Judicial Pay Update: Citizens Class Intervention Action Filed

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SUPREME COURT : STATE OF NEW YORKCOUNTY OF NEW YORK

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JUDITH K AYE , CHIEF JUDGE , in her official capacity, and 

THE NEW YORK STATE UNIFIED COURT SYSTEM,    Plaintiffs,

NOTICE OF MOTION TO INTERVENE INDIVIDUALLY AND AS CLASS, 

400763/08  (Lehner, J.)

against

SHELDON SILVER, THE NEW YORK STATE ASSEMBLY, JOSEPH BRUNO, 

THE NEW YORK STATE SENATE, DAVID A. PATTERSON, GOVERNOR, AND 

THE STATE OF NEW YORK, Defendants.

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PLEASE TAKE NOTICE, that upon the annexed affirmation of Michael Diederich, Jr., dated October 9, 2008, and the accompanying proposed Intervenors’ Complaint and Intervenor’s Brief, the movant Michael D. Diederich, Jr. will move this Court at the New York County Supreme Court, 60 Centre Street, New York, NY 10007,at an I.A.S. Part before the Hon. Edward H. Lehner, J.S.C., on Friday, November 28, 2008, at 10:00 o’clock in the forenoon or as soon thereafter as counsel may be heard, for an order:

1.   Allowing movant Michael D. Diederich, Jr., and the other named intervenors, to intervene in the above-captioned matter as of right under CPLR 1012(a) orby permission under CPLR 1013, and permitted to file and serve the annexed proposed Intervenors’ Complaint within 30 days after notice of entry of an order granting this motion;

2.   Granting leave for the intervenors to substitute with actual people or entitiesfor some or all of the “John Doe,” “Joe Citizen” and “John Doe BarAssociation” and “John Doe Citizen Group” fictitious intervenors, when filing the Proposed Complain or within 60 days thereafter;

3.   Declaring the above entitled action to be deemed a class action pursuant to CPLR 901 and CPLR 902;

4.   Allowing the intervenors (but excepting movant Diederich, if he elects to serve as attorney of a class) to proceed as representatives of the class;

5.   waiving notice to the class, or alternatively, authorizing the method offurnishing notice to the class to be one or more Internet postings upon an appropriate State website, or with other reasonable and economical notice;

6.   allowing oral argument on this motion on a date and time established by the Court;

7.   if intervention is denied, that these paper be accepted as an amicus curiae submission, and that these motion papers be included in any record on appeal;

8.  granting such other and further relief as to this Court may seem just and proper. The above-entitled action seeks the increase of salaries for New York’s judiciary, which relief may include a prospective increase in judicial salaries in an unspecified amount, and also the retroactive grant of salary to present or former members of thejudiciary. The Intervenors in the proposed Intervenors’ Complaint, unlike Chief Judge Kaye, are individuals actually aggrieved by an underpaid judiciary, and unlike Chief Judge Kaye, have standing to challenge judicial compensation which is constitutionallyinadequate, because inadequate compensation deprives New York’s citizenry of rightswhich depend upon a sound judiciary, such as the right to petition government through access to the courts, the right to due process and equal protection of the law, and theguarantee of republican form of government bound by the Rule of Law. Pursuant to CPLR 2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before any adjourned return date of this motion.

Dated: Stony Point, New York November 13, 2008

MICHAEL D. DIEDERICH JR.

Attorney for proposed Intervenors and class

361 Route 210

Stony Point, NY 10980

(845) 942-0795 

Mike@DiederichLaw.com

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TO: WACHTELL, LIPTON, ROSEN & KATZ

Attn: Bernard Nussbaum, Esq.

51 West 52nd Street 

New York, NY 10019-6150

(212) 403-1000/2000(fax)

Michael Colodner, Esq. 

N.Y.S. Office of Court Administration

25 Beaver Street, 11th Floor

New York, NY 10004

(212) 428-2150/2155 (fax)

David Lewis Esq. 

Lewis & Fiore 

225 Broadway, Suite 3300

New York, New York 10007 

Dlewis@lewisandfiore.com 

(212) 285-2290; 212-964-4506 (fax)

Richard H. Dolan

Schlam Stone & Dolan LLP

26 Broadway

New York, NY 10004 

212-344-5400

Andrew Cuomo, N.Y.S. Attorney General

Attn: Joel Graber, of counsel

120 Broadway

New York, NY 10271

(212) 416-8645/6009 (fax)

joel.graber@oag.state.ny.us

SUPREME COURT : STATE OF NEW YORK COUNTY OF NEW YORK

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JUDITH KAYE , CHIEF JUDGE , in her official capacity, and 

THE NEW YORK STATE UNIFIED COURT SYSTEM, Plaintiffs,

AFFIRMATION OF MICHAEL D. DIEDERICH, JR. IN SUPPORT OF MOTION FOR INTERVENTION UNDER CPLR §§ 1012 & 1213, AND CLASS DETERMINATION UNDER CPLR §§ 901 & 902  (400763/08 (Lehner, J.)

against

SHELDON SILVER , THE NEW YORK STATE ASSEMBLY, JOSEPH BRUNO, THE NEW YORK STATE SENATE, DAVID A. PATTERSON, GOVERNOR, AND THE S TATE OF NEW YORK, Defendants.

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STATE OF NEW YORK

SS: COUNTY OF ROCKLAND

Michael D. Diederich, Jr., an attorney at law duly admitted to practice in all of theCourts of the State of New York affirms under penalty of perjury as follows:

1.  I am submitting this Affidavit in support of the motion for permission to intervene, and for class action status, both in my capacity as the attorney for the proposed Intervenors and class, and as a proposed Intervenor pro se. 

2.  This motion is brought as a public interest endeavor, and as such requests theconsent of the plaintiffs and defendants herein, and receptive consideration from theCourt. The proposed Intervenors’ Complaint is attached hereto. See, annexed.

Overview

3.  Your affiant has for some time been interested in the operations of State and local government in this State, and has frequently represented public interest and taxpayer causes concerning such governments. 

4.  While your affiant is sympathetic with the economic circumstances of State judges who have not received a cost of living increase in their pay, your affiant also believes that any remedy must be in accordance with sound principles of good government, and in accord with the State and federal constitutions.

5.  I am certainly a small “country lawyer” when compared to politically connected and economically powerful law firms who have very conveniently sided “with the judges” on the issue of pay raises in this and related litigation. 

6.  Yet small lawyers representing weak individual clients are entitled to justice, and the specter here is that of “connected” law firms seek even greater judicial favor than they seemingly enjoy, while at the end of the day, the “average citizen” will enjoy no increased favor whatsoever, even though it will be citizen-taxpayers’ tax dollars which fund any pay raise which the judiciary obtains for itself. Request for Intervention

7.  Your affiant respectfully submits that the proposed Intervenors should properly be granted intervention both as of right, under CPLR 1012(a), and as a matter ofdiscretion under CPLR 1013. 

8.  The perspective of the Intervenors, as summarized in the Prefatory Statementintroducing the proposed Intervenor’s Complaint, articulates the overview of theimportance of intervention.

