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Cuomo
Hands Paterson Case to a Ex-Judge Judith Kaye
By Danny Hakim
The New York Times
March 11, 2010
ALBANY — Facing growing
political pressure, Attorney General
Andrew M. Cuomo on Thursday
appointed an independent counsel to take over his office’s
investigation into the Paterson administration’s response to a
domestic violence case.
Mr. Cuomo said
Judith S. Kaye, the former
chief judge of New York, would lead the inquiry, along with an
investigation into whether the governor lied when he was questioned
by the State Commission on Public Integrity about his office’s
solicitation of Yankees World Series tickets.
The development came as a
surprise; Mr. Cuomo had previously expressed no public reservations
about taking on the sensitive cases, even as he prepared to announce
his candidacy for governor, and his staff had spent the past two
weeks investigating the domestic violence case.
But in recent days, the
political complications for Mr. Cuomo became more apparent. The
cases are likely to drag on for weeks if not months, potentially
colliding with the start of Mr. Cuomo’s campaign for governor, which
is expected to begin next month.
In addition, some
African-American leaders and
newspaper editorials had
urged him to step aside, given his political ambitions and the
delicate decisions he could confront leading the investigations.
"An investigation of a
sitting governor of New York is a complex, weighty matter indeed,"
Mr. Cuomo said in a conference call with reporters on Thursday
afternoon.
"My office has conducted a
preliminary review of both matters," he added, "and we have
determined that there are credible issues that need to be resolved."
Those staff members from
his office who have been conducting the investigation will now
report to Ms. Kaye instead of to him.
In a statement, Ms. Kaye
thanked Mr. Cuomo for "entrusting me with these serious and
important matters."
"I promise," she added,
"that the public will have a full, fair and independent accounting
of the facts."
The governor’s lawyer,
Theodore V. Wells, Jr., said in his own statement: "We respect
Attorney General Cuomo’s decision to appoint Chief Judge Kaye as
independent counsel to the Office of the Attorney General," adding
that they "look forward to a prompt and favorable conclusion to both
investigations."
But Oscar Michelen, the
lawyer for
David W. Johnson, the aide
involved in the alleged domestic violence, said Mr. Cuomo should go
further and withdraw his staff members from the case. "After all,
this investigation has been proceeding under his direction and
control for some time," Mr. Michelen said. "I believe it would have
been more prudent and would have completely removed any specter of
political motivation to have allowed Judge Kaye to take over with
her own staff and team. I hope that he re-evaluates this decision
and comes to the conclusion to do just that."
In his conference call with
reporters, Mr. Cuomo said his decision was driven not by politics,
but by his concern about the appearance of a conflict of interest.
"I understand the political
environment, and I understand the ferocity of politics in New York,"
he said, "and I understand that it is incredibly important to all of
us that the public have 100 percent confidence that this
investigation is being handled properly."
Mr. Paterson, who like Mr.
Cuomo is a Democrat,
ended his own candidacy last
month in the wake of the domestic violence scandal. But some
African-American leaders have expressed concern that the controversy
has been overblown and worry that the governor will not get a full
hearing for his side of the story.
Last weekend,
Charles Barron, a New York
City councilman,
called on Mr. Cuomo to
recuse himself from the domestic violence case. Ms. Kaye, who spent
nearly 16 years as the state’s chief judge before her retirement in
2008, now works at Skadden, Arps. She was appointed in 1983 to the
Court of Appeals by Mr. Cuomo’s father, former Gov.
Mario M. Cuomo, and was the
first woman to serve on the state’s highest court. Ms. Kaye will not
be paid in her role as independent counsel.
It is unclear exactly how
long the inquiries will take. Mr. Cuomo said his office had reviewed
hundreds of pages of documents and thousands of e-mail messages, and
had interviewed dozens of witnesses in what he called a preliminary
review of the domestic violence case, before determining a more
thorough investigation was warranted.
Mr. Paterson himself called
for one of the investigations after The New York Times reported last
month that a companion of Mr. Johnson’s had gone to court seeking a
protective order after what she described as an assault inside the
apartment she shared with him. The woman complained in court that
the State Police had pressured her to drop the case, and the
administration conceded that the State Police had contacted the
woman,
Sherr-una Booker.
In addition, Mr. Paterson
has acknowledged he spoke to the woman on the day before a scheduled
court appearance on Feb. 8, but has said he did nothing improper.
Ms. Booker ultimately did not show up the next day, and as a result
the case was dismissed.
In subsequent days, The
Times reported that Mr. Paterson had directed two state workers to
contact Ms. Booker and ask her to play down the episode. The
governor’s press secretary asked the woman to issue a statement
describing the episode as nonviolent. Mr. Paterson, according to
people briefed on the case, also had several additional phone calls
with Ms. Booker after the court date, although it is unclear what
was said during those conversations.
Mr. Cuomo said it was too
early to draw conclusions about the behavior of the governor or
anyone else involved.
"We haven’t even had all
the witnesses in at this point, and we haven’t even had many of the
key witnesses in, so any impression of the ultimate outcome of this
case would be certainly, certainly premature," he said, adding that
his office had not even begun discussions with Mr. Paterson’s lawyer
about setting up an interview.
Asked why the governor had
not yet been interviewed, Mr. Cuomo said, "There’s a sequence to the
witnesses, and the witnesses who are going to be most directly
involved in the charges normally come at the end of that sequence."
The question of whether the
governor was truthful during the public integrity commission’s
inquiry into his administration’s solicitation of
World Series tickets was
only referred to the attorney general’s office last week.
The commission has said the
governor backdated, or had another person backdate, a personal check
to buttress his explanation that he had planned to pay the Yankees
for the seats, which were behind home plate and had a face value of
$425 each.
Serge F. Kovaleski and
William K. Rashbaum contributed reporting.
Denial of
Raise Is Ruled Unconstitutional
Court Faults Linkage to Unrelated Issues;
Judges' Salary Must Be Decided on Merits
Joel Stashenko
New York Law Journal
February 24, 2010
ALBANY - By failing to
grant the state's judges a raise for 11 years, the Legislature has
created a "crisis" that violates the separation of powers doctrine,
the Court of Appeals ruled yesterday.
The Court concluded, 5-1,
that the continued linking of judicial pay to unrelated issues was
threatening the judiciary's independence.
However, the Court declined
requests from the judge-plaintiffs and the court system in three pay
cases to order an immediate raise or to fashion another remedy for
the constitutional breach other than the "appropriate and
expeditious legislative consideration" of the issue on its merits
alone.
"By ensuring that any
judicial salary increases will be premised on their merits, this
holding aims to strike the appropriate balance between preserving
the independence of the Judiciary and avoiding encroachment on the
budget-making authority of the Legislature," Judge Eugene F. Pigott
Jr. wrote for the majority. "Therefore, judicial compensation, when
addressed by the Legislature in present and future budget
deliberations cannot depend on unrelated policy initiatives or
legislative compensation adjustments."
Judge Pigott noted that the
courts are reluctant to intrude on the functions of other co-equal
branches of government. But he stressed that although setting
judicial salaries is "within the province" of legislators, the Court
could still intervene if its ruling is not followed.
"It [the Legislature]
should keep in mind, however, that whether the Legislature has met
its constitutional obligations in that regard is within the province
of this Court," the judges ruled yesterday, citing
Marbury v. Madison,
1 Cranch 137 (1803). "We therefore expect appropriate and
expeditious legislative consideration."
See Associated
Articles:
Another Round of Lobbying
Anticipated in Legislature
and a timeline of
Key Developments in
Judges' Pay Cases.
In remarks webcast to state
judges yesterday, Chief Judge Jonathan Lippman said the ruling
advances the judiciary's quest for a raise by dictating that "the
Legislature, in its present and future deliberations, must consider
the judicial salary issue independently of any unrelated issue."
He said the judiciary
expects the Legislature to remedy the constitutional violation in
"good faith and expeditiously."
But he acknowledged that
"while the decision has great force, it does not set a precise time
frame for the Legislature to act, and leaves to the Legislature the
ultimate decision of whether and to what extent it must increase
judicial salaries."
A statement from Assembly
Speaker Sheldon Silver, D-Manhattan, reflected no particular urgency
for the Assembly to consider judicial raises.
"Today's decision by the
Court of Appeals regarding judicial pay recognizes that the
Legislature retains the constitutional and statutory power to
determine judicial compensation," Mr. Silver said. "Further, the
decision does not mandate any action by the Legislature at this
time. I have said in the past and I continue to believe that
judicial salaries in New York state should be increased. The
Assembly will consider this matter when economic conditions
improve."
Another prominent lawmaker,
Assembly Codes Committee Chairman Joseph Lentol, D-Brooklyn, said
yesterday that the Legislature will consider a judicial raise at an
"appropriate time…just as there will be [consideration] for others
who have worked for a long time without one, including legislators."
"In these fiscal times,"
Mr. Lentol said, giving judges a raise "is not necessarily the
intelligent thing to do when people are out there suffering. That
doesn't foreclose the possibility that we would consider them in the
future."
Similarly, Senate
Democratic Conference Leader John Sampson, D-Brooklyn, said the time
is not right for the Legislature to be considering raises.
"During the worst fiscal
crisis in decades, it is difficult to justify pay raises for anyone
in public service," he said in a statement. "Controlling spending
among all sectors of government is not an easy decision, but it is
the right decision at this time for the people of New York."
Governor David A.
Paterson's office did not respond to a request for comment.
Chief Administrative Judge
Ann Pfau noted that judges did not get raises when the state budget
was flush and the bad fiscal times should not be used now to deny
them increases.
"We don't see that as
necessarily negating moving forward with judicial salary increases,"
she said yesterday.
The ruling yesterday
encompassed three cases before the Court: Maron v. Silver, 16,
Larabee v. Governor, 17, and Chief Judge v. Governor, 18.
The litigation had been
seen by some advocates for judges as the judiciary's best chance of
achieving its long pursuit of a pay increase. Each year since 2005,
the Legislature has considered, but ultimately failed to pass, pay
bills for the state's 1,300 judges.
The plaintiffs had urged
the Court to set a specific increase for judges, generally tying
state Supreme Court justices' salary levels to those of U.S.
district judges, with other judges receiving proportional hikes.
Impaired Independence
While claims varied in the
three cases, they all contended that separation of powers was
violated when consideration of non-judicial issues—such as a raise
for state legislators—has served to block a salary increase for
judges.
"Because the Separation of
Powers doctrine is aimed at preventing one branch of government from
dominating or interfering with the functioning of another co-equal
branch, we conclude that the independence of the judiciary is
improperly jeopardized by the current judicial pay crisis, and this
constitutes a violation of the Separation of Power doctrine," Judge
Pigott wrote.
The majority also noted
that "[a]ll parties agree that a salary increase is justified and,
yet, those who have the constitutional duty to act have done nothing
to further that objective due to disputes unrelated to the merits of
any proposed increase. This inaction not only impairs the structural
independence of the Judiciary, but also deleteriously affects the
public at large, which is entitled to a well-qualified, functioning
Judiciary."
Judge Robert S. Smith
dissented, saying that while it is "depressing" that pay
considerations have driven many judges from the bench, "it is also
true that there are still plenty of able judges, and plenty of able
people who would willingly become judges, even at today's pay
levels."
Judge Smith argued that a
separation of powers' violation could not be present unless it could
be demonstrated that it was becoming impossible to recruit competent
judges or that an underpaid judiciary was becoming subservient to
the other branches of government.
"Bad as the present
situation is, neither of the disastrous conditions I have
mentioned…exists or is close to existing," Judge Smith wrote.
If a problem exists between
the Legislature and the judiciary, he added, it is "to restrain
judges' understandable displeasure with that branch of our
government." That was an apparent reference to warnings by court
administrators that judges not recuse themselves or delay cases in
which lawmakers' firms are involved in an attempt to show
displeasure over the long-delayed raise.
Rejected Claims
While accepting the
separation-of-powers arguments, the Court rejected a series of other
constitutional claims included in at least one of the three
plaintiffs' cases.
They included a claim that
judges' equal protection rights were violated because they had been
denied raises in a period when 195,000 other state employees had
gotten increases. The Court held that judges were not a "suspect
class" within the meaning of the law.
The Court rejected a claim
that dilution of the value of judges' pay due to inflation since
1999 violated the compensation clause of the state Constitution,
which prohibits judges' pay from being reduced during their terms.
The Court ruled that the compensation clause framers left it to the
Legislature to adjust judicial pay for the effects of inflation.
It also rejected the
claim that the Legislature actually appropriated a raise in 2006-07
and that all the judges had to do was direct the state comptroller
to release the funds. The judges concluded that the proper provision
authorizing the spending had not been approved by the Legislature.
Despite the absence of a
specific remedy, attorneys for the plaintiffs said they preferred to
remain optimistic that the Legislature and governor would now give a
judicial pay increase a review independent of the horse-trading that
accompanies most high-level negotiations in Albany.
Thomas E. Bezanson of Cohen
& Gresser, who argued for the Larabee plaintiffs, said the Court has
made it "crystal clear" how the Legislature and the governor are to
proceed when considering a judicial raise.
"It is disappointing that
the Court didn't seize the opportunity to provide monetary relief,
which they certainly could have done and instead left it to the good
offices of the Legislature and the governor to do that," Mr.
Bezanson said. "I trust that they will now do that."
Bernard Nussbaum of
Wachtell, Lipton, Rosen & Katz, who argued on behalf of Judge
Lippman in Chief Judge v. Governor, said he was "extremely pleased."
"It is a correct decision,"
Mr. Nussbaum said. "We fully expect the Legislature to act
appropriately so that further court proceedings will not be
necessary."
Judge Lippman recused
himself because the court system he heads was a party in Chief Judge
v. Governor.
The rest of the Court
decided the cases under the rule of necessity. It dictates that
judges are obligated to decide cases—even those involving an
apparent conflict of interest such as a raise for the state
judiciary—if their disqualification would leave litigants no
qualified court to take their case to.
Other plaintiffs in the
cases ruled on yesterday were Manhattan Family Court Judge Susan R.
Larabee, Cattaraugus County Family Court Judge Michael Nenno,
Manhattan Civil Court Judge Geoffrey Wright and Manhattan Criminal
Court Judge Patricia Nunez in Larabee.
The plaintiffs in Maron
were Supreme Court Justice Edward A. Maron of Nassau County, Supreme
Court Justice Arthur Schack of Brooklyn and former Supreme Court
Justice Joseph A. DeMaro of Brooklyn.
Richard H. Dolan of Schlam
Stone & Dolan represented the Legislature and governor. He referred
a call for comment yesterday to Mr. Paterson's office.
Steven Cohn of Carle Place
argued on behalf of the Maron plaintiffs.

Paterson
Says His Bill Would
Resolve Suits Over NY Judges' Pay
By Joel Stashenko
New York Law Journal
New York Lawyer
January 8, 2010
Governor David A. Paterson
suggested yesterday that a bill he submitted last year to create a
commission to review every four years pay levels for the judiciary
could resolve the legal fight over judicial salaries that shifts to
the state's highest court next week. Mr. Paterson's bill, submitted
in May, received scant attention because of the paralysis caused
last summer by the power struggle between Democrats and Republicans
in the Senate. The commission would not review state lawmakers'
salary levels on a quadrennial basis, under Mr. Paterson's bill.
Legislators and judges both received pay raises for the last time in
1999.
In a statement yesterday,
Mr. Paterson said the long pay lag for judges "is wrong and has the
potential to do great harm to our very accomplished judicial
branch." The Judiciary, he said "deserves…a straightforward
analytical approach [to periodic pay raises] and I urge all
parties—judges, litigants and legislators—to consider adopting such
an approach as a means of settling all of the pending matters before
the Court of Appeals." The bill calls for the Legislature to approve
or reject a commission's pay recommendations, on a straight
up-or-down vote.
In an interview yesterday,
Mr. Paterson's counsel, Peter Kiernan, said a compensation
commission would not authorize raises retroactively. He also said
the governor's actual support for a raise recommendation by a
commission would depend on budgetary conditions, when raises would
take effect and other "abstracts." The three suits before the Court
for oral argument on Tuesday revolve around the constitutionality of
"linkage" between the judges' raises and issues at the Capitol
unrelated to the judiciary or how much judges are paid.
Judge Who Promoted
Recusal as 'Weapon'
Over Pay Shot Himself in the Foot
By Joel Stashenko
New York Law Journal
New York Lawyer
January 4, 2010
ALBANY - A judge has
accepted censure for trying to organize other judges into a boycott
of cases involving the law firms of state legislators who have
denied New York's judiciary a pay raise since 1999, the Commission
on Judicial Conduct said yesterday.
Cattaraugus County Judge
Larry M. Himelein, one of the most vocal critics from the bench of
the long pay drought, entered into the stipulated agreement with the
commission. The panel voted 9-0 to approve the settlement.
Judge Himelein disqualified
himself from 11 cases involving legislators or firms employing
lawmakers in a 10-month period beginning in September 2007,
according to the commission.
Toward the end of that
period, the Commission on Judicial Conduct warned judges that
recusal in such cases based solely on judges' frustration with the
continuing pay impasse in the Legislature is a violation of judicial
canons and subjected the judges to potential sanctions.
Nevertheless, in e-mails to
his colleagues, often sent in "blasts" to all 1,300 judges in the
Unified Court System, Judge Himelein acknowledged that he was
recusing himself as a "weapon" and a tactic in an attempt to compel
the Legislature to grant the judiciary a pay increase.
"His stated aim…was
inconsistent with a judge's obligation to refrain from conduct that
interfered with the proper performance of judicial duties, to act at
all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary and to accord to every
person who has a legal interest in a proceeding, or that person's
lawyer, the right to be heard according to law," the commission's
ruling concluded.
Judge Himelein recused
himself in matters involving Hiscock & Barclay, whose staff
attorneys include Senator Neil Breslin, D-Albany, and Assemblyman
Will Barclay, R-Pulaski, and also Harris Beach, where Senator
Michael Nozzolio, R-Seneca Falls, is a member.
In addition, Judge Himelein
recused himself from several probate cases in his capacity as
Cattaraugus County Surrogate's Court judge, in which parties were
represented by Weitz & Luxenberg, where Assembly Speaker Sheldon
Silver, D-Manhattan, is a member.
The commission's ruling
said Judge Himelein aggravated his conduct by writing a series of
electronic mails to other state judges in which he belittled Mr.
Silver and other legislators.
In a 2007 "blast" e-mail,
Judge Himelein referred to Mr. Silver as a "slug," a term the
commission said he later defined as a "distasteful creature that is
large, slimy and worm-like."
Other e-mails from Judge
Himelein referred to legislators in general as "clowns" and mocked
judges who declined to recuse themselves and join in a boycott
involving firms employing lawmakers.
"The judges in NYC, who by
and large are appointed by the politicians, don't have the guts to
do it, and that's where most of the lawyer-legislator is from,"
Judge Himelein was quoted in a story that ran in April 2008 on the
Albany cable station Capital News 9. "What we're saying is you'll
have to get a different lawyer. That doesn't do anything to the
merits of the person's case."
In addition to the
inappropriate nature of the comments about his fellow judges and the
recusal effort he was trying to organize, the commission held in its
ruling that Judge Himelein is barred by judicial canons from making
public comments about pending cases.
"Chiding, browbeating and
insulting judges who did not recuse (calling them 'wusses,'
'non-self-respecting,' 'gutless,' and 'wimp[s]'), denigrating
downstate judges in particular ('lackies' and 'toadies for the
politicians') and telling them to 'grow some stones,' respondent
repeatedly urged his judicial colleagues to recuse en masse ('How
about everyone recuses by 5:00 today???')" the commission's ruling
recounted.
Judge Himelein argued in
letters he sent to Hiscock & Barclay and other firms warning about
his intention to recuse himself that he considered himself
conflicted by the pay raise dispute and the $100 contribution he had
made toward the plaintiffs' legal costs in Maron v. Silver,
one of three pending suits seeking court intervention in forcing the
Legislature and governor to grant state judges a pay raise.
The commission found that
Judge Himelein had also informed his judicial colleagues via e-mail
of his support of a second judicial pay suit, Larabee v. Spitzer
(since renamed Larabee v. Governor), about a week after it
was filed in September 2007 and his intention to continue to recuse
himself as a way of catching lawmakers' attention.
"I continue to view this as
an automatic recusal," Judge Himelein wrote. "Not until these firms
start letting their legislators go will we have any standing at all
with these clowns."
One of the plaintiffs in
Larabee is Judge Michael L. Nenno, Judge Himelein's
colleague on the Cattaraugus County Court, Family Court and
Surrogate Court bench.
Former Court of Appeals
judge Richard D. Simons had held a hearing and gathered facts as a
referee in the Himelein case, but the commission and Judge Himelein
reached their stipulation before Mr. Simons issued a report.
In warning judges about
improper recusals last year, the commission cited Advisory Opinions
89-93, 07-25 and Advisory Joint Opinions 07-84 and 88-17(b). In
general, the opinions say recusal is not required when legislators
themselves or firms employing state legislators appear before
judges, unless judges have valid beliefs that they cannot decide
matters impartially.
Judge Himelein, 60, the
district attorney in rural Cattaraugus County from 1982 to 1992, has
heard cases in the County, Family and Supreme Courts since 1993.
'Isolated' Problem
State judges have become
increasingly resentful of legislators, accusing them of blocking
their raises to gain leverage for a legislative pay raise.
"The judicial pay raise
dispute has fomented for more than 10 years," said Judge Himelein's
attorney, Terrence M. Connors of Connors & Vilardo in Buffalo.
"Judge Himelein's comments were borne out of his frustration over
the legislative inaction."
"This is a judge with an
impeccable judicial record. He has acknowledged that his advocacy on
behalf of judges was in error and he is prepared to move forward and
resume his judicial career."
Mr. Connors said that Judge
Himelein would have no comment on the commission's ruling.
Robert Tembeckjian,
administrator of the commission, noted in a statement that the
agency had supported a raise for judges as "well-deserved and long
overdue."
"Honest advocacy for
judicial raises is entirely appropriate," he said. "It is
unacceptable, however, to bring the controversy into an individual
courtroom and penalize individual legislators and their clients as a
'tactic' or 'weapon' in the pay raise dispute."
The ruling released
yesterday did not discuss the extent, if any, that other judges
recused themselves based on dissatisfaction with the lack of a
judicial pay raise.
"The matter involving Judge
Himelein is the only one of its kind before the commission," Mr.
Tembeckjian said in an interview. "I would hope that the public
would be reassured that the commission took appropriate action in
this case, and that this problem appears to be isolated."
Brooklyn Supreme Court
Justice Arthur M. Schack wrote in a scathing 10-page ruling earlier
this year that he was recusing himself from a case where the
plaintiff was represented by Jaspan Schlesinger Hoffman "to avoid
any potential appearance of impropriety."
The judge noted that the
firm employs Senator Craig M. Johnson, D-Port Washington, and
Assemblyman Marc S. Alessi, D-Wading River, and that thanks to the
Legislature, the judiciary has become the "Rodney Dangerfields" of
government due to the long lag in its last pay raise.
Justice Schack also wrote
that it would be improper to hear the case because he has a personal
stake in the pay raise situation as a plaintiff in the Maron v.
Silver litigation.
Unlike Justice Schack,
Judge Himelein is not a plaintiff in any of the pay raise suits.
A spokeswoman for Mr.
Silver said the speaker would have no comment
Oral arguments in Maron
v. Silver, Larabee v. Governor and the third pending judicial
pay raise suit, Chief Judge v. Governor, will be heard by
the Court of Appeals on Jan. 12, 2010.
NY Chief
Judge Steps Up Lobbying
to Obtain Pay Raises for Judges
By Joel Stashenko
New York Law Journal
New York Lawyer
August 3, 2009
ALBANY - Chief Judge
Jonathan Lippman says he is intensifying his efforts to convince
state lawmakers and the governor to grant a pay raise to judges
despite a projected budget gap in the current fiscal year that has
climbed past $2 billion.
"I have within the last
days continued to talk to both houses and the leadership and to the
governor's office about this issue," the chief judge said in an
interview last week. "This is the highest priority. We are
absolutely committed in the coming weeks to ratchet this issue up at
the highest levels of state government to get this done."
Judge Lippman said he is
promoting an immediate pay increase for the 1,300 state judges and
creation of a commission to periodically recommend judicial salary
hikes to prevent future protracted pay droughts. State judges have
not had a salary increase since 1999.
Approval of a pay bill
through legislation also would head off pay litigation that is
moving rapidly to the Court of Appeals. The Court has agreed to hear
appeals in two of the cases, Maron v. Silver and Larabee
v. Governor, and a motion is pending before the Court to accept
on direct appeal a third case, Chief Judge v. Governor.
The Court is expected to
hear oral arguments in Maron and Larabee, in which
Appellate Division panels split over judges' entitlement to raises,
as early as November.
Judge Lippman said he will
recuse himself in the pay cases because he is the plaintiff in Chief
Judge v. Governor, a case filed by his predecessor, Judith S. Kaye.
Judge Lippman also said he
could not discuss the legal merits of any of the cases or their
possible effect on pay raise legislation.
But he said a resolution by
the governor and Legislature would be preferable for all three
branches to a court-imposed solution to the pay impasse.
"The legal case will run
its course," the chief judge said. "But I believe the better course
for state government, the better course for the Judiciary, is to
resolve this matter the way such matters have historically been
resolved. This is the way government is supposed to work. By doing
it through the legislative process, we can resolve everything that
has to do with this issue, not just the immediate issue of a pay
raise for judges, but to resolve this permanently" through a
commission.
The chief judge said he has
found legislators and Mr. Paterson's aides open to hearing arguments
for raising judges' pay through legislation. He said he has pressed
his lobbying efforts following the apparent resolution of a
leadership dispute in the Senate that all but paralyzed the work of
the Legislature for more than a month beginning June 8.
"No one is closing the
door," Judge Lippman said. "In my discussions, and they are ongoing,
I find a recognition that this cannot, should not, go on the way it
has for so many years."
Fiscal Problems
Legislators said the chief
judge has a tall task before him considering the state's fiscal
position.
Melissa Mansfield, a
spokeswoman for Assembly Speaker Sheldon Silver, D-Manhattan, said
Mr. Silver is "sympathetic" to the judges' quest for a pay raise but
believes "in these economic times it is very difficult to address
this issue."
Assemblywoman Helene
Weinstein, D-Brooklyn who is chairwoman of the Assembly's Judiciary
Committee, said the best Judge Lippman might be able to accomplish
would be to secure a pay raise and pay commission, both of which
would take effect in the future when the state's financial picture
brightens.
"Hundreds of thousands of
New Yorkers are losing their jobs," Ms. Weinstein said. "Our
unemployment is at an all-time high. The political atmosphere and
the fiscal atmosphere are not terrific at the moment."
Senator Eric Schneiderman,
on the other hand, said Judge Lippman is arguing for something that
most state legislators support. Though the economic times are
"challenging," the amount of money it would cost to raise judge's
pay is "very small" relative to the size of the budget, said Mr.
Schneiderman, a Manhattan Democrat who chairs the Senate's Codes
Committee.
"I don't think it's pie in
the sky," Mr. Schneiderman said. "It's not a lot of money."
Judge Lippman's efforts
also make sense from the standpoint of the chief judge being an
advocate for the judiciary, Mr. Schneiderman said.
"There is always a danger
in Albany that if you stop talking about something, people forget
about it," he said.
Mr. Paterson's office did
not return calls seeking comment.
The judiciary came close in
2007 to winning a legislatively sanctioned pay raise. But raises for
lawmakers that were linked to judges' salary increases were blocked
by then-Governor Eliot Spitzer, who was feuding with lawmakers over
proposed ethics reforms (NYLJ, April 2, 2007).
