The New York Law Journal by Mark Fass - March 10, 2009
A Brooklyn judge has recused himself from a receivership case where the plaintiff is represented by a law firm that employs two state lawmakers, one of whom voted against a judicial pay raise. In a scathing 10-page decision, Supreme Court Justice Arthur M. Schack (See Profile) wrote that it would be improper for him, as a petitioner in an action against the Legislature seeking raises for judges, to adjudicate an action in which the firm has a stake. "To avoid any potential appearance of impropriety in the instant case, since both Senator Craig M. Johnson and Assembly Member Marc S. Alessi are both of counsel to Jaspan Schelsinger Hoffman . . . I must recuse myself," Justice Schack wrote in JPMorgan Chase v. Bergen Plaza, 126/09. The Brooklyn Supreme Court decision will be published Thursday. "I hope that Mr. Johnson and Mr. Alessi would allow the judges of this state to receive their first pay raise in this century. Thanks to our legislators . . . our New York State judges are the 'Rodney Dangerfields' of government. A pay raise would help to give us a little respect, instead of, as recently said by Chief Judge Kaye, 'the disdain with which we are treated.'"
Justice Schack's recusal order is yet another salvo in the fight for pay increases for New York's approximately 1,300 trial judges, who have not received a raise since 1999, when the Legislature bumped their salaries to $136,700 a year. No state has gone longer without raising judicial pay; according to one study, New York ranks 48th in judicial pay when adjusted for the cost of living. Last May, then-Chief Judge Judith S. Kaye, a leading advocate for judicial raises, e-mailed the entire state judiciary, advising her fellow judges that they may recuse themselves as a matter of "individual conscience," but that a "strategy" of recusals could "hurt our cause" (NYLJ, May 2, 2008).
Two weeks later, the state Commission on Judicial Conduct warned that judges who recuse themselves to protest legislative inaction could face disciplinary actions. The County Judges Association of the State of New York then adopted a resolution supporting "the recusal of any New York State Judges, as a matter of personal conscience, in regard to their ability to be fair and impartial due to the controversy surrounding Judicial compensation." Though no one keeps an official count of the recusals, Steven W. Schlesinger told the Law Journal last year that in a three-month period about 20 judges recused themselves from cases involving his firm. Yesterday, he did not return a call for comment. In one such case, Trump on the Ocean, LLC v. Cortes-Vasquez, 5329-08, then-Nassau Supreme Justice Leonard B. Austin granted a potential intervenor's motion for recusal.
"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 wrote. Last week Justice Austin was appointed to the Appellate Division, Second Department. In the present action before Justice Schack, JPMorgan Chase, the plaintiff, sought the appointment of a receiver for a bankrupt Brooklyn shopping plaza. Justice Schack recused himself, citing his status as a plaintiff in Maron v. Silver, 06-021984, which seeks an increase in judicial salaries to $169,300. He wrote that it would neither be proper nor appear proper for him to rule on a case involving Jaspan Schlesinger, where both Mr. Johnson and Mr. Alessi are counsel. Mr. Alessi voted against the raises; the issue has not come to a vote before the Assembly.
"Both Senator Johnson and Assemblyman Alessi have the right to earn additional income, unlike judges," Justice Schack wrote. "It is high time for [them] to realize that the approximately 1300 New York State judges are working people who deserve their first pay raise in more than a decade." According to a spokesman for the Office of Court Administration, JPMorgan Chase will now go to Justice Abraham Gerges, Brooklyn's administrative judge, for reassignment. Antonia Donohue of Jaspan Schlesinger represented the plaintiffs, JPMorgan Chase. She declined to comment. The defendant, Bergen Plaza, did not answer the complaint. Its phone has been disconnected and no one responded to an e-mail requesting comment. The judges' pay-raise suit, Maron, is not faring well. In December 2007, Albany Supreme Court Justice Thomas J. McNamara dismissed all but one claim (NYLJ, Dec. 3, 2007). The Appellate Division, Third Department, affirmed 4-1, and the judges are now seeking leave to appeal (NYLJ, Nov. 14, 2008).
There are two other lawsuits seeking higher pay for judges. Larabee v. Silver, 112301/07, was filed in Manhattan Supreme Court in September 2007 on behalf of the New York City Family Court Association, the state Family Court Judges Association, the New York City Civil Court Judges Association and the New York City Criminal Court Judges Association. In Kaye v. Silver, 400763/08, filed in April 2008, Judge Kaye claimed the Legislature denied the judges their constitutional right to an adequate salary. Manhattan Supreme Court Justice Edward Lehner is now considering a motion for summary judgment and a motion to dismiss in Kaye. Justice Lehner's denial of the government's motion for summary judgment in Larabee has been appealed to the Appellate Division, First Department. Mark.Fass@incisivemedia.com
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