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NY Courts
Audit Reveals $14 Million Discrepancy
By The Associated Press
New York Lawyer
August 27, 2008
New York City finance
officials are promising to keep better track of money collected from
bail, foreclosures and other court-ordered payments after state
auditors found records were off by $14 million.
State Comptroller Thomas
DiNapoli said in
an audit released yesterday
that one court-related bank account was nearly $11 million short of
the amount in city ledgers. Another account had about $3 million
more than the records showed.
The city Department of
Finance said citizens got all the money they were due. The agency
blames the accounting errors on a decades-old computer system, set
to be replaced by January. While it said no one has been denied
money to which they are entitled, the agency is working to untangle
the discrepancies by next month.
That may prove laborious:
Mr. DiNapoli said some records are handwritten court receipts.
Judges'
Group Backs Judges Who Seek
Recusals Over Pay Raise in Cases of "Conscience"
By Mark Fass
New York Law Journal
New York Lawyer
August 25, 2008
The County Judges
Association of the State of New York has fired off another salvo
in the protracted battle over judicial salaries.
Following a warning in May
by the New York State Commission on Judicial Conduct that judges who
recuse themselves from cases to protest legislative inaction
regarding pay raises could face disciplinary actions, the judges'
association announced last week that it adopted a resolution
supporting "the recusal of any New York State Judges, as a matter of
personal conscience, in regard to their ability to be fair and
impartial due to the controversy surrounding Judicial compensation
or related litigation."
The resolution echoes
statements made by Chief Judge Judith S. Kaye in an e-mail to
all state judges earlier this year, when she said that judges may
recuse themselves as a matter of "individual conscience," but that a
"strategy" of recusals could "hurt our cause."
A spokeswoman from the
Commission on Judicial Conduct did not return a call for comment.
Price
Fight - Live!
By Jason Boog
Judicial Reports
July 17, 2008
The referee in Thursday's
judge salary slugfest seemed to be leaning to one side.
Supreme Court Justice
Edward H. Lehner cracked a joke while listening to oral arguments
Thursday in a suit that could raise judicial salaries around the
State.
"My daughter worked as a summer associate," said Lehner. "She’s
trying to get me a job there. I’d make more money."
The aging but spry jurist — presiding over the suit filed by Chief
Judge Judith S. Kaye against the Executive and Legislative branches
of State government — oversaw some stormy arguments in a three-hour
session at 60 Centre Street. Lehner alternated between interrogating
and bickering with the attorneys on both sides of the case, Kaye
v. Silver.
With oral arguments concluded, the judge is now considering two
separate motions: the defendant’s to dismiss the case and the Chief
Judge’s for summary judgment. After Thursday’s blustery session, the
judge seemed to be favoring the plaintiff’s arguments — which might
result in all State judges (including himself) receiving their first
pay-raise in 10 years.
Indeed, the judge has already ruled for similar plaintiffs, in a
separate lawsuit filed by four lower-court judges over the same
issue, Larabee v. The Governor of New York State. In that
case, the Justice ruled that judicial salaries were unfairly linked
to Legislators’ salaries and ordered New York’s Legislative and
Executive branches to remedy the situation in 90 days. (That ruling
is on appeal.)
The Chief Judge was represented by, Bernard W. Nussbaum, the former
Clinton White House Counsel who is now a Wachtell, Lipton, Rosen &
Katz partner. Nussbaum flushed palpably at the peak of his
arguments, dancing like a boxer around the courtroom table.
His presentation centered on a series of eight charts that
illustrated the effects of inflation and took a comparative look at
State judicial salaries. At one point, he too invoked the trope of
the day: "The summer associates who worked on this case, they all
make more than your Honor."
But Nussbaum added rhetorical insult to financial injury: "In the
middle of the Depression, [Court of Appeals] judges were making as
much as a senior associate. Now, they make as much as a summer
associate."
Click here to read more
about comparative judicial salaries.
Later, Richard L. Dolan, an attorney at Schlam Stone & Dolan,
empolyed a quieter, more measured tone. Dolan was representing
Governor David A. Paterson, Assembly Speaker Sheldon Silver and the
Assembly, as well as the State of New York.
"Your daughter is trying to get you to take a more lucrative
position," he said, "But here you sit. You didn’t do it." Over and
over during oral arguments, Dolan returned to the point that State
judges aren’t motivated by money, and that current salaries levels
aren’t keeping strong candidates off the bench.
The judge seemed unconvinced by this argument. "Wouldn’t you agree
that [current] salary won’t attract what your client calls ‘an
essential part of attracting top-flight talent’?" the judge asked.
As he did so, he produced a folded copy of The New York Sun
that contained a story about how a 28-year-old communications
officer in the Governor’s office who earns more than Chief Judge
Kaye.
Coincidentally, Nussbaum also read from the same article, headlined
"How Payroll of Paterson Dwarfs All."
Dolan shared the defendant’s table with David L. Lewis, a Lewis &
Fiore partner, who is representing the State Senate Majority Leader
Joseph Bruno and the State Senate. He countered arguments about the
alleged unconstitutionality of linking legislator and judge salaries
by citing the decision that rocked judicial reformers earlier this
year.
"The U.S. Supreme Court made a point that our laws might be stupid,
but there’s nothing [the U.S. Supreme Court] can do about it," said
Lewis, referring to the Lopez Torres vs. New York State Board of
Elections case — in which the country’s highest court found the
state’s judicial nomination system unseemly, but not
unconstitutional.
Click here to read
Judicial Reports’s exclusive Lopez Torres coverage.
"This is a public policy matter. You are not the public policy part
of the government," Lewis concluded, urging the judge to dismiss the
suit.
The Lopez Torres ruling haunted the proceeding.
"The essence of government is compromise," said Dolan, arguing that
the Executive and Legislative squabbles that caused the pay-raise
stalemate were part of the normal functioning of the government.
"Politicians tend to disagree. At some point, they have to reach a
compromise."
It was a lesson Lehner said he didn’t need, having served for six
years in the State Assembly during the 1970s. "I used to be in the
Legislature," he said. "I’m aware of the compromising."
Under OCA
Contract, Some NY Court
Staffers' Wages Frozen Until Juddges' Pay Is Raised
By Joel Stashenko
New York Law Journal
New York Lawyer
July 14, 2008
ALBANY - More than 1,100 non-judicial employees of the Office of
Court Administration will see their wages frozen when court
employees' new contracts with the state go into effect.
Michael J. Sigault, president of the New York State Court Clerks
Association, said he expects his members to ratify his union's
tentative agreement with the state when members' ballots are counted
Wednesday. If approved, the union would become the 12th and last
bargaining unit representing court employees to approve a new
contract.
Though provisions vary according to the location of the non-judicial
employees and their job titles, all the contracts provide for a 3
percent raise retroactive to April 1, 2007, and another 3 percent
increase retroactive to April 1, 2008. The contracts also call for a
3 percent raise on April 1, 2009, and a 4 percent raise on April 1,
2010.