Under Mr. Paterson, the
worsening condition of the state's economy and budget have been
cited as precluding a pay raise. In May 2009, Mr. Paterson said that
while judges clearly deserve raises, he could not see them getting
more money until the economy "stabilizes."
Last Thursday, Mr.
Paterson's budget division reported that a projected $2.1 billion
gap had opened in the $131.8 billion budget for fiscal 2009-10 due
almost exclusively to lower-than-expected tax revenue collections.
The current fiscal year ends on March 31, 2010. Budget Director
Robert Megna also said a shortfall of $4.6 billion would develop by
the end of the 2010-11 budget year if nothing is done. That is more
than double the $2.2 billion gap projected just four months ago.
11-Year Hiatus
Judge Lippman said
legislative pay raises are viable, despite New York's economy.
He noted that $48 million
had been re-appropriated in the current state budget for raises
retroactive to Jan. 1, 2009, although lawmakers again this year did
not include language in the budget providing the authority to add
the money to judges' paychecks.
"I don't think that one can
seriously point to the budget as being a problem," Judge Lippman
said. "The money is in the budget to get this done. It is not an
issue of taking additional monies to pay for this. I don't believe
the economy is a rational excuse to deny people who are so critical
in state government a raise, now going into an 11th year."
The pending chief judge's
suit seeks raises that are retroactive to April 1, 2005. The total
cost would be approximately $148 million in this fiscal year.
Michael E. Getnick,
president of the New York State Bar Association and a long-time
advocate of a judicial pay raise, said he agreed with Judge Lippman
that it is "very, very misplaced" to argue against a salary hike
based on the current downturn after judges have been denied raises
for so many years, some of them in good economic times.
"From my viewpoint, if
anything, the judges have suffered disproportionately, and they have
not received even a cost-of-living increase for a decade," said Mr.
Getnick, of Getnick Livingston Atkinson & Priore in Utica.
Victor A. Kovner of the
Fund for Modern Courts said the state has a "fundamental obligation"
to pay judges a fair wage and that the judiciary can defend the cost
as being as important as money spent on police, hospitals, senior
care or other vital state-funded programs.
"It is profoundly unjust
leaving our judges with a substantial diminution of compensation
over the years," Mr. Kovner, of Davis Wright Tremaine, said. "It is
outrageous. No one should stand for it."
Mr. Kovner said having the
Court of Appeals decide cases that could result in court-ordered
raises for state judges is "not healthy" and could have a lingering
effect on how the public perceives the operations of the courts and
its decisions.
"It is something that will
rub many people the wrong way," Mr. Kovner said. "It could engender
hostility toward the judiciary. It may be viewed as self-serving,
which is not healthy for the society and it really is a last
resort."
But Brooklyn Supreme Court
Justice Marsha L. Steinhardt said that by advancing to the Court of
Appeals, the pay suits may "lead to some give and take" if there is
the prospect of the courts dictating terms of a pay raise to the
Legislature.
"It is said that deals are
made when greed and fear intersect," said Justice Steinhardt, who
has personally lobbied legislators for a pay raise bill. "I can't
think that the judges are the greedy ones in this, but hopefully
there is some fear in the Legislature."
Ms. Weinstein and Mr.
Schneiderman both said the pending litigation in the Court of
Appeals will have no effect on the willingness of the Legislature to
vote judges a raise.
"I don't think the Legislature thinks like that," Mr.
Schneiderman said.
NY Judge
Again Orders Albany to
Raise His and His Colleagues' Pay
By Daniel Wise
New York Law Journal
New York Law
June 16, 2009
For the second time in less
than two weeks, a Manhattan court yesterday ordered the governor and
lawmakers to raise the pay of the state's1,300 judges to offset the
effects of inflation since salaries were last raised in 1999.
Supreme Court Justice Edward H. Lehner ruled in
Chief Judge v. Governor
, 400763/08, that the other political branches violated the
separation of powers doctrine by linking a judicial pay raise to
other issues.
The ruling appears to have put the lawsuit, filed by former Chief
Judge Judith S. Kaye, on a fast track to be heard by the Court of
Appeals at the same time as two cases decided by Appellate Division
panels.
Earlier this month, the First Department affirmed Justice Lehner's
ruling on the linkage issue in a case brought by four judges,
Larabee v. Governor
,4761-4761A. Last November, the Third Department rebuffed similar
claims raised by three judges in
Maron v. Silver urt
of Appeals as a matter of right.
Bernard W. Nussbaum, the partner at Wachtell, Lipton, Rosen & Katz
who is handling the court system's lawsuit, said, "We recognize this
matter will ultimately be decided by the Court of Appeals and look
forward to appearing in that Court as promptly as possible."
Justice Lehner yesterday rejected two other claims raised in
Chief Judge : that judicial salaries have become
constitutionally inadequate and that the prohibition in the state
Constitution against reducing judges' salaries [Article VI §25(a)]
was violated because the salaries of judges have been frozen for 10
years while those of other state employees have been raised.
Requests for review from both sides in Maron are pending in
the Court of Appeals. Neither side of the Larabee case has
yet to ask the Court to accept an appeal.
o Pay
Hike for NY Judges Until
Economy Improves, Governor Says
By Joel Stashenko
New York Law Journal
May 1, 2009
The shaky economy has
effectively shelved the possibility of a judicial pay raise until a
recovery occurs, according to Governor David A. Paterson.
While he said he has
believed for years that state judges deserve their first raise since
1999, the governor said Friday it will not happen as long as the
state faces huge budget gaps and shrinking tax revenues.
"Certainly last year and
this year, with the extreme downturn in the economy" means the state
cannot increase pay "for anyone," Mr. Paterson told reporters after
the annual Law Day observance at the Court of Appeals in Albany.
The sharp criticism Mr.
Paterson and other state officials received when they have tried to
increase the pay for selected aides shows the negative attitude of
New Yorkers toward pay raises in the public sector.
The governor attributed it
to an "overflow of anxiety people are feeling based on the downturn
in the economy." Once the economy stabilizes, the governor said, "I
don't think it'll be any problem" getting judges their increase.
Chief Judge Jonathan
Lippman has said he is continuing to talk with the Legislature and
governor about breaking the impasse over a pay bill, but has
conceded that poor state finances and the economy have made the
discussions even more difficult than in years' past.
On Friday, appearing with
Mr. Paterson before reporters, Chief Judge Lippman said, "We hope
the economy is going to turn around very soon, through the
governor's effort and President Obama's."
Budget
Glitch Does Not Mean Raise, Judges Told
Joel Stashenko
New York Law Journal
April, 3. 2009
ALBANY - A powerful legislative committee chairman took the unusual
step Tuesday night of denying on the floor of the Assembly that an
apparent drafting glitch in the Judiciary's 2009-10 proposed budget
would allow court officials to pay long-sought raises to state
judges.
The idea that the Judiciary could bypass the state Constitution and
Judiciary Law to unilaterally give judges raises is "100 percent
incorrect," Herman D. Farrell Jr., chair of the Assembly Ways and
Means Committee, told his colleagues.
The budget re-appropriates
$48 million in unused funds from the 2008-09 Judiciary budget for
judicial raises. At the same time, however, the budget bracketed a
requirement that the raises could not be implemented without passage
of a separate authorization bill. Under bill-drafting conventions,
bracketed material is removed from the measure when it is approved
by legislators.
Brackets were put around a phrase in the re-appropriation that says
the spending on higher salaries is "pursuant to a subsequent chapter
of law specifying such salary level." No such chapter of law appears
elsewhere in the $132 billion spending plan.
"The notion that the Office of Court Administration has been somehow
authorized or empowered to ignore both the New York state
Constitution and Article 7-B of the Judiciary Law by some words
stricken from an appropriation is 100 percent incorrect," Mr.
Farrell said.
He did not tell his colleagues who had the notion that OCA might be
free to distribute raises unilaterally and he did not return calls
seeking comment.
Mr. Farrell, D-Manhattan, said on the floor that if what he called
"contrived confusion" remains over authority to spend the money
re-appropriated for the judicial pay raises, legislation would be
introduced to restore the deleted language.
Assemblyman William Parment, D-Jamestown, said yesterday in an
interview that Mr. Farrell's statement was "intended to express the
Legislature's intent that however this language was worded or failed
to appear, the Judiciary was prohibited from receiving a raise."
"It was kind of a signal to the Judiciary, 'Hey, don't take this
omission to think you can raise your salaries,'" Mr. Parment said.
Chief Administrative Judge Ann Pfau said yesterday that the
Legislature deleted proposed language in the Judiciary's budget that
would have amended Judiciary Law Article 7-B by laying out a
schedule of raises for state judges. The re-appropriation to fund a
raise was kept in the budget and the bracketed material - which
would be redundant had the Legislature not excised the proposed
salary schedule amendments to Article 7-B - was not unbracketed to
restore it to force when the final bill emerged.
The Legislature's concern that OCA might unilaterally distribute
money for raises runs counter to the Judiciary's understanding of
how pay raises for judges are approved, Judge Pfau said.
Whenever the Judiciary puts the proposed pay raise in the budget,
"we have assumed that there are two things that have to be done -
that the Judiciary Law has to be amended and we have to have the
spending authorization," Judge Pfau said. "Do we have the power to
amend the Judiciary Law? No."
Still, Judge Pfau said the 2009-10 budget gives judges a reason for
hope in that it does contain the re-appropriation for raises. That,
theoretically at least, keeps open the possibility of higher pay in
this fiscal year, she said.
"What we take from this is really a positive in that in this
difficult fiscal year, money is authorized in the budget to fund our
salary increases," Judge Pfau said.
Frank Mauro, a former secretary to the Ways and Means Committee,
said the overall size of the budget and the pressures of drafting
last-minute deal-making contributed to the need for "lots of
cleanup" of errors in the legislation. Mr. Mauro, now with the
Fiscal Policy Institute in Latham, said drafting mistakes were
"overwhelmingly things that weren't intentional."
By making the unusual statement about interpreting the judicial pay
raise re-appropriation, Mr. Farrell was likely signaling that the
error was "maybe more important than the regular kind of error," Mr.
Mauro said.
"He was saying, 'Don't get the wrong idea, because we can fix it
whenever we want,'" Mr. Mauro said yesterday in an interview.
Top Priority
Chief Judge Jonathan Lippman said in interviews last week that he
continues to discuss a judicial pay raise and the creation of a
commission to set future increases, with the Legislature and the
governor's office. The chief judge said securing pay raises remains
far and away his top priority.
Albany County Family Court Judge W. Dennis Duggan, an outspoken
advocate for a judicial pay raise, said many judges had taken note
of the bracketing of the "pursuant to" language in the
re-appropriation and that it created speculation ranging from
signals that the Legislature has quietly acquiesced to a judicial
pay raise to a simple drafting error.
Judge Duggan said he thought there would be little, if any, support
among judges that OCA should use what could amount to a legal
loophole to distribute the re-appropriated money as raises without
approval by the governor and Legislature.
"There would not be any sentiment for doing anything that is
surreptitious," Judge Duggan said yesterday. "We deserve our raises.
It is not something that we want done through smoke and mirrors."
Judge Duggan also noted that Chief Judge Lippman is thought to have
strong relationships with state legislators which could be
demolished at the beginning of his tenure as chief judge by
capitalizing on an oversight in A151/S51.http://assembly.state.ny.us/leg/?bn=A00151
"I don't think that, given the chief judge's relationship with the
Legislature, that he would take advantage of some drafting mistake,"
Judge Duggan said.
Trimming Urged
Mr. Parment urged the Assembly on Tuesday night to defeat the
Legislative/Judicial budget after complaining about overall
increases in the Judiciary's budget over the past decade. He said no
other major arm of state government has been allowed to raise its
budget by 121 percent between the 1999-2000 and 2009-10 fiscal
years.
The 2009-10 Judiciary budget is $2.52 billion, up from $1.14 billion
in 1999-2000.
Mr. Parment urged the Legislature to appoint a commission to review
the Judiciary's spending and economies in the courts.
"Their budget is not challenged by the governor, who passes it along
to the Legislature as presented to the governor," Mr. Parment said.
"I think the Legislature has a responsibility to do some critical
review and at least jawbone a little with them to make them more
economical."
Judge Pfau and other court administrators have defended their
budgets as lean, given the increased caseloads and mandates imposed
by the federal and state governments.
The Assembly approved the Legislative/Judicial budget bill 92-51.
While the Senate continued to deliberate over budget bills
yesterday, it was unclear when it would take up the
Legislative/Judicial budget measure.
That bill is traditionally the last the Assembly and Senate consider
when working on state budgets.
Excerpt From Bill*
"The appropriation made by chapter 51, section 2, of the laws of
2008, is hereby amended and reappropriated to read 'for expenses
necessary to fund adjustments in the compensation of state-paid
judges and justices of the unified court system and of housing
judges of the New York city civil court, [pursuant to a subsequent
chapter of law specifying such salary levels] ...'"
*Brackets should have been removed.
Checks
and Balances: NY Judge Cites Legislature's
Stall on Judicial Pay Hike as Reason for Recusal
By Mark Fass
New York Law Journal
New York Lawyer
March 10, 2009
Brooklyn judge has recused himself from a receivership case where the plaintiff is
represented by a law firm that employs two state lawmakers, one of
whom voted against a judicial pay raise.
In a scathing 10-page decision, Supreme Court Justice Arthur M.
Schack wrote that it would be improper for him, as a petitioner in
an action against the Legislature seeking raises for judges, to
adjudicate an action in which the firm has a stake.
"To avoid any potential appearance of impropriety in the instant
case, since both Senator Craig M. Johnson and Assembly Member Marc
S. Alessi are both of counsel to Jaspan Schelsinger Hoffman . . . I
must recuse myself," Justice Schack wrote in
JPMorgan Chase v. Bergen Plaza, 126/09.
"I hope that Mr. Johnson and Mr. Alessi would allow the judges of
this state to receive their first pay raise in this century. Thanks
to our legislators . . . our New York State judges are the 'Rodney
Dangerfields' of government. A pay raise would help to give us a
little respect, instead of, as recently said by Chief Judge Kaye,
'the disdain with which we are treated.'"
Justice Schack's recusal order is yet another salvo in the fight for
pay increases for New York's approximately 1,300 trial judges, who
have not received a raise since 1999, when the Legislature bumped
their salaries to $136,700 a year. No state has gone longer without
raising judicial pay; according to one study, New York ranks 48th in
judicial pay when adjusted for the cost of living.
Last May, then-Chief Judge Judith S. Kaye, a leading advocate for
judicial raises, e-mailed the entire state judiciary, advising her
fellow judges that they may recuse themselves as a matter of
"individual conscience," but that a "strategy" of recusals could
"hurt our cause" (NYLJ,
May 2, 2008).
Two weeks later, the state Commission on Judicial Conduct warned
that judges who recuse themselves to protest legislative inaction
could face disciplinary actions.
The County Judges Association of the State of New York then 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."
Though no one keeps an official count of the recusals, Steven W.
Schlesinger told the Law Journal last year that in a three-month
period about 20 judges recused themselves from cases involving his
firm. Yesterday, he did not return a call for comment.
In one such case, Trump on the Ocean, LLC v. Cortes-Vasquez,
5329-08, then-Nassau Supreme Justice Leonard B. Austin granted a
potential intervenor's motion for recusal.
"The integrity of the judicial process requires that all attorneys
and their clients believe that the decisions of this or any other
court are based upon the facts and the law and not some issue in an
unrelated matter which can be perceived as affecting the Court's
impartiality or sense of fairness," Justice Austin wrote.
Last week Justice Austin was appointed to the Appellate Division,
Second Department.
ine In the present action before Justice Schack, JPMorgan Chase, the
plaintiff, sought the appointment of a receiver for a bankrupt
Brooklyn shopping plaza.
Justice Schack recused himself, citing his status as a plaintiff in
Maron v. Silver, 06-021984, which seeks an increase in
judicial salaries to $169,300. He wrote that it would neither be
proper nor appear proper for him to rule on a case involving Jaspan
Schlesinger, where both Mr. Johnson and Mr. Alessi are counsel. Mr.
Alessi voted against the raises; the issue has not come to a vote
before the Assembly.
"Both Senator Johnson and Assemblyman Alessi have the right to earn
additional income, unlike judges," Justice Schack wrote. "It is high
time for [them] to realize that the approximately 1300 New York
State judges are working people who deserve their first pay raise in
more than a decade."
According to a spokesman for the Office of Court Administration,
JPMorgan Chase will now go to Justice Abraham Gerges (See
Profile), Brooklyn's administrative judge, for
reassignment.
Antonia Donohue of Jaspan Schlesinger represented the plaintiffs,
JPMorgan Chase. She declined to comment.
The defendant, Bergen Plaza, did not answer the complaint. Its phone
has been disconnected and no one responded to an e-mail requesting
comment.
The judges' pay-raise suit, Maron, is not faring well. In
December 2007, Albany Supreme Court Justice Thomas J. McNamara
dismissed all but one claim (NYLJ,
Dec. 3, 2007). The Appellate Division, Third
Department, affirmed 4-1, and the judges are now seeking leave to
appeal (NYLJ,
Nov. 14, 2008).
There are two other lawsuits seeking higher pay for judges.
Larabee v. Silver, 112301/07, was filed in Manhattan
Supreme Court in September 2007 on behalf of the New York City
Family Court Association, the state Family Court Judges Association,
the New York City Civil Court Judges Association and the New York
City Criminal Court Judges Association.
In Kaye v. Silver, 400763/08, filed in April 2008, Judge
Kaye claimed the Legislature denied the judges their constitutional
right to an adequate salary.
Manhattan Supreme Court Justice Edward Lehner is now considering a
motion for summary judgment and a motion to dismiss in Kaye.
Justice Lehner's denial of the government's motion for summary
judgment in Larabee has been appealed to the Appellate
Division, First Department.
Former
Chief Judge Judith Kaye
Joins Skadden Arps as Of Counsel
By Joel Stashenko
New York Law Journal
New York Lawyer
February 17, 2009
Former New York State chief judge Judith S. Kaye began what she
called "Chapter 3" of her legal career today at Skadden, Arps,
Slate, Meagher & Flom.
Ms. Kaye, forced to leave
the Court of Appeals in December due to mandatory retirement rules,
has joined Skadden as of counsel, though she acknowledged she did
not yet know exactly exactly what she will do for the firm nor how
much time that will leave for promoting children's programs,
supporting diversity in the legal profession and other causes she
championed as chief judge.
At first, Ms. Kaye, 70,
said she has to learn the landscape of a large law firm after her 25
years on the Court of Appeals and her more than 15 years as chief
judge.
"I have so much to learn
about the world of law firms," Ms. Kaye said in an interview last
week. "Knowing law and practicing law are two different things. And
practicing at big firms is different, too."
Ms. Kaye was a commercial
law specialist and the first female partner at Olwine, Connelly,
Chase, O'Donnell & Weyher when she was nominated by then-Governor
Mario Cuomo in 1983 to become the first female member of the Court
of Appeals.
"I loved being a lawyer,"
Ms. Kaye said. "I have always been a lawyer, even at the Court of
Appeals. I loved trying cases. I tried jury cases. I tried appeals."
However, Ms. Kaye said it
is unclear whether she will get back into a court to argue on behalf
of Skadden clients.
Ms. Kaye referred to her
pre-judge days as "Chapter 1" of her legal career and her tenure on
the Court of Appeals as "Chapter 2."
She will work out of
Skadden's New York headquarters at 4 Times Square.
William P. Frank, national
legal practice leader for litigation at Skadden, said he also could
not predict how Ms. Kaye's role at the firm would play out.
"It is too soon to tell,"
Mr. Frank said in an interview. "We welcome her. In effect, she
wants to, and we encourage her, to do the public service and pro
bono-type of things, but we have also said that a lot of clients
will seek her out."
Mr. Frank said Ms. Kaye's
presence at Skadden will be a significant resource to younger
attorneys at the firm and, in a general way, an additional boost to
the prestige of the firm.
"She is probably one of the
best-known jurists in the United States and I think worldwide," Mr.
Frank said. "It is not just a name, but a name that is very, very
well respected by lawyers and non-lawyers worldwide. We are
delighted and honored, really, to have her with us and expect her to
be with us for many, many years."
Ms. Kaye said that she did
not want to stop working after leaving the Court but did want to
work in a stimulating, collegial atmosphere that would remind her of
the Court.
"One of the reasons that I
picked the firm is that I know a lot of people there," she said. "I
have good friends there. I think it is logical, rational and wise, I
hope in my hindsight, to do this. Retirement is not something that I
contemplated, ever."
The firm through a
spokesperson declined to say how much Ms. Kaye will be paid. As
chief judge she earned $156,000 a year.
First year associates at
Skadden are paid a base salary of $160,000 a year.
Ms. Kaye said she would be
available at all times to lend her expertise to Jonathan Lippman,
her former chief administrative judge who was confirmed last week by
the Senate as Ms. Kaye's successor as chief judge.
"I am always here for the
new chief judge," Ms. Kaye said. "He is so fabulous."
Senate
Confirms Lippman as Chief Judge
Joel Stashenko
New York Law Journal
February 13, 2009
ALBANY - Confronting
concerns about the process that led to his nomination to the state's
highest judicial office, Jonathan Lippman, on Wednesday, promised
state senators who confirmed him that he would make expanding
diversity in the judiciary one of his principal goals.
"We all have to work together on this issue and recognize why it's
important, that the courts reflect the great diversity of this
state," he told the Senate Judiciary Committee prior to his
confirmation as chief judge by the full Senate. "A diverse judiciary
is essential."
No senators either in the committee or the full Senate voted against
the nomination of Chief Judge Lippman, who was presiding justice of
the Appellate Division, First Deparment, before his confirmation.
However, one abstained from voting in committee and three on the
floor of the Senate. The senators all praised Chief Judge Lippman's
qualifications, but said they were protesting the process that
brought his nomination to succeed former Chief Judge Judith S. Kaye
to the Senate.
The list of potential nominees produced by the Commission on
Judicial Nomination from which Governor David A. Paterson selected
Chief Judge Lippman contained the names of seven men, six of them
white. The only minority candidate was Court of Appeals Judge
Theodore Jones.
Speaking to the full Senate, Eric Adams, D-Brooklyn, called the
nominating process a "sad moment for the state of New York" and
another in a long series of discouraging setbacks for the black and
Hispanic legal communities.
"We cannot stay in the minor leagues our entire lives," Mr. Adams,
who is black, told the Senate as Chief Judge Lippman and his family
looked down on the proceedings from the chamber's gallery. "We need
to play in the major leagues. . . . If we can integrate the White
House, we can integrate the black robes."
Chief Judge Lippman thanks
Senate Judiciary Committee Chairman John Sampson after the committee
approved his nominination.
Judiciary Committee
Chairman John L. Sampson, D-Brooklyn, said from the Senate floor
that senators expect the chief judge to follow through on his
assurances that he will do all he can to expand diversity on state
court benches and guarantee that defendants of all races are treated
fairly in New York courts.
"We don't want lip service as to inclusion, we want inclusion," Mr.
Sampson said. "We want to be at the table."
Senators Ruben Diaz Sr. and Pedro Espada Jr., both D-Bronx, said
Senator Hiram Montserrate, D-Queens, abstained by leaving the floor
of the Senate during the otherwise unanimous voice vote.
Mr. Diaz also abstained from the 22-0 vote by which the Judiciary
Committee approved the nomination.
"I am abstaining from voting because we have a problem, and if I
vote 'yes,' that makes me part of the problem," Mr. Diaz said during
the committee hearing. "My conscience does not allow me to come here
to vote 'yes.'"
At the committee meeting, Chief Judge Lippman agreed with Senator
Martin Dilan, D-Brooklyn, that while strides have been made with
judicial diversity within New York City, gains have been slower
upstate.
"The court system and the political system could do better outside
New York City," the soon-to-be-chief judge said.
'Record of Leadership'
In his remarks to the committee, Chief Judge Lippman boasted of the
changes made in the court system between 1996 and 2007, when he was
chief administrative judge to then-Chief Judge Kaye. He cited the
development of specialty courts, the elimination of most exemptions
to jury duty and the way the courts continued to operate in the wake
of the terrorist attack on Sept. 11, 2001, as among his proudest
accomplishments.
"I think I know how to inspire and motivate people," he said. "I
think I have a record of leadership and qualification. I know what
it is to work in a 24-hour, seven-day-a-week job. I've been doing it
for the last 20 years."
Chief Judge Jonathan
Lippman and Associate Judge Carmen Beauchamp Ciparick listen to
testimony during the confirmation hearing yesterday.
Judge Jones, Court of
Appeals Judge Carmen Beauchamp Ciparick and Second Department
Presiding Justice A. Gail Prudenti all spoke to the committee in
support of Chief Judge Lippman's confirmation.
"There is no one person in the court system today that deserves this
more than Jonathan Lippman, who has labored in the judicial
vineyards for so many years," Judge Ciparick said.
Judge Ciparick applied for the chief judge's position, but did not
make the commission's final list to the governor.
"I would be dishonest if I didn't say to you that I would have loved
to have been the subject of today's proceedings," Judge Ciparick
said. "I would have made a good chief judge, but Jonathan Lippman
will be a great chief judge."
How
Shelly Silver Made His Pal Chief Judge
Wayne Barrett
Village Voice
February 10, 2009
This week's Village Voice
doesn't hit streets until tomorrow morning, but for our Runnin'
Scared readers, we're offering tomorrow's cover story a day early.
This one should rock Albany: our Wayne Barrett details state
assembly speaker Sheldon Silver's step-by-step scheme to boost his
old LES pal Jonathan Lippman to the state's highest judicial post,
an appointment which is scheduled to be confirmed later this week.
Read it and rage. --Ed.
Justice is Blindsided
Shelly Silver Games Governor Paterson to Get His Childhood Pal the
State's Top Courts Job
By Wayne Barrett
Jonathan Lippman and Sheldon Silver grew up together on the
Lower East Side in the 1950s, living next door in the insular Grand
Street projects and sitting near each other's family in the
neighborhood's Orthodox shul. After both graduated from law school
in 1968 and drifted into low-level courthouse gigs in Manhattan in
their early careers, one went on to become the longest-serving
Democratic legislative leader in modern New York history, master of
an unprecedented 107 to 43 majority in the State Assembly. The other
remained largely unknown, except inside the state's vast court
system.
Last month, the two old friends reunited in the Red Room in the
State Capitol to celebrate their emergence as the most powerful duo
in state government.
Below the political radar, the black-hatted, still religious, and
gravel-toned Silver, who is celebrating his 65th birthday and 15th
year as speaker this month, has been quietly boosting the more
secular Lippman for years. Now, he's finally pushed Lippman from the
series of back-office management posts where he's labored for years
to the job of top gavel in the State Judiciary.
Appointed Chief Judge of the Court of Appeals in mid-January by the
accidental governor, David Paterson, whose troubled tenure continues
to erode his own ranking among the state's power elite, Lippman is
awaiting virtually certain confirmation in the next few days from
the new and narrow Senate Democratic majority. He will take over a
court system that spends $2.3 billion a year, employs 21,000, and is
likely to deal with issues like gay marriage, the housing
foreclosure crisis, Wall Street criminality, and the still anti-city
school aid formula during the six years he will reign until his
mandatory retirement at 70.
A year younger than his boyhood friend, Lippman awaits State Senate
confirmation before becoming the first chief judge since 1898 to
lead the state's highest court without ever serving as one of the
court's seven members. When Silver gave a short speech at Paterson's
announcement of the appointment, Lippman quipped: "Two kids from the
Lower East Side--not too shabby."
