This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 67
Eileen Bransten, &c., et al.,
            Respondents,
        v.
State of New York,
            Appellant.




          Judith N. Vale, for appellant.
          Alan M. Klinger, for respondents.




PER CURIAM:
          The issue presented on this appeal is whether Civil
Service Law § 167 (8), as amended, authorizing a reduction of the
State's contribution to health insurance benefits for State
employees, including members of the State judiciary, violates the
Judicial Compensation Clause of the State Constitution (NY Const,

                                - 1 -
                                - 2 -                          No. 67

art VI, § 25 [a]).   We conclude the State's contribution is not
judicial compensation protected from direct diminution by the
Compensation Clause, and the reductions in contributions do not
have the effect of singling out the judiciary for disadvantageous
treatment.   Therefore, plaintiffs' constitutional challenge
fails.


              I.   Statutory and Regulatory Background
          State employees, including members of the judiciary,
are eligible to participate in health insurance plans that are
paid, in part, by the State's contributions towards insurance
premiums (Civil Service Law §§ 161, 167; see Governor's Mem, Bill
Jacket, L 1956, ch 461 at 3).   Participation is optional and the
choice of which insurance to purchase is within the sole
discretion of employees.
          In 2011, facing a budget crisis, the Legislature
negotiated with State-employee unions to avoid layoffs in
exchange for a percentage reduction to the State's premium
contributions, as well as salary freezes and unpaid furloughs.
Thereafter, the Legislature amended Civil Service Law § 167 (8)
to authorize the Civil Service Commission to make these
reductions for nearly all State employees and retirees.    These
changes also applied to unrepresented State employees and
retirees not involved in negotiations, including approximately




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1,200 judges,1 and over 12,000 "managerial" or "confidential"
employees.   At the time, the changes did not apply to members of
unions who had not agreed to modify their collective bargaining
agreement, but those employees were subject to layoffs (4 NYCRR
73.12).2   The implementing regulations, effective October 1,
2011, provided for a two to six percentage point reduction in the
State's health care contributions, depending on the employee's
salary grade (4 NYCRR 73.3 [b]).   Judges are not assigned salary
grades, but all Supreme Court Justices receive a salary above
"salary grade 10," and therefore the State reduced its premium
contribution from 90 percent to 84 percent for judges who elect
to enroll in the State's health insurance plan, and for judges
who retired after January 1, 2012.     The regulations also reduced
the State's contribution for employees who elected to participate
in the State plan and retired between January 1, 1983 and January
1, 2012 from 90 to 88 percent of the cost of coverage (4 NYCRR
73.3 [b]).


                      II. Plaintiffs' Action
           Plaintiffs are 13 named current and retired Justices of


     1
       For ease of discussion, both judges and justices of the
Unified Court System are referred to here as "judges."
     2
       The managerial and confidential employees constitute
approximately six percent of the State's 189,000 employees, and
the union members who had not adopted the agreement were
approximately two percent. At oral argument, the State asserted
that the change to contributions now applies to all employees.

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                                 - 4 -                           No. 67

Supreme Court, the Association of Justices of the Supreme Court
of the State of New York, and the Supreme Court Justices
Association of the City of New York.     Plaintiffs filed suit
against the State seeking a declaratory judgment that the statute
that authorizes the reduction in contributions towards health
insurance premiums, Civil Service Law § 167 (8), violates the
Compensation Clause of the New York State Constitution, and
appropriate injunctive relief.
            Supreme Court denied the State's motion to dismiss for
failure to state a claim pursuant to CPLR 3211 (a) (7).     On the
State's appeal from this interlocutory order, the Appellate
Division affirmed, holding that compensation includes health
insurance benefits, and that the decrease in the State's
contribution level discriminates against judges because, unlike
public-sector unionized employees, judges cannot collectively
bargain to obtain compensation for the reduction in the State's
contributions (Bransten v State, 117 AD3d 455 [1st Dept 2014]).
            The parties subsequently cross-moved for summary
judgment.    Supreme Court denied the State's motion and granted
the plaintiffs' to the extent of declaring Civil Service Law §
167 (8) and its implementing regulations unconstitutional as
applied to members of the judiciary (Bransten v State of New
York, 2015 WL 1331265 [Sup Ct, New York County 2015]).     The State
appealed to this Court as of right directly from Supreme Court's




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                                  - 5 -                         No. 67

judgment pursuant to CPLR 5601 (b) (2).3


         III.   Judicial Compensation Clause Salutary Purpose
            Article VI, section 25 of the New York State
Constitution provides that the compensation of State sitting and
retired judges: "shall be established by law and shall not be
diminished during the term of office for which [a judge] was
elected or appointed."      The term "compensation" is not defined in
the Constitution, but its meaning is inextricably tied to the
purpose of the Compensation Clause, which is "to promote judicial
independence" and, relatedly, to "ensure that the pay of
prospective judges, who choose to leave their practices or other
legal positions for the bench will not diminish" (Matter of Maron
v Silver, 14 NY3d 230, 250 [2010], citing United States v Will,
449 US 200, 221 [1980]).
            Historically, the focus of the Compensation Clause has
been to protect against the danger of external control over
judicial pay as a means by which to exert influence over the
judiciary.      "[T]he Legislature was precluded from diminishing
salaries in recognition of the risk that salary manipulation
might be used as a tool to retaliate for unpopular judicial



     3
       Contrary to Judge Wilson's contention, this appeal is
properly before us (Wilson, J. concurring op at 2). Rent
Stabilization Ass'n v Higgins (83 NY2d 156, 168 [1993]) does not
suggest otherwise, as there the appeal involved more issues than
just the constitutional validity of a statute.

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                               - 6 -                          No. 67

decisions" (Matter of Maron, 14 NY3d at 252).   As with the
similar prohibition contained in the federal Compensation Clause,
the anti-diminution language was intended to protect judges from
the corruptive force of financial uncertainty, in order to
maintain an able and independent judiciary, free of coercion from
the other branches (see US Const, art III, § 1 [judges'
compensation "shall not be diminished during their Continuance in
Office"]; Matter of Maron, 14 NY3d at 250 [purpose of State
clause is same as federal clause: to promote judicial
independence]; Will, 449 US at 218-220 [framers of federal
constitution made certain the compensation of judges was
protected from one of the evils that brought about the
Revolution]; United States v Hatter, 532 US 557, 568-569 [2001]
[founders recognized importance of protecting judiciary from
financial dependence on legislature]).
           To that end, and as this Court explained in Matter of
Maron, the legislature may not enact laws that directly diminish
judicial compensation or accomplish the same result by singling
out judges for disadvantageous treatment that indirectly
diminishes their pay (14 NY3d at 252-54; see also Hatter, 532 US
at 571).   Thus, plaintiffs may establish a Compensation Clause
violation here by demonstrating that the State's reduced
contribution to their health insurance premiums: 1) is a direct
diminishment of their compensation; or 2) is an indirect
diminishment that targets judges for disadvantageous treatment.