The contracts also require that the salaries of non-judicial court
workers making $115,000 or more be frozen until the governor and the
Legislature grant state judges their first raise since 1999. If no
judicial raises are forthcoming during the life of the contracts,
which run through March 31, 2011, the non-judicial employees would
get all the pay that has been withheld due to the salary cap.
Lawrence K. Marks, OCA's administrative director, estimated that
once the new salary levels are calculated, it will take the state
comptroller until September to write the first checks reflecting the
retroactive pay and new salary levels. Governor David A. Paterson
has signed a bill approved by the Legislature in the final hours of
its regular 2008 session,
A11415/S8311, authorizing OCA to implement the labor agreements
with its unions.
Once the pay raises go into effect, Mr. Marks said 1,160
non-judicial employees represented by unions will be at the
$115,000-a-year salary level or above and will have their pay capped
pending a judicial pay increase. The courts have about 15,600
non-judicial employees.
In addition, 352 OCA employees who are not represented by unions
will make $115,000 a year or more if the OCA extends the raises to
them, as the office typically does when entering into new contracts
with its unionized employees, according to Mr. Marks. The office
will impose the salary cap requirement on its non-represented
workers, he said.
OCA insisted on the cap in deference to state court judges'
continuing frustration at the failure of the Legislature and
governor to grant them pay raises. Assembly Democrats have balked at
approving a judicial pay raise without one for state lawmakers, who
also are in their ninth year without an increase.
Mr. Sigault said the "best I could offer" his members whose salaries
are at or will reach the $115,000 level was to get the portion of
their pay that is withheld back in 2011 if the judicial pay impasse
continues.
"They are not happy," Mr. Sigault said of the approximately 50 Court
Clerks Association members who would be affected by the pay cap
provision.
"They don't feel there should be a tie-in with the judges," he said.
Still, considering the state of the economy and New York's shaky
finances, Mr. Sigault said the contract his union reached with OCA
is a strong one for his 1,700 members.
"I think considering the circumstances and the forecast for the
future, we have done very well," he said.
The largest bargaining unit representing OCA employees, the Civil
Service Employees Association, ratified its contract 2,876 to 114 in
a vote that was counted June 25. CSEA officials said the salary cap
will affect about 350 of their 6,000 members.
The contracts also provide for raises calculated on a monetary
instead of a percentage basis, whichever is more advantageous to
employees. For instance, workers will get a 3 percent raise or $950,
whichever is greater, retroactive to April 1, 2007.
For the April 1, 2008, increase, workers would get $975 if it is
greater than a 3 percent pay increase; on April 1, 2009, workers
would get $1,000 if it is greater than the scheduled 3 percent hike
and, on April 1, 2010, $1,025 if is greater than the 4 percent
increase.
The contract also provides for annual bonuses ranging from $1,800 to
$2,100 for employees with more than 20 years of service in the
courts, to be paid on April 1, 2008, April 1, 2009, and April 1,
2010.
New York Judge Orders Pay
Raise for New York Judges
By Dan Slater
The Wall Street Journal
June 12, 2008
 Should
the salaries of New York State judges be linked to those of its
legislators? NYS Supreme Court Justice Edward H. Lehner said no
yesterday, ordering the legislature to give the state’s 1,250
judges their first pay raise in 10 years. Click here for the
NYT’s report, here for the
NYLJ’s and here for the
New York Sun’s.
The suit was filed last
September by four judges — two from family court, one from civil
court and one from criminal court. The suit didn’t request a
specific salary, but did request an award of $600,000 for each
judge, an amount that would account for cost of living increases
since 2000.
In his 17-page decision,
Lehner, who, notes the NYT, would himself get a pay raise under
the ruling, said he believed that legislators did unfairly link
their desire for a pay raise with that of the judges. The
government has used “judicial pay as a pawn in dealing with the
unresolved political issue of legislative compensation,” he wrote.
He said the link was “an abuse of power by defendants and
constitutes an unconstitutional interference upon the independence
of the judiciary.” Lehner didn’t specify a salary amount, but
instructed the Legislature to proceed “in good faith to adjust the
compensation payable to members of the judiciary,” and to consider
compensating judges for salary shortfalls in previous years. In
his ruling, Lehner gave the Legislature 90 days to increase the
current salary of $136,700 for all New York State trial judges.
Chadbourne’s
George
Bundy Smith, the lawyer for the four judges, told the NYT he
believed that state judges should earn a salary comparable to that
of Federal District Court judges, who currently earn $169,300
annually. (Smith, whose judicial service began in 1975, served as
an associate judge of the New York Court of Appeals, the state’s
highest court, for 14 years until his retirement from the bench in
in 2006.)
Will the legislature
appeal? Gov. David A. Paterson’s office released a statement
saying that his administration was considering its options. “While
the governor has long supported salary increases for judges,
today’s opinion flies in the face of the State Constitution, which
makes clear that only the Legislature has the power to set
judicial salaries.”
A
separate judicial pay raise suit was filed in April by New
York’s chief judge, Judith S. Kaye, charging that the political
process has denied them their constitutional right to an
“adequate” salary, because the State Legislature has refused to
give them a raise for the last decade. A hearing is scheduled next
month for Judge Kaye’s lawsuit, which Justice Lehner will hear as
well.
Comments
Judges
Already Well Compensated,
Paterson, Silver Argue in Kaye Suit
By Joel Stashenko
New York Law Journal
June 12, 2008
Chief Judge Judith S.
Kaye's "meritless" judicial pay raise suit seeks to boost the
salaries of judges already compensated handsomely by the standards
of the state work force, according to
a memorandum of law filed on behalf of Governor David A.
Paterson and state Assembly Speaker Sheldon Silver.
The memorandum asks for dismissal of the suit filed in Manhattan
Supreme Court on Chief Judge Kaye's behalf on April 10 by attorney
Bernard W. Nussbaum. The case has been assigned to Justice Edward H.
Lehner (See
Profile), who yesterday gave the Legislature and Mr. Paterson 90
days to increase judicial salaries while ruling in a separate suit
brought by four individual judges (see
related story).
Messrs. Paterson and Silver, D-Manhattan, are being represented in
Chief Judge Kaye's litigation by Richard H. Dolan of Schlam Stone &
Dolan. Attorney General Andrew M. Cuomo, who has said a judicial pay
raise is long overdue, declined to defend the Legislature or the
governor in the chief judge's suit, arguing that his office has
dealings with all the litigants involved and would be conflicted if
he entered the case.
Mr. Dolan also is defending the Assembly and the State of New York
in Kaye v. Silver, 400763/08. The Republican-controlled
Senate and its majority leader, Joseph Bruno, R-Brunswick, are being
represented by David L. Lewis, a partner at Lewis & Fiore who is
also an in-house counsel to Senate Republicans.
Mr. Dolan argued that the facts about judicial compensation in New
York do not bear out the chief judge's contention that judges' pay
is constitutionally inadequate.
Based on an analysis by chief state budget examiner John E. Burke,
Mr. Dolan told the court that the compensation of Supreme Court
justices is actually worth $152,600 to $162,900 a year when fringe
benefits and pensions are added to the judges' $136,700 salary. The
figures varied depending on the tier the judges qualify for in the
state retirement system and whether they opted for individual or
family health insurance coverage, according to Mr. Burke.
