A very important administrative question focuses on judicial compensation. Historically, increases in judicial compensation have been tied to increases in the compensation of other elected officials, such as legislators. As a result, there have been long delays in increasing judicial salaries as legislators wait until they deem it is politically feasible to act to increase their own, and other elected officials', salaries.
This has created the problem, experienced not only in Pennsylvania, but in other states and in the federal government, of judges having to ask legislators, whose actions they often must review in court, to raise their salaries. As a result, different proposals have arisen as to how to separate the judicial compensation process from the political process. In 2005, this issue came to a head in Pennsylvania.
In fall 2004, then Pennsylvania Chief Justice Ralph Cappy began the process of seeking a pay raise for Pennsylvania’s judges. Excluding annual cost of living increases, the judges had not received a pay raise in ten years. As part of this process, Chief Justice Cappy also proposed that judicial pay in Pennsylvania be pegged to compensation for members of the federal bench.
Under his proposal, judges would no longer be forced to come to the legislature seeking raises. Instead, when federal salaries for judges increased, state salaries would increase as well. And, Chief Justice Cappy’s plan did not propose a perfectly balanced compensation scale: it was not proposed that appellate and trial level state court judges receive the same salary as their counterparts on the federal district and appellate courts. Instead, state Supreme Court justices would receive the same salary as federal circuit court judges; intermediate appellate court judges in Pennsylvania would receive the same salary as federal district judges; and Common Pleas court judges would receive the same salary as federal magistrate judges.
This plan had much to recommend it. Pennsylvania judges had not regularly received pay raises; each time such a raise was sought it became tangled up with legislative pay raises. This new plan would enable the judges to maintain some independence from the legislative branch by eliminating the need for the judges to go “hat in hand” to the legislators. Instead, the compensation of state judges would increase on a par with that of federal judges.
Chief Justice Cappy’s request for a judicial pay raise and proposal of a new way to set judicial compensation was behavior typical of the leader of the judicial branch. Just as the Chief Justices of the U.S. and of other state courts must come as advocates for the judges and the courts, Chief Justice Cappy asked for a raise for his colleagues and proposed a plan for avoiding such awkward requests in the future.
It is difficult to explain exactly what happened next, because it did not happen during public hearings or open sessions of the legislators. Somehow, however, at the last moment, late at night, just before the legislature adjourned for the summer, broad legislation affecting compensation for members of all three branches of government, including the judiciary, was enacted. The ultimate result of all this activity, Act 44, raised compensation for all state judges, legislators and many executive branch officials. Chief Justice Cappy’s plan of tying the compensation of state judges to federal levels was accepted and adapted to apply to legislators as well.
In addition, one portion of Act 44 raised particular attention by the media, the public and several government watchdog groups after the fact: Although the state constitution prohibits legislators from raising their own compensation during their term (“No member of either House shall during the term for which he may have been elected, receive any increase in salary, or mileage, under any law passed during such term.”), the legislators inserted into Act 44 a provision enabling them to begin receiving the increased salary immediately in the form of “unvouchered expenses.”
Years earlier, in 1986, the legislature had also used unvouchered expenses as part of their increase in compensation. This measure had been challenged, and ultimately upheld by the Supreme Court in Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158 (1986). The Court in Consumer Party drew a distinction between salary and expenses, concluding that the use of unvouchered expenses did not constitute an increase in salary.
The reaction to the pay raise legislation, and the manner in which it was enacted, was sharp and immediate. Many in the media were angry, and the public was roused to action. Lawsuits were filed in federal and state court challenging the pay raise legislation.
During the fall of 2005, in response to the unrelenting attention and pressure of the media and the public uproar about the pay raise legislation, the legislature debated repealing it. In late fall, a week after judicial retention elections were held, the legislature finally resolved to repeal the pay raise legislation. Act 72 was passed and signed by the Governor on November 15, 2005.
Soon after the repeal became effective, several lawsuits were filed by judges across the Commonwealth challenging the constitutionality of the repeal as it related to judges. In addition to seeking to have the pay raises for judges reinstated, the lawsuits highlighted the critical need to separate judicial compensation from the legislative process. The suits were consolidated and were argued before the Supreme Court in early April 2006, along with activist Gene Stilp’s lawsuit challenging the original pay raise legislation.
The challenges to the repeal hinged on the provision of the Pennsylvania constitution that prohibits reducing a judge’s salary while he or she is in office: “Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.” The judges’ claim was based on the fact that although the repeal affected all officials who had received a raise through Act 44, some officials had not received such a raise and thus did not have their salaries reduced by the repeal.
In September 2006, Pennsylvania Supreme Court’s September 2006 decision in Stilp v. Commonwealth, struck down the 2005 repeal of the judicial pay raise and also found the remainder of the pay raise legislation void. In effect, only the judges maintained their increased salary levels. Unclear in the wake of the opinion was the status of the new pay structure linking judicial compensation to compensation for federal judges. Late in the legislative session during the summer of 2007, the General Assembly enacted legislation severing any such linkage, increasing judicial salaries by one dollar and making clear that judges would receive annual cost of living adjustments. The Governor signed the legislation.
PMC has published opinion pieces and been cited in articles in papers all over the state arguing that Pennsylvania must find a new way to set judicial compensation. PMC advocates using independent compensation committees to study compensation in the public and private sectors in Pennsylvania and judicial compensation in other jurisdictions and to recommend periodically compensation changes for Pennsylvania judges. We believe this represents the most viable way to detangle the issue of judicial compensation from the political arena and to ensure that reasonable, comparable data is used to set judicial compensation.