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                               - 7 -                          No. 67

 IV.   Prohibition on Direct Diminution in Judicial Compensation
          Under our case law, protected judicial "compensation,"
as that term is used in the Compensation Clause, refers to a
judge's salary and any additional monies that serve as a
permanent remuneration for costs necessarily incurred in
fulfillment of a judge's judicial obligations.   So, for example,
in People ex rel. Bockes v Wemple (115 NY 302, 310 [1889]), the
Court held that the legislature had increased judicial
compensation by providing a fixed amount "'in lieu of' expenses
. . . to compensate [the judge] further for what the office
entailed . . . in the way of duties and work."   The Court further
explained that "the intention of the legislature was to make a
permanent addition to the stated salary, which should be beyond
the power of subsequent legislatures to affect" (id.).
Similarly, in Gilbert v Board of Supervisors of County of Kings
(136 NY 180, 185 [1892]), the Court recognized that "the word
compensation . . . was understood to mean salary of the judge as
such, and the allowance for expenses."   Notably, the Court
distinguished between compensation within the meaning of the
Constitution -- what the Court described as the salary set for
judges in their role as sitting judges -- and a discretionary
allowance set by a municipality or board for a judge's local
service as a Commissioner of Jurors (see id. at 185-186; see also
Bockes at 309-310).   From these cases the two essential
characteristics of constitutionally-protected judicial


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                              - 8 -                          No. 67

compensation can be gleaned: the remunerative purpose and the
permanence of the legislative allotment.4
          The health care contribution at issue here exhibits
neither of these characteristics.   It is not part of a judicial
salary or a permanent remuneration for expenses necessarily
incurred in fulfillment of judicial obligations.   Nevertheless,
plaintiffs argue that compensation means anything of value
provided by an employer and includes health care benefits, as
they "are an integrated part of the compensation package provided

     4
       Justice Dillon notes the 1894 Constitution is "the
document that is of the most historical importance to this
matter" (Dillon, J. concurring op at 6). Consistently throughout
this document, "compensation" is used to describe a quantifiable
sum, while salary is used more specifically to describe payment
for labor. For example, article I, section 7, states that "just
compensation" is required for a taking of private property, which
will be an "amount" to be paid to the landowner. When
compensation is discussed in relation to various officeholders,
the term either refers to salary or to salary plus remuneration
for costs necessarily incurred in fulfillment of the
officeholders' obligations: the governor shall receive a set
salary and have a residence provided (article IV, section 4),
legislators shall receive salary plus a sum for the amount of
miles they travel to and from session, and in some circumstances
an additional per diem allowance (article III, section 6).
Tellingly, the 1894 Constitution set the "salary" of the
Lieutenant Governor, before clarifying that the officeholder
"shall not receive or be entitled to any other compensation, fee
or perquisite, for any duty or service he may be required to
perform by the Constitution or by law" (article IV, section 8).
A "perquisite" is defined by Black's as "[a] privilege or benefit
given in addition to one's salary or regular wages" (10th ed
[2014]; see also Black's 1st ed [1891]; Bouvier's Law Dictionary
[1914]). The rule against superfluities suggests that, contrary
to Justice Dillon's conclusion, "compensation," while undoubtedly
a broader term than "salary," was not used so broadly as to
include privileges or benefits (see Hibbs v Winn, 542 US 88, 101
[2004]).

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                               - 9 -                         No. 67

to State employees and Judges."   While plaintiffs are correct
that the State pays a percentage of premiums for those employees
who choose to participate in a State subsidized health care plan,
that fact does not transform the State's contribution into
judicial compensation within the meaning of our State
Constitution.   This Court has previously recognized that
compensation for constitutional purposes has a unique and
historical purpose (see Bockes, 115 NY at 306-307; Gilbert, 136
NY at 184-185).
           Indeed, plaintiffs are unable to point to anywhere in
the legislative schema where the State's contribution is referred
to as "compensation."   In fact, Chapter 567 of the Laws of 2010,
which created the Special Commission on Judicial Compensation,
states that the Commission's purpose was to "examine, evaluate
and make recommendations with respect to adequate levels of
compensation and non-salary benefits for judges and justices of
the state-paid courts of the unified court system" (emphasis
added).   This suggests that, contrary to plaintiffs' argument,
judges' health care benefits are distinct from judicial
compensation.
           Nor does the State's expansion of the class of benefits
available to its employees, including judges, provide clear
indication that the Legislature intended for its contribution
towards premiums to be treated as a permanent addition to a
judicial salary, whether as part of a judge's pay or as a fixed


                               - 9 -
                              - 10 -                        No. 67

amount in lieu of expenses.   In fact, since the Legislature
created a centralized State health insurance fund in 1956 (see
Civil Service Law § 167 [6]), the State has, on occasion,
adjusted the costs and benefits afforded to State employees who
have opted into the program by, for example, increasing
employees' annual deductibles or changing the amounts employees
must pay for out-of-network services.   Notably, the State's
contribution to employee health insurance premiums have been
changed before, dropping from 100 percent in 1967 to 90 percent
in 1983 (Civil Service Law § 167 [1] [a]; see also L 1983, ch
14).   Plaintiffs concede that the State is not required to keep
pace with increasing health care costs, which undermines their
argument that maintaining the level of State subsidy is necessary
to avoid constitutionally impermissible diminution of judicial
compensation.   Tellingly, "the whole matter" of choosing a health
plan -- or whether to participate in one at all -- is left to the
employee (cf. Gilbert, 136 NY at 185 [additional payment for
serving as County Commissioner of Jurors is not compensation for
constitutional purposes where the whole matter was left to the
discretion of the county's board of supervisors]).
           Plaintiffs' approach also lacks a standard by which to
distinguish between constitutionally protected compensation and
any amount of monies provided directly to judges or as a discount
for other costs.   For plaintiffs, compensation would include even
those items that have an indisputably indirect impact on salary,


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                              - 11 -                         No. 67

as, for example, parking privileges, discounts in a cafeteria, or
even free coffee and bagels in a communal kitchen.   As these
examples illustrate, adopting plaintiffs' position renders
meaningless "compensation" as a constitutional term of art.      It
would also leave us without any standard by which to guide future
decisions.
          Significantly, the challenged percentage reduction in
the State's contribution does not jeopardize judicial
independence -- the essential evil that the Compensation Clause
is intended to address (see Matter of Maron, 14 NY3d at 252).
Granted, health care benefits may be valuable to an employee, but
the percentage reduction to the State's contribution is not
equivalent to the base salary upon which a judge subsists, and
which, if tampered with, "amounts to a power over a [person's]
will" (Will, 449 US at 218; Hatter, 532 US at 568, quoting
Alexander Hamilton, Federalist No. 79, at 472; see also Matter of
Maron, 14 NY3d at 252).5   Simply put, the Compensation Clause
uses proscriptive language to ensure that a judge will not
hesitate to make a decision for fear that the outcome puts the
judge's livelihood in jeopardy.



