Hon. Susan Larabee, et al., Appellants,v.The Governor of the State of New York, et al., Respondents.BriefN.Y.March 23, 2016 NY 75495795 Court of Appeals S t a t e o f N e w Y o r k _________________ 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. BRIEF OF AMICI CURIAE: THE ASSOCIATION OF JUSTICES OF THE SUPREME COURT OF THE STATE OF NEW YORK, THE SUPREME COURT JUSTICES ASSOCIATION OF THE CITY OF NEW YORK, INC. AND THE NEW YORK STATE ASSOCIATION OF CITY COURT JUDGES STROOCK & STROOCK & LAVAN LLP Of Counsel: Ernst H. Rosenberger Burton N. Lipshie Dina Kolker Lee M. Leviter Joseph L. Forstadt Alan M. Klinger 180 Maiden Lane New York, New York 10038 (212) 806-5400 Counsel for Amici Curiae New York County Clerk’s Index No. 112301/07 Printed on Recycled Paper -i- NY 75495795 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 INTEREST OF THE AMICI ..................................................................................... 2 ARGUMENT ............................................................................................................. 3 POINT I: A SPECIFIC ORDER IS NECESSARY TO ENSURE THAT THE LEGISLATURE REMEDIES ITS VIOLATION OF THE SEPARATION OF POWERS DOCTRINE .............................. 3 A. The Salary Commission Law Improperly Constrains The Judicial Salary Commission To Provide Only Prospective Relief ................................................................................................... 4 B. This Court Has The Authority To Order Retroactive Relief From the Legislature ........................................................................... 6 CONCLUSION ........................................................................................................ 11 -ii- NY 75495795 TABLE OF AUTHORITIES Cases Page(s) Albermarle Paper Company v. Moody, 422 U.S. 405 (1975) .............................................................................................. 5 Campaign for Fiscal Equity v. State, 100 N.Y.2d 893 (2003) ................................................................................. 1, 6, 9 Campaign for Fiscal Equity v. State, 8 N.Y.3d 14 (2006) ............................................................................................... 9 Goodheart v. Casey, 521 Pa. 316 (1989) ............................................................................................ 7, 8 Matter of Klech v. Town Board, 36 A.D.3d 1110 (3d Dep’t 2007) ........................................................................ 10 Larabee v. Governor, 121 A.D.3d 162 (1st Dep’t 2014) ......................................................................... 5 Larabee v. Governor, 20 Misc.3d 866 (Sup. Ct. N.Y. Cnty. 2008), aff’d, 65 A.D.3d 74 (1st Dep’t 2009), aff’d, 14 N.Y.3d 230 (2010) ..................................................... 3 Maron v. Silver, 14 N.Y. 3d 230 (2010) .................................................................................passim McCleary v. State, No. 84362-7, 2014 Wash. LEXIS 898 (Wash. Sept. 11, 2014) .......................... 10 New York County Lawyers’ Association v. State, 196 Misc.2d 761 (Sup. Ct. N.Y. Cnty. 2003) appeal withdrawn, 2 A.D.3d 1489 (1st Dep’t 2003) ............................................................................ 10 Pennsylvania State Association of County Commissioners v. Commonwealth., 545 Pa. 324 (1996) .................................................................................... 2, 6, 7, 8 Weissman v. Evans, 56 N.Y.2d 458 (1982) ........................................................................................... 5 -iii- NY 75495795 Statutes Salary Commission Law, L. 2010, ch. 567 ............................................................ 4, 5 Other Authorities Legislation and Regulations, Campaign for Fiscal Equity, http://www.goodflow.net/static.php?page=legislation_and_regulati ons&category=our_work (accessed on Nov. 18, 2014) ..................................... 10 NY 75495795 PRELIMINARY STATEMENT For over a decade, the New York State Legislature had unconstitutionally subordinated the reasonable compensation needs of the Judiciary to its own political machinations, denying the Judiciary needed and deserved salary increases. Now, four years after this Court in Maron v. Silver, 14 N.Y. 3d 230 (2010) directed the Legislature to devise an appropriate remedy to cure its unconstitutional conduct, the sitting members of the Judiciary have not been awarded any reimbursement for lost pay, and retired judges and justices have received nothing at all. The Legislature’s response to the Court’s finding was the passage of the Salary Commission Law, L. 2010, ch. 567, which specifically denied authority to the Salary Commission to award any retroactive pay. Hence, the Legislature’s attempt at compliance has proven constitutionally deficient. Clearly, more specific direction from this Court is now warranted. This Court has the authority to direct