during the lengthy gaps between pay raises.

To minimize this effect, and to reduce the dilemma whereby the longer the judges must wait between adjustments the larger the size of the adjustment they need, and the more difficult it becomes to adjust, judicial salaries should be addressed on a more regular basis. With no change since the increases approved in 1993, the Commission believes that the State can ill afford to wait any longer.

The marked imbalance between State and Federal judicial salaries is a matter of concern, and warrants an immediate adjustment of State salaries.

The Commission believes that, in view of their workloads and the circumstances of their office, justices of the State Supreme Court should enjoy salaries that at the very least approximate those received by judges of the Federal district courts. Historically that was the case for many years, with the Federal and State salaries in close parity, sometimes with State judges paid more and sometimes the reverse. With the stagnation of State judicial salaries in the face of the continued adjustment of Federal salaries, parity has been lost, and there is now a dramatic difference between State and Federal salaries:

The potential is there for even greater Federal-State imbalance if State judicial salaries are not adjusted soon, while Federal statutes provide for periodic review and adjustment of Federal judicial salaries. A number of highly respected New York jurists have resigned to accept appointment to the Federal bench, and members of the Commission know of others who seek currently such appointment. Failure to address the imbalance between the State and Federal salaries will only exacerbate this drain on the State judiciary.

The Commission believes that, within the limits of its resources, the State should strive to maintain the closest possible salary relationships between State judges and Federal judges. Precise comparisons between State and Federal judges are hard to draw. Nonetheless, in many ways service on the State bench would appear to be the more demanding task.

The number of cases filed in New York courts each year far outweighs -- by a factor of ten --the cases filed in Federal district courts throughout the entire country. In 1996, there were almost 3.5 million new cases filed in New York State courts, a number that has been steadily increasing, and that shows no sign of ebbing. Moreover, unlike Federal judges, who enjoy lifetime tenure, State judges serve limited terms and most must expend substantial personal funds on election and reelection campaigns. Likewise, their jurisdiction, while different in many particulars, generally is as broad as or broader than that of the Federal trial bench, and they must do their work with less staff assistance and in appreciably inferior courthouse facilities. While recognizing the Federal government’s significant ability to absorb the cost of continuing pay adjustments for its Judiciary, the Commission strongly believes that maintaining at least approximate parity is an important policy goal for the State, as it has been historically.

The salary compression between judges and nonjudicial personnel poses a serious problem.

The Commission is also concerned about the growing salary compression between judges and nonjudicial court personnel. Historically, nonjudicial court personnel have, through collective bargaining, received the same regular pay increases as the rest of the State workforce.

As the judges have not received a pay raise for years, while nonjudicial employees have continued to receive small but steady percentage increases and pay increments, the gap is rapidly closing. The Commission does not believe that this salary proximity is in the best interests of the Judiciary, or wise public policy.

The need to keep judicial salaries current is a matter of simple fairness to judges as supervisors responsible for overseeing the work of nonjudicial personnel, and, of course, as consumers, spouses and parents. Through the years, the State has evidenced a consistent willingness to increase represented employee pay levels at rates surpassing the rate of increase in the Consumer Price Index. Combined with the generally sluggish rate of growth in the judicial wage, which has only been about three-quarters of that of the Consumer Price Index, the fairly constant increase in the nonjudicial wage has had the effect of substantially changing salary relationships between court system supervisors and their subordinates. This is not fair to the judges, healthy from an administrative standpoint, or sound public policy.

A comparison to compensation of lawyers in the private sector justifies an increase in judicial salaries.

Compensation levels that lawyers in the private sector may command often are far in excess of those that judges receive, particularly for attorneys with the depth of experience we seek in our judges. On average, law firm partners in the 50th percentile earn a total cash compensation package of more than $260,000. See Appendix G. While public service requires some measure of financial sacrifice, a marked disparity between public and private salaries has an impact on the ability both to attract highly qualified judicial candidates and to retain highly experienced jurists. Those issues impact directly on the quality of the Judiciary.

The Commission recognizes that the distance between wages in the private sector and wages within the State’s ability to pay is so great, particularly in the State’s metropolitan areas, that it is unrealistic to expect that the former should be the benchmark for judicial compensation. Nonetheless, the Commission adds this cautionary note. It is not in the public interest when judges fall so low in the comparative compensation spectrum that there is erosion in the stature of judicial office. When it is common knowledge that relatively inexperienced associates in many law practices earn more than even senior appellate court judges, or that the judge presiding over a trial generally is the lowest-paid lawyer in a courtroom, there is a serious risk that the public will equate this with diminution in the importance of judicial office, and, at the same time, experience a loss in confidence in the ability of the judicial system fairly to administer justice.

