Larabee v. Governor of State

• Decision Date: 10 July 2014
• Parties: Hon. Susan LARABEE, et al., Plaintiffs–Appellants, v. The GOVERNOR OF the STATE of New York, et al., Defendants–Respondents. 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, Amici Curiae.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 162

989 N.Y.S.2d 840

2014 N.Y. Slip Op. 05246

Hon. Susan LARABEE, et al., Plaintiffs–Appellants,

v. The GOVERNOR OF the STATE of New York, et al., Defendants–Respondents.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, Amici Curiae.

Supreme Court, Appellate Division, First Department, New York.

July 10, 2014.

Plaintiffs appeal from the order of the Supreme Court, New York County (Richard F. Braun, J.), entered September 14, 2012, which, upon renewal of their motion for summary judgment, declined to award them retroactive monetary damages.

Cohen & Gresser LLP, New York (Tom E. Bezanson, Alexandra Wald and Matthew V. Povolny of counsel), and George Bundy Smith & Associates, P.C., New York (George Bundy Smith, Sr. of counsel), for appellants.

Eric T. Schneiderman, Attorney General, New York (Mark H. Shawhan and Richard Dearing of counsel), for respondents.

Stroock & Stroock & Lavan LLP, New York (Joseph L. Forstadt, Alan M. Klinger, Ernst H. Rosenberger, Burton N. Lipshie, Jerry H. Goldfeder and Linda M. Melendres of counsel), for amici curiae.

The order of the Supreme Court, New York County (Richard F. Braun, J.), entered September 14, 2012, which, upon renewal of plaintiffs' motion for summary judgment, declined to award plaintiffs retroactive monetary damages, should be affirmed, without costs.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered September 14, 2012, affirmed, without costs.

PETER TOM, J.P., JOHN W. SWEENY, JR., DIANNE T. RENWICK, JJ., concur.

TOM, J.P. concurs in a separate Opinion, SWEENY and RENWICK, JJ. concur in a separate Opinion by SWEENY, J., and ANDRIAS and FREEDMAN, JJ. dissent in an Opinion by FREEDMAN, J.

TOM, J.P. (concurring).

I agree with the concurrence that defendants have not violated the ruling of the Court of Appeals in the consolidated appeals addressed in Matter of Maron v. Silver, 14 N.Y.3d 230, 899 N.Y.S.2d 97, 925 N.E.2d 899 (2010), although I write to address additional concerns.

The background facts are set forth in the writings of the concurrence and the dissent and, in greater detail, in this Court's prior decision in Larabee v. Governor of State of N.Y., 65 A.D.3d 74, 880 N.Y.S.2d 256 (1st Dept.2009) and the Court of Appeals ruling (14 N.Y.3d at 230, 899 N.Y.S.2d 97, 925 N.E.2d 899). For present purposes, plaintiffs contend, in effect, that the Court of Appeals decision, having found that New York State judges' compensation lagged considerably in recent years, and also that the legislature acted unconstitutionally in how it respondedto the growing inadequacy of judicial salaries, implied a basis for complete recovery retroactive to when the legislature initially failed to establish adequate salaries. Plaintiffs seek, in the present actions, an order awarding them as money damages such compensation as they would have received had cost of living increases been imposed for them dating back to January 1, 2000. However, since plaintiffs' reading of the Court of Appeals decision is inconsistent with the actual text, and I conclude that the remedy they seek is not achievable, I would affirm Supreme Court's order dismissing plaintiffs' claims.

There is no lingering question whether the legislature acted properly during the time period when judges' salary remained stagnant for years—it did not—nor was there any serious controversy regarding the merits of an increase in judicial compensation. Now that the legislature has acted, the issue presented is whether the pay increases that were authorized were themselves constitutionally deficient. However, plaintiffs are conflating an understandable lack of satisfaction with the financial outcome with an analysis more properly relegated to the constitutionality of the process. Relatedly, we are constrained by the text of the Court of Appeals decision, in Maron, which analyzed the prior process in terms of the conflict between the legislature's constitutional prerogatives, and its budgetary policies that are outside the purview of those boundaries.

In Maron, the Court of Appeals, although leaving intact this Court's declaration and its underlying analysis in Larabee v. Governor of State of N.Y., 65 A.D.3d 74, 880 N.Y.S.2d 256 (1st Dept.2009), supra, that the political linkage which the legislature substituted for an objective consideration of the merits of judicial compensation violated the constitutional doctrine of Separation of Powers, nevertheless modified our decision to the extent of eliminating the remedy wherein this Court directed the legislature to adjust judicial compensation to reflect the increase in the cost of living since 1998( id. at 100, 880 N.Y.S.2d 256). It would appear that the modification of this Court's attempt to devise a particular monetary remedy, retroactively tied to the cost of living, which plaintiffs similarly seek herein, was already rejected by the Court of Appeals.