the Legislature to provide retroactive relief, as is appropriate here. As was made clear in Campaign for Fiscal Equity v. State, 100 N.Y.2d 893 (2003), the Judiciary is charged with ensuring that all governmental bodies, including the Legislature, act in accordance with the State Constitution. In Pennsylvania, where the state scheme for funding the Judiciary also gave rise to constitutional violations, its highest Court recognized that ordering the payment of public funds is appropriate when the Legislature has been -2- NY 75495795 unwilling to undertake such actions on its own. Pennsylvania State Ass’n of Cnty. Comm’rs v. Commonwealth, 545 Pa. 324 (1996). Here, such an order does not intrude upon the Legislature’s authority where the Legislature is plainly delinquent in its constitutional obligations. The Association of Justices of the Supreme Court of the State of New York, the Supreme Court Justices Association of the City of New York, Inc. and the New York State Association of City Court Judges (collectively, the “proposed amici”) submit this brief because the Salary Commission Law did not empower the Salary Commission to redress the Legislature’s decade-spanning violation of the Separation of Powers Doctrine and because it is within this Court’s power to provide the remedy so sorely needed. INTEREST OF THE AMICI The issues raised in this proceeding are of significant and direct concern to the judges and justices of New York State. The Association of Justices of the Supreme Court of the State of New York is a statutory association representing all of the elected Supreme Court Justices of the State of New York. The Supreme Court Justices Association of the City of New York, Inc. is a membership corporation representing the elected Supreme Court Justices in the City of New York. The New York State Association of City Court Justices is a membership -3- NY 75495795 association representing the City Court Justices sitting in 62 cities outside of the City of New York. The proposed amici have the responsibility to advocate on behalf of their members, particularly on issues relating to compensation, pension benefits and issues that impact fundamental Constitutional principles such as the independence of the Judiciary and the Separation of Powers Doctrine. The outcome in this matter will directly affect the salaries and pension benefits of all of the Justices of the Supreme Court of the State and City of New York, and City Court Judges throughout New York State. Thus, the amici have a strong interest in ensuring that the Defendants comply with their Constitutional obligations to ensure that the Judiciary is, at long last, provided with appropriate relief. ARGUMENT1 POINT I A SPECIFIC ORDER IS NECESSARY TO ENSURE THAT THE LEGISLATURE REMEDIES ITS VIOLATION OF THE SEPARATION OF POWERS DOCTRINE In Maron v. Silver, this Court explained that the “Judiciary may intervene in the state budget only in the narrowest of instances, and we do not believe that it is necessary here to order specific injunctive relief.” 14 N.Y.3d at 261 (internal 1 The facts are set forth in the prior decisions of the courts below and this Court. See Larabee v. Governor, 20 Misc.3d 866 (Sup. Ct. N.Y. Cnty. 2008), aff’d, 65 A.D.3d 74 (1st Dep’t 2009), aff’d, 14 N.Y.3d 230 (2010). -4- NY 75495795 citations omitted). However true that conclusion may have been in 2010, injunctive relief is now appropriate and necessary where, as here, the remedy devised by the Legislature has failed to adequately redress its violation of the Separation of Powers Doctrine. A. THE SALARY COMMISSION LAW IMPROPERLY CONSTRAINS THE JUDICIAL SALARY COMMISSION TO PROVIDE ONLY PROSPECTIVE RELIEF As its response to this Court’s directive in Maron, the Legislature passed the Salary Commission Law, which empowered the Judicial Salary Commission to consider only prospective relief for sitting judges. Salary Commission Law §1(a)(ii), L. 2010, ch. 567, (charging the Judicial Salary Commission with determining whether judicial salaries should increase “commencing on the first of April of such years, following the year in which the commission is established”). Sitting and retired judges were denied any retroactive relief. The Salary Commission Law thus failed to cure the constitutional violations found by this Court. The Salary Commission Law instructed the Salary Commission to recommend a salary increase based upon the following factors: the overall economic climate; rates of inflation; changes in public- sector spending; the levels of compensation and non-salary benefits received by judges, executive branch officials and legislators of other states and of the federal government; the levels of compensation and non-salary benefits received by professionals in governments, academia and private and nonprofit enterprise; and the state’s ability to fund increases in compensation and non-salary benefits. -5- NY 75495795 Salary Commission