Mr. Dolan contended that the issue is not necessarily whether judges
should or should not get a pay raise.
"Instead, the issue in this case is only whether, despite the
favored position among State employees accorded judges in terms of
compensation, this Court should nevertheless hold that the current
compensation paid to judges (including the Court's own compensation)
is unconstitutionally low," Mr. Dolan wrote.
But he insisted that the Constitution gives the Legislature and the
governor the authority to set the salaries and other court spending.
"To the extent the complaint seeks an order fixing judicial
salaries, or ordering the State to pay judges at the salaries fixed
by the Court, any such relief is flatly prohibited by the terms of
the Constitution itself, and if granted, would itself be a gross and
unprecedented violation of the separation of powers doctrine," he
wrote.
Mr. Dolan also took issue with Chief Judge Kaye's claim that the
long interval since the last judicial pay raise in 1999 is
unreasonable or unprecedented.
"The salaries paid to judges in New York have often remained
unchanged for periods much longer than the 10-year period to which
Plaintiffs would attach constitutional significance," Mr. Dolan
wrote.
Citing two examples of long salary increase droughts, Mr. Dolan
noted that judges of the Court of Appeals went between 1887 and
1926, and again between 1952 and 1975, without pay raises.
No Harm Shown
He also argued that neither Chief Judge Kaye nor the Unified Court
System, the co-plaintiff in her suit, have standing to bring the
action. The chief judge, who makes $156,000 a year, cannot show that
she has been personally harmed by the absence of a judicial pay
raise, Mr. Dolan argued.
"Certainly, Chief Judge Kaye does not allege that her independence
of action, in exercising any of her judicial functions, has been
impaired by anything either the Legislature or the Executive has
done, or even that she has been so 'demoralized' by the failure to
increase her own salary that her functioning as Chief Judge has been
impacted," Mr. Dolan wrote.
In his ruling yesterday, Justice Lehner held that the "plain and
simple" reason judges have not gotten a pay raise is because the
matter has been linked to other issues at the Capitol. Most
recently, those issues were campaign finance reform in 2007 and the
insistence by Assembly Democrats that judges not be given raises
unless legislators, who have also gone since 1999 without higher
salaries, get them as well.
Mr. Dolan argued that the fact judicial pay raises are "supposedly"
linked to other issues is "wholly irrelevant." But even if true, he
maintained, judges would not be complaining if linkages had
succeeded in getting them pay raises they deemed adequate.
"Or, stated more starkly, deciding how to allocate limited tax
resources among competing interests is all about legislative
compromises, and Plaintiffs would not care what legislative
compromises were being made so long as, in the end, judges received
what they considered to be a sufficiently large slice of the pie,"
Mr. Dolan wrote.
Mr. Nussbaum, of Wachtell, Lipton, Rosen & Katz, is representing
Chief Judge Kaye and the court system pro bono. He declined comment
yesterday.
Mr. Nussbaum attempted to get Justice Lehner to expedite the
litigation in hopes of getting Messrs. Paterson, Bruno and Silver
onto the witness stand to explain the failure of a pay raise bill
despite public endorsements by all three men of a judicial pay
increase. But Justice Lehner rejected the request for a June 2 trial
date (NYLJ,
May 27).
Mr. Nussbaum said he had wanted to get the testimony in early June
as a way of pressuring the Legislature and governor into passing a
judicial pay raise bill before the scheduled end of the
Legislature's regular 2008 session on June 23.
The Senate Republicans' papers have not yet been filed, a spokesman
said yesterday.
N.Y.
Judge Orders Himself a Raise
Could Cost Taxpayers $700 Million
By Joseph Goldstein
The New York Sun
June 12, 2008
Setting the stage for a
showdown among the three branches of government, a state judge has
ordered Governor Paterson and the Legislature to start paying him
and his 1,180 fellow state jurists more money.
If each judge on the state
bench received the $600,000 sought by the four plaintiffs, the
state's taxpayers would be on the hook for more than $700 million.
The order by
Judge Edward Lehner of
state Supreme Court in Manhattan appears to instruct the Senate and
Assembly to pass a law upping judges' pay within 90 days, which
could prove an impossibly fast time frame for slow-moving Albany.
The decision also raises
constitutional questions about the authority of judges to perform
the legislative job of setting salaries and deciding how best to
spend tax dollars.
Governor Paterson's office
released a statement yesterday saying that the court order "flies in
the face of the State Constitution which makes clear that only the
Legislature has the power to set judicial salaries." The speaker of
the Assembly, Sheldon Silver, was reviewing the decision, a
spokesman said.
Judge Lehner ruled that it
was the other two branches of government that had violated the state
constitution by denying judges any pay raises or cost-of-living
adjustments for nearly a decade. The judge characterized Albany's
unwillingness to raise judicial pay as "an unconstitutional
interference upon the independence of the judiciary."
Judges on the state's main
trial court make $136,700 a year, plus benefits.
Even though salaries for
New York state judges are close to the national average, the judges
say that the cost of living in New York is higher, and they argue
that federal judges and corporate lawyers are paid more.
New York's chief judge,
Judith Kaye, filed a suit on behalf of the entire judiciary in April
seeking a pay raise order of the type Judge Lehner issued yesterday.
But yesterday's decision came in an earlier lawsuit filed jointly by
four judges seeking more than $600,000 each. That money, the say,
represents the cost-of-living increases that they haven't received
over the years , plus interest.
Judge Lehner's decision,
however, applies to the entire judiciary, not just the four judges
who are plaintiffs. He ordered that judges receive a pay increase
commensurate with cost-of-living adjustments over the last decade,
which would bring state judge salaries close to their federal
counterparts. In addition, Judge Lehner ordered that the judges all
receive an "appropriate provision for retroactivity." He did not
give any indication of how much that might be, in his view.
Judge Lehner's decision
focused less on the dollar amount that judges get paid than on the
horse trading that goes on in the legislature every time the pay
issue arises. Legislators in the Assembly have only been willing to
give judges a raise if they themselves receive a raise. Because
Governor Spitzer, and now Mr. Paterson, have been unwilling to agree
to a pay raise for legislators, judicial pay has been stuck at its
present rate.
What violated the state
Constitution, Judge Lehner said, was linking judicial salaries to
all that political dealing.
Linking the salaries of
judges to the salaries of legislators, Judge Lehner wrote, "is an
abuse of power by the defendants."
Doing so undermined the
independence of the judiciary, Judge Lehner wrote, and "is repugnant
to our tripartite form of government and the liberties intended to
be secured thereby."
Governor Paterson and the
Legislature were represented in this case by lawyers from the office
of Attorney General Cuomo. Mr. Cuomo declined to provide
representation to Mr. Paterson or legislative leaders in the suit
brought by Chief Judge Kaye.
