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Wednesday, November 19, 2008

Debate Over Judicial Pay Ignores Widespread Corruption

Panel Weighs 'Actual' Versus 'Threatened' Harm on Pay
The New York Law Journal by Noeleen G. Walder - November 19, 2008

Members of a state appeals panel reacted skeptically yesterday afternoon to claims that judges protesting the lack of a pay raise must demonstrate actual harm to the operations and independence of the judiciary. Although "no one disputes" that New York state judges deserve a pay raise, "[n]o one can credibly say that the functioning of the judiciary has been impaired. The judges are doing their job," said Richard H. Dolan of Schlam Stone & Dolan, who represented the state and the governor in Larabee v. Governor, 112301/07, during oral argument before five judges of the Appellate Division, First Department. But Justice Dianne T. Renwick pressed Mr. Dolan. "Isn't the threat of harm sufficient? Do you wait until it breaks down before you protect" separation of powers? she asked. "The short answer is yes," Mr. Dolan replied in urging the court to overturn Supreme Court Justice Edward H. Lehner's (See Profile) June order directing the Legislature and governor to raise the pay of the state's 1,300 judges within 90 days.

The argument came just days after the Third Department dismissed Maron v. Silver, 504084, a suit filed by current and former judges who argued that the Legislature's failure to grant judges a raise since Jan. 1, 1999, amounted to a violation of the compensation clause of the state Constitution and the separation of powers and equal protection doctrines (NYLJ, Nov. 14). In Maron, a 4-1 panel held that the plaintiffs had "failed to allege a discriminatory attack on the judicial branch that has impaired the Judiciary's independence and ability to function." Thomas E. Bezanson of Chadbourne & Parke, the lead attorney for the four plaintiff judges in Larabee argued yesterday that Maron was "dead wrong" and asked the Manhattan-based panel to uphold Justice Lehner's grant of summary judgment to the Larabee plaintiffs. Like the judges in Maron, the four Larabee plaintiffs - Manhattan Family Court Judge Susan Larabee (See Profile), Cattaraugus County Family Court Judge Michael Nenno (See Profile), Manhattan Civil Court Judge Geoffrey Wright (See Profile), and Manhattan Criminal Court Judge Patricia Nunez (See Profile) - contend that their $136,700 salary, which has remained static over the past decade in the wake of 30 percent inflation, has been unconstitutionally diminished in violation of the compensation clause. Asked by Justice Karla Moskowitz to differentiate the claims in Maron from those in Larabee, Mr. Bezanson explained that his clients have not alleged that the Legislature's failure to raise judicial pay amounted to an "actual impairment" of judicial independence.

He also noted that in Larabee the defendants have admitted on the record the existence of "linkage," the legislators' practice of tying judicial pay raises to unrelated issues, such as campaign finance reform and legislative pay. Backed by their respective judicial associations, the Larabee plaintiffs allege that the executive and legislative branches "undermined and attacked the independence of the Judiciary" by such linking. They maintain that the yearly compensation of Supreme Court justices would have had to be raised to $175,264 in 2007 to keep pace with inflation. Since 1999, their pay, when adjusted for the cost of living, has fallen to 49th in the nation, according to a study by the National Center for State Courts. In February, on a motion to dismiss, Justice Lehner held that the judges had failed to "state a viable claim for a violation of the no-diminution clause." But in June, the judge rendered a stunning victory to the state's judges when he granted them summary judgment in Larabee. The judge gave the defendants, whom he ruled had violated the separation of powers doctrine through the "practice of linkage" to other unrelated issues, 90 days to raise the judges' pay to reflect the rise in the cost of living since 1999. A statutorily triggered stay went into effect when the defendants filed a notice of appeal in mid-July. On Aug. 27, the First Department rejected a bid by the Larabee plaintiffs to vacate the stay, but agreed to establish an expedited appeal schedule (NYLJ, Aug. 28). "Case after case notes the commonsensical view that a 30 [percent] decline in income" violates the compensation clause, Mr. Bezanson argued yesterday.

