Judicial Pay in New York: The Court's Decision, the Chief Judge, and a Commentator (Part 2: Friedman's Guest Commentary)

Entertaining and illuminating. Clever, candid, irreverent and insightful. That is how I would describe Michael Friedman's columns in the Albany County Bar Association Newsletters.

Friedman is a prominent matrimonial lawyer in the Albany, New York area. His columns in the monthly bar association publication typically deal with the recent developments in matrimonial case law in New York. But they also typically deal with the courts, lawyers, and the lives involved in such decisions, and they are typically--at once--hilarious, biting and brilliant.

A recent commentary of his went unpublished. The reasons are not relevant here, but one can hazard a guess after reading it. I did have the opportunity to read it, and I thought it deserved an airing. Yes it's sharp. But like all Friedman's writings, agree with him or not, he sheds welcome light on his subject.

Friedman agreed to let me publish his unpublished column as a guest commentary. So here it is:

“I speak two languages, Body and English.” Mae West

"I gave him my body, but he gave me nothing." Patrizia D’Addario, prostitute and mistress of Prime Minister Silvio Berlusconi

“We have finite resources.” Jonathan Lippman, October 14, 2009

You’ve got to have quite a sense of humor to be a New York State Supreme Court Judge these days, be you an Acting, Elected or Appellate one. Once upon a time, you were quite revered. You had authority, autonomy and respect. Your jokes were funnier than other people’s jokes, or at least enjoyed with more gusto by the members of the bar. You handled your own calendars, motion terms and trials. Then came the all powerful, all seeing Office of Court Administration, OCA to its friends.

Now the bean counters have reduced our judiciary to an enormous bureaucracy, with the judges as mere cogs in a giant wheel, wasting their time filling out forms and accounting for caseloads, motions and trials. Their website now lists 28 “initiatives and programs” that accomplish virtually nothing for lawyers and litigants seeking resolution of disputes. If that isn’t bad enough, the judges haven’t had a raise since the Clinton Administration.

In December OCA published the April Fool’s Day 2010 to March 31, 2011 Budget, a 557 page tome with all kinds of goodies while touting the “stringent spending controls” implemented during the year. (The full thing can be found online just in case you don’t need a doorstop right now; see link below.)

Remember this organization did not exist a few years ago, and to most of us things ran just fine. The “request” in this year’s budget is a mere $2,709,301,640. That’s $2.7 billion smackeroos for our bankrupt state. Here’s where the sense of humor comes in. The court system wants $6.3 million for a Judicial Supplemental Support System. OCA spokesman David Bookstaver said last October this would cost about $6 million, but what’s an extra $300,000 here and there.

This is a payment of $10,000 to each of the 1300 state judges. Why? According to Judge Lippman, this is not a raise but an allowance for judges to clean their robes, “commuting costs, Internet service, home security systems, life insurance and health care, marriage counseling and other expenses.” Come again? We’re denying our judges a raise, but giving them money for marriage counseling? Really? How about our Third Department judges who aren’t even married? What do they do with all the extra jing?

Way, way down at the very bottom of this thing, on page 557, is a small paragraph on the renovation of the Centennial Hall in the City of Albany, formerly known as the Albany County Family Court on the corner of Lodge and Pine Streets. In case you haven’t noticed the spiffy new copper roof and cupola, this thing is for, among other things, “secure residential space for the Court of Appeals Judges while in Albany.” Yep, a nice place to sleep for $23 million.

Actually the $23 million is just to renovate. The building itself was sold for $3 million, making this a $900 per square foot project. Just to put that in perspective, The Waldorf Astoria renovated the great Fairmont Hotel in New Orleans after Katrina for a $100 per square foot, and that was thought to be outrageous. All this for a place to sleep for 5 out of the 7 Court of Appeals judges who live out of town?

Last year, Court of Appeals “spokesman” Gary Spencer said this is “a security issue for us.” Really? I guess the Albany Crown Plaza or the Marriott cannot be made secure enough for $26 million. Does Al Qaida or anyone really care about these guys? If you’ve been following the renovations in the Albany County courthouse for the past 8 years, you’ll note that this Taj Mahal is going up faster than track housing in Levittown, and there’s nary a sign telling anyone what it is.

I wonder if the state can dispense with the judicial limo and bodyguard service since the walk to the Court of Appeals is about 100 feet portal to portal. Hopefully, because the report blames the increased costs of the court system on our jailed former bar member Andrew Capoccia on page 504, a guy who hasn’t practiced law since 2000! Tough to make ends meet when you have to compensate someone.

As if all this wasn’t big enough, in a December 15, 2009 Op-Ed piece in the New York Times, Judge Lippman lamented the poor state of our state’s handling of juvenile justice. His solution? Drum roll please. “This requires a relatively simple but bold step: making the juvenile probation system an arm of the courts, rather than of the executive branch, as it is now.” Why not? Just look how well they do things now, and inexpensively too!

How about this? $1.5 million for the Candidate Fitness Program. No this isn’t physical exercise, boys and girls, but a program “to ensure that only individuals of the appropriate ethical character will be licensed to practice law within New York State.” In my opinion, you can scrap that whole program.

Here’s why. Last April the Third Department denied admission to Mr. Anonymous. (Matter of Anonymous, 61 A.D. 3rd 1214 [3rd Dept., 2009].) This guy went to law school, passed the bar and except for his enormous student loans would be practicing law. And just what kind of unfit behavior denied him the pleasure of practicing law? Not making substantial payments on the loans, and not being “flexible in his discussions with the loan servers.”

Actually he’s not anonymous at all. His name is Robert Bowman, and after nearly losing his leg as a child, he put himself through community college, and eventually law school through hard work and student loans. He had to take the bar exam four times to pass. For all we know, he could be another Oliver Wendell Holmes, but he will not be given the chance since he can’t pay his student loans. His application for reargument was just denied by the Third Department in November. (In re Anonymous, 67 A.D.3rd 1248 [3rd Dept., 2009].)