Law, §1(a)(ii). While this basic direction represents an appropriate basis to consider future increases in judicial salary, markedly absent is any opportunity, much less requirement, for the Commission to consider judicial compensation on the merits and award back pay and pension base adjustments to remedy the Legislature’s ten years of unconstitutional conduct. This represents a fundamental flaw in the legislation: purely prospective relief does not suffice because the initial harm occurred over a decade ago and that aspect, to satisfy constitutional dictates, should be incorporated into appropriate relief. See Weissman v. Evans, 56 N.Y.2d 458, 467 (1982) (“[A] remedy should be coextensive with the wrong it is to redress.”); Albermarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (“[W]hen a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury.”). Without such relief, all judges who have retired since 2000 but prior to the most recent salary increase will not in any way benefit from the passage of the Salary Commission Law and have been left completely without recourse unless this Court provides the remedy. See Larabee v. Governor, 121 A.D.3d 162, 174 (1st Dep’t 2014) (“[P]ast and current members of the Judiciary are entitled to monetary damages as the only available remedy for the past violation.”) (Freedman, J., dissenting). Thus, while the Judicial Salary Commission Law purported to create a body politically independent from the Legislature and the -6- NY 75495795 Governor, the Commission’s powers were unconstitutionally constrained by the Legislature. The limitations inherent in the Salary Commission Law demonstrate that a specific order is “more promising, and ultimately less entangling for the courts, than simply directing the parties to eliminate deficiencies…” Campaign for Fiscal Equity, 100 N.Y.2d at 925. As discussed below, further action by this Court is warranted to remedy the decade-long violation of the Separation of Powers Doctrine. B. THIS COURT HAS THE AUTHORITY TO ORDER RETROACTIVE RELIEF FROM THE LEGISLATURE Other states have addressed the appropriate degree of court intervention in analogous circumstances. In Pennsylvania State Ass’n of Cnty. Comm’rs, 545 Pa. at 324, state judges brought suit against the General Assembly after its nine-year failure to comply with an order of the Pennsylvania Supreme Court to fund the court system through the state, rather than county legislatures. That Court found in favor of the plaintiffs, explaining that when the Legislature fails to comply with its directives as to the proper administration of the judicial branch, “the courts possess the inherent power to…direct payment therefor out of the public treasury.” Id. at 332. The Pennsylvania Supreme Court thus concluded that because “the General Assembly has failed to act within this extended reasonable period of time…a -7- NY 75495795 master will be appointed to recommend to this court a schema which will form the basis for the specific implementation to be ordered.” Id. at 333. The principles articulated in Pennsylvania are equally applicable here. This Court ordered the Legislature to remedy its decade-long violation of the Separation of Powers Doctrine in 2010, and the Legislature has awarded no back pay to sitting judges nor any relief at all to retirees who were also harmed by the Legislature’s unconstitutional acts during their period of active service. As explained in Pennsylvania State Ass’n, the Judiciary maintains the authority to direct payment of public funds when the Legislature “neglect[s] or refuse[s] to furnish funds, or sufficient funds, for reasonable judicial functions, and in consequence the efficient administration of the judicial branch of the government is thereby impaired or destroyed…” 545 Pa. at 332. Absent an order from this Court, the Legislature’s decade-long attack on the Judiciary’s independence will remain unredressed. Pennsylvania case law also suggests a possible avenue to provide a full remedy while still avoiding the “intrusion on the primary domain of another branch of government” that the Court was concerned about in Maron. In Goodheart v. Casey, 521 Pa. 316 (1989), state judges brought suit after a new statute reduced pension benefits for judges hired after 1974. Plaintiffs sought to compel a benefit increase and a declaratory judgment that the new retirement package was constitutionally “inadequate.” Id. at 321-22. The Supreme Court found in the -8- NY 75495795 plaintiffs’ favor and ordered that the State Employees Retirement Board provide post-1974 judges with benefits equal to those of the pre-1974 judges. In extending the pre-1974 benefits, the Court asserted its authority to “direct that the legislature adhere to its own mandate.” Id. at 328 It explained that “when the legislature fixed the rate of compensation for the judges of the various courts of common pleas prior to 1974, that rate carries with it