     5
       We do not opine on whether the "wide array of
permutations" listed by Justice Dillon are compensation for
constitutional purposes (Dillon, J. concurring op at 12). Our
opinion is confined to the question before us: whether a
reduction in the percentage of the State's contributions to the
costs of health insurance premiums constitutes a diminution in
judicial compensation.

                              - 11 -
                                - 12 -                          No. 67

           While the reduction in the State's contributions to the
costs of health insurance premiums would increase a participating
judge's share of the cost associated with the chosen health care
plan, such an increase is not the equivalent of a direct
reduction in judicial compensation.      It is a cost that is
voluntarily assumed by the participating judges, and affects
salary only indirectly as the judge must make up the difference.


      V.     Indirect Effect of Discrimination Against Judges
           Plaintiffs argue that even if the reduction in State
contributions towards judges' health care premiums does not
reflect a direct diminution of their compensation, the amendment
to section 167 (8) nevertheless indirectly diminishes their
compensation and unconstitutionally discriminates against judges,
and is therefore still unconstitutional under the United States
Supreme Court's Hatter framework.    The plaintiffs maintain that
the amendment to section 167 (8) treats judges worse than other
State employees who were able to negotiate benefits in exchange
for the premium contribution reductions, or even opt out from the
reduction entirely.    They argue the legislation is similar to a
law struck down as violative of the federal Compensation Clause
in Hatter.
           As we have done in the past, we apply the analysis of
Hatter -- that a cost increase that indirectly affects judicial
compensation is not unconstitutional, so long as the increase


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                             - 13 -                          No. 67

does not target judges for disadvantageous treatment -- and we
conclude that the State law is not the type of legislatively
targeted discrimination impermissible under our Judicial
Compensation Clause (Matter of Maron, 14 NY3d at 255-256
[applying Hatter to freeze on judicial salaries challenged in
companion case Chief Judge of State v Governor of State]).     In
Hatter, the Supreme Court interpreted the federal Compensation
Clause, with its similar purpose and language to the State
Clause, when evaluating Medicaid and Social Security taxes
collected from federal judges.   The Court concluded the Medicaid
tax was constitutional because it was a general tax burden borne
by all citizens, and no compelling reason existed why judges
should not share in such a nondiscriminatory tax.   As the Court
explained,
          "the likelihood that a nondiscriminatory tax
          represents a disguised legislative effort to
          influence the judicial will is virtually
          nonexistent. Hence, the potential threats to
          judicial independence that underlie the
          Constitution's compensation guarantee cannot
          justify a special judicial exemption from a
          commonly shared tax, not even as a preventive
          measure to counter those threats" (Hatter,
          532 US at 571).
          In contrast, the Hatter Court identified four features
of the Social Security tax that taken together lead to the
conclusion that it discriminated against judges in a manner the
Compensation Clause forbids (id. at 572-573).   First, the Hatter
Court considered the class of affected persons that judges should
be compared against and determined the proper class consisted of

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                              - 14 -                         No. 67

those to whom the law applied, namely all federal employees.
Second, the Court considered whether the law imposed the same
financial obligation on all members of that class, or whether it
treated judges differently from other federal employees.     The
Court found the law imposed a new financial obligation upon
sitting judges that it did not impose on any other group of
federal employees.   Third, the Court determined that the law
adversely affected judges as it imposed a substantial cost on
judges with little or no expectation of substantial benefit for
most of them (see id.).   Finally, the Court examined whether
there was a sound justification for the statutory distinction
between judges and other federal employees.   The Court noted that
Congress did not explain its rationale, and the government's
position -- that the disparate tax treatment of judges was
instituted to make the judicial retirement system contributory
like the system for other federal employees -- was illogical
inasmuch as judges have life-tenure (see id. at 573-574).6
"Taken together," the Court concluded,
          "these four characteristics reveal a law that


     6
       The Court further observed that the "'equaliz[ation]' in
question takes place not by offering all current federal
employees (including judges) the same opportunities but by
employing a statutory disadvantage which offsets a
constitutionally guaranteed advantage" (Hatter, 532 US at 574).
"Hence, to accept the 'justification' offered here is to permit,
through similar reasoning, taxes which have the effect of
weakening or eliminating those constitutional guarantees
necessary to secure judicial independence, at least insofar as
similar guarantees are not enjoyed by others" (id.).

                              - 14 -
                               - 15 -                         No. 67

          is special -- in its manner of singling out
          judges for disadvantageous treatment, in its
          justification as necessary to offset
          advantages related to constitutionally
          protected features of the judicial office,
          and in the degree of permissible legislative
          discretion that would have to underlie any
          determination that the legislation has
          'equalized' rather than gone too far" (id. at
          576).
          Applying the Hatter factors here, first, the "history,
context, statutory purpose, and statutory language, taken
together, indicate that the category of [State] employees is the
appropriate class against which we must measure the asserted
discrimination" (see Hatter, 532 US at 572).   Second, when
plaintiffs filed this action, the vast majority of State
employees also saw the State's contribution to their health care
premiums diminish.   Thus, the law imposes the new financial
obligation on all participating State employees, and does not
treat judges differently than nearly every other State employee
(cf. Hatter, 532 US at 573).   Third, the new policy does
adversely affect judges, as it imposes a substantial cost on
judges with no benefit.   The benefit enjoyed by the vast majority
of other state employees, however -- protection from layoffs for
unionized employees who accepted the reduction in premiums as
part of the collective bargaining process -- is a benefit already
enjoyed by state judges as part of protecting their judicial
independence.   Furthermore, the "managerial" and "confidential"
employees are in the same position, suggesting that the increased
contributions operate more like the non-discriminatory Medicare

                               - 15 -
                                 - 16 -                        No. 67

tax in Hatter.    Under these circumstances, where similarly
situated employees receive the same treatment, excluding judges
would be tantamount to offering "a special judicial exemption"
from the commonly shared burden (id. at 571).7    The fourth factor
is not relevant here, as the distinction in contributions is
based on salary grade, not judicial office (see id. at 573-574).
Taking these four factors together, the adjustment of the State's
contribution to its employees' health care premiums does not
"reveal a law that is special" in how it disadvantages judges
(id. at 576).    As such, plaintiffs have failed to establish a
violation of the Compensation Clause based on discriminatory
treatment.