In fact, the story of how Lippman reached this pinnacle has its
shabby side. He exudes an above-politics reform aura, but he did not
climb to the top of the state's judiciary without making some stops
in the dark along the way. His ally, Silver, helped clear that path
to power, working a system whose anti-democratic ways have been
rebuked by two federal courts.
Lippman has been a hardworking ambassador and manager of the courts
for decades, visiting almost all of the system's 343 locations and
acquainting himself with virtually every one of its 1,300 judges.
But he has also been its consummate political player, seemingly more
interested in influence than law.
---
Jonathan Lippman will soon preside over the most complicated
and significant cases in New York, even though he's never practiced
as a private attorney.
His legal career began in a judge's chambers as a law secretary and,
when he turns 70 in six years, it will end there. In fact, he has
spent so much of his career as a bureaucrat that he's written only
16 signed judicial opinions, 14 of them since Paterson's
predecessor, Eliot Spitzer, made him the presiding justice of
Manhattan's Appellate Division in 2007. With that scant a record as
a jurist, it's impossible to know what his judicial philosophy is,
and even his 24-year tenure in three appointive administrative posts
offers no consistent thread about his judicial values or
independence.
On one hand, he described himself in a 2006 speech as "unencumbered
by parochial or partisan or political agendas," and is so widely
considered a champion of court reform that New York's Bar
Association found him "exceptionally well qualified" for chief
judge, ahead of the "well-qualified" ratings it gave long-standing
Appeals judges. The Times endorsed him, and he was given the
Rehnquist Award for Judicial Excellence in November by U.S. Supreme
Court Chief Judge John Roberts.
On the other hand, he is such a skilled and connected insider that
when he ran for the first and only time in 2005, he was the only
candidate in the state running for Supreme Court who couldn't be
voted against. Lippman was on all five ballot lines:
Democratic, Republican, Working Families, Conservative, and
Independent. In fact, he had refused to allow his name to be put in
the nomination unless every party backed him for the seat, which is
the top trial court of the unified court system. (In New York, the
"Supreme" Court is not actually supreme: The Court of Appeals is at
the top of the judicial pile, above the Appellate Division and the
Supreme Court, where major civil and criminal cases are heard.)
David Alpert, the onetime Democratic leader in Lippman's home county
of Westchester, says the first time he ever heard of the man was
when he got a call from a Republican, State Senator Nick Spano.
Spano told him that he and a Westchester Democratic assemblyman,
Richard Brodsky, had passed an amendment creating a new Supreme
Court seat in Westchester, and Spano wanted Lippman "to be
cross-endorsed for it." That meant Spano wanted the Democrats,
Republicans, and other minor parties to all vote at their judicial
nominating conventions to put Lippman's name on their ballot lines
for this new, vacant seat, in exchange for which the Republicans
would demand that the Democrats endorse at least one of their
candidates.
"I didn't even know [Lippman] lived in Westchester," says Alpert,
who was accustomed to promoting attorneys and county judges who had
done their time for the party to Supreme Court slots. "I had
breakfast with him, and the first thing he told me was that he and
Shelly were raised together. He said he wanted to be cross-endorsed
and that he wanted to go on to be an appellate judge." Alpert was
just one of a legion of county leaders Lippman had to deal with over
the years as he sought a Supreme Court seat--five counties with five
parties occupy the 9th Judicial District--but Alpert says "we tried
twice" (in 2000 and 2002, he believes) to deliver a multi-party
cross-endorsement deal and couldn't.
Joseph Ruggiero, the Democratic leader from Dutchess County in 2002,
said that on the day of the judicial convention when Democrats
picked their Supreme Court nominees, Silver placed a conference call
to a group of party leaders gathered at the Westchester headquarters
and asked them to support Lippman. "We all said yes," recalled
Ruggiero. How could they say no? With a Republican governor and
Senate majority leader at the time, Silver was New York's top
Democrat, and Denny Farrell, Silver's right hand in the assembly,
was the state party chair.
When the current Westchester Democratic leader, Reggie LaFayette,
finally did deliver a deal for Lippman in 2005, he explained
Lippman's unusual candidacy--clearly more top-down than the typical
grassroots designation--to his executive committee this way: "I told
them I don't create judge seats. It was created higher up than me,
by the two houses of the legislature. And someone yelled out, 'You
mean Assemblyman Silver,' and I said, 'Well, he had to vote for it.'
" But the bigger problem for LaFayette was cajoling his fellow
leaders into giving up a seat in a cross-endorsement deal and
backing a Republican. Cross-endorsements are easy when the two
parties are competitive and no one knows who will win, but Democrats
had won five of six judgeships in 2004, without any deals, and felt
no need to give the GOP anything.
The executive committee understood LaFayette's argument and signed
on, but a few weeks later, the price of the Lippman package deal got
much steeper. The leaders could live with cross-endorsing the
initial Republican candidate, a respected county judge named Stewart
Rosenwasser. But just days before the September judicial
conventions, the Republicans replaced Rosenwasser with a candidate
that horrified many Democrats: Joseph Alessandro, also a county
judge.
Alessandro had been found "not qualified" by the Bar Association and
was dogged by tawdry tax and lawsuit charges. The New York State
Commission on Judicial Conduct is still investigating those charges,
and Alessandro, who did become a Supreme Court judge, is now facing
possible severe sanctions. Yet it was Lippman's demands that would
put Alessandro on the bench.
Lippman wanted to be endorsed by all five parties, and that
insistence created an opening for the county's most voracious party
boss, Dr. Giulio Cavallo, who controlled the Independence Party. He
wanted Alessandro, not Rosenwasser, to become Lippman's opposite
number in the multi-party swap and get the cross-endorsements.
LaFayette and the Republican leader, RoseMarie Panio, eventually
decided to back Alessandro, but fights against the deal broke out on
the floors of both of these ordinarily scripted and staid
conventions. Challengers ran against Alessandro and, had he lost at
either convention, Lippman's precious deal--and ultimately his route
to the Court of Appeals--would have died.
The inclusion of Alessandro so offended Working Families party chair
Pat Welsh that he endorsed Lippman but refused to back Alessandro,
telling the Voice that the deal was "unconscionable." (Lippman
ran on five ballot lines; Alessandro, apparently unconcerned about
the Working Families Party, four). A disgusted Rosenwasser wound up
quitting the bench altogether.
---
At Lippman's January 2006 induction ceremony for Supreme
Court in White Plains, Silver regaled the audience of bigwigs--at a
special celebration separated from the swearing-in of the other new
judges--with "our gang" stories from their first meeting at the age
of six. Saying, "We have shared a common path," Silver joined in
celebrating "with my colleagues in the legislature," many of whom
were there, "who I say had a good hand in making today happen."
While Lippman is now said to be downplaying Silver's role in his
rise, he called him "family" in his speech and praised him for
"marshaling the troops, and, boy, can he marshal the troops."
Lippman called himself "basically an apolitical person," and then
thanked 16 party leaders, referring to each of the five from
Westchester, including Cavallo, as "my leader," singling out Spano,
who, he said, "vouched for me on the Republican side." Judge Gail
Prudenti, the presiding justice in the Appellate Division covering
Westchester, spoke on behalf of what she called "the many, many,
many campaign advisers to the seemingly never-ending 'Lippman for
Justice' campaigns."
The unexamined side of the Lippman saga is revealed in these salty
Westchester tales, where the judge who pretends he is above
self-serving politics played it as skillfully as his sidekick from
the neighborhood who does it for a living. Lippman created the
state's Judicial Campaign Ethics Center to guide candidates for
elected judgeships, but he told Alpert, and many others, that he
wanted the seat handed to him without the inconvenience of an
election because it would be unseemly for the chief administrative
judge to solicit contributions.
Yet he had no problem brandishing the calling card of Silver's
friendship, or dialing up county leaders and other powerbrokers,
some of whom, including Senate Assistant Majority Leader and onetime
GOP boss Spano, were receiving lucrative patronage assignments from
his courts. He even had no hesitation about going forward with the
deal though he knew it would result in the elevation of an already
tarnished judge, Alessandro, who may soon be repudiated by the
Conduct Commission.
In fact, just as he began his efforts to secure a Supreme Court slot
in 2000, he opened an elaborate office for himself in state space,
across the street from the White Plains courthouse, and began
spending a lot of time there, deeply involving himself in the
judicial politics of that district. Shortly before that, he abruptly
asked the district's administrative judge, Angelo Ingrassia, a
Republican from a small county in the district, to step down a year
before his mandatory retirement age. He even gave Ingrassia a car
and chauffeur for his final year to induce him to do it.
He then split Ingrassia's job into two positions and gave both to
Spano allies--one a Republican and the other an influential Democrat
from Westchester, the populous center of the district. The new
administrative judge, Frank Nicolai, denied in a Voice
interview that he "campaigned for Lippman" in the long-running
effort to secure a Supreme Court seat, as some sources contend. That
would be a violation of judicial ethics, which only permit judges to
campaign for themselves. "If someone asked," Nicolai said, "I'd say
he'd be an outstanding judge." Asked if he might have initiated some
of those conversations, Nicolai added: "I might have."
Nicolai presided at Lippman's 2006 swearing-in, where Lippman,
Silver, and his other prestigious friends were so
self-congratulatory it was almost as if he had actually won an
election--when all he'd really done was collect chits and lean on
the party bosses who'd installed him. With all the editorial hubbub
about the judicial nominating process in New York, spurred by the
federal court decisions that the process was an unconstitutional
infringement of the franchise, Lippman the reformer had
inadvertently established by his own experience how poisonously
anti-democratic it was.
Yet, at his induction, he called his campaign "a unique experience,"
and even praised the mix of elective and appointive positions in New
York's judicial system. Indeed, he has proven, from his Supreme
Court fix to his culminating appointment as chief judge, that he is
the master of both processes, each with their own brand of
incestuous networking. If that is merit, then Lippman is what many
of his supporters see him as, the embodiment of the merit system in
our courts.
---
Lippman wanted a Supreme Court spot to make himself legally
eligible for appointment to a second-tier appellate post, which he
saw as a vital stepping-stone to the top-tier Court of Appeals. He
had to do it then because his other sponsor, Chief Judge Judith
Kaye, would have to step down when she turned 70 in 2008, and even a
brief stint on the appellate bench would give him an opportunity to
build a record as a scholarly jurist, though it would be quite a
lean one in comparison with competitors who'd actually written
opinions for lifetimes.
But his timely and controversial "election" was hardly the only
awkwardly abetted step on his unprecedented career ascension. Prior
to it, Lippman had only been a Court of Claims judge--an appointment
bestowed by Governor George Pataki a few months into his first year
in office (1995), when the Democrat Lippman managed to secure a spot
despite the hunger of Republicans eager to grab judicial patronage
slots after 12 years of Democratic rule.
At the time, Lippman was the top deputy in the Office of Court
Administration, and all he had going for him were his Silver ties;
an assiduously cultivated friendship with GOP Senate Judiciary Chair
Jim Lack; and the backing of Judge Kaye, who argued that Lippman
should hold a judicial title since she intended to install him, as
she did a few months later, as the chief administrative judge.
Spano, who had just become the Republican county leader in
Westchester in 1995, met Lippman in the few days between Pataki's
appointment and the Senate's confirmation. Since Lippman was
technically a candidate from Spano's home turf, he had to sign off
and did, endorsing Lippman on the Senate floor and launching what he
concedes became a series of efforts on Lippman's behalf that he
would make over the coming years. Three of the pivotal party
brass--Westchester Conservative Gail Burns, Rockland County
Republican Vince Reda, and Cavallo--were on Spano-engineered Senate
payrolls when Lippman collected his cross-endorsements in 2005, and
the senator concedes that he spoke to them, as well as to
Westchester Republican RoseMarie Panio, a close ally. "I'm sure I
expressed support for Judge Lippman," Spano tells the Voice.
"Anytime his name was up, I was an enthusiastic supporter."
In fact, Spano, who was widely viewed as the Senate Republican
closest to Silver, confirmed his call to Alpert and acknowledged
that he'd pushed midnight legislation through in 2005 and earlier,
aided by Brodsky, that created new Supreme Court seats in the
judicial district covering Westchester. The bill in 2005 was
introduced by Pataki on June 24 and passed by both houses that day.
While Spano said he didn't think "it would be fair to say" the seats
were "created for anyone," he concedes that "Lippman's name came up"
when the bills were adopted. Lippman needed more than one bill
because the cross-endorsement deals with the Republicans fell apart,
for reasons having nothing to do with him (once the Republicans
demanded four Republican cross-endorsements for Lippman). He even
went so far as to be nominated by the Democrats in 2002, only to
file a formal declination when the deal with the GOP broke down.
A few months after Spano helped engineer Lippman's 2005
cross-endorsement, his brother, Mike Spano, an assemblyman mired in
the hopelessly outmanned Republican minority, quit the assembly and
joined a premier Albany lobbying firm run by Silver's former chief
of staff, Pat Lynch, who is perceived to be the lobbyist closest to
the speaker. When Nick Spano was defeated for the Senate in 2006, he
formed his own lobbying company that Lynch invested in and allowed
him to operate until this month out of her Albany suite. Mike Spano
eventually went back to the Assembly, but he later became a Democrat
at a press conference attended by Silver. Nick Spano, who reported
half a million dollars in lobbying fees in 2007, denies vociferously
that his aggressive support for Lippman has anything to do with his
current business. But his ties to Lynch, and Lynch's hiring of his
brother (who was hardly an influential Albany player), are a measure
of his alliance with Silver, who Nick Spano says he "might have
talked to" about Lippman's candidacy over the years "in social
settings."
All the while that Spano was aiding Lippman's candidacy, he was
reaping at least $79,739 in fees as a "court evaluator," a person
paid to measure the mental competency of someone named in a legal
petition. Though Spano isn't a lawyer, he has received 31 of these
assignments and four other referee assignments. OCA regulations
require the disclosure of these fees, but Spano's fees in 15 cases
aren't listed on the office's printout. While Lippman's OCA had
nothing to do with choosing evaluators (individual judges do that),
it did collect applications for appointments; approved evaluators,
like Spano, for the list; and set the qualifications for
appointment, which appear to permit just about any professional to
sign up.
Evaluators look into the eyes of the subjects of these court
petitions, many of whom are elderly and in nursing homes, and decide
whether they should retain control of property and other assets, the
value of which they also consider. Spano sponsored the law that
created this position, and he and other pols in Westchester,
including then Senator Guy Velella, wasted no time collecting
assignments. Velella, who has since been convicted on unrelated
charges, was another social friend of Lippman's, and dined with him
and Senator Lack and their wives at Rao's, the famously exclusive
restaurant in East Harlem. Even one of the restaurant owners
collected 19 appointments as an evaluator.
Lack, however, never dipped into the evaluator till, but he did
collect 66 court appointments as a guardian or referee while
chairing the Senate Judiciary, 26 of which were from Judge Prudenti,
who spoke about her adviser role in Lippman's never-ending campaign
at the 2006 induction. A Court of Claims judge himself by then, Lack
was also present at the swearing-in and was saluted by Lippman,
though he'd left the Senate after chasing a woman to her home in a
road-rage dispute and ducking under the garage door when she tried
to hide from him. "Do I think it's a terrible thing that people
involved in public office receive this?" Lippman once told
Newsday, referring to judicial patronage. "No, I don't."
There's no indication that Lippman did anything more than oversee
this grab bag of goodies--with evaluators often earning $3,000 for a
couple hours of work. But if Lippman was so concerned about the
appearances of being political that he effectively exempted himself
from the requirement that he actually compete in the electoral
arena, he might have been a bit more careful about the appearances
of his alliances with the beneficiaries of this dubious bonanza.
---
The day after Lippman became a Supreme Court Judge, in 2006,
he asked Judges Kaye and Prudenti to name him to the Appellate Term,
a job he would perform in addition to the administrative post he
retained. This assignment--which allowed him to hear appeals of some
lower court decisions--was his only way of acquiring appeal
experience without being formally elevated by the governor to the
full Appellate Division.
When a vacancy developed in the Manhattan Appellate Division and
Spitzer selected Lippman as the county's presiding judge, howls were
heard because two of the most respected sitting judges on that
Appellate Division were bypassed by the screening panel of lawyers
that vets judicial candidates, narrowing the governor's choice.
The same thing happened in December, when the screening panel for
chief judge excluded two sitting Court of Appeals judges, as well as
all women and Latino candidates--giving Paterson an invitation he
couldn't figure out how to refuse. The panel included four Kaye
appointees and one from Silver. Panel member Leo Milonas was so
close to Lippman he spoke at the induction. Lippman saluted Milonas
then as "truly my friend for life," calling their friendship, which
began when Lippman worked for him at OCA, "an unforgettable
relationship that, to my great benefit, continues today in every
way."
Reminded of that by the Voice, Milonas saw it as no reason to have
recused himself from anointing Lippman, noting that he was "more
qualified" to help pick a chief judge "because I know people." The
panel's chair, John O'Mara, a Pataki appointee, sat with Lippman on
the court's Capital Construction Board for years.
An angry Paterson asked Attorney General Andrew Cuomo to investigate
the panel's exclusionary list of seven nominees, but he never
released Cuomo's report or recommendations. Instead, he began openly
associating the chief judge selection with the other grand decision
that faced him--the choice of a new senator to succeed Hillary
Clinton--sending the signal that he had to pick a woman for the
Senate since the panel's list barred him from picking one for the
court.
When Silver reversed course and supported Caroline Kennedy, insiders
suspected it was all about his love for Lippman. At that point, the
governor had also just about convinced everyone that he wanted
Kennedy, and the assumption was that Silver got the message that if
he wanted Lippman, he'd better sing "Auld Lang Syne" to his Kennedy
animosity. Paterson was asked about this connection at the Lippman
announcement and denied it, adding that he "actually did not know
the extent" of Lippman's "relationship" with Silver until he called
the speaker to tell him about the appointment--which would make the
governor the only high-ranking New York official unaware of it.
Ironically, of course, Paterson deserted Kennedy, and even claimed,
improbably, that he never intended to pick her, though he revealed
how important he thought Silver's opinion was about his eventual
choice, Kirsten Gillibrand (another woman, to balance Lippman), when
he said at her announcement that he moved it up to Friday from
Saturday so the Sabbath-observing Silver could attend. It would be
par for the course in Paterson's stumbling regime that he would
agree to Silver's choice for chief judge in return for Silver's
support of Kennedy, and then not get her, only to be stuck with
Silver's pal for judge.
Whatever the deal, Paterson appeared boxed in when he announced that
he would choose from the screening panel's list for chief judge. But
there is one school of thought, citing interpretations from the OCA,
that suggests that Paterson could simply have chosen to do nothing
when the January 15 appointment deadline arrived. These analysts
argue that Paterson could have named no one until later this year,
when panel chair O'Mara steps down. That would have meant that
Carmen Ciparick, a woman and a Hispanic who has been on the Court of
Appeals for 15 years, could have continued serving as the acting
chief judge, a position the other five judges voted to give her when
Kaye retired in January. The press office at the court says Ciparick
is the chief judge "as long as the seat remains vacant." If Paterson
had simply done nothing, he could have eventually asked the new
panel for a new list, and Ciparick, who applied and was rejected by
O'Mara's very politicized panel, might actually have gotten a chance
to compete for the job.
The same is true should the Senate take no action now. In fact,
several Democratic state senators have been making a fuss for weeks
about the lack of Latino representation in positions of power--at
any level of city or state government. It is an issue that
threatened the Democratic takeover of the Senate majority at the
same time that Paterson was deciding, unknown to anyone, to displace
a sitting Latina chief judge he could have allowed to remain, and
perhaps even wind up appointing. His simultaneous selection of the
anti-immigrant Gillibrand for the Senate seat compounded Paterson's
trouble with Hispanics.
New York's first black governor preferred the comfort of Silver and
Kaye and Lippman and the old-line judicial establishment. Lippman
had even been careful enough to establish a personal rapport with
the governor when Paterson was the Senate minority leader, meeting
with him on OCA issues. Unelected himself and unsure of the
extraordinary powers of his office, Paterson seems to shrink in
Silver's company, now blaming the millionaire's tax on him as if the
speaker sets the budget agenda.
The graying gang from Grand Street rolled the neophyte governor from
Harlem, and will soon double their choke hold on state government, a
triumph of loyalty and intrigue, which, in old New York, adds up to
just another measure of merit.
Research assistance by Dene-Hern Chen, Jana
Kasperkevic, Sudip P. Mukherjee, and Jesus Ron
Paterson
Taps NY Judge to Lead High Court
By Joel Stashenko
New York Law Journal
New York Lawyer
January 14, 2009
ALBANY - Jonathan Lippman,
the seasoned administrative judge who has been presiding justice of
the Appellate Division, First Department, since 2007, was tapped
yesterday by Governor David A. Paterson to become the state's next
chief judge, said several sources who had been informed of the
choice.
Mr. Paterson told Justice Lippman yesterday afternoon that the
governor would send the presiding justice's name to the state Senate
for confirmation, sources said. The governor plans to formally
introduce Justice Lippman as his choice at a Capitol news conference
today.
Justice Lippman would succeed Judith S. Kaye, 70, who stepped down
last month due to mandatory retirement rules. Judge Kaye was the
first female on the Court of Appeals and its longest-tenured chief
judge ever with more than 15 years in the post.
For much of that time, she and Justice Lippman, 63, worked closely
promoting the former chief judge's agenda, including creation of
more specialty courts and trying to make jury duty less onerous.
Justice Lippman served as the state's chief administrative judge
from 1996 to 2007, the longest anyone has spent in that top job.
But the pair were unsuccessful in convincing state lawmakers to
approve the first pay raise for state judges since 1999, a campaign
Justice Lippman is certain to take up anew as chief. Judge Kaye's
2008 suit to force the Legislature and governor to give the judges a
raise is pending before Manhattan Supreme Court Justice Edward H.
Lehner.
Judge Kaye said yesterday in an interview that she is "very, very
pleased" and "very excited" by Mr. Paterson's selection of Justice
Lippman.
"I think the governor made a wonderful choice," she said.
And while Justice Lippman would undoubtedly blaze his own trail as
chief, Judge Kaye said she would be "fibbing" if she did not hope he
would continue many of her policies and initiatives.
If confirmed, Justice Lippman would only be able to serve about half
of a full, 14-year Court of Appeals term. He would be forced to step
down at the end of 2015, the year in which he turns 70.
In addition to supervising the work of the seven-judge Court of
Appeals, the chief judge oversees the work of the state's Unified
Court system, which has a $2.5 billion annual budget and more than
16,000 employees. The courts had more than 4.3 million new filings
last year.
Justice Lippman's long experience as chief administrative judge was
thought to give him a leg up against the six other chief judge
candidates proposed to Mr. Paterson by the Commission on Judicial
Nomination.
At the First Department, Justice Lippman has been credited with a
dramatic reduction in the time it takes to decide cases and in
getting panels to issue rulings sooner in complex and long-delayed
cases .
The other chief judge candidates forwarded to the governor by the
Commission on Judicial Nomination were Court of Appeals Judges
Theodore T. Jones Jr. and Eugene F. Pigott Jr., Second Department
Justice Steven W. Fisher and private practitioners George F.
Carpinello of Boies, Schiller & Flexner in Albany, Evan A. Davis of
Cleary Gottlieb Steen & Hamilton and Peter L. Zimroth of Arnold &
Porter.
Initial 'Outrage'
Mr. Paterson immediately criticized the list when it was released
early last month for its lack of diversity - only one of the
nominees is black, Judge Jones, and no women made the list. Mr.
Paterson's aides said the governor was disappointed that the senior
associate judge and only Hispanic on the Court, Carmen Beauchamp
Ciparick, did not make the final cut.
Mr. Paterson said he was "outraged" by the racial and gender
composition of the list, but conceded he was prohibited by law from
submitting a name to the Senate that was not forwarded to him by the
panel. He also said it was unfair to the candidates who had gone
through the commission's screening and interview process to scrap
the list and start a new search, even if it was legal.
Mr. Paterson asked Attorney General Andrew M. Cuomo to review the
recruitment and screening procedures used by the commission and
recommend ways to make the process more open and inclusive. The
governor has yet to propose changes in the commission selection
process.
Justice Lippman was
appointed to the Court of Claims by then-Governor George Pataki in
1995, but he did not begin hearing cases until January 2006, when he
was elected to the Supreme Court. He also served on the Appellate
Term, which hears appeals of city and district court cases on Long
Island and in suburban counties north of New York City, before being
appointed by then-Governor Eliot Spitzer to the presiding judgeship
of the First Department.
Justice Fisher, by contrast, has experience as a Supreme Court and
Criminal Court judge dating back to 1983, while Judge Jones first
joined the Supreme Court bench in 1990 and Judge Pigott first became
a Supreme Court justice in 1997.
Judge Pigott joined the Court of Appeals in September 2006 and Judge
Jones in February 2007. Judge Pigott also served as presiding
justice of the Appellate Division, Fourth Department.
Confirmation Likely
Justice Lippman's confirmation by the Senate is virtually certain.
The Senate has never refused to confirm a gubernatorial nomination
to the Court since the appointive system began in 1977.
Moreover, Justice Lippman, like Mr. Paterson, is a Democrat. And
Democrats took control of the Senate by a 32-30 margin based on the
November elections, the first time since 1965 they have enjoyed a
Senate majority.
Justice Lippman also is a good friend of Assembly Speaker Sheldon
Silver, another Democrat, with whom he grew up on New York's Lower
East Side.
But the new chairman of the Senate Judiciary Committee, John
Sampson, D-Brooklyn, said yesterday he would not take up Justice
Lippman's confirmation until he holds hearings on the nomination
commission's selection process.
"For that committee not to put a woman on there, in this day and
age, is atrocious," Mr. Sampson said in an interview. "It is
unacceptable, not only in my eyes, but in the eyes of all the people
in the state of New York."
Mr. Sampson said he would not seek to block Justice Lippman's
nomination, which he said Mr. Paterson had done constitutionally
under the Court of Appeals' selection process, but that his "first
order of business" as committee chair would be to have hearings
about the nomination commission's work.
He said he would like to hold the hearings within two weeks.
Judge Ciparick, who has been acting chief judge since Jan. 1, will
continue to lead the Court until the Senate confirms Judge Kaye's
successor.
Positive Reaction
Bernice K. Leber, the president of the New York State Bar
Association, yesterday called Justice Lippman "a superb choice."
As chief administrative judge, Ms. Leber said, he was "a skilled
consensus builder with an innate ability to relate to legislators
and the executive as well as judges and lawyers around the state."
Through his ability to build consensus, Ms. Leber added, he was able
to implement some of "Chief Judge Kaye's boldest initiatives,
including reform of lawyer advertising rules and expansion of the
commercial courts."
Ann B. Lesk, the president of the New York County Lawyers'
Association, said she hoped the current budget crunch would not
hinder Justice Lippman's agenda.
"Justice Lippman has worked diligently to improve the administration
of justice in New York," she said. "We hope that the New York state
Legislature will provide the resources that are essential to allow
New York's courts to flourish under his leadership as chief judge."
Oscar Chase, the co-director of the Institute of Judicial
Administration at New York University School of Law, said Justice
Lippman is "very smart" and "extremely hard working."
Mr. Chase added, "He knows the court system and administrative
structure as well as anyone in the state. In terms of administrative
responsibilities of the office, Justice Lippman is the next best
thing to a continuation of Chief Judge Kaye's tenure."
But Mr. Chase said Justice Lippman is "to some extent an unknown" in
terms of his judicial philosophy considering his short time hearing
cases.
