Hon. Susan Larabee, et al., Appellants,v.The Governor of the State of New York, et al., Respondents.BriefN.Y.March 23, 2016To be Argued by: THOMAS E. BEZANSON (Time Requested: 30 Minutes) APL 2014-00217 New York County Clerk’s Index No. 112301/07 Court of Appeals of the State of New York HON. SUSAN LARABEE, HON. MICHAEL NENNO, HON. PATRICIA NUNEZ and HON. GEOFFREY WRIGHT, Plaintiffs-Appellants, – against – THE GOVERNOR OF THE STATE OF NEW YORK, – and – NEW YORK STATE SENATE, NEW YORK STATE ASSEMBLY and THE STATE OF NEW YORK, Defendants-Respondents. REPLY BRIEF FOR PLAINTIFFS-APPELLANTS THOMAS E. BEZANSON ALEXANDRA WALD MATTHEW V. POVOLNY COHEN & GRESSER LLP 800 Third Avenue, 21st Floor New York, New York 10022 Tel.: (212) 957-7600 Fax: (212) 957-4514 Of Counsel: GEORGE BUNDY SMITH, SR. GEORGE BUNDY SMITH, SENIOR & ASSOCIATES, P.C. 549 West 123rd Street, Apt. 13F New York, New York 10027 Tel.: (212) 666-9732 Fax: (212) 957-4514 Attorneys for Plaintiffs-Appellants Dated: February 12, 2015 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 4 I. DEFENDANTS-RESPONDENTS CANNOT DISPUTE THAT THEIR CONSTITUTIONAL VIOLATION PERSISTS WITHOUT REMEDY ....... 4 A. Defendants-Respondents’ Attempt to Reduce the Scope of Their Constitutional Violation Is Unsupported By the Record in This Case ....................................................................................................... 4 B. Defendants-Respondents’ Conduct Following the Court of Appeals’ Decision Did Not Remedy Their Constitutional Violation ................................................................................................ 5 1. Preventing Future Harms Does Not Remedy Past Harms .......... 5 2. Silence Is Not A Statement of Intent .......................................... 6 II. Defendants-Respondents’ Defenses for Their Constitutional Violation Are Without Merit ........................................................................................... 7 A. The Court of Appeals Did Not Preclude Lost-Pay Monetary Damages In Its Prior Decision In This Case ......................................... 8 B. The Separation of Powers Doctrine Does Not Exempt Defendants-Respondents from Liability for Their Constitutional Violation .............................................................................................. 10 C. Defendants-Respondents’ Defense of Sovereign Immunity Is Unavailing ........................................................................................... 12 III. PLAINTIFFS-APPELLANTS’ CALCULATION OF MONETARY DAMAGES IS PROPER ............................................................................... 13 A. Plaintiffs-Appellants’ Damages Calculation Is Judicially Manageable And Supported By the Consistent Record In This Case ..................................................................................................... 14 Page ii B. Defendants-Respondents Have Waived Any Objections to Plaintiffs-Appellants’ Calculation of Damages .................................. 16 C. Defendants-Respondents’ Reliance on Inapposite Case Law Is Misplaced ............................................................................................ 18 1. Plaintiffs-Appellants Are Not Seeking Relief Under An Exclusive Statutory Provision ................................................... 18 2. Plaintiffs-Appellants Are Entitled to Monetary Damages for Defendants-Respondents’ Constitutional Violation Under New York Law ............................................................... 19 CONCLUSION ........................................................................................................ 21 iii TABLE OF AUTHORITIES Page(s) Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ............................................................................................. 18 Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012) ............................................................................ 14 Bingham v. New York City Transit Auth., 99 N.Y.2d 355 (2003) ........................................................................................... 12 Brown v. State, 89 N.Y.2d 172 (1996) .................................................................................... 19, 20 Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314 (1983) ........................................................................................... 18 CPC Int’l, Inc. v. McKesson Corp., 70 N.Y.2d 268 (1987) ........................................................................................... 18 First Int’l Bank of Israel, Ltd. v. L. Blankstein & Son, Inc., 59 N.Y.2d 436 (1983) ........................................................................................... 17 Helvering v. Hallock, 309 U.S. 106 (1940) ............................................................................................... 