NY’s Top State Judges Sharply Question Own Benefits

MANHATTAN (CN) — Taking judicial independence to a new level, New York’s top appellate judges were critical Wednesday of a challenge involving their own health insurance premiums.

If health insurance contributions count as “compensation,” Judge Jenny Rivera wondered, “then where do we draw the line?”

Thirteen sitting and retired state jurists brought the underlying challenge in the wake of the post-recession belt-tightening by Albany lawmakers.

With the government fighting to reduce its contributions to state employees’ insurance plans, the judges claim that doing so would violate the compensation clause of the New York Constitution.

This law holds that “the compensation of a judge … or of a retired judge … shall be established by law and shall not be diminished during the term of office for which he or she was elected or appointed.”

Perhaps demonstrating their own fair-mindedness at oral arguments Wednesday, Rivera and the other six judges with the New York Court of Appeals appeared to a dim view of the more expansive definition of the term “compensation” put forward by the challengers.

“Your position is that ‘compensation’ includes wages, includes benefits, and it includes this particular contribution that you’re talking about,” Rivera asked warily.

Alan Klinger, who represents the judges challenging the state, meanwhile focused on distinguishing judges from other classes of state employees.

“The crux of the state’s argument is, ‘Judges are employees and should be treated the same way,” Klinger said.

“You are not,” the attorney added. “You are judicial officers.”

New York’s Assistant Solicitor General Judith Vale earned praise from Judge Eugene Fahey at the hearing when she acknowledged that pensions could be considered as compensation.

“I think it’s correct that pensions can be considered compensation,” he said.

Thus far the government’s attempts to quash the case have been unsuccessful.

In affirming a ruling for the judges, the Appellate Division, First Department, noted that the state constitution was designed to protect judges, who cannot collectively bargain for their economic interests.

“The judiciary had no power to negotiate with the State with respect to the decrease in compensation, and received no benefit from the no-layoffs promise, because their terms of office were either statutorily or constitutionally mandated,” the appellate court found.

Vale, the assistant solicitor general, argued that the change in state’s insurance contributions treated judges fairly because the same changes affected all state employees.

“Such even-handed price increases do not violate the compensation clause,” she said.

Klinger countered that there was a good reason that the state constitution treats judges differently.

Quoting Alexander Hamilton, the attorney said: “Power over a man’s subsistence is power over his will.”

Citing the health insurance opt-out program, Klinger noted that judges could collect higher wages by not signing up for that state benefit, which he argued was evidence that it should count as compensation.

The assistant solicitor general insisted that the two are disconnected.

“The opt-out payment is not connected to the price of premiums, really,” Vale said. “What it is is a separate incentive program to not take the state’s insurance program to begin with.”

At times appearing to collectively bargain against their own interests, the seven-member panel ended the hearing without issuing a ruling over the fate of their benefits.

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