David H. Fink Argues for an Increase in Judicial Compensation in Metro Detroit Attorney at Law Magazine - Fink Bressack

David H. Fink Argues for an Increase in Judicial Compensation in Metro Detroit Attorney at Law Magazine

In the December 2012 edition of Metro Detroit Attorney at Law, Managing Partner David H. Fink wrote a feature Legal Trends article regarding judicial compensation. In the story, Mr. Fink explains why Michigan Judges should receive higher salaries. As Commissioner of the State Officers Compensation Commission, Mr. Fink sought a pay increase for state judges in 2011, but the State Legislature did not accept that recommendation. The last time Michigan’s judiciary was awarded a pay increase was more than 10 years ago. Please click the article below to download a copy of the story, or scroll down to read the text of the article.

Is it time to pay our judges more than starting associates?

By David H. Fink

With the elections behind us, it’s time for a serious discussion about judicial compensation. Michigan judges haven’t had a pay increase since 2002. During that time, the consumer price index has increased more than 25 percent, and the pay for non-elected state employees has essentially kept pace with inflation.

As a commissioner serving on the State Officers Compensation Commission (SOCC), last year I proposed a modest increase in what we pay our State Supreme Court judges—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 Supreme Court justices, this proposal would have allowed every judge’s pay to increase 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.

SOCC determines salaries for the governor, lieutenant governor, secretary of state, attorney general, legislators and justices of the Supreme Court. For many years, SOCC Determinations automatically became effective if they were not rejected by a two-thirds vote of both Houses of the Legislature. In 2000, the SOCC process resulted in a 38% pay increase for the State Legislature. State House members facing reelection that year were able to tell voters that they opposed the pay increase, because the House voted to reject the SOCC Determination, but the inaction of State Senators allowed the SOCC Determination to become effective. This led to a firestorm of protest and a constitutional amendment requiring legislative approval of future pay increases. Since then, pay increases for Michigan’s elected officials have been held hostage to political grandstanding. In fact, since 2002, the only change in compensation emanating from SOCC has been a 10 percent reduction for the governor, lieutenant governor, secretary of state, attorney general, and members of the Legislature.

Legislators, who gave short shrift to our proposed pay increase for judges, no doubt would argue that the cost to the State is too great. But, what about the cost to the State of an underpaid judiciary? There were no legislative hearings, no committee reports, no public consideration of the pros and cons of continuing the decade-long freeze of judicial pay—just a statement by a legislator’s spokesperson that this was not the time for a pay increase. It’s hard not to wonder if our legislators would have treated the SOCC Determination more seriously if we had proposed an increase or decrease in legislative pay.

If it had been approved, SOCC’s Determination would not have been a windfall for Michigan judges. The net percentage increases for our judges in the fourteen years between 2000 and 2014 would have been less than the increases enjoyed by Michigan’s elected legislators.

It’s not fair to put all the blame on our State Legislators. In this era of term-limited State Legislators, who have little time to become experts themselves, our lawmakers are dependent upon subject matter experts to explain the impact of matters considered by the House and Senate. Naturally, legislators look to the State Supreme Court and the State Bar for guidance on judicial pay.

Our State Supreme Court chose not to issue a statement in support of the SOCC Determination, but the Court acknowledged that “a freeze on judicial compensation for over a decade is not good public policy.” Similarly, the State Bar said that the SOCC Determination was “more than justified,” and “[i]n the long run, the court system will be undermined if judicial pay is allowed to stagnate indefinitely.” Even so, the Bar concluded that “[t]his is not the right time to fix that problem.” In other words, the Supreme Court and the Bar both agreed that the SOCC Determination was well-grounded in public policy, but neither would endorse it.

How can we expect our best attorneys to seek a job with a salary that never increases? Many law school graduates are offered first year associate positions that pay more than our trial court judges – some make more than our Supreme Court Justices. As the real income of our judges declines each year, it is simply unrealistic to expect most good lawyers to seek these positions. Eventually, the only men and women who will be able to afford to sit as state judges will be the very wealthy, who don’t need significant income, and the very unsuccessful, who can’t do better in private practice. Is that really what we want?

It’s too late now for ratification of these 2013 and 2014 pay increases. SOCC meets again in early 2013, and at that time judicial pay for 2015 and 2016 will be considered. Now is the time for all who believe in a strong, independent judiciary to speak out. The State Bar, other bar associations and individual attorneys should provide SOCC with their informed perspective on how Michigan’s judges should be compensated. If we want our judiciary to thrive, citizens who care (and who do not seek elective office) have a responsibility to speak out.

Some people say that increasing judicial salaries sends the wrong message, when our state has been struggling through a long-term fiscal crisis. I believe it sends exactly the right message: regardless of our current financial circumstances, we believe in justice, and we want the best quality judges making the critical decisions that affect each of us every day.

David H. Fink is the Managing Partner of Bloomfield Hills-based Fink + Associates Law and a member of the State Officers Compensation Commission (SOCC). He also serves on the Michigan State Bar Committee on Judicial Qualifications. He concentrates his practice in complex commercial and class action litigation, focusing on business disputes, antitrust, consumer fraud, environmental law, intergovernmental disputes, securities fraud, shareholder derivative litigation and construction contract matters. He has been in the private practice of law for more than three decades and has also served in the public sector as State Employer. In addition to being named a Michigan Super Lawyer every year since 2007, Mr. Fink has received numerous accolades, including recognition as a Leader in the Law from Michigan Lawyers Weekly in 2011. He is a 1974 magna cum laude graduate of Harvard College and a 1977 cum laude graduate of Harvard Law School. Mr. Fink comments on Legal Trends for Metro Detroit Attorney at Law Magazine.

You can contact Mr. Fink at 248.971.2500 or dfink@www.finkbressack.com