9.  In connection with this application, the undersigned hereby incorporates thefacts set forth in the accompanying Proposed Intervenors’ Complaint as if fully restated here.

Intervention as of Right

10.  As to intervention by permission under CPLR 1012(a), intervention should begranted because the representation of the Intervenors’ interest by the parties is inadequateand the Intervenors (individually and the Class they seek to represent) will be bound bythe judgment.

11.  Depending upon which side prevails, the Intervenors will face a hike in Statetaxes to pay for increased salaries, or a potential diminution in judicial work and thus an impact on litigants and their constitutional rights. 

12.  As set forth in the accompanying Intervenors Complaint, the Plaintiff ChiefJudge Kaye does not have proper standing to assert the claims she makes, which claimsare asserted in a capacity (purporting to represent the Judicial branch of government)which may, it seems, be offensive to her oath of office as she argues for the nullification of the Legislative and Executive power of the purse over the Judiciary. This infirmity iscured if the argument for an increase in judicial salary comes from the People, through the Intervenors, as is requested here. 

13.  Moreover, as mentioned above, the Attorney General suffers frommultifarious conflicts of interest if he were to become involved in this case, and thus theaddition of the point of view of the citizen is necessary because otherwise, in this case, the interests of the People of the State are not represented. The citizens of this Stateelected the Attorney General to defend the State against lawsuits, and to represent the three branches of State government. The Attorney General cannot adequately representthe People here, because the People’s interests sides with the Plaintiff’s, but only in amanner which also respects the State and federal constitutions, including the mandates ofboth for checks and balances, separation of powers, and adherence to the Rule of Law. In the related Larabee v Governor action, the Attorney General has not raised theimportant legal issues of the First Amendment right to petition and of the federalGuaranty Clause’s assurance to the citizens of the States of a republican form ofgovernment (art. IV, § 4). These are concerns which this Court should address, as theyare vital to the People, and the absence of such further reveals that representation of thePeople is presently inadequate. (The Attorney General is hereby notified of such issues, per CPLR § 1012(b).)

14.  Intervenors’ property right to their tax dollars, right to expect a governmentwhich respects its own constitution and its separation of powers, and their constitutionalright to a competent judiciary which hears and properly adjudicates cases, are all rightsdirectly affected by an increase or non-increase in judicial salaries. The Intervenors aredirectly affected no matter which way this case is decided. 

15.  Accordingly, Intervenors must be granted intervention as of right and theCourt should so order.

Permissive Intervention

16.  As to intervention by permission under CPLR 1013, intervention should beliberally allowed, particularly where there are common questions of law and fact. See, Teleprompter Manhattan CATV Corp v. State Board of Equalization and Assessment, 34 AD2d 1033 311 N.Y.S. 2d 46 (3d Dept. 1970). Here, there are precisely the same questions of fact and law, with the principal importance of the Intervenors presence beingthat they have both the standing and the independence to truly represent the citizens ofthe State. 

17.  Moreover, the Intervenors have a real and substantial interest, because it is their State government which is at stake, and their right to have checks and balances, and to have their representatives appropriate their State tax dollars, which is at stake. 

18.  As shown in the proposed Intervenors’ Complaint, the Intervenors have a realand substantial interest in the outcome of the litigation. Most importantly, theIntervenors’ involvement is necessary because without it, the interests of the Intervenors, and the Citizenry of the State of New York, will be jeopardized in the Intervenors’absence. Request for Class 

Action status

19. This action is best prosecuted as a class action, pursuant to CPLR 901 and CPLR 902. Intervenors’ motion therefor must be granted.

20.  The members of the class are (the “People” class) are all citizens and residents of the State of New York. 

21.  It is also appropriate to have another class, or perhaps a subclass, comprised of those individuals who have been denied or restricted in the ability to seek redress fromthe courts of the State of New York, including but not limited to its Appellate Division and the Court of Appeal (the “Denied Judicial Review” sub-class).

22.  The undersigned is available to diligently represent either and both classes, and is also willing to work with other attorney(s) or law firms, with the approval of the Court, toward the end of proper adjudication of this case in the interest of “the People” ofthe State of New York.

23.  Pursuant to the CPLR, the following is presented in support of this motion forclass status.

24.  This action was commenced by service of summons and complaint on State Legislative and Executive defendants by the Plaintiff Chief Judge and Unified CourtSystem, and issue was joined, upon information and belief, that the parties’ views that thelawsuit should be resolved by summary disposition. 

25.  The complaint seeks injunctive and declaratory relief, and perhaps damages in the form of a retroactive grant of salary to judges of the State’s unified court system. 

26.  The named proposed Intervenors, as indicated in the proposed Intervenors’Complaint, are citizens, residents, property owners, and taxpayers of the State of NewYork. Some have been aggrieved as a result, they believe, of an under-compensated State judiciary. 

27.  As State citizens, voters and taxpayers, the Intervenors have a real and genuine interest in the proper and lawful operation of their State government, and as Statetaxpayers, a financial interest as well. 

28.  The Intervenors’ proposed complaint is verified by the undersigned. 

29.  Plaintiff Kaye is the non-elected Chief Judge of the Court of Appeals of theState of New York, the highest judicial official of the State. 

30.  Plaintiff “Unified Court System” is, upon information and belief, a partydesigned to include all judges elected or appointed into judicial offices which are part of the Unified Court System, and characterized by Plaintiff Kaye as the judicial branch of New York State government. 

31.  Defendants are the State Senate, Assembly and Governor, namely, the duly elected representatives of the People forming the Legislative and Executive branches of State government.Description of the Complaint

32.  The proposed Intervenors’ Complaint alleges in substance that the Plaintiffs are seeking legislatively unappropriated funds for judicial compensation, and retroactive compensation. Standing alone, both requests are unauthorized by any express provision of the N.Y.S. Constitution. 1 

33.  On the other hand, the proposed Intervenors present constitutional argumentsfor increasing judicial compensation, if evidence adduced at trial support such, summarized as follows:a) that inadequate compensation for the judiciary will inevitably result in, and hasresulted in, depriving the citizenry their federal and state constitutional right to beable to petition their government (namely, the judiciary as to legal disputes), b) that inadequate compensation for the judiciary will inevitably deny citizensjustice, the Rule of Law and a republican form of government, thereby deprivingthe citizenry of the basic rights guaranteed by a liberal democracy, and 1 E.g., Article VII, §7 of the New York State Constitution provides in relevant part:No money shall ever be paid out of the state treasury or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years next after the passage of suchappropriation act; and every such law making a new appropriation or continuing orreviving an appropriation, shall distinctly specify the sum appropriated, and the object orpurpose to which it is to be applied; and it shall not be sufficient for such law to refer toany other law to fix such sum. c) the Plaintiffs’ lawsuit is a direct attack upon the doctrine of checks and balancesand separation of powers fundamental to the structure of both the federal and theState constitutions and as such any relief granted by to the Plaintiff Chief Judgewill deprive the citizens of New York State of their federal guaranty of a“republican form of government,” namely, representative democracy. 