"Based on my observation of his professional life, I am sure he will
be a jurist sensitive to the needs of the people of this state and
to the law he will be sworn to uphold," said Mr. Chase.
Roberto Ramirez, a former assemblyman and president-elect of the
Puerto Rican Bar Association, called Justice Lippman "a candidate of
impeccable credentials and lifetime commitment and service to the
judiciary and court system" but was nonetheless disappointed that
the candidate list was not more diverse.
"It is unfortunate that what this process has shown is that there is
a historical exclusion of women and Latinos when it comes to the
so-called merit selection panel," said Mr. Ramirez. "I believe that
what happened this year is a call to reform the system."
E. Leo Milonas, a Pillsbury Winthrop Shaw Pittman partner and former
chief administrative judge, said Justice Lippman is the best
candidate to take over as chief.
"There couldn't be a better chief judge to replace Chief Judge
Kaye," he said. Justice Lippman is "extraordinarily qualified to
take over the Court upon Chief Judge Kaye's departure and not miss a
beat."
The chief judge makes $156,000 a year, $8,400 more than Justice
Lippman made as chief administrative judge and now as presiding
justice in the First Department.
If confirmed, he would become the first chief judge not elevated
from within the Court since Alton Parker in 1898.
Hispanic
Bar Groups "Shocked"
By Nominee List for NY's Chief Judge
By Joel Stashenko
New York Law Journal
New York Lawyer
December 8, 2008
Hispanic bar groups said
they are "shocked and outraged" that the Commission on Judicial
Nomination's list of recommended candidates to succeed Chief Judge
Judith S. Kaye did not include any women or Hispanics.
"The recommendations
undermine the work of the Commission and its stated singular
commitment to selecting only the most qualified candidates to the
Court," the groups said in a joint letter to Governor David A.
Paterson.
Mr. Paterson also said he
was "outraged" that no women were among the seven names submitted to
him last week and has asked Attorney General Andrew M. Cuomo to
research whether the state Constitution and statutes mandate that
the governor must pick the next chief judge from the list.
The groups writing to Mr.
Paterson were the Puerto Rican Bar Association, Latino Lawyers
Association of Queens County, the Dominican Bar Association and
LatinoJustice PRLDEF. Their representatives said the groups and
others wrote to Mr. Paterson supporting the candidacy of Judge
Carmen Beauchamp Ciparick, the Court of Appeal's first Hispanic
member, who did not make the list.
Gail M. Boggio, president
of the Women's Bar Association of New York, also criticized the
list, saying it "does not reflect the great range of qualified
individuals within the legal profession, or the diversity of society
as a whole."
New York State Bar
Association President Bernice Leber, on the other hand, said the
commission has a solid track record of choosing women nominees for
the Court, where women outnumber men 4-3.
Mr. Paterson must make a
nomination for chief judge between Jan. 1 and Jan. 15.
Courts
Offer Flat Spending Plan
As State Faces 'Grave' Economy
By Joel Stashenko
The New York Times
November 24, 2008
ALBANY - Chief Judge Judith S. Kaye has sent the state Legislature
and Governor David A. Paterson a budget request that court
administrators say both takes into account New York's "grave"
financial straits and the courts' attempts to meet the added burdens
the economic crisis will place on dockets.
Taxpayer support for the courts would remain flat at $2.27 billion
under the proposal for the 2009-10 fiscal year. Overall, when
federal aid is included, the judiciary expects to spend
approximately $2.5 billion, an increase of $2.3 million, or 0.1
percent.
See
a summary
of the courts' proposed budget.
Administrators also reported that they had saved around $40 million
in this year's budget through a series of belt-tightening moves.
The budget proposal for the upcoming year again contains a proposed
allocation for a judicial pay raise, the fourth straight year the
judiciary has put a salary increase request before lawmakers and the
governor.
The previous three requests have failed. Mr. Paterson is projecting
a $12.5 billion budget gap for 2009-10, and the judicial pay raise
is seen as having little realistic chance of success at a time when
the governor is looking for cuts to education and health care aid,
and contract concessions from public employee unions.
Chief Administrative Judge Ann Pfau (See
Profile) said the judiciary continues to be
"mindful of the need to focus on the judicial salary increase,"
despite the bleak financial picture that Mr. Paterson, in
particular, has been painting since he assumed office in March
following the abrupt resignation of Eliot Spitzer.
"It's been 10 years since the judges had a salary increase," Judge
Pfau said Friday in an interview. "I cannot think of another
profession where there has not been a cost-of-living increase in a
decade. We will continue to pursue that, including putting that in
our budget, on behalf of our judges."
Assemblywoman Helene Weinstein, the chairwoman of the Assembly
Judiciary Committee, said Friday the economic downturn and the
state's dismal balance sheet does not change the merits of the
judiciary's case for its first pay increase since 1999 nor the need
for more Family Court judges, a request usually made outside the
budget process.
"The need is not the hard sell," said Ms. Weinstein, D-Brooklyn.
"The hard sell is coming up with new dollars at a time when other
programs are being cut."The budget asks for $48 million to fund a
judicial pay raise retroactive to Jan. 1, 2009, according to a
formula favored by Chief Judge Kaye to put Supreme Court justices,
who make $136,700 a year, into pay parity with the $162,100 made by
federal District Court judges. The other 1,300 state-paid judges
would get increases in roughly equal percentages.
The judiciary budget seeks authorization to give judges raises
retroactive to April 1, 2005, though funding previously allocated
for such raises, which were never authorized, has lapsed.
Court administrators said they will continue to push for creation of
a commission to periodically evaluate and authorize judicial salary
increases free of the political gamesmanship involving the governor
and Legislature that has killed prior judicial raises.
The budget asks for no new judges and anticipates no increase in the
total number of nonjudicial court employees in the next fiscal year.
It also provides for no layoffs.
The judiciary's budget requests must be included without change when
Mr. Paterson makes his budget request to the Legislature, but
lawmakers are free to alter it. Mr. Paterson, citing the fiscal
crisis, said he will propose his next budget on Dec. 16, or five
weeks earlier than governors normally submit their spending plans to
lawmakers.
The overall size of Mr. Paterson's budget proposal is not yet known.
The size of the current year's budget, estimated at $121.7 billion
when passed in April 2008, is now projected at $120.8 billion.
The governor may critique the judiciary's 2009-10 budget request in
his own executive budget materials and alter it once it is before
legislators, though governors have generally not interfered with the
budget requests to fund the operations of the other two branches.
There was no comment Friday from Mr. Paterson's office on the
judiciary budget request.
An executive summary of the budget submission, echoing warnings made
by Chief Judge Kaye during her Nov. 12 State of the Judiciary
address (NYLJ, Nov. 13), predicted that the dismal economy will
drive more business the courts' way, be it through consumer debt
filings in Civil Court, evictions and tenant-landlord disputes in
Housing Court or family-related matters in Family Court.
The court system has sent out letters to more than 25,000 people
holding high-cost or subprime mortgages informing them that they are
entitled to court hearings prior to foreclosure proceedings under a
state law that went into effect on Sept. 1, 2008. Judge Pfau said
court administrators will gauge the burden on the courts of holding
those hearings, which have not yet begun.
"The judiciary is closely monitoring caseload trends in these and
other areas, and is preparing to handle increased filings by
shifting existing resources and implementing targeted programs, such
as our mortgage foreclosure program, to more effectively manage and
resolve particular case types," the judiciary's budget submission
said.
Cost-Savings Measures
In August, Judge Pfau announced a series of cost-saving measures,
some of which she said had been in effect for several months, to cut
costs within the judiciary amid the increasingly grim fiscal and
economic news (NYLJ, Aug. 6).
To date, she estimated Friday, the court system has saved $40
million in its current budget through:
• A hiring
freeze of administrative personnel at the Office of Court
Administration;
• A "vacancy control program" requiring most new hires by the courts
to be approved beforehand by the OCA;
• Restricting purchases of office equipment and other expenditures;
• A ban on unnecessary travel.
Judge Pfau said the belt-tightening measures would continue in the
new fiscal year. The budget request estimates savings of $20.1
million in fiscal 2090-10 through the vacancy control program, $4.6
million in nonpersonnel savings such as through the use of online
legal reference materials instead of more expensive volumes of books
and $4.1 million by deferring planned public safety enhancements.
They include deferring in some counties outside New York City of the
state takeover of courthouse security from county sheriff's deputies
offices.
Other aspects of the judiciary's 2009-10 budget request included:
• $1.7 million
for renting more office space for Court of Claims judges and for
Mental Hygiene Legal Services staff working on sex offender civil
confinement cases;
• $6.6 million for child legal representation costs, including
full-year funding of more law guardians needed to comply with the
guardian caseload caps established in 2007;
• $6.3 million for personnel overtime costs, primarily for public
security staffers.
"One of the areas we have
started to look at and are continuing to look at is limiting
overtime," Judge Pfau said.
The proposed budget was approved by Chief Judge Kaye and the other
six members of the Court of Appeals before being forwarded to the
governor and Legislature.
See: Debate over
Judicial Pay Raise Ignores Corruption
http://exposecorruptcourts.blogspot.com/2008/11/debate-over-judicial-pay-ignores.html
Panel
Weighs 'Actual' Versus 'Threatened' Harm on Pay
By Noeleen G. Walder
The New York Times
November 19, 2008
Members of a state appeals panel reacted skeptically yesterday
afternoon to claims that judges protesting the lack of a pay raise
must demonstrate actual harm to the operations and independence of
the judiciary.
Although "no one disputes" that New York state judges deserve a pay
raise, "[n]o one can credibly say that the functioning of the
judiciary has been impaired. The judges are doing their job," said
Richard H. Dolan of Schlam Stone & Dolan, who represented the state
and the governor in Larabee v. Governor, 112301/07, during
oral argument before five judges of the Appellate Division, First
Department.
But Justice Dianne T. Renwick pressed Mr. Dolan.
"Isn't the threat of harm sufficient? Do you wait until it breaks
down before you protect" separation of powers? she asked.
"The short answer is yes," Mr. Dolan replied in urging the court to
overturn Supreme Court Justice Edward H. Lehner's (See
Profile) June order directing the
Legislature and governor to raise the pay of the state's 1,300
judges within 90 days.
The argument came just days after the Third Department dismissed
Maron v. Silver,
504084, a suit filed by current and former judges who argued that
the Legislature's failure to grant judges a raise since Jan. 1,
1999, amounted to a violation of the compensation clause of the
state Constitution and the separation of powers and equal protection
doctrines (NYLJ,
Nov. 14).
In Maron, a 4-1 panel held that the plaintiffs had "failed
to allege a discriminatory attack on the judicial branch that has
impaired the Judiciary's independence and ability to function."
Thomas E. Bezanson of Chadbourne & Parke, the lead attorney for the
four plaintiff judges in Larabee argued yesterday that
Maron was "dead wrong" and asked the Manhattan-based panel to
uphold Justice Lehner's grant of summary judgment to the Larabee
plaintiffs.
Like the judges in Maron, the four Larabee
plaintiffs - Manhattan Family Court Judge Susan Larabee (See
Profile), Cattaraugus County Family Court
Judge Michael Nenno (See
Profile), Manhattan Civil Court Judge
Geoffrey Wright (See
Profile), and Manhattan Criminal Court Judge
Patricia Nunez (See
Profile) - contend that their $136,700
salary, which has remained static over the past decade in the wake
of 30 percent inflation, has been unconstitutionally diminished in
violation of the compensation clause.
Asked by Justice Karla Moskowitz to differentiate the claims in
Maron from those in Larabee, Mr. Bezanson explained
that his clients have not alleged that the Legislature's failure to
raise judicial pay amounted to an "actual impairment" of judicial
independence.
He also noted that in Larabee the defendants have admitted
on the record the existence of "linkage," the legislators' practice
of tying judicial pay raises to unrelated issues, such as campaign
finance reform and legislative pay.
Backed by their respective judicial associations, the Larabee
plaintiffs allege that the executive and legislative branches
"undermined and attacked the independence of the Judiciary" by such
linking. They maintain that the yearly compensation of Supreme Court
justices would have had to be raised to $175,264 in 2007 to keep
pace with inflation. Since 1999, their pay, when adjusted for the
cost of living, has fallen to 49th in the nation, according to a
study by the National Center for State Courts.
In February, on a motion to dismiss,
Justice Lehner held
that the judges had failed to "state a viable claim for a violation
of the no-diminution clause." But in June,
the judge rendered a stunning
victory to the state's judges when he
granted them summary judgment in Larabee.
The judge gave the defendants, whom he ruled had violated the
separation of powers doctrine through the "practice of linkage" to
other unrelated issues, 90 days to raise the judges' pay to reflect
the rise in the cost of living since 1999.
A statutorily triggered stay went into effect when the defendants
filed a notice of appeal in mid-July.
On Aug. 27, the First Department rejected a bid by the Larabee
plaintiffs to vacate the stay, but agreed to establish an
expedited appeal schedule (NYLJ,
Aug. 28).
"Case after case notes the commonsensical view that a 30 [percent]
decline in income" violates the compensation clause, Mr. Bezanson
argued yesterday.
Quality of the Bench
Bernard W. Nussbaum of Wachtell, Lipton, Rosen & Katz, who
represents Chief Judge Judith S. Kaye in Kaye v. Silver,
400763/08, a third pay suit, appeared as amicus curiae on behalf of
the Larabee
Mr. Nussbaum agreed with
Mr. Bezanson that the Third Department was "fundamentally wrong" in
holding that plaintiffs must show an "adverse impact" on the
operations of the judiciary.
"The threat of creating [a] less than qualified bench is enough,"
said Mr. Nussbaum.
"Basically, you are saying that the judicial salary has reached an
unconstitutional level?" asked Justice Peter Tom, who presided over
the panel.
"Yes," Mr. Nussbaum replied. When a chief judge of the Court of
Appeals makes less than even a "summer associate at my firm," it is
"impossible" to attract the "competent and intelligent people you
need on the bench," he added.
But when Mr. Dolan was asked the same question by Justice Tom, Mr.
Dolan replied, "There is no such level."
"[W]e all need to have a little more confidence in voters," Mr.
Dolan maintained, who serve as the "ultimate check" on the balance
of powers and have been "deeply skeptical" of backing a judicial pay
raise.
Chief Judge Kaye, in her suit, claims Supreme Court justices'
salaries should be on par with the $169,300 a year earned by federal
District Court judges.
The summary judgment motion filed by the chief judge and motion to
dismiss filed by the governor and legislative leaders are pending
before Justice Lehner.
Justices Luis A. Gonzalez and Eugene L. Nardelli joined Justices
Moskowitz, Renwick and Tom on yesterday's panel.
In addition to Mr. Bezanson, George Bundy Smith and J. Carson Pulley
of Chadbourne represent the four judges.
In addition to Mr. Dolan, David J. Katz and Eric S. Groothus of
Schlam Stone represent the state and Governor David A. Paterson.
Assistant Solicitor General Julie Sheridan, who represented the
Assembly and Senate and did not argue before the First Department,
joined in the state's papers.
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 Judges' 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 that, given what's happening in the economy it's going to
be very difficult to move on any type of enhancements at this
particular time," Mr. Paterson said yesterday.
He noted that legislative salaries are "obviously" connected with
the judges. And he acknowledged that many judges "have weighed in on
the need to find a way to raise their salaries because we are trying
to get the best and the brightest to stay on the bench, knowing that
their salaries sometimes are not even up to first-year associates at
major law firms."
Mr. Paterson said he eventually would like to break the linkage
between legislative and judicial pay hikes, a separation he
acknowledged "has not worked to this point."
The deadline for adopting a state budget for the 2008-09 fiscal year
is March 31. Many judges and court officials had been optimistic
that the spending plan would include the first raise for the state's
1,300 judges since January 1999.
But the nation's economic ills have prompted budget officials to
slash their estimates for state revenues. Mr. Paterson and the
Legislature will have to close a budget gap projected at more than
$4 billion when they adopt a new budget of about $124 billion.
The largest of several judicial pay raise proposals before the
Legislature, giving judges raises retroactive to April 1, 2005,
would cost $143 million. That plan was advanced by Chief Judge
Judith S. Kaye.
Two lawsuits filed by various judges and supported by some judicial
organizations have been filed to force the Legislature and the
governor to grant a raise. In addition, Chief Judge Kaye has
retained former White House Counsel Bernard W. Nussbaum to prepare a
suit she has threatened for nearly a year if the other branches of
government do not act.
The logjam in Albany "may well result in litigation," Mr. Nussbaum,
a partner at Wachtell Lipton Rosen & Katz, said yesterday during
remarks at a Manhattan luncheon where he was honored by New York
Lawyers for the Public Interest.
Mr. Nussbaum decried the "terrible and growing disparity" between
judges' pay and lawyers in private practice, which he said has
undermined the state's system of justice.
He said that tying judicial salaries to the pay of executive branch
officials and legislators was "sheer folly and may well be
unconstitutional."
Show of Solidarity
Mr. Paterson automatically will become governor at noon on Monday.
He will be sworn in at 1 p.m. by Chief Judge Kaye in the Assembly
chamber. Legislators and members of the Court of Appeals have been
invited to attend.
Mr. Paterson said he wanted representatives of all three branches of
state government to attend in a symbolic show of solidarity
following the wrenching events of this week, culminating with Mr.
Spitzer's resignation, which he announced Wednesday.
"Bringing the whole government together . . . that is the only way
we're going to have progress," Mr. Paterson said.
The question of whether Mr. Spitzer should face criminal prosecution
for his links to a high-priced call-girl ring is up to law
enforcement officials, Mr. Paterson said.
"In my heart, I think he's suffered enough," Mr. Paterson said.
"There are probably people who don't know him that well, who just
look at government and feel very disappointed, very dispirited and
confused and probably think that whatever punishment he might get
wouldn't be enough. This is why we have dispassionate law
enforcement that looks into these situations and decides what the
charges will be."
Looking on at a packed news conference at the Capitol yesterday were
dozens of Mr. Spitzer's top administrators. They and Mr. Paterson's
aides applauded when Mr. Paterson appeared.
"If most of you weren't being paid, I'd be very flattered," Mr.
Paterson quipped.
In other developments yesterday:
• Without elaborating, Mr. Paterson said he has "a serious concern"
with the rising numbers of violent A-1 felony offenders being
released by state parole boards. Between 20 percent and 25 percent
of the A-1 offenders coming before boards over the past several
months are winning release compared with the 3 percent to 5 percent
who were granted release for most of the final two terms of former
Governor George E. Pataki, a Republican.
• Charles O'Byrne, Mr. Paterson's chief of staff as lieutenant
governor, will be his secretary starting Monday. Secretary to the
governor is the top staff position in the executive chamber. Mr.
Spitzer's chief of staff, Rich Baum, is expected to depart following
a short transition period.
• Sean Patrick Maloney, Mr. Spitzer's deputy secretary, apparently
has been asked to stay on.
• Lloyd Constantine, special adviser, mentor and friend to Mr.
Spitzer, has resigned, according to Mr. Spitzer's aides. Mr.
Constantine was among the circle of aides and attorneys who advised
Mr. Spitzer in the days leading up to his resignation.
• Luther Smith, Mr. Paterson's campaign manager in 2006 and a former
aide to then-Manhattan Borough President Virginia Fields, has
emerged as the favorite to be Mr. Paterson's chief counsel as
governor.
Unresolved Issues
Left unresolved yesterday was how quickly the new governor will move
to fill pending top-level judicial appointments. Currently, there
are four Appellate Division vacancies: three in the First Department
and one in the Third. There are also five vacancies on the Court of
Claims and four interim positions on the Supreme Court to be filled
until new justices are elected to 14-year terms starting next year.
Screening committees had forwarded Mr. Spitzer lists of names of
candidates they found "highly qualified" for the openings.
According to court officials, Mr. Paterson could begin the screening
process anew for the judicial openings or, more expeditiously,
conduct his own review of the candidates whose names were before Mr.
Spitzer.
Mr. Spitzer's departure also put into question his administration's
negotiations with the Interest on Lawyer Account Fund board over the
possibility that director Lorna K. Blake would resign and the
governor's proposal to hire the fund's executive director be
withdrawn.
The fund distributes the interest earned on client escrow funds held
by lawyers to groups that provide civil legal services to the poor.
NY Lawyer Who Moonlights as Justice
Emerges as Favorite
to Lead Judicial Watchdogs
By Joel Stashenko
New York Lawyer
New York Law Journal
February 21, 2008
ALBANY - A Rochester-area solo practitioner who is also a part-time
town justice has emerged as the favorite to succeed Raoul L. Felder
as chairman of the state Commission on Judicial Conduct.
Thomas A. Klonick is vice chairman of the judicial disciplinary
panel and has been running the commission's meetings for the past
five months. Several commission members said in interviews last week
that they expect Mr. Klonick will be elected as the panel chairman
once Mr. Felder's term ends March 31.
"Tom Klonick is certainly the presumptive new chair," said
commission member Richard D. Emery. "He is a thoughtful,
fair-minded, hard-working lawyer and judge. He runs the meetings
very openly and allows people to participate in a full and complete
way. I think everybody is very happy with Tom."
Mr. Klonick was appointed to the conduct commission by Chief Judge
Judith S. Kaye in 2005.
Mr. Felder, who has been chairman for nearly two years, has missed
the commission's past three meetings since September because of
illness or scheduling conflicts. He said Friday he may not be able
to make his last meeting on the commission, on March 12-13, because
of a mishap last month in Miami Beach in which he broke three ribs
and damaged his lungs and a kidney when he was hit by a wind-blown
beach umbrella.
"I am at work, but I am taking things slowly," Mr. Felder said in a
phone interview from his Manhattan office.
Mr. Felder said he expects the commission to select Mr. Klonick as
his successor.
"He is a good man," Mr. Felder said. "He is a decent man."
Mr. Klonick declined comment Friday, calling it "presumptuous" and
"premature" to discuss his possible election.
"I don't think it would be appropriate for me to comment," he said.
"It'd be speculation."
Mr. Klonick, whose law practice is in Fairport, has been a justice
of the Perinton Town Court since 1995. He was previously a justice
in Macedon Town and Fairport Village courts as well as an acting
Rochester City Court judge. He is a graduate of Lehigh University in
Bethlehem, Pa., and the Detroit College of Law.
By statute, one of the chief judge's three appointments to the
commission must be a town or village court justice. One local
justice has chaired the commission, then-Hamburg Town Court Justice
Eugene F. Salisbury in 2004 and 2005.
Though critics of the justice court system contend that disciplinary
actions by the conduct commission show elevated levels of misconduct
among town and village court justices, the agency said its cases are
proportional to the numbers of local judges in the state. Town and
village justices make up 68 percent of the state judiciary and
account for 71 percent of the misconduct rulings, according to
Robert H. Tembeckjian, the agency's administrator and counsel.
Mr. Felder was appointed to the commission by then-Governor George
E. Pataki and it will be up to Governor Eliot Spitzer to select his
replacement as a member of the panel. By statute, that slot must be
filled by an attorney who is not a judge.
Periodic Clashes
Mr. Felder's departure will end a stormy period in the commission's
history.
He has clashed with others on the commission over what Mr. Felder
contends has been the panel's lack of sympathy toward judges whose
physical or emotional problems may have contributed to their
misconduct.
And the other 10 commission members voted "no confidence" in Mr.
Felder last year after a book entitled "Schmucks!" by Mr. Felder and
comedian Jackie Mason was published. The members condemned the book
as "crude, biased, vulgar and otherwise demeaning."
Mr. Spitzer later criticized Mr. Felder for writing the book and a
top aide to the governor called for Mr. Felder to step down.
Mr. Felder said Friday he did not regret serving on the commission
or as its chairman. Of his colleagues, he added, "I think they
reflect the human condition with all its frailties, not the best
part of human nature."
Mr. Tembeckjian said Friday that the "day-to-day business of the
agency has not been affected by the conflict" among the members.
"But I certainly look forward to the return of a more collegial
atmosphere at commission meetings," he added.
Mr. Emery, who has been on the opposite side from Mr. Felder in
several recent commission decisions, said Mr. Klonick's style would
be welcome.
"The current chairman has been an embarrassment and it is a shame
that we didn't have a way to remove him ourselves because we would
have," said Mr. Emery, of Emery Celli Cuti Brinckerhoff & Abady.
Mr. Emery's own term also expires on March 31. Unlike Mr. Felder, he
is seeking to be reappointed by Senate Minority Leader Malcolm A.
Smith, D-Queens. Mr. Smith's predecessor as leader of the Senate's
Democrats, Lieutenant Governor David A. Paterson, appointed Mr.
Emery to the commission in 2004.
"I definitely would like to continue, if the leader is willing to
appoint me again," said Mr. Emery, who was also appointed by Mr.
Smith to the new Commission on Public Integrity.
Mr. Smith's spokesman was not available for comment Friday.
A third commission member whose term expires on March 31 will
definitely be staying. Chief Judge Kaye informed the commission last
week that she will reappoint Court of Claims Judge Terry Jane
Ruderman to another four-year term.
Judge Ruderman has been on the commission since 1999.
Meanwhile, one other seat on the commission remains open. It is one
of two reserved for lay people. It has been open since mid-2006,
except for a few weeks at the end of that year when Mr. Pataki
appointed former aide William Howard to fill the slot.
Mr. Howard resigned when he joined Mr. Spitzer's administration,
where he later became ensnared in an alleged scheme within the
governor's office to use State Police to gather information
discrediting the Senate Republican leader.
Mr. Spitzer's office could not say Friday if the governor has Mr.
Felder's replacement in mind or why it has taken him so long to fill
the other opening on the commission.
Members of the commission are not paid. Chairpersons serve two-year
terms.
Second
Suit by NY Judges
Demanding Pay Raise Gets Greenlight
By Daniel Wise
New York Lawyer
February 6, 2008
A state judge in Manhattan ruled yesterday that a lawsuit brought by
four judges suing for a pay raise may proceed on a separation of
powers claim.
A similar ruling by an
acting justice in Albany allowed a suit by three other judges to
proceed on the same theory, but Supreme Court Justice Edward
Lehner's reasoning and language suggested a significantly lower
level of proof will be needed for the judges to prevail.
In Larabee v. Spitzer,
11201/07, Justice Lehner also relied on a concession by the four
judges' lawyers to narrow the suit to one for declaratory judgment
and dismissed Governor Eliot Spitzer as a defendant. The state of
New York and both houses of the Legislature, however, remain as
defendants.
Justice Lehner allowed the
case to proceed because the tying of a pay raise to other
legislative issues, such as raises for legislators or campaign
finance reform, "raises an issue as to whether the two other
branches have abused their power and thus unconstitutionally
interfered with the separation of powers."
In the Albany case, Justice
Thomas J. McNamara in Maron v. Silver, 4108/07, allowed the
pay-raise claims of three judges to proceed but wrote that in order
to establish a violation of the separation of powers "the plaintiffs
face a difficult task." He ordered a hearing to determine whether
the independence of the judiciary had been impaired.
At that hearing, Justice
McNamara wrote, the three judges could try to show that "benign
political branch neglect" was designed to influence the judiciary or
that the Legislature had balked at raises because of unhappiness
with judicial rulings on issues such as the death penalty and school
funding.
Thomas E. Bezanson, of
Chadbourne & Parke, who represents the judges in the Manhattan suit,
said that Justice Lehner's ruling is "the first" to recognize that
tying judicial raises to other legislative issues could violate
separation of powers and is "a great milestone achievement in the
law."
Mr. Bezanson added that the
ruling did not set the same level of factual burden as Justice
McNamara had in Maron, and that the burden outlined in the Albany
case "is contrary to violation of the separation of powers."