Quality of the Bench

Bernard W. Nussbaum of Wachtell, Lipton, Rosen & Katz, who represents Chief Judge Judith S. Kaye in Kaye v. Silver, 400763/08, a third pay suit, appeared as amicus curiae on behalf of the Larabee plaintiffs. Bernard Nussbaum argues for judicial pay raises before the Appellate Division, First Department, yesterday on behalf of Chief Judge Judith S. Kaye and the court system. Seated at right is Richard H. Dolan, who appeared for the state. Mr. Nussbaum agreed with Mr. Bezanson that the Third Department was "fundamentally wrong" in holding that plaintiffs must show an "adverse impact" on the operations of the judiciary. "The threat of creating [a] less than qualified bench is enough," said Mr. Nussbaum. "Basically, you are saying that the judicial salary has reached an unconstitutional level?" asked Justice Peter Tom, who presided over the panel. "Yes," Mr. Nussbaum replied. When a chief judge of the Court of Appeals makes less than even a "summer associate at my firm," it is "impossible" to attract the "competent and intelligent people you need on the bench," he added. But when Mr. Dolan was asked the same question by Justice Tom, Mr. Dolan replied, "There is no such level."

"[W]e all need to have a little more confidence in voters," Mr. Dolan maintained, who serve as the "ultimate check" on the balance of powers and have been "deeply skeptical" of backing a judicial pay raise. Chief Judge Kaye, in her suit, claims Supreme Court justices' salaries should be on par with the $169,300 a year earned by federal District Court judges. The summary judgment motion filed by the chief judge and motion to dismiss filed by the governor and legislative leaders are pending before Justice Lehner. Justices Luis A. Gonzalez and Eugene L. Nardelli joined Justices Moskowitz, Renwick and Tom on yesterday's panel. In addition to Mr. Bezanson, George Bundy Smith and J. Carson Pulley of Chadbourne represent the four judges. In addition to Mr. Dolan, David J. Katz and Eric S. Groothus of Schlam Stone represent the state and Governor David A. Paterson. Assistant Solicitor General Julie Sheridan, who represented the Assembly and Senate and did not argue before the First Department, joined in the state's papers. Bernard Nussbaum argue[d] in front [of] Judges Karla Moskowitz, Luis A. Gonzalez, Peter Tom, Eugene L. Nardelli and Dianne T. Renwick.


Anonymous said...

I'd like to know why not even one appellate justice asked whether Judith Kaye's complaint is just plain defective, that she had no standing to bring an action that is clearly under the law makers authority.

Anonymous said...

I'm confused... If no oath and no bond filed means no pay... what are they raising??

Anonymous said...

judge Lehner is nuts, he is trying to ensure he gets a good cushy job after he retires.
How many of the rest of the population gets "Cost of Living Increases"
Look at what is happening to the big 3
The State is going to washington to ask for money. The MTA wants $3
a ride. That shows what a lack of brains and how disconected Judge Kaye is from reality.

Anonymous said...

When will this all end ? The Courts are so corrupt and out of control and the Judges and Lawyers are pure evil.They are systematically destroying American families by draining them of everything they have .This in return destroys the opportunities and possibilities of their children.They rob the estates of the dead and the living.They deny parents their GOD given right to spend adequate time with their own children.They are adept at working the system for themselves at the expense of innocent people.If you know a Judge or an attorney who drinks and drives,use your phone and video camera.If you know of any other crimes being commited by these people including unreported income,you must act on it.
These so called Court Officials are subverting our very constitution and our bill of rights.

Anonymous said...

All of the above is very accurate.
The real scary part is that the judiciary, state and federal is twisting the laws, making up the laws, and ignoring the real meaning and intent of the laws, to benefit their own robes and ineptness, that abounds within their power.
Abuse of power exists in the form related above, and is the most detrimental to all Americans and NY'ERS, but it is never addressed by anyone..even if their is extensive proof. Have you ever seen a charge or conviction of judicial abuse of power?
Who would ever have the guts to charge abuse of power against the judiciary and proceed with the allegations, and then survive their career or a normal homelife?
The courts would surely terrorize those that dare expose them....and we are told by our government, to be afraid of the foreign jihadists!
Until an agency with scary powers, connected to spying and torture, the American judicial system will subvert forever and ever!
We need to scare the hell out of the cowards that work and operate the court systems, and then you may see change.
Any scary government agencies out there, willing to address the national security issue of court corruption?

Anonymous said...

To the poster above.. absolutely correct...

The Corrupt Courts are domestic terrorists when you consider what they have done to the country, and to the people...

priority ONE on the radar...

Blog Archive

See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:

               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
               CLICK HERE TO SEE Part 1
               CLICK HERE TO SEE Part 2