34.  Your Affiant, as an intervenor, is of the view that the Plaintiff Chief Judge, who has sworn an oath to uphold the Constitution of the State of New York should not betaking action designed to erode its separation of powers, nor to seek relief which expressly violates the State constitution’s mandate that funds expended must beappropriated by the Legislature. Here, the Plaintiffs attempt to obtain funds for theJudiciary outside of the constitutionally-mandatory appropriations process. This effortalso appears to be an insult to representative democracy. 

35.  Thus, plaintiffs request that this Court authorize the Intervenors’ Complaint asproperly undertaken in the form of a class-action.

Notice to Members of Class

36.  Because this action is brought primarily for injunctive or declaratory relief, notice of the pendency of the action need not be given to the class because this is notnecessary to protect the interests of the represented class. See, CPLR § 904(a).37. Alternatively, if notice is required, Plaintiffs submit that fully adequate noticewould be a posting upon the State Judiciary’s, Legislature’s and/or Governor’s Internetweb pages, or through other cost-effective means.

Standing

38.  Intervenors are both citizens and voters in the State of New York, and includeindividuals who have been personally aggrieved by the dereliction of an (underpaid) judiciary to review legal matters as the Judicary should, thereby denying them Federaland State constitutional rights, including but not limited to their First Amendment right to petition government. 

39.  Similarly, plaintiff as taxpayers who taxes fund the State government havestanding, as they have a real and genuine stake, and financial interest, in this controversy. Other than these Intervenors, there is no likelihood of anyone challenging what might beviewed, and what might in fact be, a collusive lawsuit (since all the governmental playersseem in accord that the Judiciary is deserving of a pay raise. 

40.  Thus, Intervenors have the citizen-taxpayer standing permitted under theteachings of Boryszewski v. Brydges, 37 NY2d 361, 372 NYS2d 623, 334 NE2d 579 (1975).

41.  Moreover, because the potential for constitutionally unauthorized “judicial appropriation” of compensation for judges, and the additional possibility of retroactivecompensation (amounting to an unconstitutional gift of taxpayer dollars), plaintiffs, upon information and belief, have standing not only under Boryszewski, but also under StateFinance Law § 123-b, and under Civil Service Law § 102(1), as taxpayers, to bring thisaction to restrain such illegal authorization of compensation. 42. Your affirmant served one year in Iraq (2004-05) with the U.S. Army as a JAG officer, and is a strong believer in the Rule of Law and America’s adherence to the Rule of Law and our constitutional principles. This is one motivation for this application.

WHEREFORE, your affirmant requests that the Court grant intervention and classcertification so that the people of the State of New York are provided with representation and an appropriate, fair and constitutionally authorized remedy.Affirmed this 13 th day of November 2008, at Stony Point, New York.

MICHAEL D. DIEDERICH, JR.

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SUPREME COURT : STATE OF NEW YORKCOUNTY OF NEW YORK

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JUDITH KAYE, CHIEF JUDGE, in her official capacity, and THE NEW YORK STATE UNIFIED COURT SYSTEM,Plaintiffs,

MICHAEL DIEDERICH, JR ., THE ASSOCIATION FOR ADVANCEMENT OF JUDICIAL INTEGRITY, AND “JOHN DOE ,” Intervenors, 

PROPOSED INTERVENORS’ COMPLAINT

(400763/08 (Lehner, J.)

against

SHELDON SILVER, THE NEW YORK STATE ASSEMBLY, JOSEPH BRUNO, THE NEW YORK STATE SENATE, DAVID A. PATTERSON, GOVERNOR, AND THE STATE OF NEW YORK , Defendants.

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The Intervenors herein, by their attorney Michael Diederich, Jr., complaint of the Defendants as follows: 

Prefatory Statement 

This is the complaint of the Intervenors, who as citizens of the State of New York, seek to assist in preserving representative democracy and individual liberty in the State, by ensuring that the Judiciary is compensated in a manner and amount which allows it to protect theconstitutional and democratic rights of the citizenry. The citizenry has the right under both theFederal and State constitutions to petition State government for the redress of grievances. The State provides this right by providing for judicial review through civil actions and appeals. Thisright is denied if underpaid judges cannot, or will not, perform the judicial role of reviewing allcases properly presented. The Judiciary possesses exclusive authority for adjudicating individual lawsuits, and interpreting the law. It has the responsibility for guaranteeing individual liberties established by the State and federal Bill of Rights, in protecting the Rule of Law, and in preserving the republican form of government guaranteed by the federal constitution (art. IV, § 4). Yet Chief Judge Kaye’s complaint mentions nothing of these citizens’ rights and vital interests.

Respectfully, the People’s interests are not safeguarded by the Judiciary making a self-serving plea, to itself, to increase its members’ compensation. If it approves its own request, it is beholden only to itself, and not the People. It is fundamental to our Democracy that the government, including the Judiciary, deriveits power from the People. Thus, the only proper party to assert that the Judiciary isinadequately compensated is the citizenry, and the only proper constitutional basis is that an inadequately compensated judiciary deprives the People of constitutional rights. Because onlythe Intervenors have put forth viable cognizable constitutional claims, and because only theIntervenors have standing to assert such claims, the Intervenors’ Complaint is appropriate and necessary for the proper adjudication of this case. 

Parties 

1.  The Plaintiff’s and Defendant are as identified in the Chief Judge Kaye’scomplaint (hereinafter “Complaint’). 

2.  Intervenor Michael D. Diederich, Jr. is a citizen, resident and taxpayer of theTown of Stony Point, County of Rockland, State of New York, and the United States ofAmerica. 

3.  Intervenor Association for Advancement of Judicial Integrity is an unincorporated association of individuals whose interest is the fair, impartial, diligent and non-partisan adjudication of civil cases in the State of New York. 

4.  Intervenor “John Doe,” which may also include a “John Doe Bar Association”and/or a “John Doe Citizen Group,” is a fictitious party representing actual persons, barassociations or other associations or entities potentially interested in and capable of providingvaluable input into and evidence regarding the issues relevant to this case. 

Facts 

5.  Upon information and belief, the Complaint sets for a fully adequate description of facts suggesting that judicial compensation in New York State judges has declined, in realvalue, to a level which may be unfair and inadequate for some or all of the State’s judges to livein the manner to which they have become accustomed, or to which they aspire. However, upon information and belief, the Complaint does not articulate a legalbasis for increasing judicial compensation. 

7.  Upon information and belief, the means chosen in this are not proper, and raise the prospect for an appeal of an adverse decision to an inferior intermediate appellate court, and then an appeal from such court to the Court of Appeals, over which Plaintiff Chief Judge Kaye presides. The Chief Judge of the State of New York is asserting to an inferior State court that salaries are constitutionally inadequate. Thus, Chief Judge Kaye’s lawsuit is a judicial challenge which entails the judiciary adjudging its own compensation, notwithstanding that both the State constitution and the doctrine of separation of powers gives the power of the purse to the People’s representatives, namely, the Legislature with veto power residing with the Governor. 

8.  Upon information and belief, Chief Judge Kaye’s Complaint is an argument for increased salary based only upon perceived unfairness, but ignoring the basic principle that the Legislature, with its members the duly elected representatives of the People, holds the power ofthe purse. 

9.  Plaintiff Kaye seeks to expand the doctrine of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) to stand not only for the proposition that the courts are the final arbiters ofthe law, but also the final arbiters of their own salaries, and that the judiciary can unilaterallyalter the balance of power between the branches of State government. Upon information and belief, Chief Judge Kaye’s arguments are neither constitutionally nor governmentally sound. 

10.  On the other hand, if members of the judiciary are being threatened by pauperism, such that their work for the People and the performance of judicial duties are impacted to a constitutional degree, the challenge of inadequate pay should emanate from the People themselves. The People have standing, because they are aggrieved.

11.  The members of the judiciary, in contrast, have no standing to complain, as theyare the employees of the People. No one forced them to take the job. And the Judiciary itself(purportedly represented by Chief Judge Kaye in her “official” capacity) has no standing as a co-equal branch of government seeking through judicial fiat to nullify a constitutional “check and balance,” by co-opting the legislature’s power of the purse over judicial compensation. 

12.  Chief Judge Kaye’s complaint, it seems, alleges that the People directrepresentatives—the Legislature and the Governor—are essentially depriving the People of aJudiciary which the People are entitled to. 

13.  This, though, is merely a (institutionally self-interested) presumption on Chief Judge Kaye’s part. If the People wish a defunct judiciary (as arguably they already have adefunct Legislature), or an underpaid judiciary, or a demoralized judiciary, or an incompetentjudiciary, or a corrupt judiciary, this would appear at first blush to be the People’s choice, as amatter of basic representative democracy. 

14.  The Complaint’s argument that the judiciary deserves more pay so that its judgesare “adequately” compensated, presumably so that they can adequately and competently serve, could just as well be made by the members of the Assembly and Senate—“we too have not had a pay raise since 1999 and are underpaid by the standards of private industry, and thus we are incompetent, demoralized and (sometimes)corrupt, so we must be paid more as ‘adequate’ compensation so that we will beable to competently perform,”or the Governor—“I get paid far less than the leadership of private corporations. I even get paid lessthan some small town police chiefs in New York State,” 1 or by other public sector lawyers, engineers and other professionals—“I get paid far less than what is paid in the private sector, for work which is ofvital importance to the public and the public interest,” 1 As pointed out by Intervenors’ counsel in taxpayer litigation refused to be entertained by Chief Judge Kaye’s court.See footnote 3, infra. or by other worthy people or organizations, such as public defender or legal aid attorneys—“we are competent lawyer too, seeking to defend citizens’ legal and constitutionalrights, yet we are paid a pittance compared to the other lawyers of comparableskill, competence handling similar matters—and the judiciary treats us as second class professional citizens.”

15.  Of course, the answer to each of the above individuals, who believe their pay istoo low, is simple—“if you don’t like or cannot exist on the current your current salary, “resign”and “get a better job.”Fidelity to the People, and adequate pay, are needed for judiciary quality

16.  The option of resignation may be a good one for a highly skilled yet demoralized judges (or lawyer, or other professional), because such individual undoubtedly could earn morein the private practice of law. 

17.  Moreover, if resignations enticed other qualified individuals to decide to enter thepublic sector, and to work for “inadequate” compensation in the job of State court judge, thebenefit to the public could be immense. 

18.  Your Intervenors believe that many law professors, law school deans, and distinguished large firm or corporate lawyers, especially those approaching retirement, might beinterested in serving as judges in our State courts. 

19.  On the other hand, if the resignation of good judges were to result in less qualified or unqualified individuals being selected for such elective office through political processeswhich favor party loyalty and patronage over job qualification, the public interest will suffer and the People’s rights harmed. 

20.  Upon information and belief, an increasing number of State judges are selected primarily based upon consideration of political patronage, not qualification. Too many individuals seek State judgeships for the compensation package, and the perks, including the status of the title “supreme court justice” (the “supreme court” being the lowest court of general jurisdiction in New York State).21.Upon information and belief, if the Judiciary better policed its own, more than afew unqualified or marginally qualified judges might be eliminated from the bench. It is neitherin the public’s interest nor the Judiciary’s interest for poor judges to be adjudicating cases which they adjudicate poorly. The Judiciary should insist that the loyalty of the bench be first and foremost to the People and to Justice. 22.Upon information and belief, the Judiciary will better police its own, and root outthe incompetent and the corrupt, if the Judiciary recognizes that the People desire justice and arewilling to pay for it by rewarding judges with fair compensation. 23.Judges who are financially and politically independent have no need to decidecases on any ground other than justice and the law. 24.As reported in an article by Mark Fass of the New York Law Journal dated August 25, 2008, in the face of the threat of judges who recuse themselves from cases to protestlegislative inaction regarding pay raises, the County Judges Association of the State of NewYork adopted a resolution supporting “the recusal of any New York State Judges, as a matter ofpersonal conscience, in regard to their ability to be fair and impartial due to the controversysurrounding Judicial compensation or related litigation.”25.However, each such recusal, upon information and belief, implicates the litigant-citizens’ right to petition government and to due process of law. 

26.  If the Judiciary sees that the People care about justice and are willing to compensate judges fairly for it, it may be willing to better police itself. If the Judiciary respectsthe People, political cronyism may be reduced and so too corruption.

Fairness to judges

27.  As Chief Judge Kaye articulates very well, it is fundamentally unfair for a person who has chosen public service in the judiciary to suffer a declining real salary (due to inflation)during years and years of competent and faithful service. 

28.  It is demoralizing, and it invites disdain for the workings of democracy. The workings of democracy may be perceived by judges as evidencing a lack of appreciation by thePeople for the faithful service of the judiciary. This, in response, may breed judicial hostilitytoward the People, as reflected, for example, in increasing hostility towards the right of thePeople to seek redress from and access to the Courts. 

29.  The citizenry is frequently denied “standing” to bring a claim to court, for no reason it seems other than the court’s unwillingness to trouble itself with the citizen’s claim. This reflects judicial hostility toward the citizenry for whom judges are supposed to serve.

30.  Thus, when judges are demoralized, the work of the courts will certainly suffer, and, of much greater significance, the People right to petition the judiciary for redress may bedenied. The Citizenry, not the Judiciary, is the proper Plaintiff

31.  Respectfully, it is the Citizenry, not the Judiciary, who is the proper party to beposing the challenge to inadequate judicial compensation. Only the citizenry is aggrieved, in alegal sense, if inadequate compensation results in inadequate adjudication.32.Neither Chief Judge Kaye nor the judges suing as individuals in the related casebefore this Court, Larabee v Governor, have standing to sue, because they are not personallyaggrieved in a constitutional sense. 2 2 Cf., Maron v. Silver, 504084, argued before the Appellate Division, Third Department, on September 3, 2008.

33.  Because no independent representative of the Citizenry has stepped forward otherthan the Intervenors, the Intervenors, individually and as a class, will seek an adjudication of thislawsuit which strikes the proper balance between the three branches of State government, with proper checks and balances, while keeping the interest of the People paramount.

34.  It is the citizenry which pays the salaries of the judiciary, and it is the citizenrywhich suffers from judicial incompetence, inefficiency, demoralization, or mislaid loyalty. If theJudiciary receives a pay raise as a result of Chief Judge Kaye’s lawsuit, the salaries will be paid by the citizenry. 

