Likelihood of Success

Ron Coleman’s pretty good blog

Judge grants himself raise, appoints himself king

Posted by Ron Coleman on June 11, 2008

The New York Law Journal:

Manhattan Supreme Court Justice Edward H. Lehner today gave the Legislature and Governor David A. Paterson 90 days to adjust the pay of the state’s 1,300 judges to reflect the rise in the cost of living since their last raise nearly 10 years ago.

Justice Lehner found that the Legislature and the governor had “unconstitutionally abused their power” by neglecting to raise judicial pay. He concluded in Larabee v. Governor, 112301/07, that the executive and legislative branches had violated the separation of powers doctrine by linking judicial pay to extraneous legislative issues such as raises for the legislators themselves and campaign finance reform.

Wow. It’s good to be the king!

The objection here, obviously, comes precisely from the concept of the separation of powers. I have not read the opinion, but it is astonishing to suggest that a judge can make a policy decision as to judicial pay — his own salary — and call what may very well be a very poor, an awful, a scandalous policy, “unconstitutional” as a basis for ordering a legislature to make what is obviously a legislative decision: Setting the pay of state employees, whether they wear robes or not.

Let’s see how this plays out. Considering that this litigation strategy has been more than endorsed by the Chief Judge of New York State, Judith Kaye, it’s hard to imagine how this judicial coup d’etat can be stopped.

On the other hand… what if the legislature doesn’t “obey”?

New York State seems to be on its way to achieving banana republic status.


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