A lawyer for the four
judges, George Bundy Smith, said that there have been similar suits
in Ohio and Pennsylvania that have also resulted in favorable
rulings to judges. Mr. Smith, who was once a judge on New York's
highest court, said that he has received inquires from
representatives of state judiciaries in "the Middle West and
mid-Atlantic" soliciting advice about bringing similar pay raise
suits.
It is not clear whether
Attorney General Cuomo will appeal. Governor Paterson's statement
said his office is "exploring its legal options."
Some judges expected the
issue to drag on in the appellate courts. If the Legislature does
decide to order a judicial pay raise going forward, the judiciary
could still push the issue of retroactive cost-of-living increases
in court.
"I admire Judge Lehner's
decision, and I think it's beautifully, brilliantly done, but I
don't anticipate an immediate increase," one state Supreme Court
judge in Manhattan, Emily Jane Goodman, told The New York Sun. "No
one knows better than we know how long litigation goes on. My
position is still, show me the money."
Judge Lehner is also
hearing the suit brought by Chief Judge Kaye. Lawyers for Chief
Judge Kaye have demanded that Governor Paterson, as well as the
Senate majority leader, Joseph Bruno, and Mr. Silver all be forced
to stand trial regarding the issue. It is not yet known whether
Judge Lehner's decision yesterday will lead him to decide that such
a trial is unnecessary.
"We are pleased with Judge
Lehner's thoughtful decision, and we now trust that the governor and
the Legislature will do the right thing," the lawyer for Chief Judge
Kaye, Bernard Nussbaum, said.
Of the judges who brought
the suit decided yesterday, two are from New York: Susan Larabee of
Family Court and Geoffrey Wright of Civil Court.
The Wrong
Defendants
Editorial of The New York
Sun
June 12, 2008
For those of us who savor constitutional debate it was hard to
imagine on Monday that the dispute over judges' pay in New York
could get any more delicious than the point to which it has been
brought by in the suit by Chief Judge Kaye and her lawyer, Bernard
Nussbaum. But yesterday Judge Lehner, acting in a separate suit
brought by four state judges seeking huge pay increases, actually
took the first step toward ruling that the legislature and governor
will have to pay our state judges more money — and lots of it,
perhaps as much as $600,000 each in back pay to compensate them for
the erosion of their pay because of inflation. This could easily add
up to hundreds of millions of dollars before the judges finish with
the taxpayers' wallets.
To get to this order the
judge had to find a way to get past the separation of powers
argument, in that it's the governor who writes the budget under New
York law and the legislature that approves it. It seems, however,
that the judge has concluded that the Assembly won't pass a raise
for the judges until a raise is put through for the Assembly
members. That linkage might seem a normal part of politics to most
New Yorkers, but Judge Lehner concluded that is a constitutionally
impermissible entanglement of the interests of the two branches.
One of the questions New
Yorkers will want to ask was where in Sam Hill was Andrew Cuomo? He
is the attorney general who was supposed to be representing the
governor and the legislature. Yet he doesn't seem to have made much,
if anything, in the way of response to this line of reasoning, even
though it strikes us as likely, even certain, that a lack of
compensation for themselves wasn't the only reason the Assembly
hasn't acted on judges pay. The fact of the matter is, the kinds of
payout the judges are looking for will strike many taxpayers as
outrageous and there would be plenty of backlash for any legislator
who supports it.
But there is one important
point that is moving to the fore in this — the notion that inflation
has, in effect, reduced the pay of judges as the years have gone by.
Reducing a judge's pay is not allowed under the Constitution and has
been a concern of constitutionalists going back to the founders of
America. One can see why. But it strikes us that if it is a
reduction of pay due to inflation that the judges are worried about,
the defendant should not be the governor or the state legislature
but the United States Federal Reserve
That is to say, Ben
Bernanke is the right defendant in this case — and any former
governor would say that the Fed chairman would probably be easier
for the judges to push around than Sheldon Silver.
Crisis?
What Crisis?
By Jason Boog
Judicial Reports
June 4, 2008
The Legislature's nearly
decade-long inaction on a judicial pay raise has prompted fears that
jurists will engage in mass recusals involving any cases connected
with legislator-lawyers. A report from the field.
Ever since three jurists
sued State politicians in 2006 over the lack of a judicial pay
raise, judges have been recusing themselves from cases handled by
law firms that employ New York Legislators.
Recently, the 20-attorney Poughkeepsie firm Gellert & Klein found
out how one judge’s recusals can affect a practice. According to
senior partner Arthur L. Gellert, one judge's recusals have
"affected approximately dozen cases."
Gellert attributed these reassignments to his firm’s employment of
State Senator and Judiciary Committee member Stephen M. Saland, who
is of counsel with the firm.
"We’ve had one recusal amongst all the judges," he said, explaining
that Dutchess County Court Judge and Acting Supreme Court Justice
Thomas J. Dolan was the only judge to recuse himself on cases in the
Mid-Hudson Valley where the firm operates.
"This is a relatively small area — if one judge recuses it affects a
fairly large number of cases. Notwithstanding the fact that Senator
Saland is of counsel to our firm, a number of judges have not
recused. We are very grateful for that," he concluded.
Judge Dolan declined an interview request.
Pay-related recusals variously cite conflicts of interest over three
lawsuits currently filed by judges against State politicians:
Maron vs. Silver (filed by three Upstate judges), Larabee
vs. The Governor of New York State (filed by four Downstate
judges) and Kaye vs. Silver (filed by Chief Judge Judith S.
Kaye on behalf of all State judges).
If judges were recusing themselves on a grand scale for Legislators’
law firms, it could have dramatic effects on the justice system. But
are they?
In an effort to separate hype from reality, Judicial Reports called
a number of law firms that employ Legislators — including every firm
that employs a member of the Assembly Judiciary Committee and a
number of firms that employ members of the state Senate Judiciary
Committee — to determine the frequency of pay-related recusals.
In this small, unscientific sample, the impact of recusals depends
on the judge, the jurisdiction, and the firm at issue.
Out of all the firms contacted, only four respondents said they were
affected by recusals to some degree: Gellert & Klein, Jaspan
Schlesinger Hoffman, Weitz & Luxenberg and Hiscock & Barclay.
Looking at those firms provides a window into the crisis and the
different roles each highly connected law firm plays.
Jaspan Jostled
The Long Island firm of Jaspan Schlesinger Hoffman in particular has
been mentioned in most news reports, citing a rash of recusals in
its book of business. With 60 attorneys, the firm is three times the
size of Gellert & Klein, and has absorbed many more recusals.
"Probably 15 or 20 judges around the State have recused themselves
in our cases," noted Steven R. Schlesinger, a managing partner at
the firm. Most recently, Nassau County Supreme Court Justice Leonard
B. Austin recused himself from a high-profile case the firm is
handling for Donald Trump.
Schlesinger’s firm employs two different Democratic Legislators —
Senator Craig M. Johnson and Assemblyman Marc S. Alessi. A search
through cases archived in the ecourts online filing system revealed
that most of the cases involving the firm this year are tax matters.
In these cases, the firm represents companies in litigation against
town assessors around Long Island.
