Trimming NY Judge's Pay Seen as Abuse of Power

By John Caher
New York Law Journal
New York Lawyer
January 24, 2007

ALBANY - In a powerful declaration of judicial independence, an appellate panel in Albany reluctantly yet forcefully ordered an upstate town board to increase the salary of its town judge.

The Appellate Division, Third Department, took offense with a town board that set the salary of a newly elected judge at $500, or $7,000 less than the town's other justice, and suggested that it would increase the pay if the novice's performance was satisfactory.

"Permitting the governmental branch holding the purse strings to evaluate the performance of the judiciary and dole out pay based on those evaluations is particularly disturbing," Justice Anthony T. Kane wrote for the 5-0 panel. "A real threat strikes at the heart of judicial independence if the judiciary must cater to the ideological whims of the legislature or personally suffer financial consequences for rendering legally correct but unpopular decisions."

Justice Kane said that while the Third Department would "not lightly involve this Court in [the town board's] legislative actions," the board's "abuse of its power on a constitutional level requires our intervention."

Kelch v. Town Board of the Town of Davenport, 500895, is rooted in small-town politics. (The Delaware County municipality has a population of around 2,800).

In October 2003, one of the town's two part-time town justices, Herman Riese, left the position about halfway though his four-year term. The following year, Britt Kelch circulated a petition to be placed on the November 2004 ballot as the Democratic candidate for the position vacated by Justice Riese. The town board promptly eliminated one of the justice positions in a resolution later approved at public referendum. One of the judgeships was to be eliminated as of Jan. 1, 2006, raising a legal question of which one would go.

Although the town clearly intended to eliminate the vacant spot, Supreme Court held that the person elected in November 2004 would be entitled to a four-year term. Mr. Kelch prevailed. After the election, the town board, which had allocated $10,000 to judicial salaries, increased the salary of the other town justice, who still had one year remaining in his term, to $7,500 from $5,000. But it set Justice Kelch's salary at $500. The lower court noted it had not paid less than $2,900 for any justice in the previous 25 years.

Justice Kane and the Third Department characterized the case as one illustrating the "tension between competing legal principles, both based on the separation of power." He said that the judiciary, as a coequal branch, normally will not interfere with the operations of the political branches, absent "fraud, corruption, oppression, illegality, unconstitutionality or a violation of public policy." Here, however, he said such concerns were implicated, warranting judicial intervention.

"We are presented with a situation in which either the judiciary, in the guise of this Court, must interfere with actions of the legislative branch, or we must allow respondent, as a legislative body, to affect the independence of the judiciary by fixing [Justice Kelch's] salary at only $500 per year," Justice Kane wrote.

Justice Kane made clear that the town had every right to establish different salaries for its two judges, "especially considering that the other justice had more experience." But he found no legitimate reason for setting Justice Kelch's salary at "less-than-minimum wage" and at one-15th that paid to his colleague.

"As [the town board] acted in a manner likely to affect or impinge upon the independence of the judiciary, we grant a judgment declaring that respondent's legislative action in setting petitioner's salary at $500 per year violated the NY and US Constitutions," Justice Kane wrote. "Respondent is thus required to reconsider petitioner's salary and set an appropriate amount . . . retroactive to his first day in office."

The judge's attorney, Carol Malz of Oneonta, said she would have preferred an order directing the town to pay her client a specific salary, but is gratified that "the court agreed that there was a separation of powers interest here, and that they found it was a violation of the Constitution for the board to do what it did."

Richard B. Spinney of Stamford, counsel for the town board, said the court's message is clear.

"They are saying the legislative branch can't underfund the judicial branch," Mr. Spinney said. "That is the bottom line."

Mr. Spinney said that with the small amount of money at stake he doubted the town would seek leave to appeal.

Joining Justice Kane were Justices Karen K. Peters, Carl J. Mugglin, John A. Lahtinen and Robert S. Rose.

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