                           VI.   Conclusion
          The primary goal of the Compensation Clause --
protecting the independence of the judiciary -- is not implicated
when the State contributes a smaller percentage towards all
employees' health care premiums.     A contribution to health care


     7
       In Hatter, Congress imposed a different financial burden
on federal judges that it did not impose on nearly any other
federal employees, and the government stated that the purpose for
the disparate treatment of federal judges was to compensate for a
constitutional guarantee intended to ensure judicial
independence. Here, by contrast, the State did not treat judges
differently when reducing its premium contributions because it
wanted to "equalize" the fact that state judges are not subject
to layoffs. Rather, the State did not treat judges differently
from other state employees at all, except insofar as the judges
were not offered a benefit to which they were already
constitutionally entitled and therefore could not be offered.

                                 - 16 -
                               - 17 -                        No. 67

premiums, which varies from year to year, is not compensation
within the context of the Compensation Clause.    Moreover, even
though the reduction indirectly diminishes judicial compensation,
the Legislature has not singled out judges for disadvantageous
treatment.    Where, as here, the reduction applies to all State
employees, there is not even a suggestion that judges are being
targeted.    As such, the change in State contributions does not
jeopardize the independence of the judiciary or "represent[] a
disguised legislative effort to influence the judicial will"
(Hatter, 532 US at 571).
            Accordingly, the judgment should be reversed, without
costs, plaintiffs' motion for summary judgment denied, and
judgment granted in favor of defendant declaring Civil Service
Law § 167 (8) does not violate the Compensation Clause of the New
York State Constitution (NY Const, art VI, § 25 [a]).




                               - 17 -
Bransten v State of New York
No. 67




DILLON, J.(concurring):
           Contributions by the State of New York toward the cost
of health care insurance premiums provided to the judges and
justices of the Unified Court System are part of the paid
"compensation" that falls within the protective provisions of the
State Constitution, article VI, § 25(a) (the Compensation
Clause).   For reasons set forth below, the Compensation Clause
would be irrelevant to the State's health care insurance
contributions if the controlling constitutional language merely
guaranteed that no judicial "salary" be diminished during
jurists' terms in office.   However, the presence of the broader
term "compensation" in the Compensation Clause casts a wider net
that includes more than mere salary.


                                I.
           The bench and bar are frequently called upon to
interpret the precise meaning of words and phrases in
constitutions, statutes, contracts, wills, and other legal
documents.   Such issues are parsed by examining words and phrases
in accordance with plain language, the drafters' intent, the
contexts in which words and phrases are applied, common usages


                               - 1 -
                              - 2 -                         No. 67
and understandings, the parties' reasonable expectations, and the
affordance of meaning that is consistent with the whole of the
document being examined.   These concepts are not alien to the
interpretation of provisions in our State Constitution.    We have
held that the Compensation Clause is to be construed in a manner
"to give its provisions practical effect" (Ginsberg v Purcell, 51
NY2d 272, 276; see also Pfingst v State of New York, 57 AD2d 163,
165).   The Compensation Clause is to be given "a fair and liberal
construction, not only according to its letter, but also
according to its spirit and the general purposes of its
enactment" (Pfingst v State of New York, 57 AD2d at 165, see
People ex rel. McClelland v Roberts, 148 NY 360).
           The New York State Constitution has had a rich and
evolving history.   Constitutional conventions were convened in
1776-1777, 1821, 1846, 1867-68, 1894, 1915, 1938, 1967, and a
Constitutional Commission was established for 1872-73 (see Albany
Law School, "Schaffer Law Library's Guide on the New York State
Constitution," available at https://www.albanylaw.edu/media/user/
librarypdfs/guides/nyconsti.pdf).   The recommended Constitutions
were adopted only for the years 1777, 1821, 1846, 1894 and 1938
(see Historical Society of the New York Courts, "New York State
Constitutions," available at https://www.nycourts.gov/
history/legal-history-new-york/history-new-york-courts-constituti
ons.html).   Along the way, there were many years where voters
approved ad hoc amendments to the then-existing Constitutions


                               - 2 -
                              - 3 -                          No. 67
including, as relevant here, 1925 and 1961.
          The first Constitution to address the issue of
compensation for State officeholders was that of 1821.1    It
provided in article I that "compensation" be paid to members of
the State legislature and to the governor (see 1821 NY Const, art
I, §§ 4, 9), but curiously made no reference to judicial pay.
The Constitution of 1846 addressed judicial remuneration for the
first time, entitling the State legislators, governor, lieutenant
governor, and justices to "compensation" in exchange for the
performance of their duties (see 1846 NY Const, art III, § 6; art
IV §§ 4, 8; art VI, § 7).
          The Constitution of 1894 was the first to use divergent
nomenclature to describe the remuneration of State officeholders.
Under a heading of "Compensation," members of the legislature
were entitled to a "salary" of $1,500 per year plus reimbursement
of travel expenses at a defined rate of $1 for each ten miles
(see 1894 NY Const, art III, § 6).     Under another heading also
titled "Compensation," the governor was entitled to a "salary" of
$10,000 per year plus a furnished residence (see 1894 NY Const,
art IV, § 4).   A separate paragraph regarding the lieutenant
governor was titled "Salary," which was set at the sum of $5,000,
but as to that officeholder, the text prohibited receipt of "any
other compensation, fee or perquisite" for the performance of

     1
       The 1821 Constitution is sometimes also referred to in
literature as the Constitution of 1822, the year of its effective
date.