Jaspan has also contributed thousands to political campaigns around
the state. While these donations are unconnected to the recusals,
they do illustrate the political capital these firms have
established in New York politics.
According to state Board of Elections filings, Gellert & Klein has
contributed nearly $13,000 to political causes since 1999. $2,300 of
those contributions went to Supreme Court candidates.
Jaspan’s political contributions are noticeably larger.
According to Board of Elections records, the firm donated more than
$76,000 around the State since 1999: $2,500 went to the State
Republicans, and $3,500 went to local Republican committees. More
than $12,000 went to the Nassau County Democrats, but the firm did
not donate to the State Democrats. Of that total, $1,500 went to
Supreme Court candidates.
A Silver Partner Shrugs
The law firm of Weitz &
Luxenberg has been mentioned in many articles about the recusals,
and with good reason. The personal injury firm employs State
Assembly Speaker Sheldon Silver, a political figure named as a
defendant in all three judicial lawsuits.
In April, two Upstate
judges told the New York Post that they recused themselves from
Weitz & Luxenberg cases based on their personal stake in the
pay-raise debate.
Nevertheless, managing partner Arthur Luxenberg downplayed the
issue, saying that his Downstate attorneys — who are litigating the
bulk of the firm’s cases — haven’t encountered any resistance.
"These judges have not recused themselves," he said, referring to
the firm’s large docket of asbestos litigation that is handled in
Downstate courts. "We are dealing with seriously ill clients who
have been denied their day in court for years. They need to see a
courtroom very quickly, these judges are understanding of that. They
won’t let political issues stand in the way of doing the right thing
for these claimants."
A search of cases filed in 2008 (all archived by the Unified Court
System's ecourts archive) revealed that more than 55 of his firm’s
64 Supreme Court Civil Term cases were handled by Justice Helen E.
Freedman — the judge tasked with handling both pre-trial motions and
discovery for all asbestos cases in New York City, Long Island, and
Westchester.
Just as one Upstate judge managed to get Gellert & Klein’s
attention, Justice Freedman could single-handedly force reassignment
of a majority of cases being handled by the law firm that employs
Sheldon Silver.
When asked in an interview why she did not recuse herself from these
cases, Freedman had a curt, simple reply.
"The only thing I would say is that my understanding of recusal is
that one is supposed to recuse when one thinks one cannot be fair. I
believe I can be fair in this case," she concluded, declining to
discuss the matter further.
The firm, which counts 60 attorneys and more than a billion in
personal injury settlements, also has an impressive history of
political contributions. According to Board of Elections records,
the firm has contributed a total of $95,000 to state campaigns since
1999. Of that sum, $50,000 went to the New York State Democratic
Party and $10,000 went to the State Republican Party. Both donations
were labeled as "Housekeeping."
In addition, the firm donated $500 to a single Supreme Court
candidate, Manhattan Justice Barbara R. Kapnick.
Public Recusals, Private
Agreements
Compared to Schlesinger’s
woes, the powerful law firm of Hiscock & Barclay only noted one
serious, pay-related recusal — despite employing Neil D. Breslin, a
State Senator who actively opposed the judicial pay raise.
Earlier this year, a judge took the firm to task in a published
decision that outlined the pay-raise struggle in no uncertain terms.
Supreme Court Justice Arthur M. Schack, one of the three
judge-plaintiffs involved in the Maron vs. Silver lawsuit,
recused himself in a bold opinion that meditated on political power
and the voting records of individual Legislators.
"Upon review, I must recuse myself from this matter to avoid any
appearance of impropriety because the Hon. Neil D. Breslin, a member
of the New York State Senate, is of counsel to plaintiff's law firm,
Hiscock & Barclay, LLP," he wrote. "When a judicial pay raise bill,
2007 NY Senate S 5513, came up for a roll call vote in the State
Senate on April 30, 2007, the Hon. Neil D. Breslin voted against a
judicial pay raise."
When asked about the ethics of his decision in an interview, Schack
said, "I have searched my conscience, and I don’t think I did
anything inappropriate." By the judge’s estimate, he had recused for
pay raise conflicts on 12 cases since the litigation began.
But Schack’s recusal is almost an anomaly this year, according to
the firm.
"It’s been such a small issue for us, a non-issue for us really,"
said Robert A. Barrer, a partner at Hiscock & Barclay. "Our
attorneys are supportive of the request for pay raises for judges."
Besides Schack’s recusal, the firm had only received a few letters
from judges "requesting remittal" — an agreement between both sides
that they understand the judge’s stake in the pay-raise lawsuits but
agree to continue with the judge.
Once the order was signed, the cases continued apace.
In addition to the State Senate connection, this firm plays a strong
role in the state fundraising game.
Hiscock employs 200 attorneys with eight different law offices
around North America. According to Board of Elections filings, the
firm has contributed $544,000 to political causes statewide. That
included $11,000 for the state Democratic Committee and more than
$15,000 for the state Republican Committee.
In addition to leading the Statewide fundraising totals, the firm
has also donated a significant amount of money to judicial
campaigns. The Board of Elections logged more than $32,000 given to
a number of different Supreme Court campaigns.
No Accounting for Recusal
Taste
When asked to help quantify
the recusal problem, an Office of Court Administration spokesperson
said that the OCA did not monitor recusals, noting that they felt
the movement was not "widespread."
It is virtually impossible to track how many recusals have happened
around the state.
Many recusal decisions go undocumented or unpublished. Often jurists
make use of "short-form orders" for recusals. While both parties in
a case receive notice of these orders, the forms are neither
published nor logged statistically by the court system.
Thus, the press only finds out about the judges and law firms who go
public about the recusals.
Nevertheless, the Chief Judge cautioned the 1,300 judges in her care
with an email at the beginning of May.
Kaye wrote: "The recent press coverage of the Judiciary is not
helpful in our efforts to attain salary increases. Our many friends
and supporters tell us quite frankly that we reduce our
effectiveness and weaken our cause when we publicly engage in
conduct that is perceived as retaliatory, such as denigrating public
officials and using recusal as a strategy rather than as a matter of
individual conscience."
Even though Luxenberg thought the recusals hadn’t slowed his firm,
he added that he hoped that note would end the recusal problem. "I’m
hoping Judge Kaye cleared this matter up, advising them that
recusing themselves pending issues regarding salary increases is not
appropriate," the managing partner said.
Posted by Jason Boog on
June 4, 2008 01:13 AM |
Permalink |
Print
Poll
Finds New Yorkers Oppose Pay Hike for Judges
By Joel Stashenko
New York Law Journal
New York Lawyer
May 20, 2008
A new poll indicates New Yorkers are opposed to a pay raise for
state judges.
Fifty-five percent of those
surveyed said they opposed raising the current $136,700-a-year
salaries of Supreme Court justices while 39 percent said they would
support a pay increase. Six percent said they did not know or had no
opinion.
The polling, by the Siena
College Research Institute in Loudonville, N.Y., was conducted by
phone from May 12-15.
"Judges have been loudly
arguing for a raise, but voters don't think they've made the case,"
said Steven Greenberg, a spokesman for the pollster.