35.  The Intervenors’ property right to their tax dollars is directly affected by a Judiciary-directed increase in judicial salaries, especially one not supported by a legislativeappropriation (a constitutional requirement). 

36.  Thus, it is the citizenry who should receive the Judiciary’s gratitude for any payincrease. However, by virtue of the manner in which judicial compensation litigation has been presented, both here and in similar pending lawsuits by other judges, it is Chief Judge Kaye, the other judges, and their “pro bono” legal counsel who will undoubtedly be seen as deserving credit if judicial compensation is increased. 

37.  If Plaintiff Kaye wins here, success will lie solely with her, with not one iota of credit due the People. This is a strong reason for allowing the citizenry to be allowed to intervene here, and be accorded the status of a proper plaintiff, so that the members of theJudiciary recognize that they owe the People, not themselves, any credit for their pay increase.

38.  Moreover, the public should not be satisfied with a lawsuit where the Chief Judgeis asking subordinate judges to adjudicate in the State judges’ own self-interest, with no inputfrom the most important player, the State’s citizenry. 

39.  Upon information and belief, Chief Judge Kaye would agree that the Judiciary’sloyalty must always be to the People. 

40.  The Intervenors are appropriate and necessary in this lawsuit. No one else hascome forward. The Intervenors’ can serve as an “honest broker” vis a vis the three branches ofState government and the question of judicial compensation. The Court has the power to ensurethat this is so.

41.  Importantly, the public is not represented by the attorneys for the Senate, or for the Governor and Assembly. These attorneys cannot represent the public. The attorneys for the Senate, or for the Governor and Assembly, are unable to represent the People as to the central issues in this case, because their litigation interests do not correspond with the People’s interests. What the Legislature and Governor have done is to hire highly skilled counsel to defend againstChief Judge Kaye’s Complaint. Their counsel have competently defended, and for many of thereasons stated in this Intervenors’ Complaint, namely, that Chief Judge Kaye does not havestanding, and judicial compensation is not a cognizable grievance for State judges to proffer. 

42.  However, what is not argued by the attorneys for the Senate, and for the Governor and Assembly, is that there exists a potential viable constitutional the grievance regarding inadequate judicial compensation, and that grievance belongs to the People.

43.  If “inadequate” salaries result in an incompetent or corrupt judiciary, it is not the judges, some of whom may be incompetent or corrupt, who should be accorded standing to complain about the level of salary. Rather, it is the People who should be afforded standing to insist upon a level of salary sufficient to maintain a competent and honest judiciary.

44.  This is what the Intervenors will advocate for—compensation which maintains a competent and honest judiciary—because upon information and belief, the facts will support the need. 

45.  Thus, the People’s interest is not to dismiss the complaint. Nor is it simply to give Chief Judge Kaye what she requests for her judicial colleagues. Rather, the People’s interest is a factual determination (preferably by jury trial) that the People are aggrieved, and their constitutional rights denied, by inadequate judicial compensation. A class action and prompt trial are appropriate.

46.  The obvious means for the People’s voice to be heard in this is for the citizenry to be represented by the Intervenors in this lawsuit. The Intervenors can best providerepresentation for New York’s citizenry. Because no other person or entity has stepped forward to represent the People’s interests, the need for intervention is manifest, for the sake of the public interest.

47.  Moreover, especially if certified as a class action, the Intervenors’ counsel will undoubtedly then be able to obtain the active involvement and participation of many other interested individuals and groups. This is such an important subject that individuals such as law professors, civically involved lawyers and retired lawyers of repute, bar associations and publicinterest organization will undoubtedly wish to become involved, and the undersigned will solicittheir involvement. 

48.  If the best governmental and legal minds in the State are willing to volunteer theirtime and effort to become involved, for example, by contributing as witnesses in this litigation, the benefit to the public interest and the fair adjudication of this case will be obvious. The resultwill be the best and fairest resolution by the Court of the issue of judicial compensation.

49.  In a fashion similar to that proposed by Plaintiff Kaye’s proposal for an immediate trial in this case, this Court could hold an prompt trial (perhaps upon Intervenors’motion for summary judgment on liability) on one issue alone—whether the existing judicialsalaries, and salary non-increase, impacts upon the citizenry’s constitutional rights, such as itsright to petition government, to due process of law, to equal protection, and to the Rule of Law.Citizen-taxpayer standing

50.  Upon information and belief, as citizen-taxpayers of the State, the Intervenors must be accorded standing to challenge inadequate judicial salaries because as citizens and taxpayers they suffer cognizable harm if judicial salaries are inadequate. The courthouse doorsmust not be closed to Intervenors who are in the best position to represent the interests of thecitizens of the State, where the three branches of government are in conflict. See, e.g, Boryszewski v. Brydges, 37 NY2d 361, 372 NYS2d 623, 334 NE2d 579 (1975).51. If the Judiciary is inadequately paid, as Intervenors believe to be the situation, there are likely many tangible adverse consequences to the citizenry. For example:a. Justice delayed or denied;b. Denial of First Amendment right to petition;c. Unequal protection—the poor get ignored, while the rich with their powerfullawyers are heard;d. Deficient adjudication of cases;e. Less competent or incompetent lawyers becoming members of the bench;f. Political considerations and cronyism influencing case adjudication; andg. The invitation to self-dealing, cronyism, political favoritism and corruption.

52.  Thus, the “aggrieved party,” if anyone, is the People—the citizenry of the State. As such, there is no better Plaintiff than the People themselves. The Intervenors can best represent the People. And the Court can certainly ensure that the Intervenors are properlyperforming this role. 

53.  The correct Defendant is the State of New York—including all three of itsbranches of government. 

54.  Arguably the Senate and the Assembly are also proper defendants, because theiraction and inaction has stymied any increase in judicial salary since 1999, but a proper defendantis also the judiciary itself, because to the extent that demoralized judges do not properly performtheir jobs, the citizenry is deprived of its right to honest government, to the services of thejudiciary, and of their right to petition government through the judiciary. 

55.  The Legislature and Governor, we are told, have ganged up on the Judiciary. Thethree branches are obviously in political conflict here. 

56.  Accordingly, a representative of the People is needed to put forth a legal claim, rather than a political one. The Intervenors have properly put forth the appropriate legal claims.The Intervenors’ counsel, Mr. Diederich, has a proven record of pursuing the public interest, and where appropriate challenging the judiciary and calling it to task. The case, and the interests ofjustice, will be significantly advanced with the Intervenors’ needed participation herein.

Intervenors’ federal court alternatives

57.  Plaintiff Chief Judge Kaye is petitioning the judiciary to order to obtain a payraise for the judiciary, paid for by the taxpayer of the State of New York, yet without theapproval of the taxpayers’ elected representatives, namely, the Legislature and the Governor. This, respectfully, is an affront to the citizenry. It is a request which on its face violates basicprinciples of separation of powers, and to the extent that retroactive monetary relief is sought, ofthe New York State constitution’s prohibition of gifts of taxpayer money.

58.  What Chief Judge Kaye fails to insert into her complaint is any constitutionalclaim relating to the rights of the citizenry. She refuses to acknowledge that a demoralized judiciary may be unwilling to do the People’s work, or that a demoralized judiciary may becomeso incompetent after attrition that it is unable to do the People’s work. 

59.  Upon information and belief, a sufficiently demoralized judiciary becomes athreat to the individual liberties of all citizens, the Bill of Rights, and even to the “republican form of government” guaranteed by article IV, § 4 of the federal constitution. 

60.  Upon information and belief, if Chief Judge Kaye were interested in protectingour citizens’ constitutional rights, including federal rights, she could, and should, have broughtthis action in federal court, rather than State court. The federal venue would have permitted amuch more impartial and disinterested forum (the federal courts) for adjudicating theconstitutional claims (State and federal, institutional and individual rights) which are, or should be, litigated in this case. 

61.  Instead, Chief Judge Kaye chose to ask her subordinate judges to adjudicateclaims in which her subordinate judges have a personal financial stake. This places the lowercourt judge in an awkward position, to say the least. 

62.  On the other hand, if the Intervenors herein become the lead plaintiffs, with Chief Judge Kaye taking a back seat or withdrawing from the case, the trial judge is placed in a much less awkward position, and much less conflicted position, because it is the representatives of thePeople, not the Chief Judge, who become the advocates for appropriate relief. 

63.  The Intervenors will request a trial by jury. Such request will assist the trial court, even if trial court permits merely an advisory jury, because there will be the benefit will be theappearance and reality of impartiality, and the integrity of the system thus be benefitted.

64. If intervention is not granted, the facts will not change (absent a Legislative grantof increased salary). The proposed Intervenors will therefore have the right to file thisIntervenors Complaint as a complaint in an original action in federal district court, assertingthese same claims. The federal judiciary can (if it chooses to do so) appropriately entertain such a case, and grant the relief which Intervenors seek here. 

65.  However, as a matter of judicial economy and federalism, it is certainly preferablefor the New York Judiciary to put its own house in order, by granting intervention here. TheIntervenors will seek the equitable relief which is best for the People of the State of New York. Standing of Intervenor Association for Advancement of Judicial Integrity66.Intervenor Association for Advancement of Judicial Integrity includes membersinterested in good government, and an excellent judiciary. 

67.  It also includes some members who have been aggrieved by judicial action which, the individuals believe, are a result of malfunctions in the system, some malfunction of which may be tied to the State’s system of selection and compensation of judges. 

68.  Intervenor Diederich, as Intervenors’ counsel, will ensure that any testimonyoffered in this regard, if any, is relevant and material to the important public issues at hand. Standing of Intervenor Diederich

69.  Intervenor Michael Diederich Jr. (hereinafter “Diederich”), and Iraq veteran, hasa strong interest, both as an individual citizen and as an attorney who represents clients, in having a Judiciary which properly performs its job, and is adequately compensated to do so. 

70.  Specifically, Diederich has represented numerous clients as a solo practitioner, which clients were not afforded, upon information and belief, proper judicial review, or in somecases any judicial review, because a perhaps underpaid judiciary did not have sufficient human resources or motivation to examine the legal matters presented.

71.  Intervenor Diederich has also brought public interest taxpayer litigation which, upon information and belief, did not receive proper judicial review, or in some cases any judicialreview, because the judges were inadequately paid, and beholden to interest other than thePeople’s interest. 

72.  For example, in numerous public interest litigations, Intervenor Diederich hassought to protect county and State taxpayers by bringing challenges to governmental fraud, wasteand abuse of tax dollars in the State courts. Yet Intervenor Diederich has been met with a lack ofinterest by the courts, including non-review by the Court of Appeals on matters which appeared, on their face, to clearly to be “of right” appeals. 3 Standing was denied at the trial court, the Appellate Division and the Court of Appeals, and thus the taxpayers’ right to petition Stategovernment, through the judiciary, was denied. 

73.  Thus, Intervenor Diederich has standing as a citizen and taxpayer, and as an attorney representing clients seeking to exercise their right to petition the courts.

74.  Neither Intervenor Diederich nor the other Intervenors seek to redress anypersonal grievances, or re-litigate any lawsuits, in this civil action. Therefore, there is no need to here burden the Court with the specifics of judicial misfeasance depriving litigants ofconstitutional rights, except to say that the Intervenors are prepared to do so if requested to do so by the Court for the purpose of establishing standing. 

75.  Ironically (perhaps), at the same time the Chief Judge was apparently considering retroactive pay raises for judges, Intervenor Diederich was handling appeals which sought 3 See, e.g., Diederich v. Rockland County Police Chiefs Assn, infra, where ultimately certiorari was denied by theUS Supreme Court in 2007; Concerned Citizens of Stony Point v. Town of Stony Point, 28 A.D.3d 657, 813N.Y.S.2d 227, (2d Dept. 2006 ); McNamara v. Appellate Division, where ultimately certiorari was denied by theUS Supreme Court in 2007; Save our Open Space v. Planning Board of South Nyack, 256 A.D.2d 581, 682N.Y.S.2d 869 (2d Dept. 1998).On the other hand, Intervenor Diederich’s arguments to the federal courts persuaded the US Supreme Court torule in favor of the citizenry, and local democracy, in an area of environmental law/commerce clause jurisprudence.See, United Haulers Assn, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 127 S. Ct. 1786 (2007). adjudication that the retroactive gift of taxpayer money is unlawful under article VIII, §1 of New York’s constitution. 4 No review was afforded, with the Court of Appeals denying an appeal which appeared clearly to be one “of right” because it involved a substantial constitutional issue—the retroactive gift of taxpayer money is unlawful under article VIII, §1 of New York’s constitution. Thus, truly aggrieved taxpayers were denied standing, where, in contrast, here Chief Judge Kaye (seeking in part retroactive pay for judges) alleges standing yet is in no way aggrieved. 

76.  These facts reveal why it is important for taxpayers, not government officials, to be plaintiffs here. 

77.  Upon information and belief, the claims set forth in this Intervenors’ Complaintare proper claims for a federal court, and also this Court. The best approach, consistent with principles of federalism, is for the State itself to provide a solution to the serious issues raised both by this Intervenors’ Complaint, and by Chief Judge Kaye’s complaint. 

78.  Upon information and belief, if the Judiciary was compensated adequately, and cognizant that its compensation is from the People and paid generously so that the Judiciary willkeep its fidelity to the People, the above-described cases would have been heard by the courts, not ignored without any hearing. 

Class action status desirability

79.  Upon information and belief, because every citizen of this State is affected by thequality, competence and integrity of the State’s judiciary, a class action wherein the Intervenorsherein serve as representatives of the People is the most appropriate vehicle for properlyadjudicating the relief which may be appropriate in this litigation. 4 See, Diederich v. Rockland County Police Chiefs Assn, 8 N.Y.3d 1018, 870 N.E.2d 689, 839 N.Y.S.2d 449 certdenied sub nom McNamara v RC Police Chiefs Assn, 128 S.Ct. 539 (Nov. 5, 2007).

80.  Upon information and belief, the motion paper requesting class certification, incorporated by reference herein, fully justify a grant of class status.