A failure to adjust judicial salaries threatens the ability of the Judiciary to recruit and retain capable men and women to serve as judges.

Because of the factors examined above, particularly the failure of judicial salaries to keep pace with inflation, and the degree to which New York State salaries now fall behind Federal judicial and private compensation, the Commission fears that, if this pattern continues, New York’s long tradition of judicial excellence will be threatened. Many members of the Commission are aware of instances where very able lawyers who otherwise would be interested in judicial careers have rejected a judicial opportunity because of economic concerns. The Commission also notes the loss of New York judges both to the Federal bench and to private practice, which offer greater compensation.

While it may be difficult, if not impossible, to test the proposition empirically, it can hardly be challenged that were the State altogether to forego judicial salary adjustments, there will come a point where salaries will fall so low in relation to the economy and in comparison with salary levels paid in other jobs in the marketplace, that the quality of the Judiciary will suffer. The Commission believes that we may be perilously close to that point now. It is surely not in the public interest to test that possibility.

In reaching this conclusion, the Commission recognizes that New York State ranks high nationally in compensation of judges. As to trial courts of general jurisdiction, only New Jersey pays more than New York. In large part, New York’s place among the states reflects the fact that NewYork’s cost of living is higher than that of every other jurisdiction. More fundamentally, the Commission believes that there is a real connection between New York’s long tradition of outstanding jurists and the State’s willingness to meaningfully compensate those who serve. The Commission also believes that at the time of the enactment of the Unified Court Budget Act, State judicial salaries were set at an appropriate, but hardly generous, level. The failure to maintain that level of adequacy, measured either by inflation, parity with Federal judicial salaries, or any other benchmark, threatens the quality of this State’s Judiciary.

VI. Appendices

Appendix C

Summary of Findings of Prior Commissions on Judicial Compensation

The Evans Report

Chapter 55 of the Laws of 1979 directed that then Chief Administrative Judge Herbert B. Evans "investigate whether unreasonable disparity exists in the compensation of judges of the same rank in different parts of the state" and report his findings to the Legislature and Governor. His report concluded that there were glaring inconsistencies in the salary levels of judges of county-level and city-level courts; that those levels had never been subject to State standards; that the compensation disparities were the result of the former system of court funding by local government; and that continuation of these disparities was "neither necessary, desirable nor equitable." He then recommended a court merger, which would have the effect of eliminating most disparities. Absent court merger, the salary levels of the major trial courts should be equalized; prior to April 1, 1982, the Legislature should determine what differential, if any, should exist between county-level judges and justices of the Supreme Court; and the Legislature "should provide by law for automatic adjustments in judicial salaries related to changes in the cost of living."

None of the recommendations of the Evans Report was implemented.

The 1982 Report of the Temporary State Commission on Judicial Compensation

Chapter 881 of the Laws of 1980 directed another study of judicial compensation, this one by a Temporary State Commission on Judicial Compensation appointed by the Legislature and the Governor. This Commission was to study the issue of pay parity between judges and to determine adequate levels of judicial compensation. In its report, the Commission made several recommendations for adjustment in judicial pay, effective January 1, 1983. These recommendations were premised upon two basic conclusions. First, that, in determining appropriate levels of judicial compensation, New York should embrace a "competitive adequacy" standard. That is:

the judgment as to what level of pay is adequate should be based on whether a reasonable supply of well-qualified attorneys will make themselves available to become or remain judges in the courts concerned. The lowest pay which produces an adequate supply of well-qualified candidates for the various courts is the only pay level which is fair to State taxpayers; any higher pay would require unnecessarily high taxes.

Second, that there are significant differences in the cost of living in various areas of the State; and that it makes much more sense to adjust the salaries of judges who reside where it is more expensive to live to reflect that fact, rather than to establish a single salary for each office, which, while perhaps adequate in part of the State, might be inadequate or excessive in the rest of the State.

The principal recommendation was for establishment of a two-tiered salary schedule for each judicial office, the first tier to represent the base salary for the office and the second to be the base salary increased by a 16% locational increment to be paid judges of courts in the New York City metropolitan area and on Long Island. This recommendation was supplemented by a recommendation for percentage increases in the salaries paid judges of the appellate courts.

