When New York's Judiciary Law ties a county district attorney's minimum salary to the county court judge's salary, does the DA get the higher supreme-court-justice salary if the local county court judge is temporarily sitting as an acting supreme court justice?

Plain-English summary

Cayuga County's County Attorney wrote to the AG because the county had a salary puzzle. Judiciary Law § 183-a ties the district attorney's minimum salary to the county court judge's salary. Cayuga had one county court judge, and that judge was at the time temporarily sitting as an acting supreme court justice, drawing the higher supreme-court justice salary ($136,700) instead of the standard county court judge salary ($122,700). The DA argued he should get $136,700.

The AG concluded the DA gets $122,700, the statutory salary for a Cayuga County court judge under JL § 221-d, not the higher amount the judge was actually receiving by virtue of temporary assignment.

Statutory text and population scheme. JL § 183-a sets DA minimum salaries by reference to county population:
- Counties over 500,000: DA gets supreme court justice salary.
- Smaller counties meeting certain criteria: DA gets county court judge salary in that county.
- Plus any local additional compensation the county legislature provides.

The Legislature deliberately tied DA pay to the structural judicial salary at the county level, not to the contingent salary a particular sitting judge might be earning.

The Court of Appeals' rationale. Kelley v. McGee, 57 N.Y.2d 522, 540 (1982), explained that the population-based DA salary scheme "comports with logic and common sense. It is entirely reasonable to assume that the greater the population in a county, the greater will be its need for a full-time District Attorney as well as its ability to pay that officer an adequate salary." Tying the DA's minimum to whatever salary the local judge happens to be drawing because of temporary assignment severs that population-population link.

Workability problems with the alternative reading. The AG laid out the practical mess of reading § 183-a otherwise:
- Many counties have multiple county court judges (Albany, Broome, Dutchess, Niagara, Oneida, Ontario, Oswego, Rensselaer have two; Onondaga, Orange, Rockland have three). If only some are temporarily assigned to supreme court, which judge's salary controls the DA's salary?
- Temporary assignments come and go. 22 N.Y.C.R.R. § 121.3 caps them at one year; § 121.4 lets the chief administrative judge terminate them at any time. The DA's salary would fluctuate up and down each year, which the Legislature plainly did not intend.

The clean reading: the DA is paid based on the statutory salary for the county's county court judge, set by JL § 221-d. That statutory figure doesn't move when judges get reassigned.

Local supplement still possible. § 183-a expressly leaves room for the county legislature to provide additional compensation by local law. So a county that thinks the statutory minimum is too low can supplement, but is not forced to pay more by accidents of judicial assignment.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was the county trying to underpay its DA?
No. The county was trying to figure out what its statutory floor was. The salary numbers in the opinion ($122,700 vs. $136,700) reflect 2009 figures. The legal question, whether the DA's salary floats up with temporary judicial assignments, is independent of the specific dollar amounts.

What about supplemental compensation set by local law?
That option remains open. The county legislature can vote to pay the DA more than the statutory floor. The opinion's conclusion is only about what § 183-a requires; it does not cap what the county can choose to pay.

Does this apply if the county court judge retires or dies and a new acting judge is appointed at the county-court-judge salary while a vacancy is filled?
The opinion's reasoning is structural, not personal. The DA's salary is tied to the statutory salary schedule, not to any specific individual's actual paycheck. Vacancies and acting-judge fill-ins do not change the statutory § 221-d figure.

Does the same logic apply to the district attorney in a multi-judge county where only some judges are temporarily assigned to supreme court?
Yes. The opinion specifically cited the multi-judge problem as one of the reasons for its reading. The county-court-judge salary in JL § 221-d is the same regardless of how many judges sit or which ones are temporarily assigned up.

Why does the Constitution come into this?
N.Y. Const. Art. VI, § 26(i) authorizes the temporary assignment of judges to other courts. The AG cited it (along with JL § 212(2)(c) and 22 N.Y.C.R.R. part 121) to confirm that temporary assignments are a normal feature of judicial administration and not a structural change to a judge's position.

Background and statutory framework

Judiciary Law § 183-a. Sets DA minimum salaries by reference to county population and the salary of the county court judge or supreme court justice in the county. Was the central provision in Kelley v. McGee.

Judiciary Law § 221-d. Sets statutory salaries for county court judges by county. The standard against which § 183-a measures the DA's pay.

Judiciary Law § 221-b. Sets supreme court justice salaries.

Judiciary Law § 224. Compensation of judges on temporary assignment. The vehicle for the higher pay the Cayuga CCJ was receiving while sitting as an acting supreme court justice.

Judiciary Law § 182. Number of county court judges by county. Source for the multi-judge county data.

Judiciary Law § 212(2)(c) and 22 N.Y.C.R.R. part 121. Rules on temporary assignment of judges. § 121.3 limits temporary assignments to one year. § 121.4 lets the chief administrative judge terminate assignments at any time.

N.Y. Const. Art. VI, § 26(i). Constitutional authorization for temporary judicial assignments.

Court of Appeals on the population-based DA scheme. Kelley v. McGee, 57 N.Y.2d 522 (1982), upheld the constitutionality and explained the rationale of the population-based DA salary scheme.