7 Hussein v. State, 81 A.D.3d 132 (3d Dep’t 2011) ........................................................................... 11 Kazel v. Kazel, 3 N.Y.3d 331 (2004) ........................................................................................ 9, 10 Larabee v. Governor, 14 N.Y.3d 230 (2010) ............................................................................... 1, passim Larabee v. Governor, 19 Misc. 3d 226 (Sup. Ct. N.Y. Cnty. Feb. 5, 2008) ............................................ 12 Larabee v. Governor, 20 Misc. 3d 866 (Sup. Ct. N.Y. Cnty. June 11, 2008) .......................................8, 9 Page(s) iv Larabee v. Governor, 65 A.D.3d 74 (1st Dep’t 2009) ...................................................................... 4, 5, 9 Larabee v. Governor, 121 A.D.3d 162 (1st Dep’t 2014) ............................................................. 5, passim Matter of Lehigh Portland Cement Co. v. Assessor of Town of Catskill, 263 A.D.2d 558 (3d Dep’t 1999) ......................................................................... 17 Matter of New York Public Interest Research Grp., Inc. v. New York State Dep’t of Ins., 66 N.Y.2d 444 (1985) .........................................................................................6, 7 Metz v. State, 20 N.Y.3d 175 (2012) ........................................................................................... 18 Nassau Point Prop. Owners Ass’n, Inc. v. Tirado, 29 A.D.3d 754 (2d Dep’t 2006) ........................................................................... 17 People v. Byrne, 77 N.Y.2d 460 (1991) ............................................................................................. 7 People v. Carroll, 3 N.Y.2d 686 (1958) ............................................................................................. 20 People v. Toms, 191 Misc. 2d 585 (Cnty. Ct. St. Lawrence Cnty. 2002) ....................................... 15 Rivera v. State, 205 A.D.2d 602 (2d Dep’t 1994) ......................................................................... 16 Solid Waste Agency of Northern Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) ............................................................................................... 7 Sommers v. Sommers, 203 A.D.2d 975 (4th Dep’t 1994) ................................................................. 15, 16 Szigyarto v. Szigyarto, 64 N.Y.2d 275 (1985) ........................................................................................... 12 Weissman v. Evans, 56 N.Y.2d 458 (1982) ........................................................................................... 18 Page(s) v Other Authorities New York State 2014-15 Enacted Budget Financial Plan ....................................... 11 Plaintiffs-Appellants Honorable Susan Larabee, Honorable Michael Nenno, Honorable Patricia Nunez, and Honorable Geoffrey Wright (collectively, the “Plaintiffs-Appellants”), respectfully submit this reply brief, together with the Record established in the court below, in further support of their appeal from the decision and order of the Appellate Division, First Department entered July 10, 2014, affirming the order of the Supreme Court, New York County (Hon. Richard F. Braun), entered September 13, 2012 (R. 346-83) which granted Plaintiffs- Appellants’ motion to renew, but upon renewal, denied Plaintiffs-Appellants any relief. (R. 11-19). PRELIMINARY STATEMENT Defendants-Respondents do not deny, excuse, or justify the 10 years of harm done to the judges and justices of this State. Instead, they deny any obligation to pay damages from the harm they caused. That harm continues to this day without remedy. There is no dispute that Defendants-Respondents violated the Separation of Powers doctrine of the New York State Constitution. There is also no dispute that the only action taken in response to this Court’s holding in Larabee v. Governor, 14 N.Y.3d 230 (2010) addressed future constitutional violations and did not remedy the 10-year violation found by this Court, as well as every other court that has ruled on the issue. The question now before this Court is simply whether 2 Defendants-Respondents should be allowed to evade this Court’s holding and fail to provide a remedy for their decade-long constitutional violation. In their brief, Defendants-Respondents mischaracterize Plaintiffs- Appellants’ positions rather than address them. Three examples reveal this flaw. First, Defendants-Respondents contend that Plaintiffs-Appellants presuppose a legal entitlement to pay increases under the New York State Constitution. See Brief for Defendants-Respondents (“Resp. Br.”) at 17-18. Such legal entitlement is not at issue in this case, but it is settled law that Defendants-Respondents violated the Constitution, causing harm that persists without remedy. Second, Defendants-Respondents argue that monetary relief cannot be provided because there