Mr. Bezanson said that
absent an appeal, the Larabee plaintiffs will submit a motion for
summary judgment on their separation of powers claim.
Errol Cockfield, a
spokesman for Mr. Spitzer, said the governor supports a pay raise
without any conditions. However, Mr. Spitzer also has discouraged
judges from suing the state government.
Mark E. Hansen, a spokesman
for Senate Majority Leader Joseph Bruno, R-Brunswick, said "the
Senate has twice passed a pay raise bill, and all the Assembly has
to do is pass the bill and send it to the governor and the lawsuit
will be moot."
Dan Weiller, a spokesman
for Assembly Speaker Sheldon Silver, D-Manhattan, said the speaker
is "strong supporter of pay raises for judges," but declined further
comment.
John Milgrim, a spokesman
for the Attorney General's Office, said the decision is under
review.
The four judges who brought
the lawsuit before Justice Lehner are New York City Family Court
Judge Susan Larabee, New York City Criminal Court Judge Patricia
Nunez, New York Civil Court Judge Geoffrey Wright and Cattaraugus
County Family Court Judge Michael Nenno. They are supported by their
judicial associations.
The three judges who
brought the lawsuit before Justice McNamara in Albany are Nassau
County Justice Joseph A. DeMaro, Brooklyn Justice Arthur Schack and
Nassau District Court Judge Edward A. Maron.
In addition, Chief Judge
Judith S. Kaye has retained Bernard W. Nussbaum, a partner at
Wachtell Lipton Rosen & Katz and a former White House counsel in the
Clinton administration, to prepare a lawsuit for the court system.
Chief Judge Kaye has repeatedly said that she would only authorize
the filing of a lawsuit as a last resort.
'Political Dispute'
On the question of whether
a pay raise has been stymied by wrangling over extrinsic legislative
issues, Justice Lehner wrote that it "appears" that the failure of
the Legislature to provide the judges with a pay raise, which the
leaders of both the executive and legislative branches have publicly
supported, "comes down in the end to the fact that the governor and
the Senate are embroiled in a political dispute as to the proper
means of reforming the State's laws with respect to campaign
financing."
Justice Lehner also
rejected the defense offered by the attorney general that the judges
would have to show that, because of the raise, "they are less hard
working, dedicated and independent" in order to demonstrate an
impairment of their independence.
"Judges do not have to
violate their oath of office," Justice Lehner wrote, "in order to be
able to establish that the defendants have violated the
Constitution."
Moreover, he wrote, "there
is no evidence that, although admittedly demoralized, the judiciary
has not continued to function as it has in the past."
Like Justice McNamara,
Justice Lehner dismissed claims that the absence of a raise since
January 1999, while prices have risen 26 percent, violates Article
VI, §25 of the state Constitution prohibiting a diminution of
judges' salaries.
There is no violation, he
ruled, because inflation affects everyone alike and there is no
"particularized discriminatory impact on judges."
In narrowing the lawsuit to
one for declaratory judgment, Justice Lehner referred to Mr.
Bezanson's "acknowledgment" during oral argument that the court
could not direct members of the Legislature to vote for a pay raise.
Justice Lehner concluded
that the complaint had "in essence" been amended to "only" seek a
declaratory judgment.
Mr. Bezanson said yesterday
that the judges had sought an injunction in their complaint. But, he
added, if Justice Lehner were to declare the judges entitled to a
pay raise, the judges could nevertheless seek injunctive relief to
compel the Legislature and governor to act if they failed to
implement such a declaration.
In dismissing Mr. Spitzer
as a defendant, Justice Lehner held that he is entitled to immunity
under the "speech and debate" clause of the state Constitution,
Article III §11.
Justice Lehner found that,
to the extent the judges sought an order requiring the governor to
sign a bill increasing judges' pay, they were seeking the
performance of a "legislative function." Legislative acts are
entitled to immunity under the "speech and debate" clause, he
concluded.
Assistant Attorney General
Joel Graber represented the governor and Legislature.
Former Court of Appeals
Judge George Bundy Smith and J. Carson Pulley, both of Chadbourne &
Parke, also represented the four judges in Larabee.
Wachtell
Partner Tapped to Sue NYS Over Judges' Pay
By Joel Stashenko and
Daniel Wise
New York Law Journal
New York Lawyer
January 28, 2008
ALBANY - Chief Judge Judith
S. Kaye has retained former White House counsel Bernard W. Nussbaum
to prepare a suit on behalf of the court system to compel the
Legislature and Governor Eliot Spitzer to give state judges a raise.
Mr. Nussbaum, a litigation partner at Wachtell Lipton Rosen & Katz,
said in an interview Friday that he will work pro bono. He has been
retained by the chief judge since late last year.
Mr. Spitzer has urged the Judiciary not to sue, saying a pay raise
should be negotiated under the legislative process. Assembly Speaker
Sheldon Silver, D-Manhattan, told his members last week that he has
been discussing a new bill with the governor that would include
raises for judges, legislators and commissioners in the executive
branch.
Mr. Silver hopes a bill will be advanced by Mr. Spitzer over the
next several weeks, possibly as part of the 21-day amendments to the
governor's proposed 2008-09 budget that must be given to the
Legislature by Feb. 12, Dan Weiller, Mr. Silver's spokesman, said
Friday.
A bill containing both legislative and judicial pay raises is seen
as the most realistic chance that judges will get a pay bill through
the Democrat-dominated Assembly, where sentiment remains high for
maintaining the traditional link between raising judges salaries at
the same time as legislative salaries.
Mr. Nussbaum was White House counsel for then-President Bill Clinton
in 1993 and 1994, and a senior staffer to the House Judiciary
Committee during the Watergate impeachment inquiry. He also is a
former assistant U.S. attorney for the Southern District of New
York.
He said he would prefer that his services are not needed for a
judicial suit against the other two branches of government.
"We are prepared to litigate, but we hope it is not necessary," Mr.
Nussbaum said.
If a pay raise for the state's 1,300 judges does not "come together
relatively soon," he added, Chief Judge Kaye will make a "final
decision" about commencing litigation.
The chief judge has repeatedly said she is reluctant to start a
lawsuit on behalf of the judiciary because it would poison efforts
to get the governor and Legislature to voluntarily approve a pay
raise for judges. She has said she would only do so as a last
resort.
Judge Kaye indicated that she may break with tradition and forego
her State of the Judiciary address, traditionally delivered in
January or February, out of frustration that judges have now entered
their 10th year without raises.
"The state of the New York State Judiciary is also something I do
not care to write about just now," the chief judge said in her
annual message for the Law Journal's State Bar section. "We are
thoroughly demoralized, frustrated, angry."
Assembly Democrats said they were heartened by the indication from
Mr. Silver last week that a pay bill including both legislators and
judges might be coming from the governor. Mr. Silver said Friday in
an interview with an Albany radio station, however, that legislators
"hear what they want to hear" and that he was not saying for sure
that the governor would advance a pay bill or when.
"I said to them it is not inconceivable that the governor will
finally understand that he needs a pay raise for the commissioners,
that the judges are certainly deserving of a pay raise, that most of
the legislators are full-time legislators who haven't had a pay
raise in many, many years and that we can put together a good
package that takes care of all of them," Mr. Silver told WCBI radio.
Roots of Resistance
Opposition among Assembly Democrats to a judiciary-only pay increase
stems in large part from lawmakers' experiences in 1993, when
legislators raised salaries only for the judiciary, according to
Assemblyman Joseph Lentol, D-Brooklyn.
"The agreement that was reached that year to do judicial pay raises
was that it [a legislative pay raise] was going to follow the
following year and it never happened," said Mr. Lentol, who has been
in the Legislature since 1972. "That kind of put a damper on
anybody's enthusiasm to do it again."
A legislative pay bill evaporated in 1994, a volatile political year
in which Democrats lost the governor's office to George E. Pataki.
Then-Senate Majority Leader Ralph Marino, who had agreed to the deal
in 1993 to boost legislators' pay, was ousted by Republican Senator
Joseph Bruno just after Mr. Pataki's election.
Opposition to a judiciary-only pay raise has prevented the
Democrat-dominated Assembly from taking up a bill raising judges'
salaries that passed the state Senate last month.
Mr. Lentol defended the traditional approach and said it is not fair
to say legislators are holding the judiciary's pay bill "hostage,"
as critics have charged. Making legislators pass pay increases for
themselves and not the judges puts the Legislature in an
almost-untenable position politically, according to Mr. Lentol.
"It hobbles the ability of the Legislature, because we are a
creature of politics, to get a raise," he said in an interview. "It
is so charged politically that you can't get one."
State legislators also have not received a raise since 1999. They
currently make a base salary of $79,500 a year, trailing only
California's lawmakers. Moreover, most New York legislators also
receive special stipends for leadership assignments.
Governors of both parties have used a legislative pay raise as a
"club" against the Legislature to extract concessions on bills or to
try to score political points, said Assemblyman Richard Brodsky,
D-Westchester. While he said linking legislative and judicial pay is
fair, he also endorsed the creation of an independent commission to
set future salary increases for both branches of government, as
proposed by Chief Judge Kaye.
"There ought to be a more rational way to do this," Mr. Brodsky said
in an interview. "Judges need a raise, they are not fairly
compensated. Neither are commissioners and I would argue that the
Legislature is similarly situated. There is no reason to split off
categories of elected officials."
Also adding urgency to the pay issue among Assembly Democrats, at
least those from New York City, is the recent raise, to $112,500 a
year, that members of the New York City Council voted themselves.
"The pay raise issue has become more sensitive for New York members,
considering the fact that their city council members make 40 percent
more than they do and they get to be home with their families," said
Assemblyman Mark Weprin, D-Queens. "That has caused frustration for
members politically and as well as probably personally."
Though no Spitzer administration commissioners have publicly
complained, pay-scale inequities have also developed in the
executive branch between commissioners' salaries and the higher pay
of many state bureaucrats working under them. When Robert Megna was
confirmed last week as new state tax commissioner, for instance, his
salary dropped $17,110 from the $144,110 he was getting as chief
budget examiner in the state Division of Budget.
NYC
Tightens Reins on NY Lawyers Appointed by Judges,
New Rules Affect Expert Witnesses and Getting Paid
By Daniel Wise
New York Law Journal
New York Lawyer
January 16, 2008
The New York City Criminal
Justice Coordinator's Office has tightened procedures that lawyers
appointed by judges to defend poor criminal defendants must follow
in retaining expert witnesses and obtaining compensation for their
work.
The new procedures are in
response to a probe by the Department of Investigations of an
expert, Richard Gottfried, who allegedly billed the city for $61,000
for work he never performed. He also was approved as a mitigation
specialist despite having been convicted of federal wire fraud and
having served 20 months in New Jersey for mortgage fraud.
The Department of
Investigation reported in June that its investigation of Mr.
Gottfried had found "significant vulnerabilities" in the way experts
are approved for use by attorneys under the 18-B program, so called
in reference to County Law Article 18-B, which requires localities
to provide counsel for poor criminal defendants. The Investigation
Department also uncovered weaknesses in the way 18-B attorneys are
certified and reimbursed.
Going forward, the Criminal
Justice Coordinator's Office informed the 1,300 criminal defense
lawyers certified to participate in the city's 18-B program, in a
letter dated Dec. 28, 2007, that they will have to obtain an order
from the judge presiding over their cases before retaining an
expert. To obtain the order they are required to submit an
explanation of why an expert is needed and the expert's curriculum
vitae.
The letter also informed
the lawyers that anyone billing more than 2,000 hours a year will be
audited and that permission must be received from both the
applicable plan administrator and its advisory committee before
billing more than 2,300 hours. Lawyers handling cases in the Bronx
and Manhattan must obtain permission from the First Department's
administrator; those in Brooklyn, Queens and Staten Island from the
Second Department's.
The Department of
Investigation referred its findings concerning Mr. Gottfried to the
Bronx District Attorney's Office in July 2006, and the matter
remains under investigation, a spokesman for the office said
yesterday.
As a mitigation expert, Mr.
Gottfried was hired to gather evidence to support more lenient
sentences for the defendants.
Justices
Uphold New York’s Judge System
By Linda Greenhouse
New York Times
January 17, 2008
WASHINGTON — The challenge
to New York’s method for choosing candidates to run in judicial
elections ended in failure at the
United States Supreme Court
on Wednesday when not single justice accepted the plaintiffs’ claim
that the system was unconstitutional.
Voting 9 to 0, the court
overturned a 2006 ruling by the federal appeals court in New York
that declared the party convention system for choosing nominees to
the state’s trial court unconstitutional. The case, brought in early
2004 by a group of voters, unsuccessful judicial candidates, and the
civic group
Common Cause, had shaken the
state’s judicial politics.
The appeals court had
ordered the state to substitute a direct primary election for the
judicial convention system, which it said deprived candidates who
lacked the backing of party leaders of a realistic chance of getting
on the ballot. The order was held up awaiting the Supreme Court’s
decision.
Justice
Antonin Scalia’s succinct
12-page opinion for the court was dismissive of what he
characterized as the lawsuit’s premise. "None of our cases
establishes an individual’s constitutional right to have a ‘fair
shot’ at winning the party’s nomination," he wrote.
The fact that the party
leadership "effectively determines the nominees" at the nominating
conventions, Justice Scalia continued, "says nothing more than that
the party leadership has more widespread support than a candidate
not supported by the leadership."
He added, "Party
conventions, with their attendant ‘smoke-filled rooms’ and
domination by party leaders, have long been an accepted manner of
selecting party candidates."
The state’s Democratic and
Republican political organizations had joined New York’s attorney
general,
Andrew M. Cuomo, and the
State Board of Elections in arguing that the appeals court ruling
should be overturned.
While the Supreme Court’s
decision,
New York State Board of
Elections v. López Torres, No. 06-766, was thus a victory for the
state’s political system, it was hardly a vindication of the status
quo. Four of the nine justices wrote or joined separate opinions
that were critical of the convention system.
"I think it appropriate to
emphasize the distinction between constitutionality and wise
policy," Justice
John Paul Stevens said in a
one-paragraph opinion that was also signed by Justice
David H. Souter. Quoting
Justice
Thurgood Marshall, Justice
Stevens added: "The Constitution does not prohibit legislatures from
enacting stupid laws."
Justices
Anthony M. Kennedy and
Stephen G. Breyer said: "If
New York statutes for nominating and electing judges do not produce
both the perception and the reality of a system committed to the
highest ideals of the law, they ought to be changed and to be
changed now."
Popular election of
justices on the State Supreme Court — which, despite its name, is
not the state’s highest court, but its basic trial court — is
required by the state’s Constitution under a provision that dates to
1846. There are 328 Supreme Court justices, who serve 14-year terms.
The Constitution leaves to the Legislature the method for selecting
candidates for the ballot.
Initially, the Legislature
left the choice up to the parties. That changed in 1911 with the
passage of a law requiring direct primary elections, an experiment
that lasted only 10 years in the face of criticism that the
primaries favored wealthy demagogues.
In his opinion on
Wednesday, Justice Scalia commented that a primary system "leaves
judicial selection to voters uninformed about judicial
qualifications and places a high premium upon the ability to raise
money."
In 1921, the Legislature
adopted the current convention system, which remains unique to New
York. In September of an election year, party members in each of the
150 Assembly districts vote for delegates to judicial nominating
conventions that take place a week or two later in each of the
state’s 12 judicial districts.
Those seeking to become
delegates must have filed nominating petitions, with the signatures
of 500 party members, two months earlier. The delegates do not
openly pledge themselves to any particular judicial candidate.
At the conventions,
nominees not favored by the party leadership have rarely succeeded
in getting on the ballot. To have a chance, they would have to field
slates of nominally uncommitted delegates in each of the dozen or so
Assembly districts in a judicial district.
So there is usually only
one slate of delegates, those favored by the party, and 96 percent
of the judicial nominations are uncontested at the conventions.
Would-be nominees may also file petitions to get on the ballot after
obtaining several thousand signatures, also a rare occurrence.
The lead plaintiff in the
lawsuit, Margarita López Torres, who is now the Brooklyn Surrogate
Court judge, tried and failed at three conventions to obtain the
Democratic nomination for a State Supreme Court seat. At the time,
she was a Civil Court judge in Brooklyn.
She claimed that party
leaders blocked her efforts to advance to the Supreme Court because
she had refused to make the patronage hires that they demanded.
Her challenge to the system
was based on the First Amendment, which protects the right to
political association. The lawsuit, handled by the
Brennan Center for Justice at the New York
University School of Law, asserted that the delegate
and nominee selection systems deprived insurgent candidates of
meaningful access to the ballot and deprived voters of the right to
associate for the purpose of selecting their preferred candidates.
Many Supreme Court
precedents protect the right of political parties to organize their
internal affairs, including nomination processes, free of state
interference. But Justice Scalia found those cases irrelevant
because, he said, they dealt with parties, not would-be nominees,
and the parties themselves were not complaining.
He said the plaintiffs
"complain not of the state law, but of the voters’ (and their
elected delegates’) preference for the choices of the party
leadership."
The plaintiffs made the
argument that their case against the nominating system was
especially strong because one-party dominance in most judicial
districts made nomination almost always tantamount to election.
In response, Justice Scalia
said that the First Amendment did not authorize the federal courts
"to manage the market by preventing too many buyers from settling
upon a single product."
For years, bar leaders in
New York have called for a constitutional amendment to replace
Supreme Court elections with a merit-selection system like the one
used for the state’s top court, the Court of Appeals. Gov.
Eliot Spitzer has proposed
such an amendment, so far without success.
New York City’s corporation
counsel,
Michael A. Cardozo, who
supported the plaintiffs in the lawsuit, said on Wednesday that he
would push both for legislative change in the election system and
for a constitutional amendment to eliminate elections.
Frederick A. O. Schwarz
Jr., senior counsel at the Brennan Center, who argued the case at
the Supreme Court, said the plaintiffs were considering "further
litigation options" as well as "legislation that will end the closed
process which has for too long undermined public confidence in New
York’s courts."
Andrew Rossman, who argued
the case for the political parties, said the decision "vindicates
the special place reserved in our Constitution for political parties
to choose their nominees through the time-honored device of party
conventions."
A Defeat
for Judicial Reform
Editorial
New York Times
January 17, 2008
By upholding New York’s
machine-dominated system for selecting judges, the Supreme Court has
dealt another setback to voters. The court has once again allowed
political bosses to rig elections in ways that deny voters a
meaningful role. New York’s political power brokers are no doubt
cheering, but they should not be allowed to triumph. Even if New
York’s method of selecting judges is constitutional, it remains
unfair and undemocratic. It needs to be replaced.
New York State Supreme
Court justices — who despite their titles are trial-level judges —
are selected through a byzantine process. Primary voters select
judicial delegates, who then meet in party conventions to choose
their nominees. The conventions are generally controlled by
political bosses, who often steer the nominations to candidates who
deliver patronage back to the party machine. It’s a disgraceful way
to choose judges. They are supposed to be above politics.
It’s also a system that
makes the voters almost irrelevant. At the polls, they have to
choose among judicial delegate slates — when there are competing
slates at all — filled with unfamiliar names. It is a far cry from
an actual party primary in which voters are allowed to choose among
competing judicial candidates. The New York-based United States
Court of Appeals for the Second Circuit, in ruling against the
system, declared that it unacceptably burdened the constitutional
rights of both candidates and voters.
The Supreme Court,
unfortunately, disagreed. Justice Antonin Scalia, writing for the
majority, dismissed the idea that the right of association requires
a process by which voters have a meaningful opportunity to affect an
election’s outcome. The ruling is consistent with the court’s recent
decisions upholding the right of political bosses to gerrymander
political districts. These days, the only election complaints that
seem to move the court are ones by corporations and wealthy
individuals who object to limits on their ability to spend on
elections.
Four justices, in
concurring opinions, cast doubt on the wisdom of New York’s method
of choosing judges. Justices Anthony Kennedy and Stephen Breyer
noted that if the rules "do not produce both the perception and the
reality of a system committed to the highest ideals of the law, they
ought to be changed and to be changed now." Justices John Paul
Stevens and David Souter quoted Thurgood Marshall: "The Constitution
does not prohibit legislatures from enacting stupid laws."
A stupid — and undemocratic
— law is precisely what New York has. Now that the cudgel of a court
order has been removed, we hope the Legislature will summon the
wisdom and integrity to fix the system voluntarily.
The odds of that happening
are long, since the powers that be in the Legislature are the same
ones that profit from the current corrupt system. It is, however, a
cause that everyone who cares about a qualified and independent
judiciary needs to keep fighting.
Ruling on
Judges Reverberates Across Boroughs
By Jonathan P. Hicks
New York Times
January 16, 2008, 4:18 pm
The United States Supreme
Court’s decision
upholding the method of selecting State
Supreme Court justices is reverberating throughout
New York’s political world.
Leaders of the political
parties hailed the ruling, while a number of critics expressed their
disappointment about a system they say empowers political bosses.
The decision seems to be a clear victory for leaders of the
political parties, who have contended that the current system is
democratic and that it expands opportunities to judicial candidates
who are not wealthy. Opponents of the system, on the other hand,
charged that the method of picking the judges placed the decisions
squarely in the hands of political bosses and that the elections
were nothing more than a sham.
"I’m extremely pleased and
many, many people throughout the city are, too," said
Assemblyman Vito J. Lopez,
the Brooklyn Democratic Party leader. "This will prevent the
enormous influence of money being a necessary influence on the
elections of judges."
He added, "The kind of
changes that many people had advocated would have essentially
discriminated against working class and minority candidates in favor
of people who were wealthy and got their campaign money from
lawyers."
John P. Gulino,
the Democratic Party chairman on Staten Island, echoed that view.
"I think it’s an extremely
positive decision," Mr. Gulino said. "A judge is someone from the
community who should be elected by the people who live in the
community. And the system of having the selection by judicial
delegates is a sensible one."
Under the system to pick
State Supreme Court justices, which dates to 1921, party primaries
are held in each Assembly district to select delegates to judicial
nominating conventions that are held two weeks later in each of the
state’s 12 judicial districts. These conventions have almost never
selected a nominee not favored by the party leadership.
Opponents of the system
have long claimed that the current use of judicial conventions to
pick justices was unconstitutional. The state’s courts agreed,
proposing a system of open primaries rather than conventions, which
are typically dominated by the Democratic and Republican parties.
The city has favored a
merit-based appointment system for judges and
Michael A. Cardozo, the
corporation counsel,
criticized the current system, saying that it "desperately" needed
to be reformed.
Mr. Cardozo said in a
statement on Wednesday, "We are very disappointed in the court’s
decision, adding that "there is nothing in the Court’s ruling that
prevents the adoption of legislation that would vastly improve New
York State’s present method of electing judges — we will continue to
push to secure passage of such legislation."
City Councilman David Yassky
of Brooklyn has also been a critic of the current system. "I think
it’s a disappointing decision because the way we pick judges now is
too much politics and not enough merit," said Mr. Yassky, a former
professor at Brooklyn Law School who one of a number of legislators
who have long called for changes in the method of selected judges.
"There are a bunch of
different ways to pick judges," Mr. Yassky added. "I happen to think
having the chief executive picking judges has the fewest defects and
downsides.
Mr. Yassky said that the
decision was not entirely unexpected. "But many of us in the reform
community had hoped that there would be a decision that would at
least force a public debate
NY Judge
Says Low Pay Is Forcing Him to Quit
By Daniel Wise
New York Law Journal
New York Lawyer
January 9, 2008
An upstate Supreme Court
justice, who has not received a pay increase since he took office in
2001, plans to resign by the end of this month because of "the
present unfortunate status of New York State's judiciary."
Oneida County Supreme Court
Justice Robert F. Julian signaled his intention in a letter dated
Dec. 30 to Governor Eliot Spitzer and distributed by e-mail to the
state's 1,300 judges.
A major reason for that
"unfavorable circumstance," Justice Julian told the governor, is the
"continued failure of the New York State government to compensate
the judiciary fairly and pursuant to a non-political methodology."
As for himself, Justice
Julian, who earns $136,700 a year, wrote, "I am unwilling to further
deplete my savings and reduce my lifestyle to continue in office."
He added, "I believe a
number of other judges have retired prematurely because of this
sorry situation."
Justice Julian said "merit
selection proposals" put forward by the governor and others also had
influenced his decision to leave because they rely on "isolated
instances of judicial transgression" to give the governor,
Legislature and chief judge "the unprecedented power to appoint the
judiciary."
New York's judiciary, he
wrote, is well qualified and "certainly not deserving of the implied
disparagement because the facts refute the innuendos."
The last judicial raise
went into effect in January 1999. For more than two years, Chief
Judge Judith S. Kaye has been warning that the failure to enact a
salary increase is compromising the judiciary's ability to attract
and retain talented jurists. During that time, only one other judge
has gone public in citing the lack of a raise as a reason for
leaving the bench.
In 2006, County Court Judge
Stewart A. Rosenwasser of Orange County announced his resignation,
saying in a statement that he "did not foresee the sacrifices my
service would impose on my family" when he took office.
A third judge, Manhattan
Supreme Court Justice Emily Jane Goodman, has publicly stated that,
because of the prolonged impasse over judicial wages, she is
actively seeking another job.
"We are hearing more and
more judges who love their jobs and do not want to look at other
options talking about looking at other options," Chief
Administrative Judge Ann T. Pfau said in an interview yesterday.
"It's worrisome. We certainly hope they don't leave in droves," but
the inability to retain and attract top-caliber judges has "always
been a concern."
"The failure to adopt a pay
raise for 10 years has caused enormous problems for judges
throughout the state," said Queens Justice Joseph G. Golia,
president of Association of Justices of the Supreme Court of the
State of New York. But, he added, "it has created even more
difficulties for judges living in New York City and its environs
because the cost of living is greater in the metropolitan area.
Reluctance to Resign
Speaking privately, judges
cite several reason why more judges have not left the bench despite
the toll inflation has taken on the buying power of their salaries.
Without either capital or
clients, judges do not have strong drawing power in the private
sector, especially in New York City. In addition, judges for the
most part are generalists and do not have skills highly valued in
the private sector with the exception of appellate judges and those
who have been assigned to the commercial division of Supreme Court.
Firms also may be reluctant
to hire departing judges because of the possibility that judges
remaining on the bench would have to recuse themselves from cases
handled by the firm a former judge joins.
In addition, the potential
for conflicts makes looking for a job with a firm "difficult and
awkward," Justice Goodman said. Once a judge has any contact with a
firm about future employment, it is best to err on the side of
caution and recuse oneself from any cases handled by that firm,
several judges said.
Justice Julian likewise
declined to discuss his future plans for fear that such comments
could violate the ethics rule barring judges from using their
judicial office to advance private interests.
The potential loss or
diminishment of pension benefits can also be a reason to remain on
the bench, one judge said. However, another said that some judges
are motivated to resign because if they die in office their spouses
cannot collect pension benefits after their death.
Sacrifice Detailed
In an interview, Justice
Julian, 56, recounted how the impasse on raises had affected his
family.
When he first took the
bench, Justice Julian said, he realized his salary as a judge would
be less than half of what he had earned in private practice as a
plaintiff's personal injury lawyer.
In preparation for the
change in his family's economic circumstances, he said, he had cut
back on some expenses and built up assets to the point where he felt
he could supplement his salary with the income they generated.
But in the last two or
three years, he said, he has had to reduce his capital by 10 percent
- in what he called a "very ugly syndrome" - to make ends meet. His
term is scheduled to end in 2014.
Before his election to
Supreme Court in 2000, Justice Julian in addition to his law
practice served as a legislator in Oneida County for 23 years. His
brother, Timothy J. Julian, was the mayor of Utica for two terms
before being defeated in a re-election bid in November.