                               - 3 -
                              - 4 -                          No. 67
State duties (see 1894 Const, art IV, § 8).   Whereas legislators
and the executives were each expressly entitled to "salaries,"
judges and justices were instead entitled to "compensation,"
without elaboration, and with the only reference to their
"salary" being that such money be financed for the county and
surrogate courts by the counties in which they sat (see 1894 NY
Const, art VI, §§ 12, 15).   The 1894 Constitution provided for
the first time the guarantee that judicial compensation not be
diminished during any term of office (see 1894 NY Const, art VI,
§ 12).
          A 1925 amendment to the 1894 Constitution continued the
word "compensation" to describe judicial remuneration, and
continued the guarantee that compensation not be diminished
during terms in office (see NY Organization of State Jud. System,
Amend. 4 [1925]).
          The 1938 Constitution continued the header of
"Compensation" for the State legislators, the governor, and for
the first time the lieutenant governor.   It was specifically
defined for those officeholders within the definitional texts as
"salary" and travel expenses for legislators, "salary" and a
residence for the governor, and straight "salary" for the
lieutenant governor (see 1938 NY Const, art III, § 6, art V, §§
3, 6).   However, the judiciary article continued to scrupulously
avoid use of the word "salary," and instead referred only to
"compensation" that was to be paid without diminishment to the


                               - 4 -
                               - 5 -                           No. 67
remainder of the judicial terms (see 1938 NY Const, art VI, §
25[a]).   The same language was unmolested by a 1961
constitutional amendment that reorganized the courts of the
State, and represents the language that is still controlling
today (see N.Y. Session Laws, Vol. III, 4025 [1962]; N.Y. Session
Laws, Vol. II, 2708-2734 [1961]).
           A review of the various Constitutions and amendments
establishes that since 1894, legislative and executive
remuneration has been expressed as including "salary" and, where
applicable, certain defined perquisites and benefits.    In
contrast, judicial remuneration has been expressed solely and
strictly as "compensation."    The specific language of the
Compensation Clause today provides that the "compensation" of
State judges and justices "shall be established by law and shall
not be diminished during the term of office for which he or she
was elected or appointed" (NY Const, art VI, § 25[a]).
           The 1894 Constitution is the document that is of the
most historical importance to this matter as it reflects the
first instance when the drafters of the New York Constitutions
expressly differentiated between the "salary" and other benefits
payable to legislators and executives, and the "compensation"
payable to members of the judiciary.    There appears to be no
available original or secondary source materials that explain the
difference in terminology.    The reason for differentiating
between salary and compensation in 1894 is not disclosed in the


                                - 5 -
                               - 6 -                          No. 67
Journal of the Convention, the Report of the Debate and
Proceeding of the Convention, or in the Documents of the
Convention Vols. 1-2 (see New York State Library, "Documents from
the 1894 Constitutional Convention").   Not even Charles Z.
Lincoln's The Constitutional History of New York,2 which is
perhaps the most authoritative study of the State's early
constitutional history, provides any explanation or insight into
the contrasting terminology.   Cases decided prior to 1894 on
matters involving judicial compensation, such as People ex rel.
Bockes v Wemple (115 NY 302), Gilbert v Board of Supervisors of
Kings County (136 NY 180), and People ex rel. Follett v Fitch
(145 NY 261 [interpreting a pre-1894 statute]), are of limited
value as they predate the significant language changes adopted in
the Constitution of 1894.   Yet, there can be no question that for
the last 123 years, the distinction between "salary" and
"compensation" has conspicuously existed in the New York
Constitution.   Absent convention debate or reports reflecting the
specific intent of the drafters on this issue, our interpretation
of the meaning of such nomenclature must necessarily rest upon
the words themselves and their common usage (see Anderson v
Regan, 53 NY2d 356, 362; Rahill v Bronstein, 32 NY2d 417, 421;
People v Carroll, 3 NY2d 686, 689).
          Words matter.   "Salary" and "compensation," while

     2
       Charles Z. Lincoln, The Constitutional History of New
York, Vols. I-V. Rochester: The Lawyers Co-operative Publishing
Company, 1905-06.

                               - 6 -
                              - 7 -                           No. 67
related, are not one and the same.     Tellingly, the Constitution
of 1894 referred to legislative and gubernatorial "Compensation"
as a mere title header to the description and obligations of
those branches of State government (see NY Const, art III, § 6;
art IV, § 4 [1894]).   The texts within the legislative and
executive articles of the 1894 Constitution, underneath their
headers, then defined those officeholders' remuneration as
"salary" and in the specific case of the legislators and
governor, reimbursements and perquisites.    The straight $5,000
"salary" of the lieutenant governor was plainly described as such
in the absence of other perquisites or benefits, and without
reference to any complicating reference to payable compensation
(see 1894 NY Const, art IV, § 8).    Clearly the Constitution of
1894 employed the word "compensation" as a broad umbrella term,
and used the word "salary" as one component thereof, perhaps the
largest, fitting under the compensation umbrella.    Therefore,
where article VI, § 12 of that Constitution described judicial
remuneration solely in terms of "compensation" without any
reference to "salary," the drafters purposely chose to cloak the
judiciary under that umbrella, without limiting judicial
remuneration to any narrower term or definition.    The reason for
doing so might be self-evident and central to this appeal;
namely, that only remuneration for the judicial branch of
government was described in the same sentence as subject to
non-diminution during any terms of judicial office (see NY Const,


                               - 7 -
                               - 8 -                          No. 67
art VI, § 12).3   By implication and reasonable construction, the
drafters of the Constitution of 1894 were seeking to provide
members of the judiciary with broad protections, such that the
non-diminution of compensation be expansive and extend to all
forms of emoluments that judges and justices could traditionally
expect to receive at that time.
          For these reasons, the linguistic differential between
legislators' and executives' "salaries," perquisites and
benefits, as distinguished from jurists' "compensation," from
1894 forward, demonstrates that salary and compensation are not
synonymous terms.
                                  II.
          State-sponsored health care coverage was not
specifically mentioned in the Constitution of 1894 or its 1938
successor.   The issue has "called into life a being the
development of which could not have been foreseen completely by
the most gifted of [constitutional] begetters" (see State of
Missouri v Holland, 251 US 416, 433).   Litigation over the
meaning of judicial "compensation" has been sparse.   Three cases
from the late 1800s that appear instructive on their faces
address issues of judicial compensation:   People ex rel Bockes v
Wemple (115 NY 302), Gilbert v Board of Supervisors of Kings


     3
       The Constitution of 1821 had protected the governor's
compensation from diminishment during any term in office (see
1821 NY Const, art 3, § 4), but that provision was dropped in
subsequent Constitutions.