The Commission did not recommend establishing a procedure for periodic judicial pay review and adjustment. It eschewed statutory linkage to some form of inflation index, believing that the high inflation of the times was likely to end and not soon be repeated, and that introduction of such a procedure would only stimulate costly efforts to index other public sector salaries.

Finally, the Commission suggested that should the State not be disposed to follow its recommendations for salary reform, consideration should be given to improving judicial benefit programs as an indirect way of improving the compensation package.

None of the recommendations of the Temporary State Commission's report was implemented.

The 1988 Report of the Temporary State Commission on Executive, Legislative andJudicial Compensation

Chapter 263 of the Laws of 1987 established yet another Temporary State Commission, although this one was mandated to inquire into the adequacy of the salaries not just of judges but also of legislators and high-ranking Executive Branch officials. As part of its mandate, the Commission was directed to "[take] into account the overall economic climate, the levels of salaries received by other professionals in government and private enterprise and the ability of the state to fund increases in compensation." Further, it was instructed to "formulate a systematic and appropriate mechanism by which the state shall regularly review and adjust levels of pay received by the governor, [other statewide elected officials and high-ranking Executive Branch officials], members of the legislature and judges and justices..."

Insofar as its report applied to judges, the Temporary State Commission found that:

On the basis of these findings, the Commission recommended salary reforms for the Judiciary, including: (1) a seven-year program of salary adjustment so that salary levels would reflect 1967 values; and (2) a three-year program of adjustment of salaries so that all trial judges would enjoy full pay parity with State Supreme Court justices. The Commission also recommended that judicial compensation be among the subjects of inquiry of a permanent State commission on compensation. This commission, the members of which would be appointed by the Governor, the legislative leadership and the Chief Judge of the Court of Appeals, would be charged to review and periodically adjust the salary levels of high-level State government officials. It also would be responsible for development of a special salary system for the Judiciary that: (1) "rewards longevity on the court so that it can retain the services of its more experienced judges and justices"; and (2) includes "salary differentials for judges that [are] sensitive to the extraordinary costs of living in certain geographical areas of the state." Commission recommendations for adjustment would take effect within 90 days unless rejected by the Governor and the Legislature.

None of the recommendations of the Temporary State Commission's report was implemented.

The 1993 Report of the Temporary State Commission on Judicial Compensation

In 1992, the Governor, by executive order, directed establishment of yet another Temporary State Commission on Judicial Compensation. This Commission was charged with determining whether levels of judicial compensation were adequate, "taking into account the general economic condition of the State and other benefits currently available to the judiciary", and whether judges performing the same duties should be compensated uniformly. The Commission also was asked to examine and make recommendations as to "a permanent process to ensure that judicial pay levels remain adequate to retain and attract a supply of good candidates for all courts in the State at the minimum total cost to the public."

The Commission made its report in January, 1993. In this report, the Commission noted that "since 1987, inflation has seriously eroded the value of judges’ salaries; that the current levels of judicial compensation are therefore inadequate; and, that prompt remedial action should be taken." The Commission then recommended adjustment in the judicial salary schedule by varying amounts depending upon position — this adjustment to be phased in in four installments over 18 months beginning April 1, 1993. It further recommended establishment of an ongoing salary commission that "would ensure reasonable and regular salary adjustments; would eliminate the uncertainty and confusion that results from large catch-up adjustments; and would ensure the integrity and independence of the Judiciary."

The new salary schedule proposed by the Temporary State Commission was given effect. See L. 1993, c. 60.

Appendix D

Comparison:

CPI Growth vs. Judicial Salary Growth: 1977 - 1998

Date % Increase in CPI over Year through Preceding 12/31 Actual JSC Salary on Date

JSC Salary Had

It Been Adjusted By

CPI Increase on Date

3/31/77 ------------------------------- $48,998 $48,998
4/1/77 ------------------------------- $48,998 $48,998
1/1/78 6.7 $48,998 $52,281
1/1/79 9.0 $52,428 $56,986
1/1/80 13.3 $56,098 $64,565
1/1/81 12.5 $60,900 $72,636
1/1/82 8.9 $65,163 $79,101
1/1/83 3.8 $65,163 $82,106
1/1/84 3.8 $65,163 $85,226
1/1/85 3.9 $82,000 $88,550
1/1/86 3.8 $82,000 $91,915
1/1/87 1.1 $82,000 $92,926
1/1/88 4.4 $95,000 $97,015
1/1/89 4.4 $95,000 $101,284
1/1/90 4.6 $95,000 $105,943
1/1/91 6.1 $95,000 $112,405
1/1/92 3.1 $95,000 $115,890
1/1/93 2.9 $95,000 $119,251
1/1/94 2.7 $104,000 $122,470
1/1/95 2.7 $113,000 $125,777
1/1/96 2.5 $113,000 $128,921
1/1/97 3.3 $113,000 $133,176
1/1/98 (Est) 1.2 $113,000 $134,774

Appendix E

Comparison:

State Judicial Salaries and Federal Judicial Salaries: 1969 - 1998

Year U.S.
Sup. Ct.

