JUDICIAL CORRUPTION strikes again, this time in the Illinois Supreme Court. As the Sun-Times tells us
(I tip my hat to David Bernstein guesting at Volokh's
web-log)
Gov. Blagojevich had vetoed those
cost-of-living increases, and Thursday he vetoed a bill to restore last year's
cost-of-living adjustments for judges.
...
Hynes could be held in contempt of court
and thrown in jail if he defies the Supreme Court's order, say legal experts, stunned
that the court issued an order on its own before any lawsuit was filed on the judicial
salaries. The first lawsuits by judges are expected as early as today.
"It is certainly strange to do it by
virtue of an order where another side has not been able to present its side," said
Northwestern University Law Professor Steve Lubet. "One might have liked to see more
deliberation."
...
The state Constitution prohibits
legislators from "diminishing" a judge's salary. That prevents legislators from
punishing judges for unpopular decisions.
The court says withholding cost-of-living
adjustments "diminishes" salary under the state Constitution.
Setting up a potential constitutional
crisis in Illinois, the seven members of the state Supreme Court Thursday ordered state
Comptroller Dan Hynes to boost their pay from $158,103 a year to $162,530 a year and to
boost the pay of all judges in Illinois by about $4,000 a year.
The governor should just defy the court
order. He would have the law on his side, and, I think, public opinion, though not
elite opinion. (Elite opinion says that it is impossible for a supreme court-- well, a
liberal one, at least-- to issue a wrong ruling, because the law is just what judges
say it is, rather than anything objective.)
What is most interesting is the Court's rush to issue the order. My guess is that they did it because they think it would look worse if they issued the order after public arguments showed how weak their position was. I wonder whether such a spontaneous ruling has any precedent, though. One of the fundamental things we teach about courts is that they must wait for a cause or controversy before issuing orders. Another fundamental is that we have an adversarial system, where both sides get their day in court. A third is that judges must explain their rulings (maybe they did this here; the newspaper article just didn't cite, and the Illinois Supreme Court website only has opinions up to the day before, July 23).
This kind of ruling is not unprecedented, and is revealing about the bias of courts. Ordinary conflict-of-interest rules must be waived, since otherwise the lower-court judges who are the most numerous class of people (besides taxpayers) affected would have no recourse. If the governor had, say, unilaterally declared that he was reducing the pay of all judges by 50% because they were all bad judges, then it would be quite proper for the Supreme Court to act--- after normal litigation, though, not through a special rushed procedure. But I would hope that the court would bend over backwards to be fair and in ambiguous cases rule against itself.
I would like to know more details before discussing the case, but let me lay out two scenarios. Scenario 1 is that current law provides a particular numerical value for the salary, and the governor vetoed a cost-of-living increase. If this is the case, then the Court's ruling is outrageous. We don't allow someone to sue for breach of contract if the contract specified they be paid $900, the other person pays them the $900, but there has been 10% inflation in the meantime, so the purchasing power of the money has fallen. (In fact there were the Gold Cases in which the U.S. Supreme Court said that Congress could enact that even if a contract specified that an amount be paid in gold, it was okay to pay in inflated dollars. E.g., Norman v. Baltimore and Ohio RR, 294 US 240 (1935).)
Scenario 2 is that current law provides that judges be paid a particular numerical amount and that the amount be increased each year according to the amount of inflation. This is a tougher case. The judges could reasonably rule that the law could not be changed to eliminate the cost-of-living increase. It sounds like the governor of Illinois vetoed some new law, however, rather than signing a change in existing law.
This kind of case has come up before, at the federal level, even
m ore outrageously, and even under a Court
I generally like. As I say in my
1994 JLEO article on judges:
Article III of the U.S. Constitution
forbids Congress to reduce the salary of federal judges. This gives rise to a curious
agency problem when it must be interpreted. In 1920 the Supreme Court held that
judges could not be required to pay income tax (Evans v. Gore, 253 U.S. 45 (1920)); this
was extended to judges whose terms started after the income tax was imposed (Miles v.
Graham, 268 U.S. 501 (1925)); and reversed after Congress expressly passed a statute
subjecting newly appointed judges to the income tax (O'Malley v. Woodrough, 307 U.S.
277 (1938)).