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                              - 9 -                          No. 67
County (136 NY 180), and People ex rel. Follett v Fitch (145 NY
261).   However each of these reported cases involve
constitutional analysis, or in the case of Gilbert, a statute,
that became outdated with the subsequent adoption of the
Constitution of 1984 containing the distinction between "salary"
and "compensation."   Nevertheless, to the extent arguably
relevant, Bockes, while dusty, actually supports the conclusion
that the Compensation Clause is intended to protect more than
mere salary.
           In 1889, this Court faced the question of whether
judicial compensation was limited to a $6,000 annual payment, or
included an additional $1,200 annual payment authorized in lieu
of job-related expense reimbursements (see People ex rel. Bockes
v Wemple, 115 NY at 306).   At that time, justices of the Supreme
Court were entitled to compensation to the end of their elected
terms in office, even if a term ended after a justice reached the
mandatory retirement age of 70.   The legal questions posed were
twofold: 1) whether the justice's post-retirement compensation
was to be paid at the rate of $6,000 per year or $7,200 per year,
and 2) whether a payment of only $6,000 represented a diminution
otherwise prohibited by the then-existing Constitution.    This
Court held that the $7,200 total amount that had been paid to the
justice prior to retirement remained intact, and a continuing
debt of the State, until the expiration of the official term in
office to which that justice had been elected (see People ex rel.


                               - 9 -
                              - 10 -                        No. 67
Bockes v Wemple, 115 NY at 311).   The Court described the $1,200
payment "as much a part of the compensation to the justice as
though his salary, eo nomine, had been increased to compensate
him further for what his office entailed upon him in the way of
duties and work" (People ex rel. Bockes v Wemple, 115 NY at
309-10).   In other words, the precedent establishes that the
Compensation Clause is not limited to the mere and strict
"salary" that is scheduled and adjusted from time to time by the
legislature, but more broadly includes, at least in the instance
of Bockes, the "in lieu of" payment that substituted for the
reimbursement of itemized job-related expenses.4

     4
       Bockes was not without its limits. The Board of
Supervisors for Kings County voluntarily paid the justices in
that county an additional $6,000 annual allowance for drawing
local jurors. This Court held in 1892 that the reference in the
Compensation Clause to "compensation to be established by law"
did not extend to additional allowances that municipalities
might, in their discretion, add to remuneration for special local
services (see Gilbert v Board of Supervisors of Kings County, 136
NY at 185-86). The Court's reasoning reached a result that was
both practical and consistent with the State's constitutional
obligations (id. at 186). Judicial compensation extending beyond
the jurists' age-related retirement was enough of a hot-button
issue in the 1890s that it prompted an amendment to the
Constitution in 1894. The 1894 amendment eliminated the
post-retirement payment of compensation for jurists elected after
January 1, 1894 (see NY Const, art III, § 12 [1894]). Similarly,
in People ex rel. Follett v Fitch (145 NY 261), this Court
addressed the constitutionality of 1882 legislation that required
payment by the City of New York of up to $500 per year for
Supreme Court justices residing outside the City but assigned to
a General Term within the City, as reimbursement for expenses and
disbursements (L 1882, ch 410, § 1109, as amended; L 1883, ch
104). This additional sum was held to be not guaranteed and not
subject to the Compensation Clause, as job-related expenses and
disbursements were already subsumed by the then-existing $1,200

                              - 10 -
                              - 11 -                         No. 67
          Here, the majority maintains that Bockes limits
judicial compensation only to remuneration that is directly
related to the performance of official duties and work.    In fact,
Bockes did not address whether other forms of remuneration or
benefits, which did not exist until decades later, could equally
qualify as compensation.   Today, almost 13 decades after this
Court decided Bockes, judicial compensation bears little
resemblance to its 19th century predecessor.   Indeed, judicial
compensation is complicated by a wide array of permutations
including tax-advantaged 401(k) plans, flex spending medical and
childcare accounts, deferred compensation options, the
reimbursement of itemized job-related expenses, pension
contributions and accounts, and as solely relevant here,
state-sponsored health care coverage paid for mostly by the State
and partially by the participating members of the judiciary.


                               III.
          Turning attention more specifically to health care
insurance contributions, authority is scant in New York and
throughout the nation as to whether states' contributions toward
the expense is protected by judicial Compensation Clauses.    In
New Jersey, where the Compensation Clause prohibits the
diminution of judicial "salaries" during the terms of judicial



annual payments made by the State in lieu of itemized expenses
(see People ex rel. Follett v Fitch, 145 NY at 266).

                              - 11 -
                                - 12 -                       No. 67
appointment (see NJ Const, art VI, § 6, para 6), the New Jersey
Supreme Court held under facts similar to those present here that
an increase in jurists' percentage contributions toward health
care premiums, and toward pensions for that matter, was
unconstitutional (see Depascals v State of New Jersey, 211 NJ 40,
62; accord Hudson v Johnstone, 660 P2d 1180, 1182
[unconstitutionality of Alaska's increase in judges' paycheck
deduction toward the state's retirement system]; Stiftel v
Varper, 378 A2d 124, 132, affd 384 A2d 2 [same, as to Delaware]).
In contrast, the Court of Appeals of Michigan has held that a
city's elimination of payments for judges' health care coverage
and lesser fringe benefits did not violate that state's statutory
judicial compensation protections (see Garian v City of Highland
Park, 176 Mich App 379, 382).    Michigan's non-diminution statute
is similar to New Jersey's Compensation Clause in that its
guarantees are directed at judicial "salaries," and not at
"compensation" (see M.C.L. 600.8202[5]).
          New York's Compensation Clause, unlike the language
employed in New Jersey and Michigan, is not protective of
"salaries," which is a narrow and targeted term, but of
"compensation," which is broader and more inclusive.   This Court
used the terms "pay," "salary," and "compensation"
interchangeably in Bockes, Gilbert, and/or Follett, but in those
cases, it was not called upon to define any distinctions between
the nomenclature, because doing so would have made no difference


                                - 12 -
                              - 13 -                         No. 67
to the narrow decisions the Court was called upon in those
instances to render.
           The interpretation of the "compensation" terminology
used in the New York Constitution arose in a 2009 Appellate
Division decision addressing the question of whether the
elimination of paid health care benefits to a village justice
during his term in office violated the State's Compensation
Clause.   While not binding here, the Second Department held that
the mid-term elimination of the justice's paid health benefits
was an encroachment on the compensation protections afforded by
article VI, § 25(a) of the New York Constitution (see Roe v Board
of Trustees of the Vil. of Bellport, 65 AD3d 1211, 1212).    During
the same year, the First Department viewed judicial "compensation
[as] consisting of the pay scale and benefits" (Larabee v
Governor of State of N.Y., 65 AD3d 74, 85 [emphasis added], affd
as mod Maron v Silver, 14 NY3d 230, rearg denied, 16 NY3d 736).
           Interestingly, the record evidences that New York State
employees may opt out of the health care coverage offered by the
State, and receive in exchange an "incentive payment" that is
pro-rated in biweekly paychecks as taxable income (R 89, 109,
117).   If incentive payments are treated by the federal
government as taxable income, the State's contributions toward
the cost of the health care insurance coverage that is not waived
by other employees should be construed as compensation as well.
           Health care insurance coverage has been defined as part


