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.

"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

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

There is a constitutional right to an ‘adequate’ salary? Wow, what other rights can I create today? How about a right to an ‘exceptional’ salary?

Comment by tj - June 12, 2008 at 9:49 am
 

If Judges want Biglaw money they can go back to Biglaw with the pressure, stress, and long hours. You can’t have your cake and eat it as well.

Comment by ed - June 12, 2008 at 10:01 am
 

I have a right to an office with a window. I’d also like people to stand when I walk into a room.

Comment by Jeff - June 12, 2008 at 10:10 am
 

As much as I hate giving the government more money, poor or underpaid judges (and cops) are a recipe for corruption. Just look at the rest of the world.
Perhaps the answer is fewer but better paid judges? To the lawyers out there: are there enough judges, too few or too many?

Comment by No More Milkage - June 12, 2008 at 10:12 am
 

tj, I think they mean a state constitutional right. And they may be correct. Haven’t read the NY constitution, myself.

Comment by Anonymouse - June 12, 2008 at 10:35 am
 

Article 6, Section 29 provides that the legislature must provide for the “annual financial needs” of the courts. Article 6, Section 25, which pertains to compensation, provides that judge’s salaries may not be diminished. The could argue that failing to make COLA adjustments = diminution of the salary, but I think that is weaker. The better argument would be that the legislature has failed to annually evaluate the needs of the courts.

Comment by Anonymouse - June 12, 2008 at 10:44 am
 

Washington Legal Foundation had the Honorable Robert Julian publish on this very topic and the need to de-link judicial pay back in January. See: http://www.wlf.org/upload/1-25-08julian.pdf

Comment by JSilvia - June 12, 2008 at 10:45 am
 

Would someone please explain why the judges haven’t received a raise in ten years.

Comment by Tom Collins - June 12, 2008 at 11:15 am
 

Is this as insane as it seems? Judges sue to get raises — $600,000 each in fact — and they GET it?! What the h&*l is going on?! Oh, and Tom Collins, even if judges haven’t had raises in a long time, they still get paid a whole lot of money already — even in today’s dollars. You see Tom, a dollar to a judge is worth a whole lot less than it is worth to a person who is unemployed and needs to eat but has not even one dollar. You see, Tom, unless you are in touch with the masses or not an elitist, or both, you get that. Judges deserve public servant pay. They don’t like it, they can go private.

Comment by HANG THE GREEDY JUDGES! - June 12, 2008 at 12:28 pm
 

So if the Legislature says “No”, what is the Judiciary going to do about it - just repeatedly rule against the Legislature? It’ll be fun to see what the NY Supreme Court does with it.

Comment by IANAL - June 12, 2008 at 12:37 pm
 

Dear “Hang the Greedy Judges,” Have you considered the fact that judges in the rural parts of New York State are “wearing three hats,” meaning they cover cases in all three courts (criminal, family and surrogate’s court)? These judges get paid the same amount as judges in the city do and they only cover one court. Do you realize how much law a judge has to be aware of in order to preside over all of these courts? And why would we not want the best and the brightest lawyers to be our judges? These are men and women who make decisions everyday that affect our daily lives. We should be doing all that we can to ensure that the most competent people are sitting on the benches through out the state. And look at the current state of the economy! Giving the judges a much deserved cost of living increase is the LEAST we can do to ensure that we have capable judges to hear cases.

Comment by Concerned Citizen - June 12, 2008 at 1:24 pm
 

It is simply ILLEGAL for the State Legislature to hold the Judicial branch hostage by withholding judges’ pay raises until the legislature can use them to hid the fact that they are giving THEMSELVES pay raises. Frankly this is a decision that was long over due.

Comment by Anonymous - June 12, 2008 at 1:27 pm
 

One basic problem with NY Judge salaries is that they are essentially uniform throughout the state, despite the extraordinary discrepancy in cost-of-living between NYC and immediately surrounding suburbs and elsewhere. The fact is, a judge in Upstate NY is living an upper upper middle class lifestyle (bordering on wealthy) with a salary of 136, particularly given the other benefits of judgeship (healthcare, pensions, etc.)

However, for NYC judges only, while I do not think comparing “big firm” salary structure to a judge’s is an appropriate comparison, both because big firms do not represent the majority of lawyers, and also because most judges would never be big firm lawyers (due to lack of educational pedigree as well as lack of desire to put work above all else), I do understand the concept that a judge in NYC should be able to make a truly middle-class (to upper middle class) wage.

Comment by NY lawyer - June 12, 2008 at 1:48 pm
 

the Judges should receive a fair COLA increase, nothing more. Did the legislature vote to lower salaries 10 years ago when $137k went a lot further? As for the BigLaw argument…Judges work 1/2 the hours in an engaging field with job protection. BigLaw represents only a small % of overall lawyers and most frsh out of law school grads would accept jobs at 1/2 of what the judges make and gov’t benefits are better than anything a small firm is handing out. Financially well-ff solos and small firms put their necks on the line and can go belly-up just like any other business. There is a reason why gov’t is attractive. Judges can also earn more by teaching, speaking events etc.