The moral is that judges can do wrong; unless criticized heavily or threatened with
impeachment, they will replace the law with their own favorite policies.
UPDATE (July 30). I just came across Justice Holmes's dissenting
opinion in Evans v. Gore, which is very good. It keeps to the Constitution, rather than
commenting on the self-serving nature of the majority opinion. Holmes and Brandeis were
the only dissenters in the case. Van Devanter wrote the majority opinion.
I have additional information on the Illinois fight, from "Judges order comptroller to
raise their pay," Doug Finke, Copley News Service, July 24, 2003:
The justices also said neither Hynes nor Blagojevich has the authority to tell the
state's judiciary how to spend money in its budget.
...
Under state law, the governor, lieutenant governor, treasurer, secretary of state,
comptroller, attorney general, state legislators, judges and top agency executives are
entitled to automatic cost-of-living increases of 5 percent or the rate of inflation,
whichever is less. Lawmakers approved money for 2.8 percent raises for all those
positions for the budget year that started July 1.
Using his veto powers, Blagojevich cut the raise money from the budget, including $3.7
million set aside for judges. Blagojevich said the state cannot afford the raises while
it is in the middle of a financial crisis.
...
Blagojevich on Thursday also vetoed Senate Bill 100, which gave judges a 3.8 percent
cost-of-living increase retroactive to July 1, 2002. That COLA is separate from the 2.8
percent increase that's in dispute with Hynes.
...
On July 1, 2002, top state officials, including judges, were scheduled to get a 4
percent COLA. Because of the state's financial problems, lawmakers passed a bill
eliminating the COLA.
The Illinois
Constitution says
The Illinois Attorney-General has filed a motion to the Supreme Court pointing out that it has broken numerous of its own rules in its
hurry to get its pay increase:
Supreme Court Rule 381, which governs original actions before the high court, states
that original actions "shall be instituted by filing a motion," Madigan said.
However, no motion was filed before the high court issued its order.
The filing also contends the court never had personal jurisdiction over Hynes.
Courts gain personal jurisdiction when a defendant is served process or when he enters
an appearance; neither happened before the justices instructed Hynes to issue the
paychecks, Madigan noted in the filing.
The lack of notice was also the basis for the third objection: the order violated due
process.
"Here, because no case was commenced before the order was issued, and because the
comptroller was not served with process, the comptroller was neither given notice of
this court's contemplated action nor provided an opportunity to be heard," Madigan
argued.
Courts have repeatedly held that the right to be heard is part of due process, she
noted.
UPDATE (August 10). The August 1 CHicago Daily Law Bulletin says that the Supreme Court
backed down and withdrew its order. Other judges have brought suit, and it is proceeding
in the normal manner. It will be interesting to see if the Supreme Court mentions its
embarassing overreach in the decision it eventually issues. Or, will they even have to
take the case, if it's going the way they want before it reaches them?
[
http://php.indiana.edu/~erasmuse/w/03.07.26b.htm ]
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http://php.indiana.edu/~erasmuse/w/0.rasmusen.htm.
The two-page order the court issued states that cost-of-living adjustments are a
component of judicial salaries and that the state Constitution prohibits anyone from
reducing judicial salaries in the middle of a judge's term. Just because Blagojevich
vetoed money for the raises doesn't mean judges aren't entitled to them, the court said.
So it seems that some years ago the legislature passed a law saying judges' salaries
would rise by the inflation rate, in 2002 it repealed that law and failed to give
them raises, in 2003 it did put money in the budget for raises, the Governor used his
line-item veto to take it out, and the judges ordered the State Comptroller to ignore
the veto and issue bigger paychecks anyway. The Supreme Court site has not posted the
order, by the way--- In re Illinois Judges Cost of Living Adjustment, M.R. 18893
--- even though they have posted other court decisions that were issued after
it. I wonder if that is against court rules? Judges shall receive salaries provided by law which shall not be
diminished to take effect during their terms of office.
It looks to me as if the Court is in the wrong on the substance of the law. After all--
their salaries have not been diminished.
"Because no complaint or petition, or motion for leave to file a complaint or petition,
has been filed in this matter, this court did not have original jurisdiction, which
renders the order void," she maintained.
Pitiful!