The state’s chief judge, having failed to persuade the Legislature to grant her a pay raise, is bringing her battle before a fellow state judge, filing a lawsuit asking him to give himself, herself, and their colleagues pay raises of tens of thousands of dollars each.

In essence, the suit alleges that low pay for judges violates the state constitution by threatening the judiciary’s role as an independent branch of government. A judge on the state’s basic trial court, the state Supreme Court, is paid $139,600, an amount that has not changed in nine years as legislators have refused to allocate the money for a raise.

New York’s chief judge, Judith Kaye, has been under pressure from her fellow judges to file the suit. For months, angry judges have been sending e-mails to their colleagues, calling for walkouts or political demonstrations, and trying to organize mass recusals from any case involving a law firm that employes a legislator, a source with knowledge of the e-mails said.

Among lawyers in New York, the overwhelming consensus is that judicial salaries are too low, but several question whether the lawsuit was a good public relations move.

“There seems to be a conflict between the dignity of the judicial branch and the filing of a class-action lawsuit to get you more money,” a criminal defense attorney in Manhattan, Ephraim Savitt, said. While an annual salary of $139,600 puts the state judges in the top 10% of federal income tax payers, within the legal profession it is relatively paltry. Law school deans make more. So do even the most junior lawyers at major New York firms, where a 24-year-old might start out at $160,000 a year. A particular sticking point among state judges is that their federal counterparts have outpaced them in recent years. A federal district judgeship pays about $169,000 this year. About a century ago, in 1909, state judges in New York made nearly three times the salary of federal judges, the suit claims. The lawsuit, filed by Judge Kaye against the Assembly, the Senate, and Governor Paterson, requests a court order requiring judges on the state’s basic trial court to be paid as much as their federal counterparts.

Repeated efforts in Albany to boost judicial pay have foundered because legislators have linked the question of pay raises for judges to pay raises for themselves. “This situation is not only untenable and disgraceful, it is unconstitutional,” the complaint states.

The judiciary “cannot long remain an independent and coequal branch of government,” the complaint claims, “if judicial compensation is permitted to decline by virtue of inflation as the Judiciary indefinitely is held hostage to unrelated political concerns and the economic self-interest of the other branches of government.”

“This situation demeans the Judiciary,” the complaint states, “turning it into a political tool to advance unrelated agendas and economic interests of the other branches of government.”

In addition to the separation of powers argument, the suit also points to a clause in the state Constitution that says that a judge’s salary “shall not be diminished” during the term of office. The suit claims that the failure to enact a pay raise, coupled with inflation, is, in effect, diminishing judicial pay in violation of the state Constitution.

The lawyer for Judge Kaye who filed the suit, Bernard Nussbaum, served as White House Counsel under President Clinton. He is at the firm Wachtell, Lipton, Rosen & Katz.

The case will likely be decided by a state Supreme Court judge in Manhattan, Edward Lehner, who served as an assemblyman three decades ago. Judge Lehner is expected to get the case because he is currently hearing a similar suit brought by four judges from the lower city courts.

In that first lawsuit, Judge Lehner has dismissed the claim that inflation amounts to a violation of the state Constitution’s prohibition against reducing a judge’s salary.

In a recent decision, Judge Lehner allowed the four judges to go forward with the separation of powers claim. But Judge Lehner indicated that he would, at most, declare that the legislature’s failure to provide a pay raise is unconstitutional and would not go beyond that to order that money be set aside to raise salaries.

Judge Lehner’s decision stated that at a court hearing a lawyer for the judges had conceded that “the court could not direct members of the legislature to vote for an increase.” The judge rejected the idea of recusing himself from the case.

The Senate majority leader, Joseph Bruno, responded to news of the suit with a statement. “Judges don’t need to sue to get a pay raise, they need to step up pressure on the State Assembly to act on either of two judges’ salary increase bills already approved by the State Senate,” he said. “Last April, the Senate passed a bill (S.5313) that included Chief Justice Kaye’s pay raise proposal. It would provide salary increases for state justices and establish commissions to review future compensation. In December, the Senate passed a nearly identical bill (S.6550) to raise judges’ pay. The Assembly did not act on these, or any other, judges’ pay raise bill. If it had, this issue could have been resolved long ago. Judge Kaye must step down from the bench by year’s end because of an age limit. The case is unlikely to be resolved before then, so the chances of it affecting her own compensation are remote. Attorney General Cuomo will likely defend the state in the case.