Mr. Rosenwasser, 55,
described a similar experience. During his nearly seven years on the
bench, he said he found himself depleting capital and increasing his
loans.
"It made no sense to put my
family in jeopardy so I could continue to wear a robe," he said.
Since leaving the bench,
Mr. Rosenwasser has been a partner in five-lawyer Ostrer Rosenwasser,
a litigation firm in Montgomery, N.Y.
Justice Goodman, 67, said
she is exploring other opportunities because "I am way out on a limb
- I have no savings, no investments - there is no way I can retire
and live in New York City."
"I sold my vacation home,
my car is 15 years old and I am $200,000 in debt to meet living
expenses," she added.
New York Now 49th
With the last pay raise
having gone into effect in 1999, the pay of judges in New York has
dropped to 49th in the nation adjusted for inflation. In her latest
proposal, Chief Judge Kaye has called for the salaries of state's
judges to be tied to the salaries of federal judges.
The current pay of federal
District Court judges is $165,200. Under Chief Judge Kaye's
proposal, the pay of Supreme Court justices would rise to that level
with other judges' salaries being adjusted proportionately.
Federal district court
judges are slated to get a 2.5 percent cost-of- living increase in
the middle of this month, and bills have been moving in both houses
of Congress to raise the pay of federal district court judges to
$218,000. Federal judges have received cost-of-living adjustments in
six of the last 14 years.
NY's
Chief Judge Offers New Plan for 2008
to Get Colleagues First Raise Since 1999
By Joel Stashenko
New York Law Journal
New York Lawyer
January 4, 2008
ALBANY — A new judicial pay
raise proposal offered yesterday by Chief Judge Judith S. Kaye would
surrender some ground on retroactivity while tying future increases
to salaries and cost-of-living adjustments given to federal judges.
The legislation would provide for retroactive raises for state
judges to Jan. 1, 2007. Previous proposals by the chief judge, most
recently in the judiciary’s budget plan for the 2008-09 fiscal year,
provided for retroactivity to April 1, 2005 — a time frame that was
seen as an increasingly hard sell in Albany as the delay over
passage of a judicial pay bill has dragged on.
In a cover letter accompanying the proposed bill, Chief Judge Kaye
did ask that the Legislature at least consider the April 1, 2005,
retroactivity date.
Chief Administrative Judge Ann Pfau said yesterday the new proposal
is styled on a judicial pay raise bill approved by the Senate last
month. Its filing, even before the Legislature has begun its 2008
session, is timed to reaffirm that pay remains the overarching issue
for the judiciary, she said.
"For us, this is our total priority legislation," Judge Pfau said
yesterday in an interview. "Time can't pass. This has to be done
now. We are in our tenth year without a salary increase, longer than
judges in any state in the country. When adjusted for cost of
living, our judges' salaries are second to last in the country."
The legislation would provide for an immediate raise for state
Supreme Court justices from $136,700 to $165,200, the current salary
of federal district court judges. Other state court judges would get
increases based on percentages of Supreme Court justices' salaries.
The bill would also create a commission, with members to be
appointed by the Legislature and the chief judge, to set future
salary increases every four years.
A "default" mechanism in the legislation would decree that state
judges get future increases in equal proportion to those received by
federal district court judges. Judge Pfau said that would include
both base salary increases and cost-of-living adjustments that
federal, but not state, judges receive.
Federal judges will get cost-of-living increases of about 2.5
percent by mid-January under legislation signed by President George
Bush.
Also, U.S. Supreme Court Chief Justice John G. Roberts Jr. has been
lobbying Congress to raise federal court judges' salaries
significantly. The House Judiciary Committee approved a bill last
month to increase the salary of federal district court judges to
$218,000 and the Senate Judiciary Committee was considering a
similar measure when Congress adjourned until this month.
The last significant pay increase for federal judges was a 25
percent hike passed in 1989. Congress has approved cost-of-living
increases for the federal judges six of the last 14 years. New York
state judges received their last raise in January 1999.
State Senator John DeFrancisco, R-Syracuse, who chairs the Senate's
Judiciary Committee, said he favors the idea of a bipartisan
commission setting future judicial salary increases. But he said
that he does not support automatically increasing judges' pay based
on raises federal judges may get.
"I just think it would make more sense that we have a process where
there is periodic review of these raises by someone who is
controlled by the state of New York," Mr. DeFrancisco said. "We
should never, I don't think, be in a position to be bound by
something some other government, federal or state, thinks is best.
We are abdicating our responsibility."
Albany 'Poker Game'
Kathryn Grant Madigan, president of the New York State Bar
Association, is among those who said they are worried that by not
being resolved before the arrival of 2008, the question of judicial
pay raises has now become subject to horse trading over the next
state budget and to election-year politicking. All 212 seats in the
Legislature are up for election this November, and sentiment among
lawmakers is high for a legislative pay raise.
"Our biggest concern is that if this doesn't happen in the relative
near term, this could have to wait until after the fall elections,"
Ms. Madigan said.
The state bar has put a judicial pay raise at the top of its list of
2008 legislative priorities.
Neither judges nor state legislators have gotten raises since 1999.
Traditionally, their pay has gone up at the same time. Also, the
Legislature historically has not raised its own pay until after a
November election and before the start of a new legislative session.
Mr. DeFrancisco blamed the failure of the Assembly to take up either
of the judicial pay raise bills passed by the Senate last year for
causing the issue to linger unresolved. He said that means a
judicial pay bill is unlikely to pass until the next state budget is
adopted this spring, at the earliest.
"It is back in the hopper with every other issue," Mr. DeFrancisco
said. "I think that is precisely why the Assembly didn't come back,
because the governor wants it as one of his chips in the
never-ending poker game of Albany."
Governor Eliot Spitzer has told court administrators he wants a
judicial pay increase as part of the next budget, Judge Pfau said.
Assembly Speaker Sheldon Silver, D-Manhattan, also has said he
favors a judicial pay raise, but did not bring the Senate bills to a
vote in his chamber. Privately, Assembly Democrats say they are
opposed to a judicial pay raise unless legislators, who make a base
salary of $79,500 a year, get one as well.
The Legislature meets in a joint session on Jan. 9 and begins its
legislative work for the year on Jan. 14.
Judge Pfau estimated that the pay raise bill would cost $47.4
million, covering the cost of the increases retroactively to Jan. 1,
2007, through the end of the current 2007-08 fiscal year.
The judiciary continues to hold out the threat of suing the governor
and the Legislature to get higher pay, according to Judge Pfau.
"It's something of last resort," she said yesterday. "We want to
focus on getting this done."
Yesterday in Trenton, N.J., appropriations committees sent a bill to
the floors of the New Jersey Legislature that would raise the pay of
judges in that state. For judges of the Superior Court, the state's
main trial-level court, pay would increase to $165,000 a year from
$149,000, if the legislation becomes law.
NY's
Chief Judge, at "End of My Patience,"
Says She'll Sue Over Judges' Pay
By The Associated Press
New York Lawyer
December 11, 2007
Chief Judge Judith S. Kaye
says she may file a lawsuit next month if state lawmakers end a
planned December session without voting to give raises to New York's
judges.
She said she expects
lawmakers to return to Albany in mid-December. If they fail then to
hike New York's judicial salaries, which are the 48th lowest in the
nation, the chief judge said she may sue the state.
"I so don't want to do
that," Chief Judge Kaye told The Associated Press. "I've been a
lawyer for 45 years, and I know the pluses and minuses of
litigation. To me it is a last resort, but I've come just about to
the end of my patience. If they don't do it now, they'll come back
in an election year, and nobody wants to talk about raises in an
election year."
Governor Eliot Spitzer's
office did not reply to numerous messages seeking comment on the
dispute.
The sticking point has been
that salary hikes for lawmakers and judges have historically been
linked, and Mr. Spitzer has balked at increasing the lawmakers' pay.
The chief judge said
lawmakers' failure to vote on a pay hike during the past nine years
is effectively, given the rate of inflation, a pay cut and an
intrusion on judicial independence, and therefore illegal.
The chief judge first
raised the possibility of filing a suit on behalf of the Judiciary
in April. She has since said repeatedly that while legal action
remains an option, it would be a last resort if the Legislature and
governor fail to act voluntarily to boost judges' pay.
Meanwhile, two lawsuits
have been filed, one on behalf of individual judges and the other
with the support of several judges' associations.
NY Judges
Suing For Pay Raises See Most Claims Rejected
By Joel Stashenko and
Daniel Wise
New York Law Journal
New York Lawyer
December 3, 2007
ALBANY - A state court on Friday dismissed all but one of the
grounds in a suit filed by three judges seeking their first pay
increase since January 1999.
Acting Supreme Court Justice Thomas J. McNamara rejected a variety
of constitutional and statutory arguments made by the judges. He
allowed one claim - that the lack of a pay increase has impinged on
the independence of the judiciary - to proceed to trial but
indicated that the plaintiffs would face an uphill battle.
"Given that legislators and senior Executive branch officials have
also been denied raises [since 1999], plaintiffs face a difficult
task in establishing that the failure to provide salary increases is
designed to influence the Judiciary," Justice McNamara wrote in
Maron v. Silver, 4108-07. "Even showing that political branch
benign neglect is destructive of judicial independence presents a
difficult task."
The judge scheduled a conference for Dec. 19 at the Albany County
Courthouse to set a trial date.
The suit, brought by Nassau County District Court Judge Edward A.
Maron and Supreme Court Justices Arthur Schack of Brooklyn and
Joseph A. DeMaro of Nassau County, asked the court to order the
disbursement of $69.5 million that was appropriated in the 2006-07
state budget to increase salaries for the state's 1,300 judges. The
money did not go for the salaries because then-Governor George E.
Pataki and the Legislature did not approve provisions specifically
authorizing the state to spend the money.
The plaintiffs argued, among other things, that appropriating the
money was tantamount to authorizing its use for salary improvements.
Justice McNamara, however, refused to order Comptroller Thomas
DiNapoli to release the funds.
The judge said that Article VI, §25(a) of the state Constitution
requires that judicial salaries be set by law, a prescription the
Legislature "no doubt" had on its mind when it declined to amend
Judiciary Law §§221-221-I during the process that produced the
2006-07 budget.
"Inasmuch as the sections of the Judiciary Law which establish
judicial salaries were not amended, no increase in judicial
compensation can be affected despite the appropriation of funds for
that purpose," he wrote.
Also unavailing, the judge held, is the plaintiffs' argument that
the Compensation Clause of the Constitution, which prohibits judges
from having their pay reduced during their term on the bench,
provides for the judicial raises to protect against salary erosion
due to inflation.
While federal courts have held that a similar clause in the U.S.
Constitution may provide for protection of more than the nominal
value of judicial compensation, Justice McNamara wrote that courts
have stopped short of ruling that the absolute value of compensation
must be maintained. Scant case law in New York has not directly
addressed the question, but the judge concluded that the state
Constitution does not require that "the absolute purchasing power of
judicial compensation must be maintained."
Justice McNamara also rejected the plaintiffs' contention that the
Equal Protection Clause of the state Constitution has been violated
by the long denial of pay increases.
Justice McNamara, who ruled from Saratoga Springs, decided the case
from the parties' briefs. He said the information contained in those
documents was insufficient to determine if the long pay raise
drought has been a result of attempts by the Executive and
Legislature to punish the Judiciary. The three plaintiffs contended
that a series of rulings that were unpopular at the Capitol, such as
Court of Appeals' decisions vacating death sentences, could help
explain the long interval since the last pay increase.
Daniel A. Zimmerman of the Law Offices of Stephen Cohn in Carle
Place wrote the plaintiffs' brief. Assistant Attorney General James
B. McGowan was on the brief defending the state.
The suit named Assembly Speaker Sheldon Silver, Senate Majority
Leader Joseph Bruno, Governor Eliot Spitzer, Mr. DiNapoli and the
Office of Court Administration as defendants. Justice McNamara
removed the individual defendants from the suit.
Reaction to Decision
Mr. Cohn said, "We are thrilled that the court felt there was
substance to go forward, but with respect to those causes of action
that were dismissed, we will definitely appeal. On even a summary
reading, it is apparent that the determination is not predicated on
what was presented to the court."
John Milgrim, a spokesman for the Attorney General's Office, said
the ruling is "under review."
Plaintiff Justice DeMaro said, "We are disappointed with regard to
those claims that were not sustained but are certainly pleased that
the lawsuit was not dismissed and will proceed forward. We believe
the difficulties the judge cites can be overcome."
Justice Schack, another plaintiff, said, "I am happy the lawsuit
will go forward but I would be happier if the Assembly would adopt
the bill already passed by the Senate which provides for a
retroactive pay raise and the establishment of a commission to set
future raises so we will never have to go through this again."
The judges' suit is one of the more extreme examples of the
frustration caused by the continuing inability of the governor and
Legislature to grant judges raises.
A second suit has been filed in Supreme Court in Manhattan on behalf
of the New York City Family Court Association, the state Family
Court Judges Association, the New York City Civil Court Judges
Association and the New York City Criminal Court Judges Association.
Briefs are being submitted in that case, Larabee v. Silver,
112301/07. The state is seeking to change the venue to Albany.
Thomas Bezanson of Chadbourne & Parke, who represents the plaintiff
judges in the Manhattan suit, said it is "unfortunate" that Justice
McNamara rejected the claim that the lack of a raise for nine years
violates the state constitutional prohibition against diminution of
judge's salaries, an argument he also has made.
"I trust [Justice McNamara's denial] can be remedied by other
courts," Mr. Bezanson said.
The Supreme Court Justices Association is also considering a suit,
its president, Brooklyn Supreme Court Justice Marsha L. Steinhardt,
said in an interview prior to Justice McNamara's ruling. She said
she is still holding out hope that the Legislature and Mr. Spitzer
could still agree in December to a pay increase.
"I don't think the timing is right right now [for a suit]," Justice
Steinhardt said. "What are we going to do, sue them when they are on
the verge of doing something?"
There have been reports that the Legislature will reconvene later
this month, but no deals are imminent on a salary increase.
.http://www.nylawyer.com/display.php/file=/news/07/12/120307a
NY Courts
Focus on Funding
Judicial Pay Hike in Budget Request
By Joel Stashenko
New York Law Journal
New York Lawyer
December 3, 2007
ALBANY - Nearly
three-quarters of the $196.8 million more the Judiciary is seeking
from the General Fund of the next state budget would go to the
long-awaited judicial pay increase.
The spending proposal sent to Governor Eliot Spitzer and legislative
leaders on Friday also provides funding for 139 new court employees
and for an undetermined number of law guardians that court
administrators anticipate hiring to accommodate new caseload limits.
The spending plan is for the 2008-09 fiscal year, which begins April
1, 2008. Its emphasis on the judicial pay increase signals the
intention of Chief Judge Judith S. Kaye and court administrators to
continue their protracted lobbying efforts to get the governor and
Legislature to give state judges their first raises since 1999.
"As we near the decade mark since the last pay raise for New York
judges, I am deeply troubled by the very real consequences our
courts face should the judicial salary crisis continue," Chief Judge
Kaye said in a statement about the budget. "A court system that does
not even offer its judges annual cost of living increases to keep
pace with the reality of inflation cannot possibly hope to entice
the brightest minds to the bench."
Chief Judge Kaye and other administrators say they have not given up
hope that the Legislature and governor could still approve raises at
a possible December session, assuming lawmakers and Mr. Spitzer can
patch up badly frayed relations and make deals on unrelated issues
that the governor wants before raising salaries.
Mr. Spitzer affirmed last week that he continues to believe judges
deserve a raise.
"The judiciary is probably our most important branch of government
and we need to draw those into that branch who will dispense justice
fairly and properly," he said after announcing his renomination of
Judge Carmen Beauchamp Ciparick to the Court of Appeals.
The Judiciary's budget contains $143 million for judicial raises:
$32.7 million for those in the 2005-06 fiscal year; $36.3 million
for fiscal 2006-07; and $37 million each for the current 2007-08
fiscal year and for 2008-09.
Chief Judge Kaye first included money in the 2005-06 budget for pay
raises and the judiciary's latest budget request continues to seek
salary increases retroactive to April 1, 2005.
The Legislature rejected such long retroactivity. A judicial pay
increase bill that collapsed due to friction between Mr. Spitzer and
the Legislature on other issues, provided retroactivity to Jan. 1,
2007.
The spending plan continues the schedule for the raises the chief
judge has been proposing for more than two years, with salaries for
Supreme Court justices increasing to a federal district court
judge's level of $162,100 a year from $136,700. All other judges
would get increases based on a percentage of the Supreme Court
justices' new salary level.
Overall, the Judiciary is seeking $2.27 billion from the General
Fund, where most state-generated revenues accumulate. That is a 9.5
percent increase over the $2.07 billion the courts are using from
the fund in the current fiscal year. Seven percent of the 9.5
percent is due to the allocation for the proposed pay raise.
In terms of the All Funds budget, which counts the General Fund,
money from the federal government and from other sources, the
Judiciary is seeking $2.52 billion, an increase of $115.9 million or
4.8 percent.
Court administrators are well aware of fiscal storm clouds facing
the state over the next 18 months, but the need for the judicial pay
raise has reached crucial proportions, Chief Administrative Judge
Ann Pfau said in an interview.
"Every other state in the country has brought judges up to an
appropriate cost-of-living standard," Judge Pfau said. "It is
inconceivable to me that New York state isn't able to do that."
Caseloads Climb
She said the budget is tight in other respects and seeks to maximize
resources in the face of an ever-growing caseload. More than 4.5
million new cases were filed in the courts in 2006, a 6 percent
increase over the previous year and a 25 percent increase over 1996
figures.
In addition to the subprime mortgage crisis and volatility on Wall
Street, the state is also facing what the Budget Division projects
as a $4.3 billion gap in the 2008-09 budget. Mr. Spitzer's budget
director, Paul E. Francis, has instructed state agencies to propose
budgets for 2008-09 that are no larger than in the current fiscal
year. In all, the state will spend about $118.6 billion this year.
The Judiciary's budget proposal, which was signed by Chief Judge
Kaye and the other six members of the Court of Appeals, must be
submitted as is by the governor to the Legislature. Mr. Spitzer may
critique it in his executive budget materials and alter it once it
has been put before legislators.
Mr. Spitzer had not seen the Judiciary budget proposal as of Friday
and would have no comment, his office said.
This is the third consecutive Judiciary budget that has included
money for pay raises.
In 2006-07, the appropriation was approved in the final state budget
adopted by Governor George E. Pataki and the Legislature, but
provisions authorizing the money to be spent were not approved.
In 2007-08, the appropriation for raises was included in the
Judiciary budget, which was later amended to include language
authorizing that it be spent. The money and language were excised
from the final budget approved by Mr. Spitzer and the Legislature.
Both the proposed appropriation and authorizing language are in the
Judiciary's submission for 2008-09.
"We hope what it does is reinforce the criticality of this," Judge
Pfau said. "We are into our tenth year without a cost-of-living
adjustment."
The budget includes no appropriations for new judgeships. Judge Pfau
said those have traditionally been worked out with the Legislature
and governor, and the appropriations to pay salaries for new judges
have accompanied bills creating the new positions. Judge Pfau said
she expects to continue lobbying the Legislature for new judgeships,
especially in the Family Court.
Additional Requests
Also in the proposed budget:
• $3.1 million for partial calendar year funding (April to December
2008) of 139 "essential" new positions. The Judiciary budget said
new hires would be primarily in security and operations positions in
Family, City and District courts. Judge Pfau said the precise
breakdown of the proposed hires would depend on need and the final
budget.
• $7.9 million in additional funding for law guardians, including $5
million for anticipated additional law guardians once the Office of
Court Administration sets caseload limits for law guardians. Judge
Pfau and other administrators expect to make a caseload limit
recommendation in early December. She said it is unclear how many
new law guardians will be needed.
• $1.9 million more for travel and training for judges. This is part
of a package of benefit enhancements for judges that administrators
added this fall. Judges will get back their statewide conferences
beginning next year.
• $2 million for the Judiciary's assumption of the lease at 25
Beaver St. in Manhattan, headquarters of the OCA. The lease has been
held by the Office of General Services.
http://www.nylawyer.com/display.php/file=/news/07/12/120307b
Accusations Against NY Judges
Trigger Record Number of Probes Last Year
By Daniel Wise
New York Law Journal
New York Lawyer
November 19, 2007
The New York State
Commission on Judicial Conduct opened more investigations in 2006
and had more matters pending against judges than at any time in its
29-year history, according to
its annual report, which was released Thursday.
Overall, the commission received 1,500 complaints against judges
last year. Since 1992, an average of 1,440 complaints have been
filed annually against the state's 3,400 judges and town and village
justices.
Of the complaints, 314 were against town and village justices - 80
lawyers and 234 nonlawyers.
In 2006, the number of new investigations hit an all-time high of
267. The commission's administrator, Robert H. Tembeckjian,
attributed the peak to "a better public understanding of what the
commission does resulting from several high-publicity judicial
misconduct cases over the last couple of years."
The backlog of pending complaints at the end of 2006 also climbed to
a record high of 275.
In addition, the 14 public sanctions handed out to judges in 2006
was lower than it has been in the last five or six years, Mr.
Tembeckjian said.
The backlog, Mr. Tembeckjian said, was in part a byproduct of the
increasing number of complaints that appear to make out claims of
judicial misconduct and require investigations.
He added that the commission's work has been hampered by years of
static, or even reduced, funding.
The problem should be significantly eased, he said, because this
year the Legislature increased the commission's funding by $2
million to $4.8 million. The added funding should enable the
commission to double the number of lawyers it has on its staff to 20
by the end of the year, he said.
The backlog at the end of 2006 consisted of 47 formal written
complaints and 228 pending investigations.
In addition to the 1,500 new complaints in 2006, the commission
processed 221 complaints carried over from 2005. Nearly 72 percent
of the 1,721 complaints were dismissed as not stating a claim on
their face or after a preliminary inquiry.
The commission does not review errors of law. Rather, it
investigates alleged violations of the state and American Bar
Association conduct rules. Among the types of complaints it examines
are improper demeanor, conflicts of interest, violations of
defendants' or litigants' rights, intoxication, bias, prejudice,
favoritism, gross neglect, corruption, certain prohibited political
activities and other misconduct on or off the bench.
As a result of investigations, 14 judges were subjected to formal
discipline, 50 were issued confidential warning letters, 48 of them
coupled with dismissals of all charges.
Another nine judges resigned while under investigation but before
any formal charges had been lodged.
The public sanctions against the 14 judges took the following forms:
• Three were removed from office.
• Five were publicly censured.
• One was publicly admonished.
• Five, facing formal charges, signed public stipulations agreeing
to resign from the bench and to never again seek judicial office.
Ten of the 14 judges who were publicly disciplined or resigned were
nonlawyer town or village justices.
Only one Supreme Court justice was disciplined, but he was one of
three judges removed from the bench. Justice Thomas J. Spargo, who
was elected in Albany, was removed for, among other things,
attempting to coerce attorneys who had cases before him to
contribute to a legal defense funds to help underwrite his federal
lawsuit to bar the commission from investigating him.
The other three judges who were publicly disciplined were city court
judges, who were censured.
Of the state's 3,400 judges, 2,200 are locally funded town and
village justices, all of whom serve part time. The remaining 1,200
are full-time judges whose salaries are paid by the state.
Guidance in Problem Areas
The annual report also provided guidance to judges in several areas
the commission found problematic, based on the complaints reviewed.
One area concerned judges' involvement in plea bargaining. The
commission warned judges that explicit threats to increase a
defendant's sentence for refusing to accept a plea bargain and
proceeding to trial could subject them to formal discipline.
The commission noted that it had received "a number" of complaints
that judges had attempted to coerce defendants into accepting plea
bargains and that it had "found it appropriate to issue confidential
cautions" in several circumstances.
One situation involved a judge who told a defendant that a plea
offer would be increased every time the defendant rejected it. The
judge was influenced by reasons that were unrelated to the case, the
report said, such as the judge's view that the defendant's prior
arrests should be held against him without regard to whether the
arrests had resulted in convictions or acquittals.
The report also cites a circumstance involving a judge's attempting
to elicit incriminating statements from a defendant.
In 2005, the Law Journal reported that the commission was
investigating whether Acting Supreme Court Justice Rena K. Uviller,
who sits in Manhattan, had crossed an ethical line by pressuring a
defendant to accept a plea deal.
Mr. Tembeckjian said he was barred by law from revealing whether the
commission's comments were connected to an investigation of Justice
Uviller or indeed whether there had been any such investigation.
Justice Uviller did not return a call seeking comment.
Another area where judges have fallen short, the report stated, is
in assuring that the public has access to courtrooms and court
records.
The commission reported that last year a lawyer who happened to be a
commission member discovered upon going to court to represent a
client that the courtroom was locked and all lawyers and their
clients were required to wait in the hallway until their cases were
called.
Commission investigators were also quizzed by court officers as to
the reason for their presence in the courtrooms, according to the
report. Subsequently, the officers, asserting that they were acting
pursuant to a judge's "policy," directed the investigators to leave,
the report stated.
The report described several cases in which court personnel had
impeded commission investigators from accessing public court
records. In one instance, a town justice insisted that investigators
could only review his court's records on one evening per month. In
another, the clerk of a full-time court refused to mail records
requested by a commission investigator, and then claimed not to be
prepared when the investigator arrived at the courthouse for a
prearranged appointment to review the records.
The commission also reiterated a recommendation that
post-investigation formal proceedings be open to the public.
The report is available on the commission's Web site,
www.scjc.state.ny.us
NY Judges
Get Boost in Benefits, Pay Still Frozen Since 1999
By Joel Stashenko
New York Law Journal
New York Lawyer
November 2, 2007
ALBANY - Stymied so far in efforts to lobby Albany for a judicial
pay increase, state court administrators said yesterday they have
found funds to give each judge up to $5,000 a year to reimburse them
for job-related expenses ranging from uncovered medical costs to
judicial robe purchases.
The 1,300 state judges also will get more vacation time,
reimbursement for a third night of attending annual meetings of
their judicial associations and a return to a statewide forum for
their summer judicial seminars instead of a regional one.
"These benefits are not in any way intended to be, nor could be, a
substitute for a salary increase," Chief Administrative Judge Ann
Pfau said yesterday in an interview. "It is really saying it is very
unfair to judges what has happened to salaries. We wanted to look at
anything we can do in the interim to make their lives better,
because it is very demanding to be a judge."
Judge Pfau said court administrators were continuing to lobby
Governor Eliot Spitzer and the Legislature for a pay hike.
Judges last had a raise in 1999. Seemingly promising talks between
Mr. Spitzer and Legislature to secure a pay increase for judges fell
apart in March, April and again in June amid growing acrimony
between the other two branches of government. Several legislators
said yesterday a return by lawmakers to Albany to deal with
outstanding issues now does not appear likely before mid-December.
Judge Pfau said she remains in regular contact with counsels to the
governor and the legislative leaders. A judicial pay bill is still
among the items being discussed, she said.
The benefit improvements stemmed from conversations Judge Pfau said
she and Chief Judge Judith S. Kaye have been having all year with
judges, many of them frustrated or furious at Albany's inability to
raise judicial salaries.
"What we believe is the salary situation is not something we can
individually address right now, but to the extent that we can
address things, we want to do so," Judge Pfau said.
Chief Judge Kaye declined to comment on the prospects of a pay raise
bill passing this year.
See Judge Kaye's Letter to the Editor of the New York Law
Journal.