is no way for the Court to assess how much the Legislature would have adjusted judicial compensation had it been considered. Id. at 17. Plaintiffs- Appellants are not requesting any such assessment, as the issue before this Court is Defendants-Respondents’ failure to pay damages for the harm caused by their constitutional violation found in the Court’s prior decision. Third, Defendants- Respondents assert that Plaintiffs-Appellants assume that the Legislature was required to increase judicial compensation to keep pace with inflation. Id. at 18. The only thing that Plaintiffs-Appellants have assumed, however, is that Defendants-Respondents were required to abide by the New York State 3 Constitution and remedy their 10-year violation of the Constitution pursuant to this Court’s decision. Damages provide that only remedy. Defendants-Respondents also attempt to avoid the issue before the Court with theories on sovereign immunity and new theories limiting private rights of action. None of these arguments address Defendants-Respondents’ failure to provide a remedy consistent with this Court’s holding. For the avoidance of any doubt, Plaintiffs-Appellants are not contending that the Legislature was required to enact retroactive compensation adjustments for the judiciary following the Court’s holding in Larabee. Nor do Plaintiffs-Appellants argue that the Compensation Clause of the New York State Constitution entitles them to perpetual cost-of-living adjustment such that judicial compensation tracks inflation. Rather, like any other plaintiff with a recognized claim against the State, Plaintiffs-Appellants are seeking monetary damages resulting from Defendants-Respondents’ constitutional violation. This Court must enforce its prior judgment in Larabee, holding Defendants- Respondents responsible for their constitutional violation. A constitutional violation of 10 years without remedy sets the dangerous precedent that this State’s constitution and this Court’s decisions can be disregarded without consequences. Defendants-Respondents’ constitutional violation deserves a remedy. Once again, Plaintiffs-Appellants and the judiciary turn to this Court to provide that remedy. 4 ARGUMENT I. DEFENDANTS-RESPONDENTS CANNOT DISPUTE THAT THEIR CONSTITUTIONAL VIOLATION PERSISTS WITHOUT REMEDY Defendants-Respondents contend that (1) their constitutional violation only occurred “from 2006 to 2008,” and (2) the Legislature “remedied the separation- of-powers violation” in 2010 with the creation of a judicial compensation commission that was statutorily limited in its authority to prospective increases in judicial compensation. Resp. Br. at 11-12. However, both of these assertions are flatly contradicted by the record in this case. A. Defendants-Respondents’ Attempt to Reduce the Scope of Their Constitutional Violation Is Unsupported By the Record in This Case After more than eight years of litigation and despite clear authority to the contrary, Defendants-Respondents now argue that their violation of the New York State Constitution occurred merely “from 2006 to 2008.” Resp. Br. at 11. This argument is based solely on an erroneous reading of the factual record provided by this Court in Larabee, and the award of damages recommended by the dissenting opinion in the Appellate Division, First Department (Freedman, J., dissenting). See id. It is a settled matter, however, that Defendants-Respondents violated the Separation of Powers doctrine of the New York State Constitution by linking judicial compensation to unrelated political matters from 2000 to 2009. See Larabee v. Governor, 65 A.D.3d 74, 82 (1st Dep’t 2009) (“The court [below] 5 found that the only reason why there had been no adjustment in judicial compensation during the past decade was the Legislature’s insistence on linking any judicial pay increase to a simultaneous legislative pay increase, with the result that if no legislative pay increase was implemented, judicial pay increases were likewise postponed.”) (emphasis added); see also Larabee, 14 N.Y.3d at 244 (recognizing that Defendants-Respondents’ constitutional violations over 10 years resulted in economic harm against Plaintiffs-Appellants).1 Indeed, this Court expressly recognized that “the real value of judicial salaries has declined by approximately 25% to 33%” during the more than 10 years in which Defendants- Respondents acted in contravention of the New York State Constitution. Larabee, 14 N.Y.3d at 244. Accordingly, Defendants-Respondents’ attempt to now limit the scope of their decade-long settled constitutional violation to two years is without merit. B. Defendants-Respondents’ Conduct Following the Court of Appeals’ Decision Did Not Remedy Their Constitutional Violation 1. Preventing Future Harms Does Not Remedy Past Harms Defendants-Respondents also contend that they remedied the constitutional violation recognized by the Court of Appeals’ decision in Larabee because “[t]he Legislature then gave judicial pay the required independent consideration.” Resp. 1 The concurring opinion in the Appellate Division, First Department (Tom, J.) likewise noted that the Court of Appeals recognized a constitutional violation dating back to 2000. See Larabee v. Governor, 121 A.D.3d 162, 165-66 (1st Dep’t 2014). 6 Br. at 10. This argument is simply not true. The State has an obligation to make good on the harm caused by Defendants-Respondents’ constitutional violation. Pursuant to this Court’s decision in Larabee, Defendants-Respondents were constitutionally obligated to construct a remedy for this constitutional violation. See 14 N.Y.3d at 263. Yet, the judicial compensation commission established by the Legislature following this Court’s decision in Larabee was empowered to recommend only prospective compensation increases for the judiciary, not retroactive adjustments. See R. 271-72 (Def. Aff., Ex. A (Chapter 567)). Thus, Defendants-Respondents neglected to remedy the constitutional violation recognized by this Court – they only prevented violations from occurring in the future. Though certainly proper, assurance that the same harm will not recur is cold comfort to judges who toiled for years under the burden of a constitutional wrong. 2. Silence Is Not A Statement of Intent Further, the Legislature’s silence with regard to providing a remedy for Defendants-Respondents’ constitutional violation cannot be interpreted as legislative consideration or judgment. It is axiomatic under New York law that legislative silence is not legislative intent. See, e.g., Matter of New York Public Interest Research Grp., Inc. v. New York State Dep’t of Ins., 66 N.Y.2d 444, 451 (1985) (“[W]e think it the more realistic course to decline to draw an inference of 7 legislative intent either way from the failure to act.”); People v. Byrne, 77 N.Y.2d 460, 468 (1991) (declining to infer legislative intent “in the face of legislative silence”); see also Solid Waste Agency of Northern Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 169 (2001) (stressing that the U.S. Supreme Court has exercised “extreme care” in presuming congressional acquiescence from silence); Helvering v. Hallock, 309 U.S. 106, 121 (1940) (Frankfurter, J.) (“[W]e walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle.”). Here, there is no evidence in the record that Defendants- Respondents considered redressing the 10 years of harm done to judicial compensation. And the silence of the Legislature on the issue cannot be interpreted as legislative consideration or judgment. As a result, Defendants- Respondents’ argument that their intent was to fully redress their constitutional violation through prospective relief fails both factually and as a matter of law. II. Defendants-Respondents’ Defenses for Their Constitutional Violation Are Without Merit Unable to explain their failure to address the constitutional violation recognized by this Court, Defendants-Respondents seek to justify their lack of a remedy for their constitutional violation on three grounds. First, Defendants- Respondents argue that this Court has already considered and rejected Plaintiffs- Appellants’ arguments with regard to monetary relief resulting from Defendants- Respondents’ constitutional violation. Second, Defendants-Respondents implicitly 8 contend that the Separation of Powers doctrine of the New York State Constitution exempts them from liability for their constitutional violation. Third, Defendants- Respondents imply that the principle of sovereign immunity precludes Plaintiffs- Appellants from seeking monetary relief against the State. Each of these purported justifications is without support and should be rejected as a matter of law. Indeed, taken together, Defendants-Respondents’ arguments turn the Separation of Powers doctrine on its head. A. The Court of Appeals Did Not Preclude Lost-Pay Monetary Damages In Its Prior Decision In This Case Defendants-Respondents continue to characterize the holding of the Court of Appeals in Larabee v. Governor, 14 N.Y.3d 230 (2010), as affirmatively precluding an award of lost-pay monetary damages for Plaintiffs-Appellants. Indeed, Defendants-Respondents assert that the holding of the Court of Appeals in Larabee “squarely rejected” Plaintiffs-Appellants’ argument for lost-pay monetary damages. Resp. Br. at 13. However, the series of inferences upon which Defendants-Respondents predicate their argument do not amount to a “rejection” of any monetary relief by the Court of Appeals. The first trial court (Lehner, J.) and the Appellate Division, First Department (Luis A. Gonzalez, P.J., Peter Tom, Eugene Nardelli, Karla Moskowitz, Diane T. Renwick, JJ.) previously found retroactive monetary damages to be an appropriate remedy for Defendants-Respondents’ constitutional violation. See Larabee