The Case for Raising Judicial Salaries
To gain support for higher salaries, judges need to be mindful of their roles as public servants. By Rex S. Heinke
Rex S. Heinke is president of the Association.
This President's Page was originally published in the February 2001 issue of Los Angeles Lawyer.
There is a serious brain drain going on in our courts-especially, although not exclusively, in state courts. We are losing many of our most experienced jurists. They are leaving the bench in large numbers and joining alternative dispute resolution firms (such as JAMS), are simply going out on their own to act as neutrals (mediators and arbitrators), or are returning to private practice. Judges who recently have left the bench include California Court of Appeal Justices John Zebrowski and Richard C. Neal, Los Angeles Superior Court Judge George Schiavelli, and federal judge John G. Davies. (Of course, many others, including, incidentally, my wife, remain on the bench.)
Why are judges leaving the bench? Their motivations, of course, differ to some extent, but the dominant reason is that they cannot afford to continue to serve as judges. A number of the departing judges have already sat on the bench for a relatively long period of time, so their retirement benefits have vested. Thus, when they compare the salaries they would receive by remaining as judges to the salaries they could earn by working as neutrals, the decision to leave the bench is a relatively easy economic one.
Some say this should not be a matter of grave concern, because these judges have already served for a long time and we should not expect them to serve as judges indefinitely. By itself, the retirement of these judges might not be a matter of great significance, but the problem has spread beyond judges who have served many years on the bench. Many of those currently leaving the bench to join ADR groups or to return to private practice have not reached retirement age. Sadly, they are leaving simply because they cannot afford to send their kids to college or otherwise fulfill their financial commitments, such as paying for the care of aged parents. That these departures have now reached beyond the trial courts to the appellate courts only underscores the severity of the problem.
Despite this unmistakable trend, some responsible observers actually argue that judicial salaries are too high. The Los Angeles Times did just that in an article appearing in the August 20, 2000, edition. Nicholas R. Allis, president of the Beverly Hills Bar Association; Mark S. Blackman, president of the San Fernando Bar Association; and I wrote a letter to the editor strongly disagreeing. We pointed out the many important decisions that judges make every day in their courtrooms, such as who goes to jail, who gets custody of a child, or who is at fault in a traffic accident. We argued the importance of halting the judicial brain drain so that the judges making these critical decisions are of the finest caliber. While money is not everything, and the old adage that you get what you pay for may not be as true for the bench as in other arenas, at some point the great pay disparity between the public and private sectors will dissuade excellent attorneys from serving. The fact is that judicial salaries simply have not kept pace with the recent, large increases in starting salaries for lawyers, especially in larger law firms. As one judge with decades of experience said with reference to his daughter, who recently graduated from law school, "I would just like to make as much as she is making in her first year of practice."The Special Role of Lawyers
Judges, of course, are actively working on their own behalf to seek increases in their salaries and related employment benefits. However, it is difficult for them to raise widespread support for their goals because the general public has little direct experience with the judicial system and therefore only vaguely understands the value of attracting and retaining the very best judges. Aside from the judges themselves, lawyers are really the only organized group that understands this need. Therefore, we must vigorously support increases in judicial compensation if we are to have a judicial system of the highest quality.
The Los Angeles County Bar Association has worked towards this goal by galvanizing the support of bar associations across the state for increasing judicial compensation and to oppose attempts to reduce it. Our recent efforts have included:
- Urging Governor Davis to seek legislative funding for judicial salary increases.
- Supporting state legislation increasing compensation for judges.
- Filing amicus briefs in two current cases-Williams v. United States and United States v. Hatter-to oppose any diminution in the compensation paid to federal judges.
We will continue these and similar efforts to support adequate compensation for judicial officers.
The Judiciary Must Respond
The effort to gain higher compensation for our judicial officers, however, requires that the judges themselves take steps to secure greater public support for the judicial system. In particular, judges sometimes forget that they play two very distinct roles. One is as judicial decision makers in courtrooms and the other is as administrative officers who run our judicial system. As judicial decision makers, judges are treated with honor and deference. When a judge assumes the bench, the litigants, lawyers, and others in the courtroom show their respect by standing. They also address the judge in a courteous fashion, using honorifics such as "your honor." This is as it should be.
In reaching their judicial decisions, judges (in consultation with their law clerks and other staff) must work in private without any public participation. This also is as it should be. It is inconceivable that any judge would be required to consult with the public, in chambers, before deciding a case.
The situation, however, is radically different when judges act as administrative officers who make decisions that affect the operation of the courts, such as determining the salaries that should be paid to court staff or how cases are assigned to judges. These are not judicial decisions but governmental-administrative actions, and the public is entitled to witness and comment on them, just as it is entitled to witness and comment on similar decisions by other government agencies.
Recently, the Los Angeles Superior Court became embroiled in a controversy over salary increases it granted to its top administrators, salaries that had been established in secret by a committee of judges. We would never tolerate such secrecy in any other government body that was spending the public's money. In such circumstances, judges are no different than other government officials. The public is entitled to see how its taxes are being spent. Indeed, the Judicial Council recently recognized this principle when it adopted Rule 6.702, which requires public disclosure of various decisions about the setting of salaries for court personnel.
Judges are entitled to deference when they are on the bench, but not when they are acting in their capacity as government officials. Because of the deference they receive on the bench, judges sometimes lose sight of this fact. This may not come easily to judges imbued with the traditions of the courtroom, but if judges are to win public support for their political goals, such as increased judicial compensation, they will have to understand the two very different roles they play-and act accordingly.
Judges may have to endure some unpleasant moments as a result. Many citizens accuse their public servants of being liars, crooks, and thieves-or worse. Judges will not find these slings and arrows easy to take, nor will they appreciate citizen gadflies who question their every administrative decision. However, in our democracy, that is the path we have irrevocably chosen. Judges can refuse to recognize this only at great peril to their legitimate requests for public support on important issues-like judicial salary increases-that affect the administration of justice.