Citations

• Judiciary Law § 182 (number of county court judges by county).
• Judiciary Law § 183-a (DA minimum salaries; population-based scheme).
• Judiciary Law § 212(2)(c) (administrative rules on temporary judicial assignment).
• Judiciary Law § 221-b (supreme court justice salaries).
• Judiciary Law § 221-d (county court judge salaries).
• Judiciary Law § 224 (compensation of judges on temporary assignment).
• N.Y. Const. Art. VI, § 26(i) (temporary judicial assignment).
• 22 N.Y.C.R.R. § 121.3 (one-year limit on temporary assignments); § 121.4 (chief administrator may terminate).
• Kelley v. McGee, 57 N.Y.2d 522, 540 (1982) (population-based DA salary scheme rational).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2009-3_pw.pdf

Original opinion text

Judiciary Law §§ 182, 183-a, 212(2)(c), 221-b, 221-d, 224; N.Y. Const. VI, § 26(i); 22
N.Y.C.R.R part 121, §§ 121.3, 121.4

The statutory minimum salary for the Cayuga County district attorney is the salary established for county court judge by Judiciary Law § 221-d even when the judge is serving as acting supreme court justice.

July 16, 2009

Frederick R. Westphal
County Attorney
Cayuga County
160 Genessee Street
6th Floor
Auburn, New York 13021

Informal Opinion
No. 2009-3

Dear Mr. Westphal:

You have asked about the minimum salary required to be paid to the district attorney of Cayuga County. Your question arises because the Judiciary Law provides that the district attorney of Cayuga County shall receive a salary equivalent to that of a county court judge, and the sole county court judge in Cayuga County is at present sitting as an acting supreme court justice and receiving the higher salary payable to such justices. You ask whether the district attorney is entitled to the salary actually being paid to the county court judge ($136,700), or to the salary authorized by statute for the county court judge ($122,700).

Judiciary Law § 183-a governs the salary of district attorneys in many counties outside New York City, including Cayuga County. It provides that in counties with a population of more than five hundred thousand, district attorneys shall receive a salary equivalent to that of a supreme court justice. In counties with a smaller population and meeting certain other requirements, the district attorney shall receive an annual salary equivalent to that of county court judge in the county in which the district attorney is elected or appointed. In any case, the district attorney may also receive such additional compensation as the legislative body of such county may provide by local law. Judiciary Law § 183-a.

You have advised that Cayuga County is subject to the requirement that its district attorney be paid the same amount as the county court judge in Cayuga. The annual salary for county court judge in Cayuga County currently is $122,700. Judiciary Law § 221-d. You have further explained that there is only one county court judge in Cayuga County, and that judge has been designated an acting supreme court justice, and is accordingly receiving the higher annual salary due to supreme court justices as established by Judiciary Law § 221-b, currently set at $136,700. See Judiciary Law § 221-b (salary of supreme court justices); id. § 224 (compensation of judges on temporary assignment). You have therefore asked whether the district attorney for Cayuga County is to be paid $122,700 or $136,700. As explained below, we conclude that the statutory minimum salary for the district attorney is the salary established for county court judge in Cayuga County by Judiciary Law § 221-d. The contrary interpretation would be inconsistent with the general structure of the statute, and would create unworkable difficulties in applying the statute.

First, the structure of Judiciary Law § 183-a establishes a relationship between a county's population and the minimum salary to be paid its district attorney: counties with larger populations are required to pay higher salaries. As the Court of Appeals has observed, "The Legislature's choice to impose minimum salary requirements for District Attorneys upon counties depending upon their size comports with logic and common sense. It is entirely reasonable to assume that the greater the population in a county, the greater will be its need for a full-time District Attorney as well as its ability to pay that officer an adequate salary." Kelley v. McGee, 57 N.Y.2d 522, 540 (1982). This relationship between population and salary would be severed if section 183-a were interpreted to require a smaller county to pay its district attorney the increased salary its county court judge receives for temporarily serving as a supreme court justice rather than the amount Judiciary Law § 221-d establishes for that county's county court judge.

Second, interpreting Judiciary Law § 183-a to mandate the payment of a salary equivalent to that received by a county court judge serving as a supreme court justice would create serious difficulties in application. For example, in several counties with populations between 100,000 and 500,000, rendering them subject to the provisions of Judiciary Law § 183-a, there is more than one county court judge. Albany, Broome, Dutchess, Niagara, Oneida, Ontario, Oswego, and Rensselaer Counties have two county court judges, while Onondaga, Orange, and Rockland Counties have three. Judiciary Law § 182. The chief administrative judge may assign to supreme court some, but not all, of the county court judges in a county. See N.Y. Const. Art. VI, § 26(i); Judiciary Law § 212(2)(c); see also 22 N.Y.C.R.R. part 121 (rules of chief administrator relating to temporary assignment of judges to the supreme court). In that situation, it would be unclear under the statute which county court judge's salary should serve as the benchmark for the district attorney's salary. Similarly, a county court judge may be assigned to supreme court for a time period and then returned to county court. Under the proposed interpretation, the district attorney's salary would fluctuate with the changes in the assignment of the county court judge. See 22 N.Y.C.R.R. § 121.3 (temporary assignments are for terms of up to one year); id. § 121.4 (chief administrative judge may terminate temporary assignment at any time). By contrast, if section 183-a is construed to tie the salary of the district attorney to the salary schedule established for county court judges by Judiciary Law § 221-d, the result is an easily applied rule that is consistent with the legislative rationale described by the Kelley court.

For these reasons, we conclude that the district attorney's minimum salary in Cayuga County is that established by Judiciary Law § 221-d, currently set at $122,700. If the county legislature so chooses, it may of course authorize additional compensation for the district attorney. See Judiciary Law § 183-a.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions