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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. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

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  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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