Respondents also were asked
whether they favor increasing the $179,000-a-year salary of the
governor and the $79,500-a-year base salary of state legislators.
The question was prefaced by telling the respondents that the
governor, judges and state legislators have not had raises since
1999.
There was less support for
raising the governor's salary than for judges' raises, with 65
percent opposed and 31 percent in favor.
Forty-nine percent of those
surveyed opposed raising state legislator's salaries and 45 percent
said they were in favor. The poll of 622 registered voters had a
margin of error of plus or minus 4 percentage points.
http://www.nylawyer.com/display.php/file=/news/08/05/052008g
NY Judges
Warned Against Insulting Legislator,
Retaliatory Recusals in Pay Impasse
By Daniel Wise
New York Law Journal
New York Lawyer
May 2, 2008
Chief Judge Judith S. Kaye
yesterday cautioned the state's 1,300 judges that they will "hurt
our cause" for a pay raise by insulting state officials and recusing
themselves in retaliation from cases in which legislators or their
firms appear.
"Our many friends and supporters tell us quite frankly," Chief Judge
Kaye advised in an e-mail, "that we reduce our effectiveness and
weaken our cause when we publicly engage in conduct that is
perceived as retaliatory, such as denigrating public officials and
using recusal as a strategy rather than as a matter of individual
conscience."
The chief judge noted that her e-mail came a day after Governor
David A. Paterson had warned the state's judges against recusing
themselves from cases where lawmakers' firms are involved as part of
a campaign to force a raise.
"You just have to be careful that if you protest in ways that
diminish the capacity of your neighbors to access the courts, you
are contributing to the diminished confidence that exists with the
government and the judiciary," Mr. Paterson said Wednesday at a news
conference.
On Tuesday, responding to reports about the recusals over the prior
two days, Chief Judge Kaye wrote to Mr. Paterson, assuring him that
accounts of a "judicial slowdown" were "without basis."
In her Tuesday letter, Chief Judge Kaye told the governor that
"while some judges have individually chosen to recuse themselves
from matters in which legislators or their firms have appeared,
there has not been - nor will there be - an adverse impact on
litigants."
At the same time her letter was delivered to Mr. Paterson, the chief
judge sent an e-mail to the judges, reporting the contents of the
letter and thanking them "for your dignity, dedication and hard work
during this unusually stressful time."
Yesterday's e-mail, Chief Judge Kaye wrote, was an "addendum" to the
one written Tuesday. Asked about the reason for the addendum, Chief
Administrative Judge Ann Pfau said yesterday that "it is important
to make clear to the judges that nothing should be done that will
hurt our cause" or diminish "public confidence in the judiciary."
Several judges interviewed at a Law Day ceremony yesterday in
Brooklyn, including Justice Abraham G. Gerges, the administrative
judge for civil cases in Brooklyn Supreme Court, said there is
"absolutely" no slowdown and that no Brooklyn judges, other than
Justice Arthur Schack, who is a plaintiff in a pay-raise lawsuit,
have recused themselves from cases involving the law firms of
lawmakers.
But Justice Herbert Kramer, who heads the Brooklyn chapter of the
Association of Justices of the Supreme Court of the State of New
York, said that while judges are trying "the best they can" to keep
the courts operating, anyone who says that the judges have not been
affected "consciously or subconsciously" by the failure to win a
raise after more than nine years, "is not being accurate."
Some 80 judges gathered in their robes at a lunch hour ceremony
yesterday on the front steps of Brooklyn Supreme Court on Court
Street to show solidarity for a raise.
'Committed' Judges
One of the speakers at the ceremony, RoseAnn C. Branda, the
president of the Brooklyn Bar Association, peeled off a list of
statistics concerning the handling of Brooklyn cases to demonstrate
that these are not "judges who are not committed to the cause or
quit based on personal dissatisfaction regarding their
compensation."
Since the judges last received a raise in 1999, Ms. Branda said,
Supreme Court justices handling civil cases had reduced cases
pending longer than court system standards by 42 percent. Similarly,
she said, that while filings in Brooklyn Civil Court are up by 171
percent, dispositions have increased by 272 percent.
Other speakers at the ceremony, all of whom voiced strong support
for a raise, were Brooklyn Borough President Marty Markowitz, former
New York Court of Appeals Judge George Bundy Smith, New York City
Bar President Barry Kamins and Brooklyn Justice Sylvia Hinds-Radix,
one of the event's organizers.
In using her e-mail to caution against the use of recusals as a
"strategy," Chief Judge Kaye drew a distinction that reflected a
line drawn in an opinion issued Monday by the court system's
Advisory Committee on Judicial Ethics."
In the opinion, No. 08-76, the advisory committee concluded that
judges must recuse themselves from lawsuits where, after "searching"
their "personal conscience," they conclude they cannot be fair.
In an earlier ruling, issued over a year ago, the advisory committee
had observed that "in our opinion" the sole issue of the
long-standing dispute over pay raises for judges is not "a
circumstance which, in and of itself, gives rise to the conclusion
that the judge's impartiality might reasonably be questioned" (No.
07-25, dated Feb. 22, 2007).
Monday's ethics opinion came in response to a request concerning
whether judges are required to recuse themselves since Chief Judge
Kaye and the court system on April 10 filed a lawsuit to compel a
raise. The advisory committee concluded that recusal is not required
because individual judges, while interested in the lawsuit, are not
actual parties.
The suit seeks to boost the pay of Supreme Court justices from
$136,700 to the $169,300 now being paid to federal district judges
with the salaries of other types of state court judges adjusted
proportionately.
In a conference call Wednesday, George Conway of Wachtell, Lipton,
Rosen & Katz, who represents Chief Judge Kaye, agreed to a two-week
extension, until May 19, for Mr. Paterson and the two leaders of the
Legislature to answer.
Lawyers for the defendants agreed to a request from Mr. Conway for a
face-to-face meeting of attorneys for all parties on May 9, said
David L. Lewis of Lewis & Fiore, who represents Senate Majority
Leader Joseph Bruno, R-Brunswick.
Officials
Named in NY Judges' Suit
Demanding Pay Raise Lawyer Up
By Daniel Wise and Joel
Stashenko
New York Law Journal
New York Lawyer
April 28, 2008
All three officials named
as defendants in Chief Judge Judith S. Kaye's lawsuit to compel an
increase in judicial salaries have retained counsel, it was learned
Friday.
Governor David A. Paterson
and Assembly Speaker Sheldon Silver, D-Manhattan, have
retained Richard H. Dolan, a former Eastern District
prosecutor.
Separately, Senate Majority
Leader Joseph Bruno, R-Brunswick, has hired David L. Lewis,
who is on the Senate Republican counsel's staff and is also a
partner at Lewis & Fiore.
Mr. Dolan, a founding
member of 16-lawyer Schlam, Stone & Dolan, said he has never
met either Mr. Paterson or Mr. Silver, and was hired by Mr.
Paterson's counsel, David Nocenti, without being interviewed.
In addition to his latest
assignment, Mr. Lewis represents the Senate Committee on
Investigations and Government Operations in its litigation to obtain
internal Spitzer administration records about efforts to use the
State Police to discredit Mr. Bruno.
