Governor Paterson, Assembly Speaker Silver, and Senate Majority Leader Bruno are expected to file in state court by May 19 their response to a lawsuit by the state’s chief judge, Judith Kaye, demanding a court-ordered raise for herself and her colleagues on the state bench. No doubt the lawyers for the politicians are doing their own research, but we’d commend two documents for use in formulating the answer to the litigious judges.

The first is the Declaration of Independence. Among the grievances the patriots who in 1776 assembled at Philadelphia laid against George III was that “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” In other words, making judges’ salaries derive from a source other than the authorization of an elected legislature was such an assault on democracy that Americans were willing to risk their lives, their fortunes, and their sacred honors to fight it.

The dispute over judicial salaries dated back past 1776 to at least 1773, when, on March 3, the Massachusetts House of Representatives — a body that included such future signers of the Declaration as John Hancock and Samuel Adams — passed a resolution contending that “making the Judges of the Land independent of the Grants of the People … is unconstitutional and destructive of that Security which every good Member of civil society has a just right to be assured of.”

The resolution held that allowing a source other than the legislature to pay the judges tends “to the Subversion of Justice and Equity, and to introduce Oppression and despotic Power.” The resolution averred that any judge who accepted payment “independent of the Grants and Acts of the General Assembly” — i.e., the state legislature — would be demonstrating to the world “that he has not a due sense of the Importance of an Impartial Administration of Justice, that he is an Enemy of the Constitution, and has it in his Heart to promote the Establishment of an arbitrary Government in the Province.”

The second document we’d commend is the “Survey of Judicial Salaries” compiled annually by the National Center for State Courts. The most recent such survey, current as of July 1, 2007, found the national median salary for a judge of a general jurisdiction trial court was $125,363, and the national mean salary was $128,953. In New York City, such judges are paid $136,700, rounded in the survey up to $137,000. As for the position Judge Kaye holds, that of chief of the highest court in the state, the national median was $145,636 and the national mean was $145,540. The survey put Judge Kaye’s salary at $156,000.

In other words, the lead plaintiff in this case, Judge Kaye, is pulling down more than was earned by the chief justice of Massachusetts, Maine, New Hampshire, Vermont, Kansas, Missouri, North Dakota, South Dakota, Nebraska, Ohio, Wisconsin, Arkansas, Kentucky, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, West Virginia, Arizona, Colorado, Idaho, Montana, Oregon, New Mexico, Utah, Washington, or Wyoming. She earns more than the chief justices in 29 of the other states.

If Judge Kaye succeeds in suing to raise her pay, would the other 29 chief justices then rush into court to try to wrest a raise for themselves? Or would taxpayers from the minority of states who pay their chief justices more than Judge Kaye gets paid then have standing to rush into court to try to get their judges’ salaries lowered? It may be that upon reflection the judges decide this is a can of worms better left unopened and that the task of deciding what to pay our judges is best left in the hands of the legislature whose authority in the matter the founders of America were prepared to lay down their lives to protect.