v. 9 Governor, 20 Misc. 3d 866, 878 (Sup. Ct. N.Y. Cnty. June 11, 2008) (directing defendants to “remedy such abuse by proceeding in good faith to adjust the compensation payable to members of the judiciary to reflect the increase in the cost of living since such pay was last adjusted in 1998, with an appropriate provision for retroactivity” within 90 days of the court’s decision); Larabee v. Governor, 65 A.D.3d 74, 100 (1st Dep’t 2009) (finding that the lower court’s order “directing that the remaining defendants proceed in good faith to adjust judicial compensation to reflect the increase in the cost of living since 1998, with leave to apply for consideration of other remedies should the remaining defendants fail to act within 90 days, should be affirmed, without costs.”). When the Court of Appeals affirmed, as modified, these rulings, it did not address the issue of lost-pay monetary damages. See Larabee, 14 N.Y.3d at 263-64. Instead, the Court of Appeals modified the lower court’s decision by instructing the Legislature to remedy its constitutional violation, with the expectation that the Legislature would provide “appropriate and expeditious legislative consideration” that would be subject to judicial review. Id. at 263. The Larabee Court’s mandate to the Legislature was just that. Absence of discussion by the Court in Larabee regarding monetary damages cannot and should not be interpreted as an affirmative rejection of such damages. See, e.g., Kazel v. Kazel, 3 N.Y.3d 331, 335 (2004) (finding that the court “will not infer from silence 10 in the underlying trial record” the intent of the lower court); see also Larabee, 121 A.D.3d at 177-78 (Freedman, J., dissenting). The issue of Defendants- Respondents’ failure to provide retroactive relief for their decade-long constitutional violation is therefore open for resolution by this Court. Given the pernicious effects that Defendants-Respondents’ constitutional violation has had on Plaintiffs-Appellants and the judiciary, the time for such resolution is now. The 10 year wound has not been healed. B. The Separation of Powers Doctrine Does Not Exempt Defendants- Respondents from Liability for Their Constitutional Violation Defendants-Respondents acknowledge that the Court of Appeals specifically cautioned that “determining whether the Legislature has afforded judicial compensation the required merits-based consideration ‘is within the province of this Court.’” Resp. Br. at 14 (quoting Larabee, 14 N.Y.3d at 263). Defendants- Respondents also concede that “[t]here is no question that courts have authority to craft remedies and award monetary relief as a general matter.” Id. at 15. However, having acknowledged the Court’s authority, Defendants-Respondents construct out of whole cloth an inexplicable exception to providing a remedy for cases involving violations of the New York State Constitution. See Resp. Br. at 15-16. No such exception is recognized under New York law, and it is strange indeed to suggest that courts are somehow divested of the power to award damages precisely when the most precious rights are at stake. 11 Defendants-Respondents violated the New York State Constitution, resulting in Plaintiffs-Appellants having their compensation frozen for 10 years. To be clear, Plaintiffs-Appellants are not seeking now and have never sought to have the court direct the Legislature to enact any legislation. Rather, the State is obliged to pay damages for the harm it caused, and Plaintiffs-Appellants contend that the constitutional violation entitles them to economic damages. See Hussein v. State, 81 A.D.3d 132, 134 (3d Dep’t 2011) (allowing claims against State for constitutional violation to continue despite intertwinement with budgetary issues and public policy choices). In seeking relief for this constitutional violation, Plaintiffs-Appellants are not encroaching on the State’s budget-making authority any more than any plaintiff with claims against the State seeking monetary damages. 2 Therefore, Defendants-Respondents’ attempt to use the Separation of Powers doctrine – the very provision of the constitution that this Court held Defendants-Respondents to have violated – to preclude a remedy is simply baseless. 2 Moreover, the State continues to maintain a reserve of $2.055 billion for fiscal year 2015, which is more than sufficient to meet the approximately $312 million in damages sought by Plaintiffs-Appellants. See New York State 2014-15 Enacted Budget Financial Plan, http://publications.budget.ny.gov/budgetFP/2014-15EnactedBudget.pdf; see also R. 324-29; R. 339. 