Mr. Dolan, together with
his partner, Harvey M. Stone, write the Law Journal's
"Eastern District Roundup" column.
Chief
Judge Kaye Sues State to Secure Judicial Pay Hike
By Joel Stashenko
New York Law Journal
New York Lawyer
April 10, 2008
Chief Judge Judith S. Kaye today filed a lawsuit to force the
state Legislature and the governor into granting state judges their
first pay raise since 1999.
Former White House counsel Bernard W. Nussbaum filed the suit,
Kaye v. Silver, in Manhattan Supreme Court on the chief
judge's behalf. Mr. Nussbaum, a litigation partner at Wachtell
Lipton Rosen & Katz, is representing Chief Judge Kaye pro bono.
The lawsuit filing came a day after lawmakers completed passage of
another state budget
without raising judges' pay. Chief Judge Kaye had long said she
was considering such a suit only as a last resort, but last week
said the judiciary had run out of patience.
Legislators wrote a $48 million appropriation for a judges' pay
raise in the budget retroactive to Jan. 1, 2008. But they did not
back it up with actual funding, making it "dry," or an empty
appropriation without effect.
In a short message sent to state judges this afternoon, Chief Judge
Kaye and Chief Administrative Judge Ann Pfau said the latest refusal
by the other two branches of government to give judges higher pay
left the chief judge "with no choice but to take legal action."
"It is regrettable that we are forced to bring this lawsuit to
achieve a just result," the judges' message read. "We pledge to
prosecute this matter vigorously and to do everything in our power
to achieve a speedy resolution."
The suit prepared by Mr. Nussbaum argues that the governor and the
Legislature, by failing to enact a raise for the state's 1,300
judges, have failed to uphold their constitutional obligation to
provide for an independent judiciary. The complaint also contends
that the other branches of government have effectively come to
violate a provision of the state Constitution prohibiting the pay of
judges from being diminished.
Over the course of the last decade, judges have seen their salaries
shrink by 26 percent due to inflation, the complaint argues.
Mr. Nussbaum said he will ask the court to expedite consideration of
the judges' claim and that he will attempt to call Governor David A.
Paterson, Assembly Speaker Sheldon Silver and Senate Majority Leader
Joseph Bruno to the stand to have them explain why pay increase
bills for judges have repeatedly been held up by disagreements on
unrelated issues.
Two other suits for higher judicial pay are also before state
courts. The actions, filed by individual judges and supported by
some judicial organizations, are on appeal before the Appellate
Divisions in the First and Third departments. Supreme Court justices
allowed the claims to go forward in each case on the
separation-of-powers argument that Mr. Nussbaum also makes in Chief
Judge Kaye's suit.
New York State Judges Show Little
Judicial Restraint when Suing for Pay Raises
Now is Not the Right Time to
Raise the Pay of New York State's Judges
By Dan Weaver
AC Associated Content
April 8, 2008
I'm having a hard time working up any sympathy for Chief Judge
Judith S. Kaye, her cohorts on
New York state's highest court, or other judges in
New York state who are whining because they haven't had a raise
in 10 years. The lowest paid full-time
city court judge in
New York state still makes $108,000 per year, while Judge Judy
makes $156,000.
According to an Associated Press article in The Daily Gazette on
April 2, "Compensation for New York's 1,250 state-level judges now
ranks 49th among states, which Kaye said is "shameful considering
the enormity and complexity of their case dockets." What I think is
shameful is that several judges have already sued the state of New
York, meaning you and me, and Judge Judy is preparing to sue
New York state if the Legislature doesn't approve judicial
raises.
What is also shameful is that Bernard Nussbaum, a litigation partner
in the firm of Wachtell, Lipton, Rosen & Katz and former counsel in
the Clinton White House, is going to handle the
lawsuit for these wealthy clients for free. Meanwhile,
defendants often have to appear in courts presided over by these
same judges with inadequate defense because they cannot afford a
good lawyer.It's also shameful to hear judges whining about how
little they make, when they make two to three times the median
New York state
family income. When you combine their incomes with that of their
spouses, the gap between their income and the typical family's
income in
New York becomes a chasm. Judge Judy's individual income is
almost four times more than the typical
family income here in Montgomery County.
Apparently, some judges are upset because they have had to borrow
money to send their
kids to college. So what? Join the human race. The only
difference is they are borrowing
money to send their
kids to Ivy League and other prestigious colleges, while the
rest of us are borrowing
money to send our
kids to state
schools and community colleges.
The important question isn't how much our judges are making in
comparison to other states, or how long it has been since they have
had a raise. The real question is just how much
money does a person need?
Tolstoy wrote a short story, which James Joyce said was the
greatest short story ever written, called "How Much Land Does A Man
Need?" The protagonist, a peasant named Pakhom is greedy for land.
The Bashkirs tell him they will sell him all the land he can walk
around in one day for 1,000 rubles. He has to be back at his
starting point by sunset, but he gets so greedy he walks farther and
farther.
Finally, when he realizes how late it is, he has to run all the way
back. When he arrives at the starting point, he collapses and dies.
The other peasants bury him and we learn that six feet is all the
land a man needs.
And so it is with money. Judge Judy is not alone in her need or
greed for more. Almost all of our politicians are the same. And we
hear the same reasons and excuses over and over for why they should
earn more.
Our school superintendent should get a raise because the
superintendent in Albany is making more. Our county supervisors
should get paid more because county supervisors in Vermont make
more. Our
police should get paid more because the
police in Uzbekistan make more. Ad infinitum. Ad nauseam.
There is never any mention of how much the average taxpayer, the
person who has to pay for these raises, makes.
Even if you disagree with me, and believe that judges need a raise,
is now the right time? We stand on the brink of an economic
recession, bigger than anything we have seen in years, and still our
leaders come to the public trough, grunting for more.
Before filing her lawsuit, I would recommend that Judge Judy (and
other judges and politicians who feel they don't earn enough) step
out of her marble palace in Albany and head 30 miles west to
Amsterdam.
Then she should travel the entire length of what I call the Route 30
Poverty Corridor, which runs from the Canadian border to the
Pennsylvania border. She should stop every so often, look
around, look at the housing, talk to people, then go
home and contemplate whether or not these people can afford to
pay for her raise.
If that doesn't change her mind, then I would suggest that Judge
Judy, and any other judges and state leaders who are not happy with
their current salaries, resign and go into private practice and make
those millions of dollars that we are always being told that they
could make if they were in the private sector.
Raise Again
Out of Budget; Kaye Talks of April Lawsuit
Joel
Stashenko
New York Law Journa
April 1, 2008
 ALBANY
- As the state Legislature prepared to begin passing the 10th
consecutive budget that does not contain a pay raise for judges,
Chief Judge Judith S. Kaye's attorney yesterday outlined her
possible suit to force lawmakers and the governor to break the
salary impasse.
"This is a legitimate case, a legitimate
Attorney Bernard W. Nussbaum addresses Chief Judge
legal case," attorney
Bernard W.
