Judicial Raises Unlikely as Attention to Ethics Grows (MORE, CLICK HERE)

Chances for Pay Raise for NY Judges "Very Difficult," Incoming Governor Says
The New York Law Journal by Joel Stashenko - March 14, 2008

ALBANY - Citing grim economic news in New York and the rest of the nation, soon-to-be-governor David A. Paterson said yesterday it would be "very difficult" to adopt a pay raise for state court judges this year.

At his first news conference since Eliot Spitzer resigned in disgrace over his alleged involvement in a prostitution ring, Mr. Paterson said his biggest challenge is to negotiate a budget with the state Legislature amid a stock market slump, a subprime mortgage crisis and other economic drags. "I think that, given what's happening in the economy it's going to be very difficult to move on any type of enhancements at this particular time," Mr. Paterson said yesterday.

He noted that legislative salaries are "obviously" connected with the judges. And he acknowledged that many judges "have weighed in on the need to find a way to raise their salaries because we are trying to get the best and the brightest to stay on the bench, knowing that their salaries sometimes are not even up to first-year associates at major law firms."

Mr. Paterson said he eventually would like to break the linkage between legislative and judicial pay hikes, a separation he acknowledged "has not worked to this point." The deadline for adopting a state budget for the 2008-09 fiscal year is March 31. Many judges and court officials had been optimistic that the spending plan would include the first raise for the state's 1,300 judges since January 1999.

But the nation's economic ills have prompted budget officials to slash their estimates for state revenues. Mr. Paterson and the Legislature will have to close a budget gap projected at more than $4 billion when they adopt a new budget of about $124 billion. The largest of several judicial pay raise proposals before the Legislature, giving judges raises retroactive to April 1, 2005, would cost $143 million. That plan was advanced by Chief Judge Judith S. Kaye.

Two lawsuits filed by various judges and supported by some judicial organizations have been filed to force the Legislature and the governor to grant a raise. In addition, Chief Judge Kaye has retained former White House Counsel Bernard W. Nussbaum to prepare a suit she has threatened for nearly a year if the other branches of government do not act. The logjam in Albany "may well result in litigation," Mr. Nussbaum, a partner at Wachtell Lipton Rosen & Katz, said yesterday during remarks at a Manhattan luncheon where he was honored by New York Lawyers for the Public Interest.

Mr. Nussbaum decried the "terrible and growing disparity" between judges' pay and lawyers in private practice, which he said has undermined the state's system of justice. He said that tying judicial salaries to the pay of executive branch officials and legislators was "sheer folly and may well be unconstitutional."

Show of Solidarity

Mr. Paterson automatically will become governor at noon on Monday. He will be sworn in at 1 p.m. by Chief Judge Kaye in the Assembly chamber. Legislators and members of the Court of Appeals have been invited to attend.

Mr. Paterson said he wanted representatives of all three branches of state government to attend in a symbolic show of solidarity following the wrenching events of this week, culminating with Mr. Spitzer's resignation, which he announced Wednesday. "Bringing the whole government together . . . that is the only way we're going to have progress," Mr. Paterson said.

The question of whether Mr. Spitzer should face criminal prosecution for his links to a high-priced call-girl ring is up to law enforcement officials, Mr. Paterson said.

"In my heart, I think he's suffered enough," Mr. Paterson said. "There are probably people who don't know him that well, who just look at government and feel very disappointed, very dispirited and confused and probably think that whatever punishment he might get wouldn't be enough. This is why we have dispassionate law enforcement that looks into these situations and decides what the charges will be."

Looking on at a packed news conference at the Capitol yesterday were dozens of Mr. Spitzer's top administrators. They and Mr. Paterson's aides applauded when Mr. Paterson appeared. "If most of you weren't being paid, I'd be very flattered," Mr. Paterson quipped.

In other developments yesterday:

• Without elaborating, Mr. Paterson said he has "a serious concern" with the rising numbers of violent A-1 felony offenders being released by state parole boards. Between 20 percent and 25 percent of the A-1 offenders coming before boards over the past several months are winning release compared with the 3 percent to 5 percent who were granted release for most of the final two terms of former Governor George E. Pataki, a Republican.

• Charles O'Byrne, Mr. Paterson's chief of staff as lieutenant governor, will be his secretary starting Monday. Secretary to the governor is the top staff position in the executive chamber. Mr. Spitzer's chief of staff, Rich Baum, is expected to depart following a short transition period.

• Sean Patrick Maloney, Mr. Spitzer's deputy secretary, apparently has been asked to stay on.

• Lloyd Constantine, special adviser, mentor and friend to Mr. Spitzer, has resigned, according to Mr. Spitzer's aides. Mr. Constantine was among the circle of aides and attorneys who advised Mr. Spitzer in the days leading up to his resignation.

• Luther Smith, Mr. Paterson's campaign manager in 2006 and a former aide to then-Manhattan Borough President Virginia Fields, has emerged as the favorite to be Mr. Paterson's chief counsel as governor.

Unresolved Issues

Left unresolved yesterday was how quickly the new governor will move to fill pending top-level judicial appointments. Currently, there are four Appellate Division vacancies: three in the First Department and one in the Third. There are also five vacancies on the Court of Claims and four interim positions on the Supreme Court to be filled until new justices are elected to 14-year terms starting next year.

Screening committees had forwarded Mr. Spitzer lists of names of candidates they found "highly qualified" for the openings. According to court officials, Mr. Paterson could begin the screening process anew for the judicial openings or, more expeditiously, conduct his own review of the candidates whose names were before Mr. Spitzer.

Mr. Spitzer's departure also put into question his administration's negotiations with the Interest on Lawyer Account Fund board over the possibility that director Lorna K. Blake would resign and the governor's proposal to hire the fund's executive director be withdrawn. The fund distributes the interest earned on client escrow funds held by lawyers to groups that provide civil legal services to the poor.