Ch. J.
NYS
Court of
Appeals
Ch. J.
U.S.
Sup. Ct.
Assoc. J.
NYS
Court of
Appeals Assoc. J.
U.S.
Dist.

Court
NYS
Supreme
Court
1969 $62,500 $44,500 $60,000 $42,000 $42,500 $39,100
1975 $65,600 $63,143 $63,000 $60,575 $44,600 $48,998
1976 $68,800 $63,143 $66,000 $60,575 $46,800 $48,998
1977 $75,000 $63,143 $72,000 $60,575 $57,500 $48,998
1978 $79,100 $67,563 $76,000 $64,815 $60,700 $52,428
1979 $84,700 $72,292 $81,300 $69,352 $65,000 $56,098
1980 $92,400 $75,000 $88,700 $72,000 $70,900 $58,000
1981 $96,800 $78,750 $93,000 $75,600 $60,900
1982 $100,700 $84,263 $96,700 $80,892 $73,100 $65,163
1983 $100,700 $84,263 $96,700 $80,892 $73,100 $65,163
1984 $104,700 $84,263 $100,600 $80,892 $65,163
1985 $108,400 $95,000 $104,100 $92,500 $78,700 $82,000
1986 $111,700 $95,000 $107,200 $92,500 $85,700 $82,000
1987 $115,000 $120,000 $110,000 $115,000 $89,500 $95,000
1988 $115,000 $120,000 $110,000 $115,000 $89,500 $95,000
1989 $115,000 $120,000 $110,000 $115,000 $89,500 $95,000
1990 $124,000 $120,000 $118,000 $115,000 $96,600 $95,000
1991 $160,600 $120,000 $153,600 $115,000 $125,100 $95,000
1992 $166,200 $120,000 $159,000 $115,000 $129,500 $95,000
1993 $171,500 $124,500 $164,100 $120,000 $133,600 $104,000
1994 $171,500 $129,000 $164,100 $125,000 $133,600 $113,000
1995 $171,500 $129,000 $164,100 $125,000 $133,600 $113,000
1996 $171,500 $129,000 $164,100 $125,000 $133,600 $113,000
1997 $171,500 $129,000 $164,100 $125,000 $133,600 $113,000
1998 $175,400 $129,000 $167,900 $125,000 $136,700 $113,000

Appendix F

Comparison:

State Employee (Nonjudicial) Salary Growth vs. Judicial Salary Growth:

1977 - 1998

Date % Increase in NJ Wage on Date

Actual JSC

Salary on Date

JSC Salary Had It

Been Adjusted By NJ

Wage Increase on Date

3/31/77
----------------- $48,998 $48,998
4/1/77
5.0 $48,998 $51,448
10/1/77
3.8 $48,998 $53,403
4/1/78
5.0 $48,998 $56,073
4/1/79
7.0 $52,428 $59,998
4/1/80
7.0 $56,098 $64,198
4/1/81
6.4 $60,900 $68,307
4/1/82
4.5 $65,163 $71,381
10/1/82
4.31 $65,163 $74,457
4/1/83
5.0 $65,163 $78,180
9/1/83
4.76 $65,163 $81,901
4/1/84
5.0 $65,163 $85,996
9/1/84
4.76 $65,163 $90,090
6/13/85
5.0 $82,000 $94,594
4/1/86
5.5 $82,000 $99,797
4/1/87
6.0 $82,000 $105,785
6/23/88
5.0 $95,000 $111,074
4/1/89
5.0 $95,000 $116,628
4/1/90
5.5 $95,000 $123,042
4/1/93
4.0 $99,500 $127,964
4/1/94
4.0 $108,500 $133,082
10/1/94
1.25 $113,000 $134,746
4/1/96
2.0 $113,000 $137,441
4/1/97
2.0 $113,000 $140,190