12 C. Defendants-Respondents’ Defense of Sovereign Immunity Is Unavailing Defendants-Respondents also seek to challenge Plaintiffs-Appellants’ entitlement to monetary relief by asserting that “the State is immune altogether from suits for damages under State law, except as it has consented to be sued – and the scope of the State’s waiver of sovereign immunity must be construed strictly.” Resp. Br. at 25. However, it is too late for Defendants-Respondents to argue now, for the first time, that they have sovereign immunity. See Bingham v. New York City Transit Auth., 99 N.Y.2d 355, 359 (2003) (“As we have many times repeated, this Court with rare exception does not review questions raised for the first time on appeal.”); see also Szigyarto v. Szigyarto, 64 N.Y.2d 275, 280 (1985) (refusing to consider defense not raised in the trial court). Thus, Defendants-Respondents have waived any argument under sovereign immunity principles before this Court. Further, even if considered, Defendants-Respondents’ sovereign immunity argument fails on the merits, as it is law of the case that Defendants-Respondents are the proper parties to this litigation. See Larabee v. Governor, 19 Misc. 3d 226, 239 (Sup. Ct. N.Y. Cnty. Feb. 5, 2008) (granting immunity to the Governor, but adding, “There is no dispute that the remaining defendants (the State of New York, the Senate and the Assembly) are proper parties . . . .”); see also Larabee, 14 N.Y.3d at 257. And it is inimical to the concept of Separation of Powers that one branch can simply declare itself immune from liability for violations. Accordingly, 13 Defendants-Respondents’ arguments regarding sovereign immunity fail as a matter of law based upon the clear record in this case. III. PLAINTIFFS-APPELLANTS’ CALCULATION OF MONETARY DAMAGES IS PROPER Defendants-Respondents contend that “there are simply no judicially manageable standards a court could apply to determine by how much the Legislature would have adjusted judicial compensation had it actually been considering judicial pay on the merits.” Resp. Br. at 17. However, Defendants- Respondents’ latest argument fails for three critical reasons. First, Plaintiffs- Appellants’ calculation of lost-pay monetary damages is judicially manageable and supported by the consistent record in this case. Second, Defendants-Respondents have waived any objections to Plaintiffs-Appellants’ calculation of lost-pay monetary damages, as this calculation has been provided repeatedly since at least as early as 2008 without any objection from Defendants-Respondents. Third, Defendants-Respondents’ reliance on case law in which plaintiffs were precluded from seeking monetary relief under statutory provisions is misplaced. Plaintiffs- Appellants are not seeking relief under any statutory provision, but are rather seeking monetary damages from Defendants-Respondents’ constitutional violation.3 3 Both Defendants-Respondents and the concurring opinion of the Appellate Division, First Department (Sweeny, J.) relied heavily on arguments under the Compensation Clause of the 14 A. Plaintiffs-Appellants’ Damages Calculation Is Judicially Manageable And Supported By the Consistent Record In This Case Throughout this case, Plaintiffs-Appellants have consistently provided the amount of damages and the method for its calculation. As an initial matter, Plaintiffs-Appellants provided Defendants-Respondents with a calculation of damages for each of the named-Plaintiffs-Appellants, using the Consumer Price Index to account for the lost economic value of compensation resulting from Defendants-Respondents’ constitutional violation. See R. 255-59. Subsequently, Plaintiffs-Appellants retained the accounting firm Eisner Amper LLP on a pro bono basis to quantify the amount of damages for all active and retired judges and justices from January 1, 2000 through December 31, 2009, and on or about January 26, 2012 provided a detailed description of the calculation and the method of calculation to Defendants-Respondents.4 See R. 334-40. Defendants-Respondents are wrong to suggest that this would entail guesswork or speculation as to what, if New York State Constitution and the holding of the United States Court of Appeals for the Federal Circuit in Beer v. United States, 696 F.3d 1174 (Fed. Cir. 2012). See Resp. Br. at 17-23; Larabee, 121 A.D.3d at 171-74 (1st Dep’t 2014). Such reliance is misplaced, as this is no longer a case involving the Compensation Clause and Plaintiffs-Appellants are not seeking a cost of living adjustment based upon a statutory provision. Plaintiffs-Appellants have accepted this Court’s decision with regard to their previous argument under the Compensation Clause; what is at issue here is the economic loss suffered by members of the judiciary when the value of their compensation eroded for 10 years as a direct result of Defendants-Respondents’ constitutional violation. 4 Plaintiffs-Appellants provided Defendants-Respondents with the calculations performed by Eisner Amper LLP for all affected judges on October 27, 2011. See R. 333. 