Although the Court of Appeals discussed the omission of cost of living increases for judicial compensation, it did so in a purely descriptive, rather than prescriptive, context, and the introductory passages in the decision specifically rejected the recent history of inflation as a constitutionally compelling factor. Thus, there is no textual predicate for us to measure any remedy by such a specific economic factor. Therefore, to the extent that the dissent's suggested remand contemplates the employment of COLAs, or inflation, as components of what should be adequate compensation, it appears to be inconsistent with the Court of Appeals decision.

To the contrary, in its discussion of Larabee, the Court of Appeals articulated a concern that courts not intrude into the primary domain of the legislature—that of devising budgets and establishing judicial compensation—when fashioning specific remedies for the legislature's constitutional violations. The Court of Appeals underscored the constitutional delicacy of the judiciary intervening in the legislature's budgetary function, including that of evaluating the merits of particular compensation levels for judges, which should be undertaken only under the “narrowest of instances” (Matter of Maron, 14 N.Y.3d at 261, 899 N.Y.S.2d 97, 925 N.E.2d 899 [internal quotation marks omitted] ). Although no further elaborationwas provided as to which circumstances might warrant judicial intrusion into these core legislative functions, I do not find any basis for courts to fill that gap as the dissent proposes. The Court of Appeals offered as an extreme example the constitutional violation that would gradually arise were judicial salaries to be constricted to a century-old pay scale; that the example utilized was extreme suggests, I think, that the scope for judicial intervention is narrow indeed.

Limiting itself to finding that the chronic postponement after 2000 of a merit-based evaluation for judicial salary increases while unrelated political tactical considerations were advanced by the legislature was itself the constitutional violation, the Court of Appeals found that “we do not believe that it is necessary here to order specific injunctive relief” ( id. at 261, 899 N.Y.S.2d 97, 925 N.E.2d 899). Yet, directing the legislature to appropriate funds for retroactive compensation seems to be innately injunctive, notwithstanding that plaintiffs and the dissent frame the remedy as one for money damages.

In any event, the decision seemed to carefully circumvent the question whether a judicial pay increase was required, finding, rather, that the legislative process that avoided such a determination was constitutionally flawed. Hence, the Court of Appeals' decision was clear as to what the legislature must not do, but was equivocal as to what it then must do.

The remedy devised by the Court of Appeals was the declaration itself; the subsequent phrasing, “we presume that the State will act accordingly” ( Maron at 261, 899 N.Y.S.2d 97, 925 N.E.2d 899), set forth no specific directive. The further phrasing that “[w]e anticipate that our holding today will permit them to consider, in good faith, judicial salary increases on the merits” ( id. at 262, 899 N.Y.S.2d 97, 925 N.E.2d 899), was itself, also, aspirational rather than directive. Although the holding referenced “the remedy discussed in this opinion” ( id. at 264, 899 N.Y.S.2d 97, 925 N.E.2d 899), that remedy was declarative, and not injunctive, nor can I find any language in the decision to support an award of money damages. Although reserving to itself the right to determine “whether the [l]egislature has met its constitutional obligations in th[is] regard” ( id. at 263, 899 N.Y.S.2d 97, 925 N.E.2d 899), that general jurisdictional statement should yield to the specific finding, in the same sentence, that “[o]f course, whether judicial compensation should be adjusted, and by how much, is within the province of the [l]egislature” ( id. at 263, 899 N.Y.S.2d 97, 925 N.E.2d 899). This latter constitutional self-restraint by the Court of Appeals flows from its recognition in the Chief Judge branch of the holding that the adequacy of judicial salaries, considered apart from why a merit-based evaluation was so long delayed, “is best addressed in the first instance by the [l]egislature” ( id. at 262, 899 N.Y.S.2d 97, 925 N.E.2d 899), which is “in a far better position than the [j]udiciary to determine funding needs throughout the state and priorities for the allocation of the State's resources” ( id. at 261, 899 N.Y.S.2d 97, 925 N.E.2d 899, quoting Campaign for Fiscal Equity, Inc. v. State of New York, 8 N.Y.3d 14, 29, 828 N.Y.S.2d 235, 861 N.E.2d 50 [2006] ).

Thus, I cannot read the consolidated Court of Appeals decision as directing the legislature to fund judicial compensation, retroactive or otherwise, at a specific level. Yet the dissent, in suggesting a remand,...