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Friday, April 11, 2008

Kaye Sues State Over Judicial Salaries

Kaye Sues State Over Judicial Salaries
The New York Law Journal by Joel Stashenko and Daniel Wise - April 11, 2008

ALBANY - Stymied for a fourth straight fiscal year in securing a pay raise for state court judges, Chief Judge Judith S. Kaye sued the Legislature and Governor David A. Paterson yesterday to force the first judicial salary increase in New York since 1999. At about the time attorney Bernard W. Nussbaum was filing the complaint in Supreme Court in Manhattan at 60 Centre Street, Chief Judge Kaye and Chief Administrative Judge Ann Pfau (See Profile) sent a message to the 1,300 judges saying that the exclusion of a pay raise in the budget adopted in Albany on Wednesday was the last straw.

"At this point, we are left with no choice but to take legal action to address this intolerable situation," the judges said. They called the need to file a suit, first threatened by the chief judge in April 2007 but often cited by her since then as a last resort, as "regrettable." The complaint, Kaye v. Silver, names the chief judge and the Unified Court System as plaintiffs. The defendants are Assembly Speaker Sheldon Silver, Senate Majority Leader Joseph Bruno, Mr. Paterson and the State of New York. State Attorney General Andrew M. Cuomo has decided to stay out of the case, his chief of staff Steven Cohen said yesterday. At any one time, the attorney general represents all the parties in the suit, Mr. Cohen said, as well as appearing daily in state courts presided over by the Judiciary.

"The most rational and reasonable approach is for us not to represent any of the parties," he said in an interview. "The potential conflicts here are obvious and unavoidable." The suit asks the court to order the state comptroller to pay judges raises back to April 1, 2005, the start of the first fiscal year in which the governor and Legislature failed to enact a pay increase proposed by Judge Kaye. Such raises, linking the salary of state Supreme Court justices to those given U.S. District judges, would cost the state $148 million.

In a letter to Supreme Court Justice Edward H. Lehner (See Profile) accompanying the complaint, Mr. Nussbaum asked that a trial be scheduled on or about May 14. Mr. Nussbaum, who is representing Chief Judge Kaye and the judiciary pro bono, wrote that "a prompt trial is needed because the judicial-pay impasse has risen to the level of a constitutional crisis." Mr. Nussbaum, a partner at Wachtell, Lipton, Rosen & Katz, said he would call the chief judge to the stand to testify about the negative impacts that nine years without a pay increase have had on the judiciary. He said he would also seek to call Messrs. Bruno, Silver and Paterson as witnesses to ask them why pay hike bills have repeatedly foundered at the Capitol.

"They must be made to explain their insistence that judicial pay increases (which all agree are warranted) be held hostage to the desire of legislators to increase their own salaries, or the desire of the Executive to push through other initiatives resisted by the Legislature," Mr. Nussbaum wrote in his letter. Mr. Nussbaum requested that the case be assigned to Justice Lehner, who is familiar with the basic issues in the case, having decided Larabee v. Spitzer, 112301/07, one of two other suits filed by judges or judicial organizations seeking higher judicial pay.

Causes of Action

Mr. Nussbaum's complaint cites three causes of action. It argues that the lack of a pay raise is a violation of separation of powers and of the independence of the judiciary in two ways: because the governor and Legislature have a constitutional duty to adequately fund the judiciary and because judicial pay bills have repeatedly failed when linked to issues unrelated to the Judiciary. The stagnant pay situation also violates the state Constitution's prohibition against judges' pay being reduced once their terms have begun, the complaint claims. By failing to approve any pay increases, the governor and Legislature have effectively cut judges' pay by about 27 percent, the amount their salaries have lost to inflation since 1999, Mr. Nussbaum contended.

"In the last decade, judges salaries have declined by 27 percent while the pay of state employees has increased by 24 percent," Mr. Nussbaum said yesterday on the courthouse steps at 60 Centre St. after filing the action. "This is an awful and outrageous situation that at some point becomes unconstitutional and that is what has happened." Chief Judge Kaye declined comment past her electronic mail to state judges yesterday about the suit, Court of Appeals spokesman Gary Spencer said. At a news conference last week in Albany at which she urged legislators to raise judges' pay, the chief judge spoke with exasperation of being repeatedly assured in recent years that a pay hike was just over the horizon, only to be disappointed when bills never won final passage (NYLJ, April 1).

Twice in 2007, the Senate approved bills raising judges' pay and creating a commission to authorize future pay increases. But twice the Assembly did not take up the measures as Democratic members balked at hiking judges' pay without also being allowed to increase their own salaries. Traditionally in Albany judges' and legislators' pay have been linked. Legislators also have not had an increase in their $79,500-a-year base pay since 1999.

The filing of the suit harkened back to the 1991 litigation filed by then-Chief Judge Sol Wachtler against Governor Mario Cuomo (NYLJ, April 17, 2007). Wachtler v. Cuomo was designed to invalidate the $77 million reduction Mr. Cuomo made in a $966 million budget submission by the Judiciary. After a year of poisonous relations between the courts and the governor, Mr. Cuomo restored the funding in the next budget cycle and Mr. Wachtler agreed to drop the litigation. Chief Judge Kaye had said since last year that she delayed filing her suit because of the chill it was likely to bring to the Judiciary's relations with the other two branches of government.

Last Resort

Albany County Family Court Judge W. Dennis Duggan (See Profile) said the impasse over pay had become intolerable. "I think the law suit is supported by virtually the entire judiciary," Judge Duggan said in an interview. "We all believe it is a meritorious claim that will prevail and we have a high degree of confidence in Bernard Nussbaum. It is sort of the last resort. There was nothing else that we could do."

Fund for Modern Courts Chairman Victor A. Kovner also said yesterday that Chief Judge Kaye essentially had no choice but to file her suit. "I think every person who practices law in the state is saddened that it has come to this, but it is quite clear that at this point it was appropriate to commence the litigation," Mr. Kovner said. He said members of his group would study Mr. Nussbaum's papers and may consider filing an amicus curiae in support of the Judiciary. Mr. Bruno blamed the Assembly for the failure of judicial pay bills. "Judges don't need to sue to get a pay raise, they need to step up pressure on the state Assembly to act on either of two judges' salary increase bills already approved by the state Senate," Mr. Bruno said in a statement released by his office.

Mr. Silver's spokesman, Dan Weiller, said the speaker has long favored a pay raise for judges along with state legislators and commissioners in the executive branch. Mr. Weiller said the inclusion of the $48 million appropriation in the budget, though it was a "dry" one, showed that Mr. Silver is sympathetic to judges' quest for more money. Mr. Paterson's communications director, Risa B. Heller, said the governor "personally believed that a pay increase is warranted" for judges. "However, these issues should be addressed through the normal legislative process, and not through litigation," Ms. Heller said. "We will continue to work with the Legislature and the Judiciary to address this issue."

Larabee v. Spitzer is on appeal to the Appellate Division, First Department, while the other pay suit, Maron v. Silver, 4108/07, is being appealed to the Third Department. In both cases, trial judges rejected the plaintiffs' claim that stagnant judicial pay violated the Constitution's prohibition against judicial pay being diminished during judges' terms. But Justice Lehner and Acting Albany County Supreme Court Justice Thomas J. McNamara (See Profile) allowed the judges' suits to go forward on separation-of-power claims.

- Joel Stashenko can be reached at  Daniel Wise can be reached at


Anonymous said...

What can you say? Judge Judith Kay and the rest of the pieces of trash that have overseen the corruption in Westchester Supreme and Family Courts should be sued for child neglect because of all the damage they have casued to children. In 2006, all of my judges were canned,removed or the more politcally correct term "reassigned" and have had no criminal actions brought against them because that would require other corrupt and rotten humans (judges,lawyers) to actually to feed on their own buddies. Does anyone seriously think that if you paid this kind of human trash $40,000 dollars more a year that they would suddenly have morals and ethics. and let's simply forget about the 9th judicial grivance committee. I gave them written proof of lawyers forging evidence and they wrote me a letter saying that they do not handle those kind of matters. NY is one absolute disaster and their should be lawsuits pouring in but people are so apathetic and have simply given up on their own rights, their childrens rights and human rights. I hope Judith Kay develops terminal cancer before she sees a pay raise. I will dance in the streets and piss on her grave (I used to be a nice person until the crooks got a hold of my children )

Anonymous said...

Talk about frivolous lawsuits.........

Definition- FRIVOLOUS: (1) lacking in intellectual substance and not worth serious consideration; (2) silly and trival.

The plaintiffs should be sanctioned, and reported to the bar!

Anonymous said...

I heard that Andrew is planning something big.

I hope that includes the arrest of a few hundred judges.

I knew Cuomo should have been our next governor!!!