                              - 13 -
                               - 14 -                        No. 67
of compensation, outside the scope of the Compensation Clause, in
a variety of decisions from the Second, Third, and Fourth
Departments, and in state and federal statutes.   The appellate
decisions include, from the Fourth Department, Matter of Board of
Educ. of Dundee Cent. School Dist. (96 AD3d 1536, 1539 ["a
contribution toward an employee's health insurance is a form of
compensation"]).   The Third Department has separately opined that
"[i]t is generally undisputed that health insurance benefits are
a form of compensation 'encompassed within the definition of
terms and conditions of employment'" (Matter of Police Assn. of
City of Mount Vernon v New York State Pub. Empl. Relations Bd.,
126 AD2d 824, 825, quoting Matter of Town of Haverstraw v Newman,
75 AD2d 874, 874-75).   Indeed, in Matter of Town of Haverstraw,
the Second Department declared that "[t]here is no reason to
distinguish legal insurance from health insurance or group life
insurance.   All are a form of compensation and, as such, are
encompassed within the definition of terms and conditions of
employment" (id. at 874-75).
          Likewise, Judiciary Law § 34, which apportions the cost
of judicial remuneration between the State and counties, defines
compensation as including "the employer's share of the premium
for the coverage . . . under the health insurance plan created by
article eleven of the civil service law."   Under New York Tax Law
24-a(b)(3), "a 'qualified production expenditure' means . . . all
salaries, wages, fees and compensation including related


                               - 14 -
                              - 15 -                          No. 67
benefits."   A "living wage" under Administrative Code of the City
of New York § 6-134(b)(9) is defined as "an hourly compensation
package that is no less than the sum of the living wage rate and
the health benefits supplement rate for each hour worked . . .
The portion of the hourly compensation package consisting of the
health benefits supplement rate may be provided in the form of
cash wages, health benefits, or any combination of the two."
Under a federal statute, the Board of the Tennessee Valley
Authority must "approve all compensation (including salary or any
other pay, bonuses, benefits, incentives, and any other form of
remuneration) of all managers and technical personnel that report
directly to the chief executive office" (16 USC § 831[a][g]
[1][G]).   In another federal statute, the Senior Executive
Service of United States "shall be administered so as to --
1) provide for a compensation system, including salaries,
benefits, and incentives, and for other conditions of employment,
designed to attract and retain highly competent senior
executives" (5 USC § 3131).   Title 5 of the United States Code,
which sets forth federal employees' compensation rights,
"govern[s] all incidents of employee compensation, including
basic salaries; salary increases; overtime; holiday and sick pay;
life and health insurance benefits; retirement benefits; travel
and substance allowances; and compensation for injury and
unemployment" (Kizas v Webster, 707 F2d 525, 536).
           The State's contributions toward the health care


                              - 15 -
                              - 16 -                         No. 67
insurance premiums of judges and justices are not quantified in
the record in actual dollars, but as percentages of the total
costs only.   The State's contributions are likely the single
largest emolument that the participating members of the judiciary
receive beyond scheduled salaries themselves.   While the State's
health care contribution may not approach, in relation to salary,
the $6,000:$1,200 ratio that this Court protected as additional
compensation in Bockes, it is undeniably significant given the
high costs of health care premiums today.   We need not concern
ourselves about whether the definition of compensation may or may
not impact negligible issues such as parking privileges or
cafeteria discounts.   Only the State's contributions toward
health care insurance premiums are at issue here, the
significance of which cannot reasonably be compared to the lesser
job-related perquisites which are outside the scope of this
appeal.
          Notably, the precursors to the current New York
Constitution broadly defined judicial remuneration as
compensation rather than as salary, at a time when
employer-provided health care insurance did not exist.   What did
exist, as discussed in Bockes, were job-related out-of-pocket
expenses that were initially reimbursed by the State on an
itemized basis, then covered by an annual $1,200 "in lieu of"
payment, and which later reverted to the itemized reimbursement
practice that is in effect today.   Clearly, there has always been


                              - 16 -
                              - 17 -                           No. 67
an understanding, expectation, and practice that in one form or
another, judicial compensation included reimbursements for
expenses incurred on the job, even though no such entitlement is
specifically referenced in any state constitution or amendment
thereto.   Now, nearly two decades into the 21st century, the
burgeoning cost of health care is undisputed.   The State now
routinely offers employees health care policies and routinely
makes contributions toward their costs, reflecting a new and
additional understanding, expectation and practice.    These
contributions, whether 90%, 88% or 84%, are significant for the
employees who receive them and the employer who pays them, in
both percentage and actual dollar terms.
           When attorneys in private practice or employed in other
capacities consider whether to seek a full-time judgeship by
appointment or election, a prime consideration for many is the
financial affordability of the career change.   In some instances,
the new jurist will incur a reduction in annual compensation by
choosing a career on the bench.   Similarly, current full-time
judges and justices in New York assess their financial situations
when deciding whether to seek re-appointment or re-election, or
to choose higher remuneration in the private sector.    Still other
members of the judiciary consider when and whether to retire from
the bench, with or without the intention of remaining in the
legal profession in some other form or fashion, and will factor
into their calculation the financial impact of the decision.


                              - 17 -
                               - 18 -                        No. 67
Prospective, current, or retiring jurists examining the financial
ramifications of these career decisions will logically and
necessarily consider the total compensation package they would
expect to receive during a term in office or in retirement.
Health care expenses for the jurist, and for covered dependents
in many instances, are a significant sum of money as they are to
employees in any profession, and constitute an integral part of
the calculation which must be made in deciding the affordability
of entering, remaining in, or retiring from public service in the
judiciary.
            In sum, the State's contribution toward the health care
insurance premiums of the participating members of the judiciary
should be acknowledged as part of compensation within the
protective cocoon of the Compensation Clause because, for reasons
noted, doing so gives "practical effect" to the terms and wording
of the Compensation Clause (see Ginsburg v Purcell, 51 NY2d at
276).   It is a significant element of judicial remuneration and
has been treated as such, as a practical matter, by both employer
and employees, and in statutes and cases, no less so than the
annual $1,200 "in lieu of" allowance that was protected by
Bockes.