In addition to having New York state judges go the longest in the
nation without a pay increase, Judge Pfau said they also have been
"falling behind in the benefits and amenities area" to judges in
other states.
The "Supplemental Support Fund" will cost $6.3 million a year. It
can be used to cover up to $5,000 in reimbursable expenses such as
out-of-pocket medical costs and qualified wellness programs, as well
as dues to bar associations, purchase of legal books and purchase
and maintenance of robes. Expenses incurred beginning yesterday can
be applied against the fund, according to court administrators.
Benefits Office
Employees in the Office of Court Administration's benefits division
will be assigned to a new Office of Judicial Support to handle
reimbursements from the fund and the other enhanced benefits.
As far as vacation time is
concerned, administrators said all trial-level judges who have
served five years or more on the bench will get 25 days vacation
starting in January. Those with less than five years will continue
to get the previous maximum of 20 days until they reach five years.
Leave for the Christmas recess will continue.
Following the budget crisis created by the economic fallout from
Sept. 11, 2001, the state stopped holding centralized judicial
seminars and went to regional meetings. Judge Pfau said judges
preferred to be with their colleagues from around the state and
asked that the centralized format be reinstated. She said that will
cost about $1 million a year extra.
OCA will pay the initial costs of the benefit enhancements by
deferring some equipment purchases and economizing in other areas,
Judge Pfau said. The judiciary has also experienced unanticipated
savings from reduced Medicare payments.
Appropriations for the enhancements will also be included in the
judiciary's budget for the next state fiscal year, beginning April
1, 2008. That spending plan is due to be presented to the governor
and Legislature by Dec. 1.
In April, Chief Judge Kaye identified benefit improvements for
judges as one area administrators would explore in light of the
continuing inability of the governor and Legislature to approve
salary increases. At that time, she also mentioned a suit by the
judiciary to force the other two branches to approve a pay increase
as a possibility, though a last resort.
In a memo to judges last week, Chief Judge Kaye wrote that she
believed discussions over pay raise legislation were still
productive and said she did not want the filing of a suit on behalf
of the judiciary to close off that dialogue.
Reaction From Bench
Yesterday, Brooklyn Supreme Court Justice Arthur M. Schack who is
involved in one of the two pay raise suits filed on behalf of
individual judges or judicial associations, said the benefit
enhancements move OCA in the "right direction" in terms of judicial
compensation.
But Justice Schack said it will not affect the pay suit he and two
other judges filed. The suit is before Supreme Justice Thomas J.
McNamara in Albany County.
"I don't see where it changes anything," Justice Schack said
yesterday. "Do we have a pay raise? No."
He questioned why it took until now for the OCA to move on the
benefits.
"OCA knows that the morale of the judges is pretty low and [Judge
Pfau] had to do something," Justice Schack said.
Brooklyn Supreme Court Justice Marsha L. Steinhardt, president of
the Supreme Court Justices Association, said enhanced benefits has
always been a "stand alone" issue from any litigation to force
Albany to increase judicial pay. Her group continues to discuss the
possibility of filing or joining a suit.
Justice Steinhardt said she believes talks her group had with court
administrators about improving the benefits were instrumental in the
improvements outlined by Judge Pfau yesterday.
"I think it is great," she said.
Brooklyn State Supreme Court Justice Herbert Kramer, said the
increased vacation time would be "very, very good for the morale of
the judges."
If judges will be allowed to offset deductibles and premium
increases against the Supplemental Support Fund, the enhancements
will be meaningful, Justice Kramer said.
"What they have done is put us back to the period of time when we
had our last raise as to medical," he said.
Judge Pfau said many of the details of acceptable costs to be
applied against the $5,000 fund will we worked out in the coming
weeks, as will reimbursement procedures.
As far as vacation time is
concerned, administrators said all trial-level judges who have
served five years or more on the bench will get 25 days vacation
starting in January. Those with less than five years will continue
to get the previous maximum of 20 days until they reach five years.
Leave for the Christmas recess will continue.
Following the budget crisis created by the economic fallout from
Sept. 11, 2001, the state stopped holding centralized judicial
seminars and went to regional meetings. Judge Pfau said judges
preferred to be with their colleagues from around the state and
asked that the centralized format be reinstated. She said that will
cost about $1 million a year extra.
OCA will pay the initial costs of the benefit enhancements by
deferring some equipment purchases and economizing in other areas,
Judge Pfau said. The judiciary has also experienced unanticipated
savings from reduced Medicare payments.
Appropriations for the enhancements will also be included in the
judiciary's budget for the next state fiscal year, beginning April
1, 2008. That spending plan is due to be presented to the governor
and Legislature by Dec. 1.
In April, Chief Judge Kaye identified benefit improvements for
judges as one area administrators would explore in light of the
continuing inability of the governor and Legislature to approve
salary increases. At that time, she also mentioned a suit by the
judiciary to force the other two branches to approve a pay increase
as a possibility, though a last resort.
In a memo to judges last week, Chief Judge Kaye wrote that she
believed discussions over pay raise legislation were still
productive and said she did not want the filing of a suit on behalf
of the judiciary to close off that dialogue.
Reaction From Bench
Yesterday, Brooklyn Supreme Court Justice Arthur M. Schack who is
involved in one of the two pay raise suits filed on behalf of
individual judges or judicial associations, said the benefit
enhancements move OCA in the "right direction" in terms of judicial
compensation.
But Justice Schack said it will not affect the pay suit he and two
other judges filed. The suit is before Supreme Justice Thomas J.
McNamara in Albany County.
"I don't see where it changes anything," Justice Schack said
yesterday. "Do we have a pay raise? No."
He questioned why it took until now for the OCA to move on the
benefits.
"OCA knows that the morale of the judges is pretty low and [Judge
Pfau] had to do something," Justice Schack said.
Brooklyn Supreme Court Justice Marsha L. Steinhardt, president of
the Supreme Court Justices Association, said enhanced benefits has
always been a "stand alone" issue from any litigation to force
Albany to increase judicial pay. Her group continues to discuss the
possibility of filing or joining a suit.
Justice Steinhardt said she believes talks her group had with court
administrators about improving the benefits were instrumental in the
improvements outlined by Judge Pfau yesterday.
"I think it is great," she said.
Brooklyn State Supreme Court Justice Herbert Kramer, said the
increased vacation time would be "very, very good for the morale of
the judges."
If judges will be allowed to offset deductibles and premium
increases against the Supplemental Support Fund, the enhancements
will be meaningful, Justice Kramer said.
"What they have done is put us back to the period of time when we
had our last raise as to medical," he said.
Judge Pfau said many of the details of acceptable costs to be
applied against the $5,000 fund will we worked out in the coming
weeks, as will reimbursement procedures.
NY Judge
Files Three Lawsuits
Over Rivals' Endorsements By Minor Parties
By Daniel Wise
New York Law Journal
New York Lawyer
October 11, 2007
Ninth Judicial District
Administrative Judge Francis A. Nicolai filed three lawsuits Friday
to nullify the minor party nominations of four rivals for Supreme
Court.
Judge Nicolai - who named Conservative, Working Families and
Independence Party officials and other candidates, including his two
Democratic running mates - is running for one of three open seats in
the five-county district. He claims the parties followed improper
procedures that violated election law in deciding which candidates
to back.
The endorsements are important because they carry extra ballot lines
and votes. In tight contests, those votes can be the margin of
victory.
Judge Nicolai's move, sources said, prompted a request from one of
his Republican adversaries that the case be moved out of the
district and that Judge Nicolai be temporarily replaced as
administrative judge while the litigation is pending.
Yesterday, Deputy Chief Administrative Judge Jan H. Plumadore
ordered the case transferred to Albany at the request of "all the
candidate litigants" in the three cases.
Judge Nicolai continues to serve as the district's administrative
judge, said David Bookstaver, spokesman for the Office of Court
Administration, because there is "absolutely no reason he can't be
fair and impartial in terms of his duties as administrative judge
pending the outcome of a case that will be resolved quickly in a
different venue."
Thomas Abinanti, who is representing Judge Nicolai in two of the
lawsuits, said that Judge Nicolai had notified OCA in advance that
the lawsuit would be filed in Westchester County and asked for the
cases to be moved to another county.
One of Judge Nicolai's Republican rivals, however, said he had been
in touch on Tuesday with Judge Plumadore, who at the time appeared
unaware that Judge Nicolai had filed lawsuits in Westchester County.
The litigation pits Judge Nicolai against two fellow Democrats
running for the three seats in the Ninth: Orange County Surrogate
Elaine Slobod, who has been nominated by the Independence,
Conservative and Working Families parties, and Rockland County
Surrogate Robert M. Berliner, who is also a Working Families
nominee.
The two Republican Party candidates, whose third party nominations
Judge Nicolai is seeking to upend, are incumbent Justice William E.
Sherwood, who is running for a second term on the Conservative and
Independence lines, and Westchester County Court Judge Rory J.
Bellantoni, who is running on the Conservative, Independence and
Working Families lines.
Judge Nicolai, who was elected as a Supreme Court justice in 1990,
decided not to seek a second term in 2004 in the Ninth District,
which is usually favorable terrain for Republicans, after he was
unable to secure the Independence nomination. Instead, he ran for -
and won - a seat on the County Court in Westchester, which has
become increasingly Democratic in recent years.
After his election, Judge Nicolai, who has been administrative judge
since 1999, was named an acting Supreme Court justice.
Sources identified Justice Sherwood as the candidate who had asked
for Judge Nicolai to be replaced during the litigation. Justice
Sherwood did not directly acknowledge that in an interview yesterday
but did not deny the reports. He also said he had sent e-mails to
all candidates involved in the litigation in which he raised the
issue of "what an awkward situation" it could create.
Judge Bellantoni said in an interview that, when he had called Judge
Plumadore on Tuesday to give him a "heads up" about Judge Nicolai's
lawsuits, Judge Plumadore had left him with "the impression that he
was unaware of any pending litigation."
Judge Bellantoni added that he believed the cases should be moved
because there were concerns about any litigation being handled
within the district where Judge Nicolai was the supervisor of the
four defendant judges as well as any judge to whom the case would be
assigned.
Judge Bellantoni also said that since the normal process is for
Judge Nicolai to assign election cases, a transfer was "preferable"
because it would eliminate the need to ask any questions about how
the cases were assigned.
Mr. Abinanti, Judge Nicolai's lawyer, said that the lawsuits had
been filed in Westchester as a "convenience" because most of the
parties were located there and he was facing a tight statute of
limitations deadline.
"We knew it was going to be transferred," he said, because "it
couldn't be tried [in Westchester] because every judge would have to
be recused."
Meanwhile, Mr. Abinanti said it was "somewhat strange" for Justice
Sherwood to complain about Justice Nicolai filing a lawsuit in the
Ninth District while bringing his own lawsuit in Dutchess County,
one of the other counties within the district. In that lawsuit, Mr.
Abinanti said, Justice Sherwood is seeking to remove the Right to
Life Party symbol from a combined line with the Conservative Party.
The lines were combined because of a state law limiting the number
of lines per candidate to three, he said.
Justice Sherwood said that, unlike Judge Nicolai, he had not sued
any other judges but had only named the state Board of Elections as
a defendant in an effort to force a re-arrangement of the way the
ballot is structured.
Mr. Abinanti represents Judge Nicolai in the lawsuits filed against
the Conservative (Nicolai v. Kelleher, 20495/07) and Working
Families (Nicolai v. Kelleher, 20496/07) parties.
Judge Nicolai claims the Conservative nominations should be voided
because its nominating convention was held on an unauthorized date,
conducted an improper secret ballot and excluded both the public and
alternate delegates.
His claims against the Working Families nominations were that a vote
was taken without a quorum and that its delegates were not properly
apportioned among assembly districts contained within the ninth
judicial district.
Similar claims were raised in Judge Nicolai's lawsuit against the
Independence Party nominations. In that lawsuit, he is being
represented by Jeffrey D. Buss of Smith Buss & Jacobs in Yonkers.
Supreme
Court Weighs N.Y. Judge System
New York Daily News
October 3, 2007
New York's system of
letting political bosses essentially pick trial judges does not
appear to violate the Constitution, Supreme Court justices said
today.
Under the system, primary
voters elect delegates to a convention, which then chooses
candidates. Those nominees usually run unopposed in the general
election.
Two federal courts had
struck down the system, agreeing with failed candidates and a
watchdog group that would-be judges who don't have party backing are
shut out of elections.
But after hearing
arguments, liberal Justice David Souter said he did not see a
constitutional problem in the ability of party bosses to effectively
exclude some candidates.
"For political reasons,
they're saying, 'We don't like you,' " Souter said.
Justice Antonin Scalia, a
conservative, called the system "a basic judgment not to have judges
popularly elected," but did not say there was a problem with that.
The nation's highest court
has previously ruled that states can decide whether to use
conventions or primaries to nominate candidates. States also can opt
to have judges appointed rather than elected.
A decision in the New York
case is expected by June. The case is New York State Board of
Elections v. Lopez Torres, 06-766.
Disgraced
Ex-Chief Judge Is Readmitted to NY Bar
By Mark Fass
New York Law Journal
New York Lawyer
October 3, 2007
Sol Wachtler, the former
chief judge of the Court of Appeals, has been reinstated to practice
law in New York by a unanimous Appellate Division, Second
Department, panel.
"I'm delighted," Sol
Wachtler said after his license was reinstated Tuesday. The former
judge had told the panel he hoped to do legal work for poor and
mentally ill clients.
In a simple, one-page
decision, the panel granted the motion filed by Mr. Wachtler, 77,
who served on the Court of Appeals from 1972 until three days after
his arrest in 1992 for harassing his ex-girlfriend, Joy Silverman.
The former chief judge later admitted engaging in a 13-month
campaign of hang-up calls and anonymous, obscene letters intended to
force Ms. Silverman to turn to him for help. According to news
reports, he suffered from drug-induced bipolar disorder.
He ultimately pleaded
guilty in New Jersey federal court and resigned from the bar. The
Second Department accepted the resignation, disbarring him on Aug.
5, 1993.
In 2003, a Second
Department panel rejected his first application for reinstatement.
In a decision made public
yesterday, his second application was granted.
Mr. Wachtler's attorney,
whose name is under seal, along with other material related to the
application for reinstatement, did not return a call for comment.
Presently, Mr. Wachtler
serves as an adjunct professor at Touro Law School.
The Associated Press
contributed to this report.
NY Judges
Sue for 26 Percent Raise, Retroactive Pay
By Daniel Wise
New York Law Journal
New York Lawyer
September 13, 2007
Four judges, backed by
their judicial associations, filed suit in Manhattan yesterday to
compel an immediate 26 percent pay raise, plus smaller increases,
retroactive to 2000.
The four are Family Court
Judge Susan Larabee, who sits in Manhattan and is a member of the
New York City Family Court Association; Family Court Judge Michael
L. Nenno, who sits in Cattaraugus County and is a member of the
statewide Family Court Judges Association; New York City Civil Court
Judge Geoffrey Wright; and New York City Criminal Court Judge
Patricia Nunez.
At a press conference
yesterday announcing the filing of the declaratory judgment action,
one of the plaintiffs' lawyers, former Court of Appeals Judge George
Bundy Smith, said that, "after waiting so long for a simple pay
raise," many judges feel that the point has been reached where there
was "no other alternative" but to sue.
The four judges are also
represented by Thomas Bezanson, who like Mr. Smith is a partner at
Chadbourne & Parke. Mr. Bezanson said the suit is being brought to
"end the outrageous fact" that the state's judges have not received
a raise since January 1999. The firm is handling the suit pro bono.
Spokesmen for the three
defendants - Governor Eliot Spitzer, the state Assembly and state
Senate - all said they supported a pay increase for judges but
declined to comment upon the legislative impasse that continues to
stall enactment of a raise.
Chief Administrative Judge
Ann T. Pfau said she would not comment on a lawsuit filed by
independent judicial associations.
The relief raised in the
lawsuit, Larabee v. Spitzer, 112301/07, closely parallel the pay
raise legislation submitted by Chief Judge Judith S. Kaye. The
judges contend the 26 percent increase they are seeking reflects the
rise in the cost of living since they last received an increase
nearly nine years ago.
Family Court judges in New
York City earn $136,700; Civil and Criminal Court judges earn
$125,600. The complaint does not give a salary for upstate Family
Court judges.
Chief Judge Kaye's bill
would put the salary of Supreme Court justices on par with the
$165,200, a year earned by federal district court judges, an
increase of 21 percent. Salaries of other judges would be adjusted
proportionately.
The measure would also
create a commission to propose regular adjustments of salaries of
judges, legislators and top executive branch officials. The lawsuit
filed yesterday seeks an order requiring annual cost-of-living
adjustments.
Judge Kaye's bill also
provided that the increase be retroactive to April 1, 2005, while
the four judges asked for an order providing retroactive pay to
2000. The complaint does not cite a specific figure, but Mr.
Bezanson said at the press conference that the judges will ask for
back pay in yearly increments of 3.5 percent compounded.
Similar to Previous Suit
The four judges' legal
claims are similar to claims raised by three judges in a lawsuit
filed late last year, which is now pending in Albany County. Like
the judges in that suit, Maron v. Silver, 21984/06, the latest
complaint charges that the failure to offset the ravages of
inflation violates Article VI §25(a) of the state Constitution,
which says that the salary of judges should not be reduced during
their terms of office.
The judges also claim that
"political in-fighting" between the governor and the two houses of
the Legislature, particularly the linkage to extraneous issues such
as campaign finance reform and pay raises for legislators, violates
the separation of powers doctrine and compromises the independence
of the judiciary.
Attorney General Andrew
Cuomo's office did not return a request for comment, but in its
brief filed in the Maron case, it argued that the no-diminution
clause was not designed to protect judges from the effects of
inflation.
The state has asserted in
Maron that the no-diminution clause only "prohibits the diminution
of judicial salaries by the government," inflation is "not a pay cut
for judges" prohibited within the meaning of the clause.
The briefing in Maron has
been completed except for one remaining reply brief, which is to be
filed tomorrow by the attorney general's office. The case is
expected to be decided on the papers, without oral argument, by
Albany Acting Justice Thomas J. McNamara.
The plaintiffs in Maron are
Brooklyn Justice Arthur Schack, Nassau County Supreme Court Justice
Joseph A. DeMaro and Nassau County District Court Judge Edward A.
Maron.
Yesterday's lawsuit had
been talked about for months, but was deferred because of concerns
that taking legal action could be counter-productive, several
sources said.
Though the judicial groups
could have brought the suit in their own names, instead they each
passed resolutions supporting the action by their individual
members, said Mr. Bezanson.
A Last Straw
Chief Judge Kaye has
repeatedly said that litigation should be an option of last resort,
and Mr. Spitzer has said that it would be a mistake for the
judiciary to file a suit to force a pay raise.
But at yesterday's press
conference, Mr. Bezanson said the judges had "waited a long, long
time" and when the Legislature adjourned without a clear date to
come back, it was "the straw that broke the camel's back."
Last week, the executive
committee of the Supreme Court Justices Association voted at its
fall meeting in Saratoga Springs to defer a lawsuit until after
lawmakers return, though it authorized the filing of a suit within
one week of the end of the session if no action is taken on a pay
raise. No date has set for the Legislature to return.
The group's president,
Brooklyn Supreme Court Justice Marcia Steinhardt, said she had been
in touch with groups planning yesterday's lawsuit, and told them
that her association would maintain its own lawyer and file its own
suit, but that it might move to have the cases consolidated.
She added that the
justices' group had decided against suing at this time because that
is "the most prudent course of action."
Action on a pay raise has
been stalled by Mr. Spitzer's insistence on campaign finance reform
legislation, and the Legislature's demand that pay raises for its
members be linked to any raises approved for judges.
Shortly after lawmakers
recessed in June, the prospects for a deal looked promising but that
window slammed shut following a report issued by the attorney
general's office finding that Mr. Spitzer's staff had misused State
Police resources in gathering information for negative newspaper
articles about Senate Majority Leader Joseph Bruno's use of state
aircraft for trips that consisted mostly, but not entirely, of
political business.
Though Mr. Cuomo's office
found that no crime had been committed, probes are now proceeding by
the Albany District Attorney's Office and the state Ethics
Commission.
The Legislature is expected
to return later this month or in early October. It is unclear
whether the poisonous political atmosphere that has engulfed Albany
will derail the basic outlines of an accord reached earlier this
summer or prevent the different sides from fleshing out the details
of those agreements.
Judges
From Four Groups to Sue N.Y. State for Pay Hike
Joel Stashenko
New York Law Journal
September 12, 2007
Members of four New York state judges' associations will file suit
today in Manhattan Supreme Court to force the governor and the
Legislature to give judges a pay raise.
The long-discussed suit
is being filed now because the judges have become fed up with the
apparent inability of lawmakers to agree to convene in Albany and
to take up the judicial pay increase bill they have had before
them all year, Staten Island Civil Court Judge Philip S. Straniere
said in an interview Tuesday.
A judge from the group
Straniere heads, the Board of Judges of the Civil Court of the
City of New York, as well as individual judges from the Family
Court Judges Association, the New York City Family Court Judges
Association and the City Criminal Court Judges Association will be
plaintiffs in the suit. Straniere declined to name the plaintiffs.
He said there was some
legal question whether the judges' associations themselves --
there are 13 statewide -- would have been deemed to have standing
if they had formally joined the legal action. It was felt there
would be no question as to the standing of individual judges, he
said.
However, even though the
four associations are not plaintiffs, they are all supporting the
action.
When last seen in Albany
in June, the Legislature was concluding its regular 2007 session,
and its leaders were promising to soon return into session to
address issues they failed to get to during a contentious first
six months of the year. Those issues included, state judicial
administrators were assured, raising the pay of state judges for
the first time since 1999.
The judiciary was behind
a bill to bring the pay of Supreme Court justices in line with
federal district court judges and to give all other state judges
proportional pay increases. The increases would average about 24
percent. The legislation would also create a commission to
recommend future pay raises so judges would not have to
periodically return to the governor and lawmakers for more money.
Since June, a political
scandal involving Democratic Gov. Eliot Spitzer and his nemesis,
Senate Majority Leader Joseph Bruno, R-Rensselaer, has ratcheted
up the partisan animosity at the Capitol to the point that none of
the leaders can demonstrate they can do business together, or
when.
Straniere said this
latest delay was the last straw for the judges in the suit to be
filed today.
"I think everybody agreed
over the summer that if they were not going to come back in
September, then that would be it," said Straniere, the brother of
a former assemblyman from Staten Island. "Enough is enough."
The suit will name the
Assembly, Senate and the governor for failing to provide fair pay
for the state's 1,200 judges. It will seek to win court-ordered
raises for judges retroactive to 2000 and to impose a system of
annual cost-of-living increases going forward.
The suit has been mainly
prepared pro bono by partners Thomas Bezanson and George Bundy
Smith at Chadbourne & Parke. Smith is a former judge on the Court
of Appeals.
It will be the second
suit filed by judges seeking higher pay. District Court Judge
Edward A. Maron of Nassau County, Brooklyn Supreme Court Justice
Arthur Schack and Nassau Supreme Court Justice Joseph A. DeMaro
have a similar action before Supreme Court Justice Thomas J.
McNamara in Albany County.
Attorney General Andrew
Cuomo's office has asked in that case for an extension until
Friday to file a reply brief in the case. Attorneys for both sides
say they expect McNamara to decide the case on the briefs, without
oral arguments.
Spitzer said earlier this
summer that it would be a mistake for the judiciary to go to court
in what he said would be a futile effort to compel the other two
branches of government to give them a raise. And Chief Judge
Judith S. Kaye has repeatedly said a lawsuit by the judiciary
should be a last resort.
Traditionally, judges and
lawmakers, who also have not had a raise since 1999, have gotten
pay hikes at the same time.
Chief Administrative
Judge Ann T. Pfau had no comment on the impending suit Tuesday.
Spokesmen for Spitzer and Bruno declined comment. A spokesperson
for Assembly Speaker Sheldon Silver, D-Manhattan, said the
Assembly Democrats were committed to resolving the issue in line
with the bill proposed by Kaye.
NY Name
Partner Criticizes Basis for Censuring Judge
By Anthony Lin
New York Law Journal
New York Lawyer
September 6, 2007
A member of the state Commission on Judicial Conduct has harshly
criticized the lack of detail in the agreed statements on which the
commission bases its decisions disciplining judges.
Richard D. Emery, a member of the commission since 2004 and a
partner at Emery Celli Brinckerhoff & Abady, said inadequate agreed
statements, the commission's equivalent of plea agreements, could
result in judges getting off lightly when they should be removed.
Mr. Emery aired his view in his dissent to
a decision by the commission censuring a non-lawyer
Tannersville village justice who presided over a case despite having
a professional and social relationship with the defendant that she
did not disclose to the district attorney.
The justice, Noreen Valcich, was a former school bus driver who
trained and befriended another driver, Marlene Rice. Justice Valcich
later presided over a case in which Ms. Rice was charged with
harassing her supervisor. The justice issued a six-month order of
protection for the supervisor and her daughter and then adjourned
the case pending dismissal one month later.
The judicial conduct commission said Justice Valcich violated
ethical rules by not disqualifying herself from a case in which the
defendant was her friend. The commission further noted that Justice
Valcich had been cited twice previously for ethical lapses.
The commission had issued letters of caution to Justice Valcich
twice in 2000: once for delay in determining a motion and returning
bail and once for conveying the opinion that she was not impartial
by revoking an adjournment in contemplation of dismissal without
consulting the district attorney.
Seven commission members concurred in the censure decision. Mr.
Emery and Stephen R. Coffey voted to dissent and reject the agreed
statement of facts. Mr. Emery issued a written opinion.
Mr. Emery called the censure "a rash choice in favor of clemency for
a recidivist ethical violator." He said it was impossible for the
commission to properly consider the case because Justice Valcich's
agreed statement failed to provide relevant facts, including the
nature of the harassment at issue in the case.
He pointed out that, if the judge's friend had threatened to kill
the supervisor or her children, the grant of adjournment would have
been inexcusable favoritism, warranting the justice's removal. But
he said censure could be appropriate if the harassment were of a
milder nature.
He further noted the lack of clarity in the agreed statement about
whether Justice Valcich was simply unaware of the relevant rules or
willfully violated them to favor her friend.
"When an agreed statement is presented as a basis for imposing
discipline, it should answer all relevant questions so that we can
determine whether there has been misconduct and what sanction, if
any, should be imposed," Mr. Emery said. "It is our core
responsibility to determine whether a judge is fit to remain on the
bench, and we should not have to make a decision, especially on this
ultimate issue, on a record with significant factual gaps, confusing
characterizations or events, and critical unresolved issues."
Mr. Emery has dissented based on insufficient agreed statements a
number of times in the past. In his most recent dissent, he said he
hoped recently increased funding for the commission would lead to
fuller statements.
But Robert Tembeckjian, administrator and counsel for the
commission, said he thought such agreements were generally already
handled appropriately.
"We try in every case to present sufficient information for the
commission," he said. "Sometimes we fall short, but here the
majority clearly agreed they had enough information to make a
decision."
Mr. Tembeckjian pointed out that the sort of harassment posited by
Mr. Emery would not in any case have been before a village court,
which only hears low-level misdemeanors.
NY Judge
Suing to Raise His Pay Recuses Himself,
Citing Lawyer's Political Office and Nice Shiny Tie
By Anthony Lin
New York Lawyer
New York Law Journal
August 31, 2007
One of the judges suing New York state for an increase in judicial
salaries has recused himself from a case in which the plaintiff is
represented by a firm whose lawyers include a state assemblyman.