Anonymous said...

Not frivolous but the greatest class action suit should be started in response to Kaye's insane lawsuit. Every single person in the state of new york who feels that their employer did not give them a raise fairly should file a lawsuit to be related to Kaye's. Maybe she will use her influence for them too at the courts or perhaps rule on the case herself. This relating all similar suits to hers or class actioning, even better, will clog the new york courts with frivolous suits to infinity and perhaps the judges will actually have to work for a change and be thwarted from further criminal acts, as they are above the law in their minds. It is even more disgusting that she claims the impartiality of the judges has been comprised without pay raise, similar to extortion, whereby unless we get a raise we will make bad decisions or criminal ones to make up for it. In fact, all New Yorkers who feel any judge has made a bad decision should appeal pointing to Kaye's arguement in support that they made such bad decisions, appeals galour.

I would fire her ass on the spot for this if she worked at my company and let her sue me.
She is the biggest DB (Dumb Beaatch) I have ever seen, other than for her part in stealing patents from me with her late husband and his firm of theives Proskauer. Funny how she hired the Clinton legal bum who resigned admist allegations of his involvement with the Foster murder and derailing justice. Ah such scummy bedfellows.
NY do not be extorted, fire Kaye and the rest of them. Let the suits begin for all state and federal employees within the state of New York, perhaps Milberg and the other clown Schiffrin and Barroway will represent such a farce class action to line their pockets in jail.

Anonymous said...

you have got to be kidding!! These judges want raises? do they forget that it is tax payers that give them increase in their salarey as well. With all of the scandel, corruption, bias these horrible judges have created, they should be warned that maybe a reduction is what's neeeded until a clean up is made...In the meantime they have been reducing there efforts on current cases, procrastinating...........they all deserve to go to hell....

Anonymous said...

what would happen if everyone that thought they should get more money sued thier employer. everyone thinks they deserve more money.
you have to be jokeing.

Kaye needs mental help.
Maybe they should start doing drug tests
over thier

Anonymous said...

Oh yeah, would someone please file a judicial conduct complaint and disciplinary complaint with the first department against Judge Kaye for abuse of power, extortion on New Yorkers, revealing that judges decisions have been comprised due to lack of pay and perhaps they forced to criminal acts. Perhaps this will be their excuse for crime, they were overworked and underpaid, great defense. In fact, have any of these leeches heard that most of us hard working folks who don't get the pay we want go get a new job, is she afraid she is not worth much on the open market? Perhaps she is afraid that if she left she would be tried for all this crap she created in the New York courts. I wouldn't hire her to clean my toilet.

Anonymous said...

What about the minimum wage workers who have been screwed out of pay wages by these judges and politicians to make them poor, does she feel for them or sue on their behalf. No they are lowly common folk, she is above the law, above reach. I'd like to see her and the rest of these crooked friends of her eek by on prison pay.

Anonymous said...

I will use the word Judge Kaye is so fond of using "DENIED" and that is all she wrote!

Anonymous said...

what legal standing does Judge Judith Kaye and her band of theives and con men/women have to demand anything? Just to show that they are going to have their way the case is brought in the very Courts that they control with an iron fist! It's an understatement, but they sure know how to FIX things, don't they! They should all be locked up and have their licenses to practice law taken away from them!

Anonymous said...

The Chief Judge of the State of New York is fully aware that Judges and attorneys are rigging cases in order to abuse children, prostitute children, child pornography and sexually exploited them among other things. You want a raise Kaye let satan raise you and drop you in hell.

Anonymous said...

Settle all present federal lawsuits, where it is well known they all have merit, address and act against the criminal actions addressed in the lawsuits and bring in accountability...then, you may see all of you need for a raise!

Anonymous said...

Didn't the Federal Judges try this tactic at one time? Didn't it fail? This seems like deja vu all over agin.

Anonymous said...

your a fat ass old witch***I say to you what you said to me DENIED * DENIED and DENIED *** Kaye you and all you're minions should be sanctioned***take their law licenses***put them all out of business

Anonymous said...

Wow. All these comments render it clear what the prevailing sentiment on judicial salary increases is. Anyone out there who can help me write an amicus brief to submit to the presiding judge?

Clearly, the only reason why Kaye wants our honorable judges paid more, is to protect against the closing of the 'elite gap'; that peace of mind and egomania that comes in knowing they make substantially more than other professionals. After all, at their income levels any increases will be taxed at the highest rates possible.

K Pat Brady

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