MATTER OF MARON v. Silver

Smith, J. (dissenting).

I share my colleagues’ dismay at the Legislature’s behavior in dealing with, or rather failing to deal with, judges’ salaries, but I cannot agree that any of its actions or inactions are unconstitutional.

The majority holds that the Legislature has violated the separation of powers by its failure to consider judicial salaries “based upon an objective assessment of the Judiciary’s needs” (majority op at 259) or to give “appropriate respect and attention” to the needs of the judicial branch (majority op at 259). Undoubtedly, all branches of government should evaluate each other’s needs objectively and treat each other with respect, but I know no warrant for thinking that objectivity and respect are commanded by the Constitution. These qualities are so amorphous and subjective that they can provide no workable standard for constitutional decision-making.

As the Appellate Division in Maron put it, “nothing in the NY Constitution forbids the political branches from engaging in politics when carrying out their political functions” (Matter of Maron v Silver, 58 AD3d 102, 122 [3d Dept 2008]). Separation of powers is violated not when one of the three branches acts irresponsibly—that happens all the time—but when one threatens the place of another in the constitutional scheme. Thus I might well agree that separation of powers was violated if the actual or imminent effect of the Legislature’s conduct were to make the recruitment of competent judges impossible, or to render judges subservient to the other branches of government. I need not expand on this point; it is well explained both in the Appellate Division’s Maron opinion ( 58 AD3d at 116-123 ) and in Atkins v United States (556 F2d 1028, 1054-1057 [Ct Cl 1977], cert denied 434 US 1009 [1978]), a federal case involving facts much like those before us now.

Bad as the present situation is, neither of the disastrous conditions I have mentioned—a bench that cannot be filled with competent people, or one whose financial dependence makes it the slave of the Legislature—exists or is close to existing. It is a depressing truth that some of our finest judges have left, or are *265 thinking of leaving, their jobs because of the Legislature’s failure to deal with the salary issue; but it is also true that there are still plenty of able judges, and plenty of able people who would willingly become judges, even at today’s pay levels. And I have seen no evidence of judicial subservience to the Legislature; the problem, if there is one, is to restrain judges’ understandable displeasure with that branch of our government.

I would affirm the Appellate Division order in Maron, and would modify the orders in Larabee and Chief Judge to dismiss all claims in the complaints.

Judges Ciparick, Graffeo, Read and Jones concur with Judge Pigott; Judge Smith dissents and votes to affirm in a separate opinion; Chief Judge Lippman taking no part.

In Matter of Maron v Silver : Order modified, without costs, by remitting to Supreme Court, Albany County, for further proceedings in accordance with the opinion herein.

In Larabee v Governor of the State of N.Y.: Order modified, without costs, by granting judgment declaring that, under the circumstances of this case, as a matter of law, the State defendants’ failure to consider judicial compensation on the merits violates the Separation of Powers Doctrine, and by allowing for the remedy discussed in the opinion herein, and, as so modified, affirmed.

In Chief Judge of the State of N.Y. v Governor of the State of N.Y.: On plaintiffs’ appeal and defendants’ cross appeal, judgment of Supreme Court and order of the Appellate Division modified, without costs, by granting judgment declaring that, under the circumstances of this case, as a matter of law, the State defendants’ failure to consider judicial compensation on the merits violates the Separation of Powers Doctrine, and by allowing for the remedy discussed in the opinion herein, and, as so modified, affirmed.