AS AND FOR INTERVENORS ’ FIRST CAUSE OF ACTION -- AN INADEQUATELY COMPENSATED JUDICIARY DENIES INTERVENORS THEIR FIRST AMENDMENT RIGHT TO PETITION THEIR GOVERNMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW 

81.  Intervenors repeat and reallege each of the above paragraphs as if full set forth again her at length. 

82.  Upon information and belief, an inadequately compensated Judiciary inevitablyleads to a judiciary wherein individual judges become demoralized, apathetic, unmotivated and subject to disincentives to properly perform their work and manage their case loads. 

83.  Upon information and belief, an inadequately compensated Judiciary may also lead to a judiciary wherein individual judges become disaffected and hostile to the Peoplebecause the People (through their elected representatives, the Legislature and the Governor)support a system which “rewards” hard judicial work with decreased real compensation. Judgesmay thus become less interested in protecting the rights of citizens, because the citizenry, through its elected representatives, have refused to recognize good work by providing reasonableor even adequate compensation. 

84.  Upon information and belief, an inadequately compensated Judiciary invites third rate candidates for judicial office, the candidacy of political hacks, and less than fully qualified candidates for the State’s judiciary. 

85.  Upon information and belief, an inadequately compensated Judiciary invitescronyism, improper political patronage, party boss influence, and corruption.

86.  Upon information and belief, the above vices are inherent in human nature, and will certainly eventually co-opt many if not most of the members of Judiciary, in some degree, atsome point in time. 

87.  For example, if salaries eventually become so low as to pauperize sitting judges, such members who are not otherwise financially secure will need to take measures to provide forthemselves and their families, and it is naive and unrealistic to believe otherwise. 

88.  Therefore, it is inevitable that litigants’ cases will not be given the attention which the cases are due, and that some litigants will not be permitted the meaningful consideration which they are due. 

89.  Thus, upon information and belief, inadequate compensation will proximatelydeny the State citizens of the First Amendment right to petition their government, and Fourteenth Amendment right to Due Process of Law, notwithstanding the guarantee of such right by theUnited States constitution and New York State constitution. 

90.  Intervenors, and the State citizens they seek to represent, are aggrieved thereby, and seek equitable relief on behalf of the People of the State and citizens likewise situated. 

AS AND FOR INTERVENORS’ SECOND CAUSE OF ACTION -- AN INADEQUATELY COMPENSATED JUDICIARY DENIES INTERVENORS AND THE C ITIZENS OF NEW YORK OF A “REPUBLICAN FORM OF GOVERNMENT, IN VIOLATION OF ART . IV § 4 OF THE U.S. CONSTITUTION 

91.  Intervenors repeat and reallege each of the above paragraphs as if full set forth again her at length. 

92.  The federal Constitution guarantees the citizens of each State a “republican formof government.” See, Art. IV. § 4. 5 5 Which reads, in part: “The United States shall guarantee to every State in this Union a Republican Form ofGovernment, ….”

93.  The Supremacy Clause make this guaranty the supreme law of the land. See, Art. VI, cl.2. 6 

94.  Unlike, for example Baker v. Carr, 369 U.S. 186 (1962), the present case is notone which involves a non- justiciable “political question.” On the contrary, it involves whether denying adequate compensation denies the People government adequate for a republic.

95.  Upon information and belief, New York’s inadequately paid judiciary has refused to uphold the Rule of Law, as one or more of the Intervenors have observed and/or experienced. 

96.  The underpaid judiciary has not upheld State and federal constitutional mandates, thereby depriving New York’s citizenry of the Rule of Law—the most basic characteristic of arepublican form of government.

97.  Upon information and belief, inadequacy of judicial salary impairs the Rule of Law to such an extent, and reasonably and profoundly threatens to do so, that the People of the State are denied of their federal constitutional right to an democracy governed by the Rule of Law, namely, a “republican form of government.”

98.  Intervenors, and the State citizens they represent, have been aggrieved thereby, for which equitable relief is sought for the benefit of the People of the State of New York and citizens likewise situated.

AS AND FOR INTERVENORS’ THIRD CAUSE OF ACTION --ONLY THE PEOPLE, NOT THE CHIEF JUDGE, CAN ASSERT A CLAIM SUPERIOR TO THE APPROPRIATIONS PROVISION OF THE STATE CONSTITUTION 

99.  Intervenors repeat and reallege each of the above paragraphs as if full set forth again her at length. 6 Which reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; andall Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of theland; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to theContrary notwithstanding.”

100.  Article VII, §7 of the New York State Constitution provides in relevant part:“No money shall ever be paid out of the state treasury or any of its funds, or anyof the funds under its management, except in pursuance of an appropriation bylaw….” (emphasis added)

101.  Unless Plaintiff Kaye requests that the Judiciary direct that the Legislature beordered to appropriate additional compensation—something which would appear to be an affrontto the separation of powers—Plaintiff Kaye will be asking the Judiciary to ignore the State constitution’s methodology for expending State funds. 

102.  Upon information and belief, such a request infringes upon the Intervenors’ rightto have their State government operate in a constitutional manner. 

103.  Moreover, upon information and belief, Plaintiff Chief Judge Kaye may be exceeding her oath of office, by requesting an inferior court to “order … fixing the salaries for the judges of each State-paid court” and to “order … the State timely to remit to the judges … such amounts as directed by the Court….” See, Prayer for Relief contained in Plaintiff’s Complaint dated April 10, 2008, at ¶¶ 4 & 5. 

104.  Furthermore, the Plaintiff Chief Judge seeks that such order be retroactive, beginning with a period of time which is “a dated no later than April 1, 2005.” Id. 

105.  Upon information and belief, such retroactive gift of taxpayer monies, besides being without a legislative appropriation, is also an unconstitutional gift in violation of the Stateconstitution. See, N.Y.S. Constit., art. VII, § 8. 7 

106.  If appropriate in light of countervailing constitutional considerations, it may be appropriate for Intervenors, as taxpayers, to seek to restrain an unconstitutional disbursement of 7 Art. VII, § 8 states, in part:“1. The money of the state shall not be given or loaned to or in aid of any private corporation orassociation, or private undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking,….” taxpayer funds to the judiciary, which action is authorized by State Finance Law § 123-b, as wellas under Civil Service Law § 102(1).

107.  Upon information and belief, the Plaintiff Chief Judge, who has sworn an oath to uphold the Constitution of the State of New York should not be taking action designed to erodeits separation of powers, nor to seek relief which expressly violates the State constitution’s mandate that funds expended must be appropriated by the Legislature, and not be gifted through retroactive grant. 

108.  Upon information and belief, the Judicial Plaintiffs are not proper parties to assertclaims which are designed to trump the constitutional separation of powers between the branchesof State government. Such assertion injures the rights of the Intervenors to the constitutional operation of State government. 

109.  On the other hand, the Intervenors are eminently proper parties, as citizens, to assert that underfunding of the judiciary can find a remedy in the Courts, if such underfundingrises to the level of constitutional insult to the rights of the Intervenors and of the People. 