15 anything, the Legislature may have done had they considered a remedy to Defendants-Respondents’ constitutional violation. It is not relevant, let alone not necessary, for the Court to consider what the Legislature might have done – it did nothing. The remedy is for this Court to consider and Plaintiffs-Appellants’ requested remedy is merely for damages – the lost value of judicial compensation frozen during the period in which Defendants-Respondents’ violation occurred. With the data provided by Plaintiffs-Appellants, the amount of monetary damages is evident and clear, again using the Consumer Price Index to account for the rate of inflation and the roster data to determine the exact monetary damages for each judge and justice. 5 New York courts may properly take judicial notice of the consumer price index and of government inflation statistics. See People v. Toms, 191 Misc. 2d 585, 589-90 (Cnty. Ct. St. Lawrence Cnty. 2002) (judicial notice of consumer price index proper when legislature failed to adjust compensation for counsel appointed to represent indigent defendants to account for sixteen years of inflation); see also Sommers v. Sommers, 203 A.D.2d 975, 976 (4th Dep’t 1994) (“It was proper for the court to take judicial notice of government inflation 5 Defendants-Respondents also contend that the differing opinions of amici and the dissenting opinions at the court below serve as evidence that discrepancies may exist with regard to the precise calculation of damages. See Resp. Br. at 17-19. No matter how Defendants-Respondents wish to cloud the issue, there can be no dispute that the Court recognized that Defendants- Respondents violated the New York State Constitution over the course of 10 years, resulting in economic harm to Plaintiffs-Appellants. See Larabee, 14 N.Y.3d at 244 (noting that “the real value of judicial salaries has declined by approximately 25% to 33%” during the more than 10 years in which Defendants-Respondents violated the New York State Constitution). 16 statistics because they are historical data that are readily and precisely verifiable.”). Thus, Plaintiffs-Appellants have provided a clear, consistent calculation of damages resulting from Defendants-Respondents’ constitutional violation. This Court, of course, has the power to award monetary damages and under these circumstances should do so. See Rivera v. State, 205 A.D.2d 602, 603 (2d Dep’t 1994) (noting that the power of the appellate courts “extends to making an appropriate award of damages” when the record is complete). If the Court believes that the calculation of the amount of damages needs further development in the trial court, Plaintiffs-Appellants are more than willing to return to the trial court for a hearing on damages. However, Plaintiffs-Appellants believe that this would be unnecessary. B. Defendants-Respondents Have Waived Any Objections to Plaintiffs-Appellants’ Calculation of Damages Defendants-Respondents contend that Plaintiffs-Appellants are not entitled to lost-pay monetary damages because no “judicially manageable” standards exist for calculating such damages. See Resp. Br. at 17. After more than seven years of silence during briefing and argument in this case, Defendants-Respondents cannot now object for the first time that the damages calculation consistently provided to them is “not judicially manageable.” Plaintiffs-Appellants’ calculation of lost-pay monetary damages is obvious and has been in Defendants-Respondents’ possession for at least over three years. See R. 320-21; R. 324-29; R. 330-31; R. 333. Indeed, 17 beginning at least as early as 2009, Plaintiffs-Appellants have consistently detailed their calculation of damages in written briefs on no less than four prior occasions.6 In addition, Plaintiffs-Appellants described the precise method of the calculation in their previous appellate briefing before this Court in 2009. Simply put, Defendants-Respondents have had multiple opportunities to challenge Plaintiffs- Appellants’ calculation of damages in written submissions and oral arguments throughout this litigation, but have not once elected to do so. As a result, the Court may properly conclude that Defendants-Respondents have effectively conceded the method of calculation and the amount of damages by abandoning its objections throughout the appellate process in this action. See First Int’l Bank of Israel, Ltd. v. L. Blankstein & Son, Inc., 59 N.Y.2d 436, 447 (1983) (refusal by Court of Appeals to consider issue, raised for first time on appeal, of amount of debt owed “because the issue might have been obviated by . . . an evidentiary showing” at the trial level); see also Matter of Lehigh Portland Cement Co. v. Assessor of Town of Catskill, 263 A.D.2d 558, 560 (3d Dep’t 1999) (finding a party’s failure to raise an issue in its appellate brief as “tantamount to abandonment or waiver of the issue”); see also Nassau Point Prop. Owners Ass’n, Inc. v. Tirado, 29 A.D.3d 754, 757 (2d Dep’t 2006) (finding party abandoned issue by failing to raise it on appeal). 