In the March 25, 2013 issue of Michigan Lawyers Weekly, David H. Fink discusses the need to increase compensation for Michigan’s judges in the publication’s weekly Viewpoint feature. Scroll down to read the text of the article, or click the link to view the online version.

Case closed: It is time to pay our judges more than starting associates

By: David H. Fink

The last time judges in the state of Michigan were given a pay increase was 2002. Since then, the consumer price index has increased nearly 30 percent.

Over that same period, despite significant concessions, pay for nonelected state employees has kept pace with inflation. It is well past time for the legal community to engage in a serious discussion about judicial compensation, and it’s time for the state Legislature to recognize we cannot continue to underpay our judges.

As a commissioner serving on the State Officers Compensation Commission, I proposed a modest increase in 2011 in what we pay our state Supreme Court justices — a 3 percent increase in 2013 and a 3 percent increase in 2014.

Because the salary for all Michigan judges is tied to the salary of the Supreme Court justices, this proposal would have increased every judge’s pay commensurately. While a majority of my colleagues on SOCC supported this pay increase, it could only become effective with an affirmative vote by the state Legislature, and our elected legislators chose to take no action on SOCC’s determination.

Although SOCC is the constitutional body responsible for determining salaries for Michigan’s governor, lieutenant governor, secretary of state, attorney general, legislators and Supreme Court justices, a constitutional amendment that became effective in 2002 requires an affirmative vote of both houses of the state Legislature before any raise can become effective.

As a result, even modest raises for Michigan’s elected officials have been blocked by political posturing and demagoguery.

The best evidence of the ineffectiveness of this system is the fact that, since 2002, the only SOCC-recommended compensation change that has been implemented was a 10 percent reduction for the governor, lieutenant governor, secretary of state, attorney general, and members of the Legislature.

While the political calculus is clear, the justification for failing to act is harder to explain. It might be politically expedient for legislators to arbitrarily reject pay increases for judges, but how can they defend the fact that SOCC’s determination was dismissed without a single legislative hearing and without any public consideration or debate?

In fact, the only response by the Legislature consisted of a single statement by one legislative spokesperson.

So, what is the cost to the state of an underpaid judiciary? It is difficult to imagine our best lawyers aspiring to a position with a salary that not only never increases, but, in terms of real dollars, is decreasing every year.

Many law school graduates are offered first-year associate positions that pay more than we pay our trial judges — some are paid more than we pay our Supreme Court justices.

Over time, fewer hardworking, ethical attorneys who have families to support will be able to join the judiciary. Eventually, the only men and women who will aspire to state judicial positions will be the very wealthy, who can afford to work for below-average pay, and the very unsuccessful, who can’t do better in private practice.

While the Legislature should remedy this situation, they can hardly bear all of the blame. In this era of term-limited legislators, who have little time to become experts themselves, our lawmakers are dependent upon subject matter experts to explain the impact of legislative inaction.

Naturally, legislators look to the state Supreme Court and the State Bar for informed guidance on judicial pay. But, in 2011, neither of those institutions was ready to lobby in support of the SOCC determination.

The Supreme Court released a statement that “a freeze on judicial compensation for over a decade is not good public policy,” and the State Bar announced that “the court system will be undermined if judicial pay is allowed to stagnate indefinitely.” But, both the Court and the Bar elected not to support legislative approval of the SOCC determination.

Today, the clock is ticking. The pay increases adopted by SOCC for 2013 and 2014 are now off the table, but judicial pay for 2015 and 2016 is still an open question.

SOCC is scheduled to begin its deliberations April 10. Now is the time for people who believe in the importance of a strong and independent judiciary to make themselves heard. Attorneys who care about the judicial system we work in every day owe it to themselves, to their profession, and to the citizens of the state to speak out on this issue.

The State Bar, other bar associations, judges, and individual attorneys should provide SOCC with their informed perspective about how Michigan’s judges should be compensated.

Some people say that in tough economic times, increasing judicial salaries sends the wrong message. I believe it sends exactly the right message — regardless of our current financial circumstances, we care about justice, and we want proper compensation for judges who make critical decisions that affect each of us every day.