Comment by Sam - June 12, 2008 at 2:18 pm
 

Lehner’s rendering a decision in a case in which he has a significant personal financial interest violates Canons 1, 2, and 3 of the Code of Judicial Conduct. See 22 NYCRR Part 100. I hope that some legislator files a complaint with the Chief Administrator of the Courts. Then we can have dueling cases of parallel stupidity.

Comment by Impeachment Time! - June 12, 2008 at 3:22 pm
 

Judges work every hard and deserve to have a decent living wage like anyone else. What world you people live in when you believe that a first year lawyer should earn more than an experienced Judge. Would you want a mediocre judge from who just fluke passed the bar to be hearing your case, or someone who is intelligent with a brain? You get what you pay for. If you don’t want to pay a fair wage, you will only attract losers who are political hacks to the bench. Think about that!

Comment by Helen - June 12, 2008 at 4:30 pm
 

“As for the BigLaw argument…Judges work 1/2 the hours in an engaging field with job protection”Half? That’s a bit of hyperbole there.

Comment by Anonymous - June 12, 2008 at 5:14 pm
 

“Concerned Citizen,” “Hang the Greedy Judges” here again. I appreciate your observation. I am aware that some judges must be running up large gas bills, juggling counties. In upstate NY, I imagine places where this may be common. But I bet lots of good qualified folks living there would bite their arm off to get the salary one of those judges gets now. And there just isn’t a real link to some arbitrary raise over that already overly healthy public servant salary and increased quality in the judiciary. (Alex Kozinski makes a fine example du jour.) I disagree.

Comment by thanks CC, but I still disagree - June 12, 2008 at 5:21 pm
 

George Bundy Smith should run for the legislature and pursuade his colleagues to increase judges’ salaries. Meanwhile, Judge Lehner’s salary should be cut until he learns what separation of powers means.

Comment by Gimmie Gimmie - June 12, 2008 at 11:13 pm
 

Judges in New York are not chosen because of talent, but by pleasing the political party. In the city it is the Democrats upstate it is the Republicans. On the bench it is payback time in fees taken from the victims of the system, who cannot prevail on the facts and the law, but whatever the judges and lawyers want it to be. For playing the benevolent benefactor, the judges should be paying rent to state for their offices.

Comment by What Judicial Talent??? - June 13, 2008 at 12:54 am

 

Arguments advanced by judges: (1) they don't make what big law associates make and they should make considerably more. (2) If they don't get raises they were will be high level of attrition (3) They are only asking for an increase to offset the cost of living increases over the last 10 years.

These claims are all bogus. And to sue for it, in the middle of a recession is even more ridiculous. I will address their arguments (albeit really briefly) one by one.

(1) The average lawyer makes $50,000 coming out of law school if they have job. Most state judges unlike federal judges are not plucked from big law but from state positions like prosecutors or legal aid. The average big law lawyer puts in 60 hour weeks, I don't judges work more than 40. So the comparison between what big law lawyers make and what state judges make is not particularly apt.

(2) State judges can resign if they want to work as a partner at a law firm and make more money. If the salary was such a hardship and their exit opportunities were so great, many would do so. So this argument that somehow not raising will lead to a high rate of attrition is ridiculous. Even at the federal level, where fed. judges are the cream of the crop, few judges retire to return to big law. Even though in many cases, most of the fed judges were big law partners. They recognize the benefits of public service and the better quality of work and life that they have as a result of working in public service.

(3) If cost-of-living adjustment is such a big issue than why do judges in Elmira get paid as much as those who work in Manhattan? I would have more respect for cost-of-living arguments if the judges in upstate New York, who are already very well compensated, would not be receiving the same raise. Moreover, their last raise was a huge one and probably took into consideration that they would not be getting another for awhile.

Above the Law Blog for more see:

http://www.abovethelaw.com/2008/06/judicial_pay_raise_watch_new_y.php

Posted by guest | Permalink Thursday, June 12, 2008 1:33 PM

I concur with 10:31. It is not elitist crap to point out that the judges on the court could not make big law salaries. The judges argue that somehow that they are underpaid because they don't make what a small percentage of lawyers make. Most bloggers understand that most public interest lawyers and small firm lawyers make far less than what judges are complaining about. How many Albany-based lawyers do you know that start at $160,000?

Even among the Court of Appeals in NY, http://www.nycourts.gov/ctapps/judges.htm, the judges there are coming from mostly small firm and public interest law backgrounds and their pay now far exceeds what they were paid prior to their appointment on the court.

Posted by guest | Permalink Friday, June 13, 2008 12:18 PM

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

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.

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.

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.

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.

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

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

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 …