NY's Chief Judge Denies Judicial Work "Slowdown"

NY's Chief Judge Denies Judicial Work "Slowdown" Over Salaries
The New York Law Journal by Vesselin Mitev and Daniel Wise - April 30, 2008

Chief Judge Judith S. Kaye wrote Governor David A. Paterson yesterday to assure him that reports of judicial "slowdown" were "without basis." In addition, the court system's Advisory Committee on Judicial Ethics issued an opinion Monday determining that Chief Judge Kaye's recent lawsuit to compel an increase in judicial salaries does not require judges to recuse themselves, but they may do so as a matter of individual conscience. On Monday, Mr. Paterson cautioned the state's judges against engaging in any tactic that would slow litigation in order to press their case for a raise. A day earlier The New York Post had reported that increasing numbers of judges, most of them upstate, were refusing to hear cases where law firms with state legislators as members are appearing before them.

In her letter to Mr. Paterson yesterday, Chief Judge Kaye wrote, "while some judges have individually chosen to recuse themselves from matters in which legislators or their firms appeared before them, there has not been - nor will there be - an adverse impact on litigants." Meanwhile, a Long Island judge who was instrumental in bringing the first lawsuit to force a pay raise recused himself Monday from a matter where one of the parties was represented by a law firm that has two legislators as members. Steven Schlesinger, the managing partner of the firm with the two legislators, Jaspan Schlesinger Hoffman, said yesterday that statewide about 20 judges had recused themselves from cases involving his firm in the last three months.

Brooklyn Justice Arthur Schack, who is a plaintiff in the first pay-raise case, Maron v. Silver, 06-021984, said that he was unaware of any Brooklyn judges recusing themselves. Justice Schack himself has recused from several cases in which firms employing legislators appeared before him on grounds that he is a litigant in the pay raise case. A Bronx judge, who asked not to be identified, and a court official in the Fifth Judicial District, which includes Syracuse, said he was unaware of any recusals within their areas. The New York Post reported that six upstate judges have recused themselves from cases where legislators' law firms are appearing. On Sunday, the Times Herald Record also reported that a County Court judge in Orange County is considering recusing himself from all cases involving a firm that was founded by a state senator who no longer is a member but continues to advise the firm.

Advisory Ethical Opinion

The latest opinion from the ethics advisory committee was requested by four judges who wanted to know if Chief Judge Kaye's filing of a lawsuit on April 10 required judges to recuse themselves from cases involving lawmakers and their firms. The committee concluded that the lawsuit does not require recusal, but also stated that judges must step aside if they feel they cannot be fair.

The committee concluded that the filing of a lawsuit, with the chief judge and the unified court system as plaintiffs, is "too remote a factor, in and of itself, to reasonably call into question a judge's impartiality" with respect to cases where legislators or their firms are appearing. The committee explained that since individual judges are not parties to Kaye v. Silver, they have "the same financial interest in the outcome of the lawsuit" as they would have "in the outcome of ordinary legislative debates about judicial pay. Thus, the nature of this particular financial interest is not, standing alone, a sufficient factor to alter the very distant relationship between the individual State legislators and individual State-paid judges." The committee's opinion, No. 08-76, went on to say, however, that if a judge after "searching his/her personal conscience" concludes that either the controversy over judicial pay or the pending pay-raise lawsuit raises "genuine doubts" regarding the ability to be fair, recusal is mandatory.

The opinion about the circumstances of a mandatory recusal mirror a conclusion the panel reached in Opinion 07-190 which it issued on Dec. 6, 2007, when a single judge asked whether recusal was required if the judge could not be fair because of the "current salary adjustment crisis." In yet an earlier opinion, which was issued in response to an inquiry from then-Chief Administrative Judge Jonathan Lippman, now Presiding Justice of the First Department, the committee concluded that judges should not recuse themselves solely because of the "long-standing issue of judicial salary increases pending before the Legislature." The committee wrote in No. 07-25, that "in our opinion," the sole issue of the pay dispute is not "a circumstance which, in and of itself, gives rise to the conclusion that the judge's impartiality might be reasonably questioned" when state legislators or their firms appear in a case.

Long Island Recusal

The judge who recused himself in the Long Island suit, which involves the developer Donald Trump, was Supreme Court Justice Leonard B. Austin. Justice Austin was asked to recuse himself by Ronald J. Rosenberg of Rosenberg Calica & Birney in Garden City, who was seeking to intervene in the case to block Mr. Trump from proceeding with plans to put a restaurant on the ocean-front property. In his five-page decision in Trump on the Ocean, LLC v. Cortes-Vasquez, 5329-08, Justice Austin, who sits in Nassau County, stated that he had been an "active participant," but not a party, in the Maron case, the first of what has now become three cases by judges seeking to compel a pay raise. The decision will be published Monday.

In explaining his rationale for recusal, Justice Austin wrote, "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 lives in the same condominium community as Mr. Trump's partner, caterer Steven M. Carl. Two members of the firm representing Mr. Trump, Jaspan Schlesinger, are state legislators: Senator Craig M. Johnson and Assemblyman Marc S. Alessi, both Democrats. The case before Justice Austin involves a bid by Mr. Trump to put a restaurant on oceanfront state property on Jones Beach.