Attorney Says Judges Should Get Waiter Jobs to Boost Pay

Perspective: A Modest Proposal
The New York Law Journal by Raoul Felder - November 04, 2008

The present imbroglio involving pay raises for New York State judges is past being an embarrassment, and even past being a public disgrace. A society that allows young lawyers just out of law school to be earning more than a New York State Supreme Court judge is a sad reflection on the way we order our priorities. It is an absurdity, made even more painful and unjust by elected officials who seek to link any raises for beleaguered judges who work full time and are severely limited in their ability to supplement their income, to raises for part-time legislators who are free to supplement their income as they see fit. This linkage has made judges unwilling hostages to the political maelstrom in Albany and is an issue, among others, that the judges have raised in their current lawsuits that are slowly wending their way to the Court of Appeals. Of course, lightning could strike and before the end of 2008, the Legislature could vote a raise (to go into effect in the beginning of 2009) and have it signed by the governor. But, if this does not happen (and each day, it appears more unlikely), then, because of certain constitutional infirmities, the Legislature taking office in January 2009 could not vote themselves a raise for their terms of office (two years) and consequently, any future raise could not occur until January 2011 at the earliest. And, because of linkage, judges would find themselves forced along for the ride until 2011 at the earliest, an intolerable result.

Many leaders bear blame for this fiasco: Governor David Paterson and Assembly Speaker Sheldon Silver for failing to demonstrate the necessary leadership and Chief Judge Judith S. Kaye for failing to make this issue an earlier priority in her court agenda. Naturally, all of us who make our livelihood in the courts of the State of New York bemoan this incredibly unfair state of affairs. We fervently hope that the judiciary will soon get the salary adjustments that they so sorely deserve. But, until that happens and unfortunately, it appears that it may not be happening for awhile, let me advance what I perceive to be a modest proposal - a temporary measure until this wrong is righted.

Presently the Code of Judicial Conduct allows judges to have only limited kinds of outside income: lecturing or teaching and writing.1 The New York State Constitution, Articles 6, §20 also provides: A judge of the court of appeals, justice of the supreme court . . . may not: (4) engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties. These provisions must be viewed through the prism of the so-called "dignity rule" which provides that, "A judge shall conduct all of the judge's extra-judicial activities so that they do not detract from the dignity of judicial office."2 The chief administrative judge, on behalf of the chief judge, has the power to amend or modify the rules relating to outside employment.3

I would argue that because of the financial crisis facing members of the state judiciary, the restriction on outside employment for judges should be temporarily relaxed and judges should now be able to engage in employment that will not impact upon or intersect with their judicial duties: such activity should not be restricted to teaching and writing. Judges should be able to work for example, in book stores, in service establishments, as artisans, etc. They should be allowed to unleash their entrepreneurial and intellectual skills by involvement in the management and operations of commercial businesses. They should be allowed to utilize their life skills and insights in non-prohibited undertakings and enterprises. I am not suggesting a complete relaxation of the dignity rules for judges such as becoming a bouncer at Scores. I am suggesting a modest, common sense relaxation of the rules. This would be consistent with the New York State Constitution which prohibits judges only from engaging in the practice of law or conduct that would interfere with their performance of judicial duties. As a matter of comparison, New York City policemen, wearing full indicia of their authority; uniforms, badges and guns, are allowed to undertake certain types of additional employment.4

The chief judge also has it within her power to shorten the judges' workday to end at 4 p.m., which would facilitate outside part-time employment. The test should be productivity, not punching a time clock. There is nothing dignified about enforced poverty. I believe that my modest proposal would allow judges to seek outside employment in the late afternoon, evening and on weekends in order to make ends meet. For those who love the bench, this recommendation is only a slight stop-gap measure. But small as it is, it may just be enough to keep many qualified justices from leaving the bench in disgust. The public has the "elevator" syndrome when it comes to the courts. When somebody is trapped in an elevator, as soon as they get free, they compile a list of people they intend to sue: the elevator company, the city, the building's owner, the management company, etc., not to mention the people who make the elevator, service the elevator, its building inspectors, etc. Twenty minutes later, this is all forgotten. Similarly with courts, the average citizen goes there probably once in his or her lifetime. They complain about the condition of the courts, how long they had to wait for a judge who was busy on other tasks and everything from the peeling ceilings to the state of the bathrooms. Once they are out of the courthouse, they could not care less. We should care more, not less; not later, now. Raoul Felder is a matrimonial attorney and a partner in Raoul Felder and Partners. Lauren Mallin, an associate at the firm, contributed to the preparation of the article.

Endnotes: (1.) 22 NYCRR Part 100 §100.4 (B).; (2.) 22 NYCRR Part 100 §100.4 (A) (2).; (3.) NY CLS Jud §212 (2008).; (4.) NY Patrol Guide Procedure 205-40.