6 Specifically, Plaintiffs-Appellants discussed their calculation of damages in their prior submission to this Court on November 20, 2009, in their reply submission to the trial court on June 16, 2011, and in their appellate submissions to the Appellate Division, First Department on March 1, 2013 and October 11, 2013, respectively. 18 C. Defendants-Respondents’ Reliance on Inapposite Case Law Is Misplaced 1. Plaintiffs-Appellants Are Not Seeking Relief Under An Exclusive Statutory Provision Defendants-Respondents attempt to buttress their argument that Plaintiffs- Appellants are not entitled to monetary relief by offering a litany of cases in which private rights of action were expressly limited under various statutory provisions. See Resp. Br. at 24-25. Each of the cases cited by Defendants-Respondents is wholly inapposite to the current matter before the Court, as all of the cases address whether plaintiffs had private rights of action under statutory provisions. See CPC Int’l, Inc. v. McKesson Corp., 70 N.Y.2d 268, 275-78 (1987) (finding no implied private cause of action for violations of the antifraud provisions of the Martin Act); Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 325-34 (1983) (violation of Taylor Law did not give rise to independent cause of action not expressly in statute); Metz v. State, 20 N.Y.3d 175, 180-81 (2012) (finding legislature did not establish a private right of action under Navigation Law).7 Here, this Court has already recognized a constitutional violation. Moreover, Plaintiffs-Appellants are not and have never argued that the statute creating the judicial compensation commission was unconstitutional. And Plaintiffs- 7 Significantly, Defendants-Respondents do not provide any legal authority directly refuting Plaintiffs-Appellants’ argument that, once recognized, an economic injury should be followed with a coextensive legal remedy. See Weissman v. Evans, 56 N.Y.2d 458, 467 (1982); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418-19 (1975). 19 Appellants have never argued that they have a private right of action pursuant to a statutory provision. What Plaintiffs-Appellants asserted, and proved, below was a violation of the Constitution itself, and injury to them as members of the judicial branch. 2. Plaintiffs-Appellants Are Entitled to Monetary Damages for Defendants-Respondents’ Constitutional Violation Under New York Law Defendants-Respondents concede that, as noted by the Court of Appeals in Brown v. State, 89 N.Y.2d 172 (1996), when certain requirements are met, a violation of the New York State Constitution may give rise to a private cause of action. See Resp. Br. at 27. Notwithstanding Defendants-Respondents’ blanket assertion to the contrary, Plaintiffs-Appellants meet the relevant Brown considerations for monetary damages resulting from Defendants-Respondents’ constitutional violation. First, as Defendants-Respondents’ conduct since this Court’s decision in Larabee has shown, declaratory judgment without monetary relief has not provided Plaintiffs-Appellants with any remedy. See Larabee, 121 A.D.3d at 178-79 (Freedman, J., dissenting). Defendants-Respondents’ inaction in providing a remedy for their constitutional violation has made clear that only monetary relief will ameliorate the injuries suffered by Plaintiffs-Appellants and the judiciary. Second, Defendants-Respondents’ violation of the Separation of Powers doctrine of the New York State Constitution was a violation of a self- 20 executing constitutional provision. Constitutional provisions are “presumptively self-executing” under New York law and Defendants-Respondents have offered no evidence to dispute the self-executing nature of the Separation of Powers doctrine. See Brown, 89 N.Y.2d at 186; see also People v. Carroll, 3 N.Y.2d 686, 690-91 (1958). Third, as demonstrated supra, no other remedy will suffice to deter future violations by Defendants-Respondents. Moreover, injunctive relief will not prevent future harm or violations of the Separation of Powers doctrine by Defendants-Respondents. Accordingly, Plaintiffs-Appellants are entitled to monetary damages as relief for the constitutional violation committed by Defendants-Respondents. CONCLUSION For the foregoing reasons, Plaintiffs-Appellants respectfully request the Court grant their appeal of the July 10, 2014 Order of the Appellate Division, First Department, award Plaintiffs-Appellants lost-pay monetary relief, and award such other relief as to the Court may seem fair, equitable, and just. Dated: February 12, 2015 New York, New York 21 COHEN & GRESSER LLP Thomas E. Bezanson Alexandra Wald Matthew V. Povolny 800 Third Avenue, 21 st Floor New York, NY 10022 Phone: (212) 957-7600 Fax: (212) 957-4514 Of Counsel: GEORGE BUNDY SMITH, SENIOR & ASSOCIATES, P.C. George Bundy Smith, Sr. 549 West 123rd Street, Apt. 13F New York, NY 10027 Phone: (212) 666-9732