the inference that it establishes the adequate compensation for that office.” Id. at 327 The Court applied the Legislature’s own prior determination as to “adequate” compensation for one group of judges in order to determine “adequate” compensation for a second group of judges. The above teachings suggest several possible remedies here. First, as in Goodheart, this Court could determine that the Federal benchmark identified by the Salary Commission as the basis for prospective relief should also be utilized as the basis for retroactive relief. Final Report of the Judicial Salary Commission, Ex. A, at 8 (“The Federal judiciary sets a benchmark of both quality and compensation.”). This Court could appoint a special master to calculate a retroactive award for the Judiciary based upon prevailing Federal salary rates during the relevant years, between 1999 and 2014. See Pennsylvania State Ass’n of Cnty. Comm’rs, 545 Pa. at 333 (appointing a special master to ensure that the state developed a constitutionally-adequate method for financing the Judiciary). Second, this Court -9- NY 75495795 alternatively could require the special master to rely upon the factors set forth in the Salary Commission Law in calculating a retroactive remedy. Indeed, in other contexts, this Court has directed the Legislature to take specific action to cure constitutional violations. In Campaign for Fiscal Equity, 100 N.Y.2d at 931, the Court concluded that the State was not fulfilling its constitutional obligation to provide a “sound basic education” in New York City. It also recognized that “[c]ourts are….well suited to interpret and safeguard constitutional rights and review challenged acts of our co-equal branches of government -- not in order to make policy but in order to assure the protection of constitutional rights.” Id. Thus, setting out the appropriate relief, the Court ordered the State to (i) “ascertain the actual cost of providing a sound basic education”; (ii) undertake reforms to ensure that “every school in New York City would have the resources necessary for providing the opportunity for a sound basic education”; and (iii) “ensure a system of accountability to measure whether the reforms actually provide the opportunity for a sound basic education.” Id. at 930. That directive was not in vain. In response to this Court’s Order, Governor Pataki created the New York State Commission on Education Reform, which ultimately estimated that New York City required an additional $1.93 billion in education funding. Campaign for Fiscal Equity v. State, 8 N.Y.3d 14, 27 (2006) (holding that the $1.93 billion figure is the “constitutionally-required funding for -10- NY 75495795 the New York City School District”). In 2007, the Legislature fulfilled its obligations by passing the Education Budget and Reform Act. L. 2007, Ch. 57. The law allocated $7 billion to state public schools, resulting in an additional $3.2 billion to New York City’s schools, and established certain accountability and transparency mechanisms to ensure that school districts utilized the funds appropriately. See Legislation and Regulations, Campaign for Fiscal Equity, http://www.goodflow.net/static.php?page=legislation_and_regulations&category= our_work (accessed on Nov. 18, 2014). See also Matter of Klech v. Town Bd., 36 A.D.3d 1110, 1113 (3d Dep’t 2007) (holding that respondent Legislature unconstitutionally set petitioner judge’s salary at $500, and ordering respondent to reach a new salary determination, retroactive to petitioner’s first day in office); New York County Lawyers’ Ass’n v. State, 196 Misc.2d 761, 786 (Sup. Ct. N.Y. Cnty. 2003) (requiring the State to raise wages for court-assigned attorneys to $90 per hour, following the Legislature’s failure to act in accordance with a prior determination that the existing rates were too low) appeal withdrawn, 2 A.D.3d 1489 (1st Dep’t 2003); McCleary v. State, No. 84362-7, 2014 Wash. LEXIS 898 at *2 (Wash. Sept. 11, 2014) (Washington Supreme Court holding the State of Washington in contempt after it failed to comply with an order to submit “a complete plan for fully implementing its program of basic education for each school year between now and the 2017-18 school year”). -11- NY 75495795 The relief set forth in Maron does not represent the upper limit of this Court’s powers. The options for this Court are myriad. Most crucial is that the Legislature receives greater direction to remedy its constitutional violations, once and for all. CONCLUSION Wherefore, amici curiae respectfully request that the Court grant leave for it to submit the instant brief in support of the Plaintiffs-Appellants’ appeal. Dated: New York, New York January 14, 2015 STROOCK & STROOCK & LAVAN LLP By: /s/ Joseph L. Forstadt Alan M. Klinger 180 Maiden Lane New York, New York 10038 (212) 806-5400 Counsel for Amici Curiae Of Counsel: Ernst H. Rosenberger Burton N. Lipshie Dina Kolker Lee M. Leviter