                                 V.
            The judgment appealed from should nevertheless be
reversed.


                               - 18 -
                                - 19 -                        No. 67
          Any direct reduction of compensation to members of the
State judiciary violates New York's Constitution, article VI, §
25(a) (see Maron v Silver, 14 NY3d 230, 252-54).    At first blush,
the State's reductions in health care insurance contributions
embodied in Civil Service Law § 167(8) would appear to be
violative of the Constitution and warrant judgment in plaintiffs'
favor.
          However, legislative enactments, such as Civil Service
Law § 167(8), are presumed to be constitutional, and those who
challenge them "bear a heavy burden of proving
unconstitutionality beyond a reasonable doubt" (City of New York
v State of New York, 76 NY2d 479, 485; see Elmwood-Utica Houses v
Buffalo Sewer Auth., 65 NY2d 489, 495).    On this record,
plaintiffs have failed to satisfy their burden that the reduction
in the State's percentage contributions toward health care
insurance premiums -- from 90% to 84% for active jurists and from
90% to 88% for retirees -- represents any net reduction of the
value of the benefit to current and former members of the
judicial branch.   Plaintiffs' claim is not that the State is
paying less money per jurist overall, or less than it previously
did for health care insurance premiums at the expense of
individual members or retirees of the judiciary.    Rather,
plaintiffs' claim is only that the State now contributes a lower
percentage of those premiums.    The record is silent on whether
the actual costs to the State have increased or decreased.     If,


                                - 19 -
                             - 20 -                          No. 67
for instance, the State's contributions toward health care
insurance premiums increase in a relevant year by a dollar amount
that exceeds the value of the State's 6% reduction in
contributions for jurists or the 2% reduction for retirees, the
judiciary, rather than suffering a diminution of overall
compensation, may arguably come out "ahead" in the equation.     In
other words, the 6% or 2% contribution reductions toward
premiums, as authorized by Civil Service Law § 167(8), do not
necessarily and mathematically reduce the value of the insurance
payments provided by the State, like a see-saw, without
additional evidence that insurance payments by the State have not
independently risen by 6% or 2% or more, if at all.   Absent a
mathematical showing by plaintiffs that the State's health care
contributions, protected by the Compensation Clause, have been
reduced in dollar terms for the insurance products provided,
rather than in percentage terms, plaintiffs fail, as constrained
by their allegations, to satisfy their burden of proof.
          The record evidence also fails to address qualitative
differences that may exist in State-sponsored health care
insurance coverage from year to year.   If, for instance, current
or former members of the judiciary pay an additional percentage
for their coverage, but the quality of that coverage improves by
some measurement by the same or greater percentage, it cannot be
said that their compensation has been diminished, because the
additional expenditure merely purchases an improved health care


                             - 20 -
                              - 21 -                         No. 67
product to the same degree.   This Court does not know whether the
percentage reduction in the State's contributions has been
accompanied by any increase or decrease in the quality of
coverage, because plaintiffs have failed to address their burden
of proof on the issue.
           The foregoing is consistent with Maron v Silver (14
NY3d at 254), wherein we held that the Compensation Clause is not
violated if inflation erodes the value of compensation.   Absent a
showing that the State's health care contributions have lessened
because of the 6% or 2% reductions at issue here, or proof that
the substance of the insurance has meaningfully decreased,
plaintiffs fail to meet their burden of overcoming the
presumption of constitutionality that is attached to Civil
Service Law § 167(8).
           By concluding that a direct diminution of judicial
salary has not been mathematically established, in dollar terms,
we do not reach the secondary question of whether the State's
reduced percentage contributions toward health care premiums for
the judiciary and its retirees was accomplished in a
discriminatory or non-discriminatory manner as compared with
other employees of the State (see United States v Hatter, 532 US
551, 571).
           Accordingly, the judgment should be reversed without
prejudice to plaintiffs recommencing a new action, if they be so
advised.


                              - 21 -
Bransten v State of New York
No. 67




WILSON, J.(concurring):
          I agree with Justice Dillon that health care benefits
are "compensation."   I write separately because this appeal fails
for a simple reason or, if not, should not be here at all.
          Plaintiffs sought a declaration that Civil Service Law
§ 168 (8) is unconstitutional.    Their complaint does not seek a
declaration that the regulations subsequently promulgated
thereunder are unconstitutional.    In moving for summary judgment,
plaintiffs reiterated their request for a declaration that the
statute was unconstitutional; they did not assert that the
regulations were.   However, the statute says only this: "The
president, with the approval of the director of the budget, may
extend the modified state cost of premium or subscription charges
for employees or retirees not subject to an agreement referenced
above and shall promulgate the necessary rules or regulations to
implement this provision" (Civil Service Law § 168 [8]).    It does
not require any change or reduction, or any action at all.   Civil
Service Law § 168 (8) itself is decidedly constitutional.
          The fact that the plaintiffs here are Supreme Court
Justices should not entitle them to any laxer pleading standard
than we afford other litigants.    They did not seek a declaration


                                 - 1 -
                                - 2 -                         No. 67

that the regulations were unconstitutional, did not amend their
complaint, and did not move to conform the pleadings to the
proof.   I would reverse on the ground that the statute itself
does not affect compensation however compensation is defined, and
strike the balance of Supreme Court's order because plaintiffs
did not seek any declaration as to the regulations.
           If, for some reason, my simple analysis above is wrong,
then we lack jurisdiction to hear the appeal.   The alleged
diminution in compensation arises not from the statute, but from
the subsequent regulations, at 4 NYCRR 73.3 (b) and 73.12.
Jurisdiction was asserted under CPLR 5601 (b) (2), which permits
a direct appeal to the Court of Appeals from Supreme Court "where
the only question involved on the appeal is the validity of a
statutory provision of the state or of the United States."
           In similar circumstances, we have disallowed a direct
appeal when plaintiffs sought to challenge the constitutionality
of regulations (Rent Stabilization Ass'n v Higgins, 83 NY2d 156,
168 [1993] ["appellants sought a direct appeal to this Court,
which we transferred to the Appellate Division on the ground that
questions other than the constitutional validity of a statute
were involved"]).
           It is unclear why we have permitted a direct appeal
from Supreme Court here, and passed on the constitutionality of
the regulations.    Whatever the reason, our decision today creates
an amorphous jurisdictional portal, which may open for others in


                                - 2 -
                                  - 3 -                           No. 67

the future.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *   *   *
Judgment reversed, without costs, plaintiffs' motion for summary
judgment denied, and judgment granted in favor of defendant
declaring Civil Service Law § 167(8) does not violate the
Compensation Clause of the New York State Constitution (NY Const,
art VI, § 25[a]). Opinion Per Curiam. Judges Rivera, Fahey,
Garcia, Peradotto and Mulvey concur. Judge Dillon concurs in
result in an opinion, in which Judge Wilson concurs in a separate
opinion. Chief Judge DiFiore and Judges Stein and Feinman took
no part.

Decided November 21, 2017




                                  - 3 -
