New York Judges Warned about Retaliation

NY Judges Warned Against Insulting Legislator, Retaliatory Recusals in Pay Impasse
The New York Law Journal by Daniel Wise - 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.