OCA Sees Fewer Judges Leave Bench in 2011 Than Prior Year
The New York Law Journal by Joel Stashenko - January 4, 2012
Departures from the ranks of New York state judges in 2011 may have been quelled by the prospect of the first pay raise for the judiciary since 1999, Chief Judge Jonathan Lippman said. Last year, 54 judges left the bench through retirement, resignation or death, half the number of judges, 110, who left in 2010, according to the Unified Court System. There are about 1,200 state judges in New York. Legislation establishing a panel to recommend pay raises was passed in December 2010. The panel has proposed boosting all state judicial salaries by 27 percent over the next three years, beginning April 1, 2012. Judge Lippman said the probability that state judges will get a pay raise may have accounted for the fall-off in departures last year. "I think it did have a major impact on the mindset of our judges," Judge Lippman said yesterday in an interview. Among those leaving the bench in 2011 were 11 experienced judges who had exhausted the recertification process under which their terms were extended by a total of six years past reaching the mandatory retirement age of 70. They included Supreme Court Justice Alfred J. Weiner in Rockland County, who wrapped up a career in which he spent 39 years in various courts. Supreme Court Justice Frank A. Sedita in Erie County spent 35 years on the bench while Appellate Division, Fourth Department, Justice Samuel Green and Bronx Supreme Court Justice John P. Collins each had been on the bench for 33 years. Judge Lippman said one of the strengths of the Judiciary is the longevity of its judges.
"Look, you are losing people of invaluable experience" through mandatory retirement, he said. "I don't think you can replace 30 years or more on the bench be it on the criminal side, the civil side or the other subsets that we specialize in. It is a tremendous loss when we lose experienced judges and that's why we thought it was essential to resolve the salary issue so that we didn't lose more highly trained and experienced judges," many of whom are relatively young. Judge Lippman added, "I think it is fair to say that most judges aged out, but our experienced judges are our heart and soul of the system. I cannot tell you how helpful and significant it was that we now have this process where we can continue regular, permanent [pay] increases." Unless Governor Andrew M. Cuomo and the Legislature, which both had representatives on the pay commission, intervene, the salaries for Supreme Court justices, for example, will increase to $174,000 from $136,700 over the next three years.
One high-profile judge who quit the bench in 2011 citing the judicial pay situation was James M. McGuire of the Appellate Division, First Department. Mr. McGuire, 58, who has two young children, said he needed to earn more than the $144,000 a year salary of an appellate judge. Mr. McGuire, now a partner at Dechert, said the prospect of a pay raise, especially one to be phased in over three years, has not mollified all of his former colleagues. Some judges feel the hike is "too little, too late," he said. Court of Claims Judge Robert K. Holdman, who will turn 48 at the end of the month, also cited inadequate judicial pay when he resigned in September after six years. Three judges died in office in 2011: Presiding Justice Anthony V. Cardona of the Third Department; Housing Court Judge Oymin Chin in the Bronx, and Supreme Court Justice Robert A. Ross in Nassau County, who specialized in matrimonial matters.
Still, the appeal of remaining on the bench, raise or no raise, was obvious among many of those who left on Dec. 31.
For example, Supreme Court Justice Anthony Falanga of Nassau County, 76, said he thought it would be fairer to have allowed him to serve out the rest of his current 14-year term, which ends at the end of 2012. Money was not an issue, said Mr. Falanga, who started yesterday with the Garden City firm of Jaspen Schlesinger Hoffman after 17 years on the bench. "I did not take the job for the money, nor did my colleagues," he said in an interview. "If I wasn't mandated to retire and I would have been allowed to serve the extra time, whether or not I was getting a pay raise, I would not have left." He added, "Retirement is not in my DNA. I am ready to get back into the fray and to do battle. The state Constitution says you are washed up at age 76, but I say 'boo-hoo to you.'"
Retiring judges have a range of plans, some tapping into their areas of expertise, some teaching, and others, well, retiring.
Onondaga County Court Judge William D. Walsh plans, for now, to go into conventional retirement mode. He said he was diagnosed with prostate cancer late in 2010 and that he promised his wife that if surgery went well, which it did, he would step down at the end of 2011. Judge Walsh said he plans to indulge two passions in retirement: racing motorcycles (NYLJ, Jan. 18, 2011) and waterskiing barefoot.
Mr. Sedita said he offered to work as an unpaid judicial hearing officer, but opted instead to join Counsel Financial in Buffalo beginning yesterday. Mr. Sedita said he will be one of the in-house counsels evaluating the loans lawyers seek from the firm to finance their litigation upon expectation of a favorable pay-off. He said he has no hard feelings about the mandatory retirement rules, but felt that he could have served capably for years to come. "My health is good, my mind is good," he said. "I think I could have still made a contribution." William Erlbaum, who stepped down as Queens Supreme Court justice in the fall after 33 years on the bench (NYLJ, Oct. 13, 2011) said he has spent weeks identifying significant legal papers from his judicial career and discarding others. He said he wants to keep his hand in practicing law by being a consultant to other lawyers, especially those involved in cases where the psychiatry or psychotherapy of the parties is at issue. He is also continuing as an instructor at Brooklyn Law School and at York College in the City University of New York system, he said. "I really don't have a great craving to go into courts," Mr. Erlbaum said. "There are a lot of lawyers who like to fire spitballs. I like to make good spitballs." Mr. Erlbaum, 75, stepped down 14 months earlier than he had to under state law. His last term of recertification would have ended at the close of 2012. He said, however, he wanted to leave the bench according to his own timetable. "They say at the state prison at Bedford Hills that the lights out is at 9 p.m., but that the women unscrewed the bulbs at 8:45 p.m.," he said. "I wanted to leave under my own steam." Joel Stashenko can be contacted at firstname.lastname@example.org.
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