110.  Upon information and belief, Plaintiff Kaye presents much sound documentation as to the underfunding of the judiciary. Yet, the infirmity of Plaintiff Kaye’s argument is thatPlaintiff Kaye, as representative of a coordinate branch of government, is not a proper party, noris the Plaintiff Unified Court System, because they essentially represent one branch ofgovernment attempting to trump, and override, the constitutional powers of another branch. 

111.  The Intervenors, on the other hand, represent the People, whose interest is the sound interrelationship between the branches of State government, including the constitutional mandate for, and necessity of, checks and balances between the branches of State government. Intervenors seek to restore the constitutional balance, if such is needed to preserve theconstitutional rights of the People. 

112.  The best means of preserving representative democracy in the context of thislawsuit is, upon information and belief, to allow the Intervenors to assist the Court in striking thecorrect constitutional balance between the branches of government, while respecting the most fundamental hallmark of American government, namely, that it is “government of the people, by the People, and for the People.” 

AS AND FOR INTERVENORS ’ FOURTH CAUSE OF ACTION --T HE PEOPLE OF NEW YORK ARE ENTITLED TO A GOVERNMENT WHICH RESPECTS THE PRINCIPLE OF SEPARATION OF POWERS, AND ENFORCES SAME 

113.  Intervenors repeat and reallege each of the above paragraphs as if full set forth again her at length. 

114.  Upon information and belief, the Plaintiffs, in arguing for the “independence” of the judiciary, have forgotten the principle of checks and balances, and separation of powers, and most importantly, that the People, through their elected Legislators and Governor, hold the power of the purse.

115.  Accordingly, the Plaintiffs have utterly disregarded the possibility that the elected branches have not provided pay increases because the Legislature, on behalf of their political constituents (the People and special interests groups), view the judiciary as unworthy of a pay increase. 

116.  The Intervenors, and the citizenry of the State, are aggrieved if their interests, and their opposition to unconstitutional action requested by Plaintiff Kaye, are not considered. 8 See, Abraham Lincoln, GETTYSBURG ADDRESS, November 19, 1863.

117.  The Intervenors represent only the People, and no special interests, and can diligently serve as an honest broker as between the Plaintiffs and the Defendants herein, cognizant that all three branches of government belong to us, the People. 

118.  Upon information and belief, it is not those responsible for decreased judicialsalary who will influence whether or not a judge adjudicates a case fairly when called upon to decide in the future. Rather, it will be those viewed as responsible for a judicial pay increase. The People must be involved. 

119.  Unless the People are represented in this litigation, judges may view with gratitude the government for bestowing the pay raise upon judges, not the citizenry. This isdangerous to the People, because some in the Judiciary may be inclined toward bias against thecommon man (or woman). This creates a terrible conflict, because adjudication is often:“between the Government and the man whom the Government is prosecuting;between the most powerful individual in the community and the poorest and mostunpopular,”  

120. Upon information and belief, it is dangerous precedent for the judiciary to indulgein self-reward, outside of the structure created by the State’s constitution. Abrogating thedoctrine of separation of powers will incline the judiciary towards arrogance, based upon theself-created unilateral power it here seeks. Unchecked power imperils the Rule of Law. 

121.  Moreover, if Plaintiffs prevail in the case as presently presented, the attorneys representing the People’s elected representatives (the Legislature and the Governor) will have“lost,” and the judiciary will owe its gratitude and great moral indebtedness to the powerful law 9 See, Plaintiffs’ MOL opposing Defendants’ motion to dismiss, at page 36, quoting Chief Justice Marshall, asquoted by Justice Breyer in Williams v. United States, 535 U.S. 911, 920-21 (2002. 10 See generally, AL GORE , THE ASSAULT ON REASON (2007), pp. 221-228. firms (Plaintiffs’ counsel 11 and a supportive amicus curiae attorneys 12 ) and the attorneys 13 in theallied Larabee v Governor, 2008 NY Slip Op 28217 (June 11, 2008)(presently on appeal), which powerful large firm efforts will have won the pay increase. 

122.  Thus, upon information and belief, granting a pay raise, in the case as presentlypostured, poses the threat of inclining the judiciary to recognize that it owes no debt whatsoeverto the “poorest and most unpopular,” or even the “average citizen,” but instead owes its pay raiseto its Chief Judge’s powerful “pro bono” law firm and, perhaps too, the powerful political interests. 

123.  Absent allowing intervention, the People (including their interest in the proper functioning of government, the Rule of Law, and in justice administered through the courts) becomes superfluous. 

124.  Upon information and belief, the fatal defects in Chief Judge Kaye’s lawsuit can be cured by permitting the citizen input from the Intervenors herein. 

125.  This Intervenors’ Complaint may help solve the problem of inadequate judicialcompensation, and do so in a manner whereby the Judiciary can recognize that it is the People, not its own self-serving interests and those of its large firm attorneys, who deserve the credit forany pay raise. The Judiciary will, Intervenors hope, better appreciate that it is the People who are entitled to the dedicated, diligent, competent and loyal service and fidelity of State judges. 

126.  The outcome will be principled constitutional decision-making in the interest ofthe People. Intervention is required to achieve this end. 11 This is in no way meant as a criticism of Plaintiffs’ counsel. Ideally, a grassroots campaign from citizens such asthe Intervenors, supported by a public interest law firm, would have made more appropriate original plaintiffs. 12 The powerful law firm Weil, Sotshal & Manges, LLP, with its lead attorney the former N.Y.S. Solicitor General,Caitlin J . Halligan, representing the Fund for Modern Courts. 13 The powerful law firm Chadbourne & Parke and is attorneys Thomas E. Bezanson, George Bundy Smith and J.Carson Pully. 

WHEREFORE, the Intervenors pray for the following relief:a. A grant of class status for the Intervenors, allowing them to prosecute this lawsuitas a class action under CPLR §§ 901 and 902, with the undersigned counsel(and/or other counsel for the class approved by the Court) representing the class;b. Jury trial on the issue of whether inadequate judicial compensation deprives thecitizens of New York of their federal constitutional rights, including their rights to petition government, to due process, to equal protection, and to a republican formof government;c. Interim relief, including the creation of a Commission, or appointment of aSpecial Referee, or Special Counsel, or (as an amicus curiae has suggested) aquadrennial commission, to assist the Court and the Intervenors regarding theconstitutional claims which the Intervenors raise herein;d. Granting the declaratory relief sought herein, including a declaration that it is thePeople’s right, rather than the right of the Judiciary and individual membersthereof, to have a Judiciary which is sufficiently compensated that the People’sconstitutional rights are ensured, and to declare that compensation must beincreased if the facts so warrant in light of the Intervenors’ constitutional claims;e. Potential equitable relief as provided for by State Finance Law § 123-b and CivilService Law § 102(1);f. granting Intervenors’ herein an award of costs and reasonable attorney’s fees, including if necessary or appropriate, interim attorney’s fees; andg. such other and further legal and equitable relief as the Court may find just and equitable in the circumstances. Dated: Stony Point, New York November 13, 2008. 

MICHAEL DIEDERICH JR.

Attorney for Intervenors, Class & Pro Se

361 Route 210

Stony Point, NY 10980

(845) 942-0795 

Mike@DiederichLaw.com