cost-of-living raises for judges
By Anna Marie Kukec
Seven bar associations have united in a national effort to help restore cost-of-living adjustments (COLAs) for 20 federal judges and to protect judicial independence in the process.The bars signed onto an amici curiae brief filed in July 1998 in the case, Spencer Williams et al v. the United States, in the U.S. District Court in Washington, D.C. COLAs from 1993 through 1997 could total millions of dollars in back pay and raises for the judges. The court took the case under advisement after motions for summary judgment were argued in August.
The Chicago Bar Association began the effort, which snowballed until six other bar associations signed onto the brief. The others are: the Boston Bar Association, Illinois State Bar Association, Los Angeles County Bar Association, New York County Lawyers Association, Ohio State Bar Association and Philadelphia Bar Association. After the brief was filed, the Bar Association of San Francisco and the Connecticut Bar Association offered their support.
Constitutionality and the independence of the judiciary are at the heart of the case and are also prominent issues that concern the bars. The Spencer Williams lawsuit was filed in December 1997 alleging that 20 judges did not receive COLAS while other federal government employees did, in violation of the Ethics Reform Act of 1989. At issue were 2 percent raises for 1995 and 1996, and a 2.3 percent raise for 1997.
A month after the suit was filed, Congress approved a 2.3 percent increase for all federal employees, including judges, for the 1998 fiscal year.
However, when Congress announced a 3.6 percent increase for federal employees in fiscal year 1999, judges were excluded once again. The 1999 increase may become part of the current lawsuit, or a separate lawsuit later, notes Chicago lawyer Kevin Forde, who is representing the judges from across the country. The lead plaintiff, Spencer Williams, is with the U.S. District Court in San Jose, Calif. Other judges are from Florida, Georgia, Kentucky, Louisiana, Massachusetts, Missouri, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Texas, Washington, D.C., and Wisconsin.
"If the COLAs at issue in this case had been granted annually since 1993, appellate court judges who now earn $141,700 would be paid $159,800. District judges who now earn $133,600, would be paid $150,700," says Forde.
As part of the amici filing, the bars also relied on the 1994 American Bar Association House of Delegates resolution, which recommended that salary levels for the judiciary "should be reviewed on a regular periodic basis and adjusted to ensure that judicial salaries are not, in effect, diminished by increases in the cost of living." Also, in a 1997 report, the ABA’s Commission on Separation of Powers and Judicial Independence noted that the absence of such salary increases will lead to the judges’ dependence on legislators, an inability to attract and retain the best judicial candidates, and a danger of the bench being dominated by the independently wealthy.
"We tried to juggle all of the recommendations of the different bars. And we did, because everyone was willing to tell a united story," says Richard William Austin, a Chicago lawyer who coordinated the bars’ effort.
As counsel for the brief, Austin received formal written notification from each participating bar. He worked closely with bar committees or their general counsels to prepare the drafts and final version.
"This is a national issue that deals with the independence of the judiciary, and how Congress can hold compensation issues over the heads of the judges," Austin adds.
Both Forde and Austin are former presidents of the Chicago Bar Association. Forde also happens to be the counsel for the Federal Judges Association (which is not involved in the case). Austin’s experience came from filing a similar brief on behalf of the Chicago bar in the 1980 United States v. Will case. In Will, the Supreme Court granted two of four years in back pay to federal judges, totaling about $10 million, and about a $10,000 raise for each judge. Because of this background, Forde asked Austin to join the Spencer Williams case by coordinating the bar associations who wanted to sign onto the brief.
Bar officials are optimistic that the outreach to the bar associations and subsequent unity will help the effort. "Doing the brief in this way helped us to avoid 20 cooks in the kitchen. This coordinated approach is the best and the most reasonable," explains Terrence Murphy, Chicago bar executive director.
"The judges are underpaid and have increasing caseloads. . . . . Without an attractive or reasonable compensation plan, (the judiciary) cannot attract the best and the brightest. That’s the key to our litigation," he adds.
