Memo to Judges: Welcome to the NYS court system

Early Trial Bid Denied In Kaye's Pay Action
The New York Law Journal by Daniel Wise - May 27, 2008

A Manhattan Supreme Court justice on Friday upended a litigation strategy designed by lawyers for the court system to push state lawmakers into passing legislation to raise judicial salaries. Justice Edward H. Lehner (See Profile) rejected a request for an expedited trial, starting June 2, at which Bernard W. Nussbaum, the lead counsel in Chief Judge Judith S. Kaye's lawsuit to force a pay raise, had insisted he would call the leaders of the executive and legislative branches to testify about how they had linked judicial raises to other issues, principally a pay raise for the legislators themselves.

After a scheduling conference, Justice Lehner told the Law Journal that he had denied the request for an expedited trial after Mr. Nussbaum had "strenuously" argued for a June 2 trial date because that would prod the passage of a pay raise bill before the Legislature goes into recess on June 23. Mr. Nussbaum stated Friday, "We are disappointed the judge did not order a trial in early June, before the Legislature adjourns, for we believe that would have brought the matter to a prompt conclusion." Mr. Nussbaum, a partner at Wachtell, Lipton, Rosen & Katz, added, "We are pleased he agreed to hear dispositive motions in July and we are hopeful about the outcome." The Law Journal was barred from a 45-minute session in Justice Lehner's chambers at which the judge and lawyers for the three branches of government charted the course of the lawsuit, Kaye v. Silver, 40076/08. Justice Lehner said he had decided to close the meeting because he agreed with all the attorneys that the presence of a reporter would lead to "public posturing." The Law Journal was the only publication requesting admission.

Governor David A. Paterson and Assembly Speaker Sheldon Silver, D-Manhattan, are represented by Richard H. Dolan of Schlam Stone & Dolan. Senate Majority Leader Joseph Bruno, R-Brunswick, is represented by David I. Lewis of Lewis & Fiore, who also works part time on the majority leader's legal staff. Justice Lehner, who said that all sides had authorized him to report on what had transpired at the session, approved a schedule that will allow Chief Judge Kaye to file a motion for summary judgment on July 9. The legislative and executive branches will have until June 10 to file a motion to dismiss the case. The judiciary will have until July 9 to oppose the motion to dismiss and to file its own cross-motion for summary judgment. Reply papers from the executive and legislative branches must be filed by July 15, and oral argument will be held before Justice Lehner on July 17.

Justice Lehner still can authorize testimony from Mr. Paterson and the two legislative leaders, but he said Friday that it would be premature to address that issue now. Even if the Legislature takes no action on a pay raise bill before its planned June 23 recess, it could still reconvene before the end of the year and consider a pay-raise bill. Justice Lehner also advised the lawyers who attended Friday's conference that he will rule before June 24 on a motion for summary judgment pending before him in a second judicial pay-raise case assigned to him. The four judges, with the backing of their judicial associations, in that lawsuit, Larabee v. Paterson, 400763/08, have moved for summary judgment on the one claim that survived a motion to dismiss in February (NYLJ, Feb. 6). In January, Justice Lehner had ruled the Larabee plaintiffs can move forward with their claim that the failure to raise judge's salaries since 1999 violated the separation of powers doctrine. Justice Lehner will hear argument on the four judges' motion in Larabee on Thursday.

'Appropriate' Procedure

In rejecting Mr. Nussbaum's request for a June 2 trial date, Justice Lehner said he felt the request was "not appropriate" because "the appropriate manner in which to proceed is to file a motion." The filing of a motion to dismiss, he noted, stays the defendants' time to answer. Mr. Nussbaum, a former White House counsel in the Clinton administration, made his request for an expedited trial in a letter dated April 10, the day Chief Judge Kaye filed her suit. In the letter, he argued that "the defendants themselves - the leaders of the Legislature and the Executive - must be made to explain in open court their repeated failures, their outright refusals, to fulfill their constitutional duties." Mr. Nussbaum added that the leaders of the other branches also "must be made to explain their insistence that judicial pay raises . . . be held hostage to the desire to increase their own salaries, or the desire of the Executive to push through other initiatives resisted by the Legislature." Mr. Nussbaum continued, "We will prove at trial that legislators can and do earn outside income - in some cases, as we will show, substantial amounts." In opposing the request for an expedited trial, Mr. Lewis, writing for Mr. Bruno, stated that "the plaintiffs wish to conduct a show trial of legislative leaders." The plaintiffs in Kaye v. Silver are Chief Judge Kaye, in her official capacity as the state's top judge, and the New York State Unified Court System.

Two Other Pay-Raise Suits

In addition to the Larabee case, which was filed on Sept. 12, 2007, three other individual judges filed suit in Maron v. Silver, 4108/07, which was filed nine months earlier, on Jan. 2, 2007. Like Justice Lehner in the Larabee case, Acting Supreme Court Justice Thomas J. McNamara in the Maron case dismissed all of the plaintiffs claims save one. Justice McNamara, who sits in Albany, allowed the three Maron plaintiffs to proceed on their claim that "political branch benign neglect is destructive of judicial independence" (NYLJ, Dec. 3, 2007).

Both sides have appealed from adverse aspects of the Maron ruling, and the appeal is on course to be scheduled for argument in September. The Appellate Division, Third Department, has stayed further proceedings in Maron until the appeal is decided. No stay has been requested in the First Department, though both sides in the Larabee case have filed notices that they are appealing aspects of the ruling. Neither side has yet filed an appellate brief. Until that happens, no schedule will be set for submission of subsequent briefs and an oral argument date. Both Justice Lehner in Larabee and Justice McNamara in Maron rejected claims from the judges that in the last nine years their salaries have been so eroded by inflation that a provision in the state Constitution has been violated. That provision of the Constitution, Article VI, §25, prohibits the salaries of state judges from being diminished.

The suit brought by Chief Judge Kaye, which seeks an order requiring raises for all 1,300 state-fund judges, has three claims. With the other two lawsuits, it shares a separation of powers claim. That claim, which survived motions to dismiss in both Maron and Larabee, has at its heart the contention that the absence of a raise since 1999 has impaired the independence of the judiciary. In ruling that the Larabee case could proceed on a separation of powers theory, Justice Lehner framed the issue in terms of tying judicial raises to other extraneous issues. For instance, he wrote, the linking of judicial pay to issues such as raises for legislators or campaign finance reform "raises an issue as to whether the two other branches have abused their power and thus unconstitutionally interfered with the separation of powers." The suit brought by Chief Judge Kaye, on behalf of the court system, however, raises a second claim, also grounded in the separation of powers doctrine, that judicial salaries have become inadequate.

Under that theory, judicial salaries in New York are inadequate in comparison to the responsibilities and duties of the state's judges, especially when measured against the earnings of lawyers employed in other sectors of the legal profession. The third claim asserted in the chief judge's lawsuit alleges a violation of the no-diminishment clause of the Constitution, the claim that was rejected at the trial level in the other two cases. Chief Judge Kaye's lawsuit asks for an injunction requiring that the salaries of Supreme Court justices be raised from $136,700 a year to the $169,700 now being earned by federal district court judges. The lawsuit also asks that the salaries of other judges sitting on other courts in the state system be adjusted proportionately, and that the raises of all judges be awarded retroactively to April 1, 2005. Daniel Wise can be reached at dwise@alm.com.