Brooklyn Supreme Court Justice Arthur Schack said he could no longer
hear the case because the defendants were seeking a contempt order
against the plaintiff's firm, Garden City's Berkman, Henoch,
Peterson & Peddy, where Mark Weprin, an assemblyman from Queens, is
a counsel.
"If I were to rule for defendant and possibly find plaintiff and
Berkman, Henoch in contempt, it might be construed as retaliation
against the Legislature by an aggrieved judge," Justice Schack wrote
in
HSBC Mortgage Corp. v. Oberlander, 10636/02.
"Conversely, if I were to deny the instant order to show cause, it
could be perceived as an attempt to curry favor with Mr. Weprin and
his 211 colleagues in the New York State Assembly and Senate."
Mr. Weprin is not involved in the case.
In May, Justice Schack joined two Long Island judges in filing an
Article 78 proceeding against Governor Eliot Spitzer, the state
Legislature and the Office of Court Administration arguing that the
erosion of judicial salaries by inflation since the last pay raise
in 1999 violates the state Constitution.
The OCA's Advisory Committee on Judicial Ethics has urged judges not
to recuse themselves over the pay issue because such recusals would
erode public confidence in the integrity and impartiality of judges
(NYLJ,
March 9, 2007). The three judges involved in the suit have
previously recused themselves in cases where legislators have acted
as lawyers.
The case from which Justice Schack recused himself involved a
foreclosure on a Brooklyn building owned by David Oberlander. The
judge had granted summary judgment in the case to plaintiff bank,
HSBC Mortgage Corp. but had stayed the decision pending appeal. The
defendant had moved for a contempt order on the grounds that HSBC
had violated the stay.
In recusing himself, the judge took a dig at the assemblyman, noting
that, unlike judges, Mr. Weprin was "not precluded from earning
additional income." Justice Schack said he had verified Mr. Weprin's
employment by visiting
the Berkman Henoch Web site which "has
a photograph of Mr. Weprin's handsome, smiling face, as he
wears a bright gold-colored [tie]."
But the judge said it would be improper for him to fine or jail Mr.
Weprin, "with or without his bright gold-colored tie."
Mr. Oberlander is represented by Marshall C. Berger.
Neither Mr. Weprin nor Mr. Berger could be reached for comment.
NY Judges
Jostle Over Eligibility for Upcoming Election
By Daniel Wise
New York Lawyer
New York Law Journal
August 21, 2007
A Queens judge has thrown
out a residency challenge in what promises to be a bitter Democratic
primary for Surrogate in Brooklyn.
Justice Peter J. O'Donoghue, in a ruling from the bench on Friday,
rebuffed Brooklyn Supreme Court Justice Diana Johnson's bid to
disqualify Brooklyn Civil Court Judge ShawnDya L. Simpson upon the
ground that she lives in New Jersey.
Four days earlier, Justice O'Donoghue had rejected Judge Simpson's
request that Justice Johnson's lawyer, B. Mitchell Alter, be
disqualified because he had represented Judge Simpson in 2003 when
she ran for Civil Court.
The case was transferred to Queens after Brooklyn Justice Joseph S.
Levine recused himself.
According to a transcript, at the conclusion of oral argument,
Justice O'Donoghue found "beyond a reasonable doubt" that Judge
Simpson had established residency in Brooklyn as early as 2003.
Most telling, he stated, she did so before she had any intention of
"moving up the ladder" from Civil Court to Surrogate Court.
Mr. Alter, of Alter & Barbaro, said that Justice O'Donoghue had
ignored documentary evidence and that he would file an appeal with
the Appellate Division, Second Department, today.
State Senator Martin Connor, who represents Judge Simpson, said that
with a favorable ruling on the merits, his client is unlikely to
appeal the disqualification issue.
Judging from interviews with both sides yesterday, the election will
be fiercely contested, with each claiming the mantle of reform.
Judge Simpson's campaign manager, Jacob Walthour, who is also her
husband, said that Justice Johnson's campaign is backed by people
with ties to former Surrogate Michael Feinberg, who was removed from
office for approving excessive fees for counsel to then-Public
Administrator Marietta Small.
Justice Johnson's campaign manager, Gary Tilzer, also claimed his
candidate was the reformer in the race. As evidence he cited the
fact that Judge Simpson is backed by Vito Lopez, Brooklyn's
Democratic Party leader. Mr. Tilzer said that over the "last 30
years there has been a history" of problems with Brooklyn surrogates
who have been backed by party leaders.
Mr. Lopez did not return a request for comment left at party
headquarters.
Justice O'Donoghue rejected Justice Johnson's evidence that, in
connection with taking out mortgages for homes in South Orange,
N.J., and on Martha's Vinyard, Mass., Judge Simpson stated she lived
in the New Jersey home.
Instead, Justice O'Donoghue credited tax, utility and automobile
registration records in which Judge Simpson listed a five-bedroom
apartment near the Brooklyn Navy Yard, which she rents for $2,600 a
month, as her residence.
In the interviews, both sides fired shots at one another.
Mr. Walthour, a senior executive of Askia, a firm that advises hedge
funds, said that Justice Johnson had accepted donations and $40,000
of free legal advice from Mr. Alter, who had received $190,000 from
surrogate appointments. He also charged that a political action
committee established by the New Era Democratic Club, of which Ms.
Small, the former public administrator in Brooklyn, is the
president, had contributed $2,250 to Justice Johnson's campaign.
In a third charge, Mr. Walthour, said that Justice Johnson had hired
as her administrative assistant Mirelle McCrimmon, the daughter of
Assemblywoman Diane Gordon, who was indicted in 2006 for demanding a
bribe from a developer. He also said that Mr. Alter had been
referred to as an unindicted co-conspirator in the bribery case
against Ms. Gordon.
Mr. Alter responded that he has accepted $190,000 in court
appointments over a 10-year period from a number of judges. While
former Surrogate Feinberg was among them, he said, he had not
accepted any appointments from him for more than two years and has
no intention of seeking more appointments because his practice "has
gone in other directions."
As for his being named in connection with charges against Ms.
Gordon, he said the reference to him was "payback" for his having
represented State Senator John Sampson in a bid to wrest the
Democratic nomination from Brooklyn District Attorney Charles J.
Hynes in 2005.
Jerry Schmetter, a spokesman for Mr. Hynes, called "absurd" any
suggestion the prosecution's inclusion of Mr. Alter in Ms. Gordon's
case "was the result of a calculated animus."
Mr. Alter acknowledged that Justice Johnson had hired Ms. Gordon's
daughter but said it was before the assemblywoman was indicted. Mr.
Alter also said there was "absolutely no connection" between the New
Era Democratic Club, of which Ms. Small is the president, and the
New Era PAC, which made the donation to Justice Johnson's campaign.
Mr. Tilzer, in turn, said the Johnson campaign had built a
broad-based coalition of reform clubs and black elected officials in
the face of a strong effort by Mr. Lopez to mobilize support for
Justice Simpson.
Mr. Walthour disputed that characterization, saying that while Mr.
Lopez had backed Ms. Simpson, he had told the county's district
leaders that they were free to chose either candidate.
One political insider said that Justice Johnson had lined up most
black officials for her campaign but that their support was not
likely to mean much this year since the Surrogate's race is the only
countywide race on the Sept. 18 primary ballot.
More important, the insider said, is Mr. Walthour's ability to
finance Ms. Simpson's campaign, an area where Justice Johnson has
been weak.
Justice Johnson, 53, who was elected to Supreme Court in 2000,
narrowly lost a Democratic primary for surrogate to then-Civil Court
Judge Margarita Lopez Torres in 2005, who went on to win election as
surrogate.
Judge Simpson, 41, who was elected in a countywide race in 2003, has
been assigned to the Criminal Court in Manhattan. Before her
election, she worked for 12 years in the Brooklyn District
Attorney's Office, where she rose to become the chief of a trial
bureau.
The two judges are vying for a seat that became vacant when
Surrogate Frank A. Seddio, a former state assemblyman, resigned in
May to take a position with a Long Island mortgage lender. Only 18
months earlier, Mr. Seddio had resigned his Assembly seat to run for
a newly created second seat on the Surrogate's Court in Brooklyn.
NY Judges
Denied Raise Claim Pols Should Forfeit Salaries
By Daniel Wise
New York Lawyer
New York Law Journal
August 15, 2007
Three judges suing to force a pay raise argue in a brief that the
position taken by the state Attorney General's Office requires that
legislators return any salaries they have been paid since April 1,
2006.
The three judges bringing
Maron v. Silver, 4108/07 (Albany County), had contended in
their initial filing that a $69.5 million appropriation contained in
the state budget for the 2006-07 fiscal year to pay for raises was
self-executing. But in papers filed for the three defendants -
Governor Eliot Spitzer, the Legislature, the Office of Court
Administration - the Attorney General's Office argued that the
appropriation was nullity because lawmakers had taken no action to
increase the judges' pay levels contained in Article 7-B of the
Judiciary Law.
The three judges in their
reply brief, which is due today, contend that Legislative Law §5
requires that legislators forfeit their salaries until they have
"finally acted upon" all appropriation bills submitted by the
governor as well as legislation necessary for the "effective
implementation" of them.
A copy of the planned
filing was provided to the Law Journal.
John Milgrim, a spokesman
for the attorney general, said the office's only comment would be
made in the course of the court proceeding.
Wait and
Seethe: NY Judges Won't Sue Over Pay . . . for Now
By Joel Stashenko
New York Lawyer
New York Law Journal
July 25, 2007
Four statewide judicial
associations will put off until at least next week the filing of a
suit seeking to have Governor Eliot Spitzer and the state
Legislature raise the pay of state court judges, representatives of
the groups decided yesterday in a conference call.
Issues outstanding about
the suit include where it will be filed and who will be designated
as plaintiffs, said New York City Family Court Judge Barbara
Salinitro.
The group she heads, the
New York City Family Court Judges Association, will join the state
Family Court Judges Association, the city Criminal Court Judges
Association and the Board of Judges of the Civil Court of the City
of New York in sponsoring the suit.
The groups had expected to
file the action at the end of this week. In addition to the
outstanding issues concerning the suit, the judicial organizations
also want to see if there is any movement on a judicial pay bill in
Albany when the state Legislature returns for a one-day session
tomorrow, Judge Salinitro said.
Several legislators said
yesterday that approval of a commission to study a congestion
pricing system for Manhattan was the only major item they expected
to deal with tomorrow.
A bill approved by the
Senate, but not yet the state Assembly, would give state court
judges an average salary increase of 24 percent and create a
commission to set future hikes for judges, state legislators and top
state officials.
Neither judges nor
legislators have had pay increases since 1999.
NYS and NY Judges
Show Their Cards in Suit Demanding Pay Hike
By Daniel Wise
New York law Journal
New York Lawyer
July 16, 2007
Issue was joined last week on the first - and so far only -
lawsuit brought to compel an increase in judicial salaries.
The three plaintiffs, two Long Island judges and one from Brooklyn,
filed their moving papers in the Article 78 proceeding in May; last
Thursday the state Attorney General's Office filed its brief for the
governor, the Legislature and the Office of Court Administration.
The two sides are battling over two principal claims:
•That the appropriation of $69.5 million for a raise in the state's
fiscal year that ended on March 31 is self-executing, requiring that
a raise go into effect immediately.
•That the clause in the state Constitution prohibiting a diminution
in judicial salaries, Article VI §25(a), mandates a pay hike because
the value of judicial salaries has been so eroded by inflation since
they were last increased in 1999.
The three plaintiffs are Supreme Court Justice Joseph A. DeMaro and
District Court Judge Edward A. Maron, both of Long Island, and
Supreme Court Justice Arthur Schack of Brooklyn. Their suit has been
backed by the Association of Justices of the Supreme Court of the
State of New York and the City Court Judges Association, which filed
a joint amicus brief, and the County Judges Association of New York
State, which filed a separate brief.
The plaintiffs will file a reply brief later in the summer and the
case of Maron v. Silver, 4108/07, will be argued before
Acting Justice Thomas J. McNamara of Albany on Sept. 7.
The two sides are at odds over whether the Legislature's
appropriation of $69.5 million for judicial raises in 2006 was
self-executing.
The disagreement hinges on the interpretation of language in a 2006
bill stating the appropriation of the $69.5 million was to be made
"pursuant to a chapter of the laws of 2006."
The three judges argue that the "pursuant to" language was merely
referring to the language in the appropriation's bill itself,
Chapter 51, §2 of the laws of 2006, which identified judicial raises
as the purpose for which the funds were required to be spent.
"No other reading [of the appropriation's bill] could possibly make
sense," the judges argued in their brief, which was prepared by
Steven Cohn with assistance from Richard Lieb and Daniel Zimmerman,
all based in Carle Place, Long Island.
It would have been "ludicrous," the judges' brief suggested, for the
Legislature to have appropriated money for a statute that had yet to
be passed.
Read the judges' brief.
Since at the time the appropriation bill was initially drafted it
was not known in what chapter the funds would be adopted, the judges
contended, the "pursuant to" clause was necessary to fill in the
blank - and the Legislature "referred back to the appropriation
statute itself."
The state defendants argued that the judges had an "odd"
interpretation of "entirely formulaic" language in the budget bill
specifying the purpose for which the appropriated funds were to be
spent.
Instead, the brief filed by Assistant Attorney General James B.
McGowan, contended that the "pursuant to" provision required an
amendment to Article 7-B of the Judiciary Law, which sets forth pay
levels for the state's judges.
In each of the five times since Article 7-B was enacted in 1979, the
brief stated, that statute was amended as a part of the pay-raise
legislation.
Read the state's brief.
Moreover, the defendants' brief cited legislative history, which,
they contended, made it clear that the appropriation would not be
effective without a separate, subsequent legislative enactment.
For instance, the brief quoted Senate Finance Committee Chairman
Owen H. Johnson as stating during a floor debate that the $69.5
million appropriation is "subject to a chapter law we have yet to
enact."
Constitutional Argument
The two sides also differed over the reach of Constitution Article
VI §25(a), which instructs that judges' compensation "shall not be
diminished during the term of office."
The judges argued that, "under the special circumstances of this
case," the no-diminution provision must be read as protecting
against the "ravages of inflation."
Those "special circumstances," the brief argued, include salaries
that have become so severely eroded that they have compromised the
independence of the judiciary.
Another special circumstance, the judges noted, has been created by
the Legislature and governor's conditioning of pay raises on
extraneous issues, such as a pay hike for legislators and the
enactment of campaign finance reform legislation.
The defendants' brief calls the plaintiffs' argument "mistaken,"
asserting that because the no-diminution clause only "prohibits the
diminution of judicial salaries by the government," inflation is
"not a pay cut for judges" prohibited within the meaning of the
no-diminution clause.
Issue of First Impression
The three judges recognized that the question of whether the
no-diminution clause covers inflation is "an issue of first
impression for the New York courts." Nor, they noted, has the U.S.
Supreme Court ruled on the question in interpreting a similar
provision of the federal Constitution.
They advance two precedents, one state and one federal.
The state precedent came in the ruling earlier this year from the
Appellate Division, Third Department, setting aside in
Kelch v. Town Board of the Town of Davenport, 36 AD3d 1110,
a town board's reduction of the salary of its newly elected town
justice to just $500, an amount $7,000 lower than the salary of the
town's other elected justice.
The judges quoted Kelch to support the argument that a severe
enough reduction in pay can impair the independence of the
judiciary. In overturning the pay cut, the Third Department
asserted, "a real threat strikes at the heart of judicial
independence if the judiciary must cater to the ideological whims of
the legislature or personally suffer the financial consequences for
rendering legally correct but unpopular decisions."
The federal precedent the judges rely on is the U.S. Court of
Claims' 1978 ruling in Atkins v. U.S., 556 F2d 1028.
In Atkins, the Court of Claims wrote that its decision
"implicitly rejected the view that real economic value plays no part
in measuring what [the federal no-diminution] Clause protects."
The Atkins court ultimately rejected a challenge that the
failure to raise federal judges pay for more than six years violated
the federal no-diminution clause. But the reason, the judges
contended, was that the Court of Claims found that inflation eroded
not just the salaries of federal judges but those of all judicial
employees.
In New York, the judges argue, the judiciary needs special
protection to prevent it from being "targeted" by inflation because
judges, unlike other employees of the court system, have no
collective bargaining rights to win pay raises to offset inflation.
Nonetheless, the three judges contended, the Court of Claims
recognized that, if "special circumstances" were presented, the
no-diminution clause could be invoked to protect judges from
inflation-created pay reductions.
The situation in New York has deteriorated to the point where that
requirement for "special circumstances" has been met, the judges
argued. Not only have salaries been so badly eroded that judicial
independence has been threatened, but the other branches of
government have made judicial pay raises contingent upon wholly
unrelated issues.
The state defendants' countered in their brief that the plaintiffs
have only presented "conclusory allegations concerning generalized
inflation" that are "simply insufficient to trigger the protections
of the [state's no-diminution] clause."
With regard to the Kelch case, the defendants argued that the
"unusual and rare circumstances" of that case have no bearing on the
judges' claims.
In Kelch, the state contended, the Third Department
overturned a town board action making the salary level of a newly
elected town justice lower than that of his predecessor. The
defendants, the brief asserted, "have done nothing to reduce [the
three judges'] salaries and they remain at the highest levels they
have ever been."
Spitz and
Bruno in 'Waldo' War
By Fredric U. Dicker and
Kenneth Lovett
New York Post
June 27, 2007
ALBANY - Gov. Spitzer and
Senate Majority Leader Joe Bruno engaged in a furious new war of
words yesterday after the governor launched a "Where's Waldo"
assault - accusing Bruno of disappearing from his job at the Capitol
after killing campaign-finance reform.
An angry Bruno
(R-Rensselaer) responded with his toughest attack yet on the
self-described "steamroller" governor, calling him an "almost
dangerous" liar with "not normal thinking," a "big, overgrown rich
kid," and an "elitist" who "handles himself like someone in a Third
World country, intimidating, threatening and distorting the facts."
"It's too bad there's no
school for governors, because he ought to go to school," Bruno
continued.
In an appearance on NY1
last night, Bruno called Spitzer a "Third World dictator."
Democrat Spitzer, who
clashed bitterly with Bruno late last week after the Legislature's
regular session came to an end without agreement on several major
issues, including Mayor Bloomberg's congestion pricing plan, fired
the first round during a meeting of the state Broadcasters
Association at the Sagamore Resort on Lake George.
"We're going to play
'Where's Waldo' and ask, 'Where's your senator?' " Spitzer declared
as he flayed Bruno - and displayed his picture on a large screen -
in a speech to the media executives.
He accused Bruno and the
Senate's Republican majority of leaving the Capitol last week with
major work undone, although he said they still found enough time to
make it "a priority to raise their own pay."
"What should New Yorkers
do?" Spitzer continued. "Tell your senator to come back and finish
the people's business," he said.
Bruno responded with a
mocking, "Where's Eliot? Still on the campaign trail."
He said he would not bring
the Senate back to the Capitol "just to hang around while he has a
tantrum."
Spitzer
Says 'Judges Should Know Better' Than to Sue for Raise
By Joel Stashenko
New York Lawyer
New York Law Journal
June 25, 2007
The judiciary would be
bringing a "frivolous lawsuit" if it takes political leaders to
court to demand a raise for the state's 1,200 judges, Governor Eliot
Spitzer said Friday as legislators again prepared to leave Albany
without voting judges a raise.
"The judges should know
better," Mr. Spitzer said at a Capitol news conference. "I
sympathize with their frustration. I have been, I think, among the
strongest proponents of giving the judges the pay raise they
deserve. I will continue to push for it. Having said all that, I
don't think litigation will be successful."
Lawyers at several firms
already have begun preparing such a lawsuit, but Chief Judge Judith
S. Kaye has said litigation would be the last resort and it would be
"a dark day" if the judiciary were forced to sue for their first
raise since January 1999.
Mr. Spitzer said a suit
"would diminish the level of discourse" on the pay issue.
Like Mr. Spitzer,
legislative leaders have expressed support for a raise. However, the
governor has linked pay increases to his proposals for campaign
finance reform, and Senate Majority Leader Joseph Bruno has resisted
those ideas, fearing that they might endanger the Senate
Republicans' control.
Before Mr. Spitzer's press
conference, Chief Judge Kaye said in a statement that "words cannot
sufficiently capture the disappointment and frustration" of her
colleagues. However, she did not discuss the judiciary's next step.
"I want to be certain that
no approach is overlooked, and that none is adopted precipitously,"
she said.
Gary Spencer, a court
system spokesman, said the chief judge would not elaborate. Reached
again later, he said the chief judge would have no comment on Mr.
Spitzer's remarks.
Meanwhile, the Office of
Court Administration has yet to receive advisory opinions from
Attorney General Andrew Cuomo or Comptroller Thomas DiNapoli about
the legality of the judiciary raising judges' pay unilaterally
without the involvement of the governor or Legislature, according to
Chief Administrative Judge Ann T. Pfau.
Eliot
Gives Judges $Lap
Associated Press
New York Post
June 23, 2007
ALBANY - Gov. Spitzer
advised New York's judges not to take their battle for higher
salaries into court, calling any such lawsuit "frivolous" and one
they would not win.
Chief Judge Judith Kaye has
threatened legal action.
"I think it would diminish the level
of discourse on that issue," Spitzer told a state Capitol news
conference yesterday.
The governor's advice came after he
and legislative leaders failed this week to either agree on a raise
for judges, lawmakers and statewide elected officials, or to divide
up the issue and just boost the pay of judges.
Judicial
Pay Raise Remains in Albany Limbo
Joel
Stashenko
New York Law Journal
June 22, 2007
The state Legislature will
conclude its regular session without approval of a bill providing
state court judges with long-awaited pay raises, Assembly Speaker
Sheldon Silver said last night.
The Senate passed the pay bill on April 30, but it has been held up
in a dispute over Governor Eliot Spitzer's insistence that the
Legislature approve a campaign finance reform bill. Mr. Silver said
agreements over the campaign finance measure and other issues
continued to elude the Legislature and the governor.
"Unfortunately, a lot of the major issues will remain on the table
for quite a while," Mr. Silver, D-Manhattan, said.
In addition to providing immediate salary increases for judges and
legislators, the pay bill would also create a commission that would
recommend future pay increases for judges, top state officials and
the state's 212 legislators.
Neither judges nor legislators have had a salary increase since
1999.
Some progress appeared to have been made in negotiations over
campaign finance reforms earlier yesterday. Senate Republicans
familiar with negotiations said Mr. Spitzer, a Democrat, had
indicated willingness to compromise over restrictions on
contributions by limited liability corporations. Mr. Spitzer had
called for a ban on such contributions, arguing that individuals are
using LLCs to circumvent individual campaign contribution limits.
Mr. Spitzer said yesterday, "We're trying to get resolution to
repair a system that I think is fundamentally broken . . . We're
trying to be flexible enough to get meaningful and genuine reform,
but also get something done."
Mr. Spitzer and the Senate Republican majority leader, Joseph Bruno,
R-Brunswick, have clashed over the governor's campaign finance
reform proposal.
Mr. Bruno said yesterday that adoption of Mr. Spitzer's proposal
limits would doom the Republicans' 33-29 majority over Democrats in
the Senate.
"We are not going to slit our wrists and slowly bleed to death," he
said.
Mr. Bruno said the Senate would return to Albany on July 16, and on
"several" other occasions to deal with issues the body did not
address in the regular session.
Mr. Silver said he did not know when the Assembly would be back.
Chief Administrative Judge Ann T. Pfau (See
Profile) lobbied yesterday at the Capitol for the judicial
pay raise and said Chief Judge Judith S. Kaye was also available to
answer legislators' questions or concerns about the raises.
"We've been in touch with all sides on a continual basis," Judge
Pfau said. "The chief judge and I will stay here until the end and
we are not giving up."
Bruno: No
New Bill to Boost NY Judges' Pay
By Joel Stashenko
New York Lawyer
New York Law Journal
June 20, 2007
State judges' pay has
traditionally increased at the same time state legislators get
raises, and the state Senate will not break the linkage this year,
Senate Majority Leader Joseph Bruno said yesterday.
Mr. Bruno was reacting to
Governor Eliot Spitzer's comment Monday that while a commission
proposed by Chief Judge Judith S. Kaye to set future salary
increases for judges, legislators and top state officials is a
"principled and wise idea," the governor was not averse to a pay
hike bill strictly covering state court judges.
"It would permit that issue
to be separate from legislative pay raises, so it is not held
hostage by irrelevant issues," Mr. Spitzer said.
Chief Judge Kaye has been
adamant about judicial pay being increased at the same time a
commission is created to remove future judicial salary adjustments
from the control of the Legislature and governor.
Due largely to bickering
over raising legislators' pay, both judges and lawmakers have gone
more than eight years without raises.
Mr. Bruno said yesterday
that as far back as "anybody remembers," salary increases for
judges, legislators and top administration officials have been
enacted at the same time.
"What's magic about judges
getting pay raises and not a commissioner or not a legislator?" Mr.
Bruno asked.
He also said the Senate,
which approved the bill containing the judicial pay increase and the
commission on April 30, is done considering legislation having to do
with either judicial or legislative pay during the session that
concludes tomorrow.
"That's the only bill we're
going to pass," he said.
Mr. Spitzer has promised to
veto any bill providing for a legislative pay increase unless the
Legislature adopts tough campaign finance reforms.
NY Judges
Preparing Lawsuit Over Pay
By Daniel Wise
New York Lawyer
New York Law Journal
June 13, 2007
Chief Judge Judith S. Kaye
told a group of high-level business leaders yesterday that the court
system "is preparing for full-scale litigation" against the state in
the event that the Legislature fails to enact a pay raise for
judges.
"That would be a dark day in state history," she added, as the pay
raise remained stalled in Albany, a little more than a week before
the Legislature is scheduled to adjourn.
Chief Judge Kaye was speaking to about 57 business leaders attending
a breakfast meeting yesterday at the New York City Bar Association.
"In these critical days in Albany, we need your support," she said.
The group also heard a plea from Kathryn Wylde, the president of the
Partnership for New York City, a group of up to 400 executives, to
urge political leaders in Albany to enact a pay raise before the
scheduled end of the legislative session on June 21.
Even though the conversation about a judicial pay raise is not "on
the merits," there is "nothing harder to accomplish" because the
governor and the two legislative leaders are coming at the issue
from different positions, Ms. Wylde said. Unless one of the leaders
makes resolving the impasse "a top priority for this term, it is not
going to happen."
Michael Fricklas, the general counsel of Viacom, David Westin,
president of ABC News, and Tim Zagat, co-chairman of Zagat Survey
also addressed the group.
Among the other business leaders in attendance were Larry
Silverstein, president of Silverstein Properties; Richard Anderson,
president of the New York Building Congress; Michael Chae, senior
managing director of the Blackstone Group; William Rudin, president
of Rudin Management; Christine Cumming, first vice president of the
Federal Reserve Bank of New York; and Robert Palatnick, managing
director of the Depository Trust & Clearing Corp.
New York's judges have gone more than eight years without raises,
and, when cost of living is factored in, their pay ranks 48th in the
nation.
Judge Kaye made an impassioned plea for a raise that would make
state judges' salaries comparable to those paid federal judges.
New York must have a pay raise, Judge Kaye said, to insure that the
state has "an absolutely first rate court system . . . We need it
anddeserve it for the protection and promotion of business interests
in this financial and commercial capital of the world."
A raise for judges has been caught between state legislator's
demands for a raise for themselves and Governor Eliot Spitzer's
refusal to accede to a legislative pay raise without campaign
finance reform. "We have to break that ugly deadlock, that ugly
squeeze," Judge Kaye said.
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