Judith Kaye during an event at the New York State Bar
Nussbaum told more than
100 judges association in Albany yesterday
Tim Roske
and other supporters of a judicial pay raise who gathered yesterday
at New York State Bar Association headquarters in Albany.
Though Chief Judge Kaye continued to insist that a pay suit by the
judiciary against the other two branches of state government was a
last resort, she spoke for the first time of when she was prepared
to bring the action.
"I would say shortly, during April," she said. "Earlier rather than
later."
Legislators were expected to start passing bills constituting the
2008-2009 budget last night and to finish adoption of the $124
billion spending plan by late this week. The fiscal year began after
midnight this morning.
As with each budget approved by the Legislature since 2005, when
Chief Judge Kaye started promoting a pay raise in earnest, higher
salaries for the state's 1,300 judges were not included in the
spending plan.
"Judges' pay is not in there," Senate Majority Leader Joseph Bruno
said yesterday before telling a rally of state prison guards that
four prisons or prison units slated for closure by then-Governor
Eliot Spitzer would remain open. "Legislators' pay is not in there."
Chief Judge Kaye said the problem with the judicial pay increase was
once again the refusal of some lawmakers to depart from tradition
and raise judges' salaries without also increasing their own.
Neither judges nor legislators have gotten a raise since January
1999, and the chief judge said judges have since suffered a 26
percent erosion in salary due to inflation.
For a number of reasons, chiefly the poor economy and the fact it is
an election year for all state lawmakers, legislative leaders have
discouraged their members from seeking a pay raise in the budget.
More typically, lame-duck Legislatures return after Election Day to
approve pay-raise bills in the increases that have been enacted over
the past two decades.
Chief Judge Kaye said yesterday that court administrators and judges
are tired of being given lip service that a judicial pay increase is
"right on the horizon."
"Instead of the increases, we have been jollied along - believe me,
we have been jollied along - from April going back all the way to
2005," the chief judge said at the headquarters of the New York
State Bar Association. "From April [we hear], 'Well, it won't be
April, but definitely it will be July. And don't worry, it's not
July, but it will be September, it will be October. Oh, please, we
assure you. You have our promise. You have our word. It will be
November 2005, 2006, 2007.' I'm hearing that again in 2008."
Nevertheless, the chief judge said she would continue last-ditch
lobbying efforts for a raise and creation of a commission to set
future judicial salary levels, and she urged pay-hike supporters to
do likewise.
Chief Judge Kaye has retained Mr. Nussbaum, a former White House
counsel and litigation partner at Wachtell Lipton Rosen & Katz, to
represent her in the threatened suit against the governor and
Legislature (NYLJ,
Jan. 28). Mr. Nussbaum is working pro bono.
'Hostage-Taking'
If it comes to a suit, Mr. Nussbaum said the action would probably
be filed in Manhattan Supreme Court. The judiciary would seek to
have the case heard as expeditiously as possible, he said.
"We're going to call the chief judge to the stand - she's the
plaintiff - so she can describe some of the things she described
today," Mr. Nussbaum told the pay advocates at the state bar
yesterday. "And then we're going to call [Assembly] Speaker
[Sheldon] Silver to the stand and we're going to call Senator Bruno
to the stand. . . . We'll call [Governor] David Paterson to the
stand. And let them explain the hostage-taking. Let them explain why
for over a decade they've allowed judges' pay to be cut by 26
percent. That'll be our case and that'll be my arguments."
He said a suit by the judiciary would accuse the other two branches
of failing their constitutional obligation to provide for an
independent judiciary by not voting a raise sooner. The chief
judge's suit would also contend that judges are being singled out
for unfair pay treatment in a state government where virtually all
other employees get cost-of-living adjustments and other salary
increases.
The action also would argue that judges' constitutional protection
against having their salaries diminished is being violated by
denying them raises for nearly a decade. The effects of inflation
during the period effectively represents a reduction in salary for
judges, Chief Judge Kaye said.
According to Mr. Nussbaum, top state courts in both Pennsylvania and
Illinois have upheld suits seeking higher judicial pay on grounds
similar to those he would argue in New York on behalf of the chief
judge.
'We've Got to Sue'
"This is not crazy, the notion of bringing a lawsuit against the
governor and legislative leaders," he said.
Mr. Nussbaum got a standing ovation from the pay-raise supporters.
Among those applauding was Family Court Judge Patrick A. Sweeney of
Suffolk County, who said, "We've got to sue." He added that "there
is nothing embarrassing" about judges seeking to use the courts to
redress their grievances over pay, though critics have questioned
how impartial judges could be in cases involving their own salaries.
"Sure, some judges will disqualify themselves. Fine," Judge Sweeney
said in an interview. "But we have plenty of fair-minded judges."
Supreme Court Justice Ralph F. Costello of Suffolk County said
sentiment among the judges who heard the chief judge yesterday was
clearly in favor of a suit if the judiciary is again denied a raise.
"When she asks for questions and no one asked any questions because
all the questions have been asked over and over again and there's no
new information," Justice Costello said. "That means it's time to
move forward and get off the dime."
New York City Bar Association President Barry Kamins, who was also
at the state bar event, said it was clear to him that absent a
"miracle" from the Legislature, Chief Judge Kaye is "prepared to
pull the trigger" on a suit.
"If I was chief judge, I'd understand from her position that there
is nothing left to do," Mr. Kamins said in an interview.
Others speaking in support of the pay raise were: Bernice K. Leber,
president-elect of the state bar; Fund for Modern Courts Chairman
Victor Kovner; Kathryn Wylde, president of the Partnership for New
York City; Barbara Bartoletti, legislative director of the League of
Women Voters; and former Court of Appeals Judge Joseph W. Bellacosa.
Two other suits filed by judges or judicial organizations are headed
to appeals, one in the First Department and one in the Third. In
both instances, Supreme Court justices allowed the suits to proceed
on the separation-of-powers claim Mr. Nussbaum said Chief Judge
Kaye's suit would also contain.
The diminishment-of-salary contention under Article VI, §25 of the
state Constitution, which Mr. Nussbaum said is also a basis of the
chief judge's threatened lawsuit, failed at the Supreme Court level.
FROM A
BLOGGER
Judith Kaye appears to want money in her pocket a lot more
than she seems interested in equal justice for us here in NYS, for
which the sentiment out here in the countryside is that she and her
court system are not worth a dime.
And so …
— Posted by Livyjr
Chances for Pay Raise for NY Judges
"Very Difficult," Incoming GOvernor Says
By Joel Stashenko
New York Lawyer
New York Law Journal
March 14, 2008
ALBANY - Citing grim economic news in New York and the rest of the
nation, soon-to-be-governor David A. Paterson said yesterday it
would be "very difficult" to adopt a pay raise for state court
judges this year.
At his first news conference since Eliot Spitzer resigned in
disgrace over his alleged involvement in a prostitution ring, Mr.
Paterson said his biggest challenge is to negotiate a budget with
the state Legislature amid a stock market slump, a subprime mortgage
crisis and other economic drags.
"I think th
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