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Fight over judicial salaries raises separation of powers questions

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In today’s economy, having a job and getting a paycheck are two things that make most people thankful.

For those who hold judicial posts and are responsible for interpreting law and ensuring people’s constitutional rights are protected, salary issues can become a more complicated interaction between the different branches of government. Questions arise as to whether legislative or executive branch tinkering with judicial salaries interferes with the courts’ constitutional duties and infringes on judicial independence.

Those on the bench say inadequate pay increases can negatively strike the heart of the legal system – trampling morale among existing jurists and making the quality of justice suffer, as well as pushing potential jurists away from the bench for higher-paying positions in private practice.

“The judiciary should have independence and not be affected by the latest political trend as it was under the previous law,” said Vanderburgh Superior Judge Brett Niemeier. “There must be some check and balance… our system in the state ensures that.”

Judges statewide echo those sentiments about Indiana’s system, though in the federal system the question gets a little murky as Congress has failed through the years to provide a raise for those at any level of the judiciary.

Federal salaries

District Court judges currently make $174,000 a year, while Circuit Court judges earn $184,500, and full-time magistrates receive $160,080. That wage hasn’t been adjusted except for cost-of-living increases since 1989, when action was taken to bump up salaries between 35 and 40 percent.

Judicial pay since 1969 has only risen by 39 percent, while most federal workers have received a 91 percent increase during that period and inflation has risen 36 percent, according to figures from the Administrative Office of the U.S. Courts.

As a leader with the Federal Judges Association during the past decade, Judge Sarah Evans Barker has been a vocal advocate for judicial pay raises. She cites figures that show about 100 federal judges left the bench since 1990, many noting that financial considerations were a significant factor in that decision. Some have hung up their robes to take corporate counsel positions where they can earn more than $700,000 annually in salary, bonuses, stock, and overall compensation, Judge Barker said.

Whether the judiciary gets paid enough, and whether Congress has the authority to withhold increases as it’s done for years, are now questions being explored in the federal courts. The Supreme Court of the United States in late June sent Peter H. Beer, et al. v. U.S., No. 09-1395, back to the Federal Circuit Court of Appeals for a second look, providing a long-awaited decision on whatpay-factbox the nation’s highest justices would do with the case that has appeared 10 times on the justices’ private conference dockets.

Eight current and former federal judges from U.S. courts nationwide claimed that Congress in 1989 promised pay hikes but failed to deliver them several times during the past two decades, and that failure equates to an unconstitutional diminishment of judicial pay. The American Bar Association urged the SCOTUS to take the case because it views the continued diminution of judicial salaries as a danger to the judiciary’s independence and quality of work.

In January 2010, the Federal Circuit affirmed a 2009 ruling by the U.S. Court of Federal Claims, which dismissed the case after holding the judges’ lawsuit was controlled by a 2001 case that rejected the same argument.

In its order granting the Beer petition and vacating the Federal Circuit judgment, the SCOTUS said, “The Court considers it important that there be a decision on the question, rather than that an answer be deemed unnecessary in light of prior precedent on the merits. Further proceedings after decision of the preclusion question are for the Court of Appeals to determine in the first instance.”
 

barker-sarah-evans-2011-mug Barker

While the case doesn’t involve any past or present Indiana judges, those within the Hoosier legal community and federal judiciary are watching the appeal with interest. Judge Barker sees hope that it remains alive. She does wonder, though, if the judge-plaintiffs ultimately prevail at the Federal Circuit and then possibly at the SCOTUS level on the merits, whether the holding would apply to all judges nationwide or only those specific plaintiffs in this case.

That’s an open question at this point, she said.

“The case is teed up for a second look, and that means we’re still in the game,” she said. “There’s still hope.”

Indiana salaries

While the federal judicial officers await action on their salaries, the state courts have seen some progress. In mid-June, Indiana Chief Justice Randall T. Shepard approved the first pay hike in two years for state judges and prosecutors, whose salaries are tied to government employees. The 1.3 percent pay increase for judges and prosecutors came after Gov. Mitch Daniels made a decision late last year to approve that raise for government employees, and under the new budget the chief justice’s approval was required before the judiciary would receive that same pay raise.


Randall Shepard Shepard

“After two years of frozen salaries, it is altogether right that the pay raise afforded to the state’s executive branch employees in January should be given to judges and prosecutors and their families,” the chief justice said about the increase.

Although it took effect following the General Assembly’s latest session, the judicial pay raise was in danger earlier this year as lawmakers examined changing the judicial pay structure put into place in 2005. The House Ways and Means Committee-approved budget had prohibited prosecutors, judges, and state-funded magistrates from receiving any pay adjustments for two years regardless of whether state employees received an increase – a move that would have specifically reversed the 2005 statutory change that had been years in the making.

But after Justice Steven David testified about that issue, the Senate ultimately pushed a revised bill that ended up being passed into law.

“We seek no special treatment for the men and women who serve as judicial officers and prosecutors across this great state and who administer the people’s business in the local courthouses,” Justice David told lawmakers in March. “We only ask that they be treated in the upcoming biennium in the same way that the Legislature and governor intended and agreed that they would be treated in the 2005 legislation.”

Marion Superior Judge Robyn Moberly said judges and prosecutors used to wait many years for a pay adjustment, and the size of those increases was significant because they were so few and far between. That’s not the best way to attract qualified candidates to the bench, and that caused undue hardship on the families of many serving in the justice system, she said. She thinks the current judicial pay system that ties increases to other state-funded employees works the best.

In Vanderburgh County, Judge Niemeier said having the executive branch involved rather than the Legislature is a good system, and that’s been proven during the past two years when judges didn’t receive raises at a time when the state simply couldn’t afford them.

“Judges are public servants, along with other governmental employees, and we must accept that at times we will do more for less,” he said. “The slight raise we received this year should be greatly appreciated, knowing that times are still very tough.”•
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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