We have lawyers file for bankruptcy every year, and not one has ever lost the privilege of practicing law for that reason. But Mr. Bowman cannot practice because he can’t pay the loans that cannot be discharged in bankruptcy. He’s not “morally fit to practice,” after all his efforts to educate himself because what the Third Department calls the “neglect of financial responsibilities with respect to the student loans.”

In 2008 the First Department declined to disbar a lawyer who had solicited minors and was convicted of misdemeanor attempted Criminal Sex Act in the Second Degree. (In re Lever, 60 A.D.3rd 37 [1st Dept., 2008].) Between Anonymous I and Anonymous II supra, the Third Department reinstated a lawyer who was merely suspended for six months even though she had deceived the Broome County Supreme Court, failed to appear in court, failed to communicate with clients and tried to deceive the Committee on Professional Responsibility. (In re Arnold, 53 A.D.3rd 1448 [3rd Dept., 2008] and 63 A.D.3rd 1275 [3rd Dept., 2009].)

How about a prosecutor who is charged with cocaine possession and possession of drug paraphernalia? That warrants only a three month suspension according to the Third Department in 2008. Nice. (In re Matey, 57 A.D.3rd 1084 [3rd Dept., 2008].)

So, if you want to pass the scrutiny of the Character and Fitness Committee, be sure you are flexible with those pesky loan collectors. After all, fiscal responsibility is a hallmark of fitness to practice. Just ask the Office of Court Administration.


[The judicial budget can be found at: http://www.courts.state.ny.us/admin/financialops/Bgt10-11/final.pdf.]

Chief Justice Roberts: Resigning? No. But goats? Yes.

We've now been told that the widely circulated rumor from Georgetown Law School, that Chief Justice John Roberts is resigning from the Court for personal reasons, is absolutely not true.

But as for the other rumor, the virtually unheard of one about what really gets Roberts's goat, that one may in fact be very true.

And I'm not referring to the fact that the Chief Justice, apparently no less than Justice Alito, was perturbed by the President's State of the Union criticism of the Court's campaign finance decision. Roberts is even wondering whether the Justices should henceforth attend that annual address. Well, yeah, I wonder too.

I'm referring to something else. (No surprise to readers of this blog.) In forthcoming posts on New York Court watcher, we'll be taking a look at that something else--i.e., what decisions of the Court really get Roberts's goat (shorthand: his goats) and drive him to author a dissenting opinion?

(Meantime, for an examination of his fellow Bush-appointed Justice Alito's goats, see Justice Alito's Goat--What Gets It? (Part 4: One Last Thing) Mar. 7, 2010; (Part 3: Connecting the Dots), Feb. 28, 2010; (Part 2: His Dissents), Feb. 22, 2010; (Part 1), Feb. 16, 2010.)

Judicial Pay in New York: The Court's Decision, the Chief Judge, and a Commentator (Part 1)

Haiti

[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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For this post and the next, 3 items related to judicial salaries in New York. The issue has been the source of considerable debate and increasing consternation. First, a recap of the Court of Appeals' recent decision on pay raises for the state's judges. Then, Chief Judge Lippman's public statement applauding the decision and underscoring his determination to insure that the legislature complies. Finally, in the next post (i.e., Part 2) the commentary of Michael Friedman, a prominent matrimonial lawyer in the Albany, New York area, arguing against increased compensation and other expenditures requested in the judiciary's proposed 2010 budget.

The Court of Appeals' Decision
[Through the magic of on-line photo copying and pasting, with a little editing--none of which I understand--I was able to "borrow" the photo from the Court of Appeals website and delete the Chief Judge's image. He recused himself from the case. (He was formally a party inasmuch as one of the lawsuits involved was brought by former Chief Judge Kaye in her official capacity.) The 6 remaining Judges in the photo participated in the Court's decision.]

At the end of last month, New York's highest court ruled on the "current judicial pay crisis" in the state. In an opinion by Judge Eugene Pigott (appointed by Republican Governor Pataki), the Court ordered the state's legislative and executive branches to consider judicial compensation on its own merits. According to the Court, the independence of the state judiciary has been jeopardized--and, thus, the constitutional separation of powers has been violated--by the failure of the other 2 branches of state government to give fair consideration to the salaries of the state's judges. (Maron v. Silver, Feb. 23, 2010.)

As the Court noted, both the legislature and the Governor actually agree that judicial salaries should be raised. Indeed, both have proposed raises. The state's judges have not received a pay raise in over 11 years--the longest dry spell for judges of any state. As a result, the real value of salaries for New York's judges ranks near the very bottom of judicial salaries across the country. A recent independent study of the National Center for State Courts ranks New York 48th out of 50.

The problem, if that's what it is, is that proposals for judicial pay raises have repeatedly been tied by the legislature to other proposals--e.g., pay raises for the legislators. So when those other proposals are rejected, judicial pay-raises get rejected as well.

In its decision, the Court of Appeals emphasized that the state constitution has a separate provision for judicial pay. The requirement that judges' pay be established by law is contained in the judicial article, Article VI. There is a parallel provision for legislators' pay in the legislative article, Article III, and another for executive pay in the executive article, Article IV. In the Court's view, the separate and independent judicial compensation provision reinforces the requirement for separate and independent consideration of judicial salaries.

In other words, consideration of judicial compensation by the legislature and Governor must be separate and independent of the consideration of other political or policy initiatives--whether that be legislators' salaries, funding for state parks, or dredging the Hudson.

Notably, the Court made clear that it was not mandating that judicial salaries be raised. That decision was left up to the legislature and the Governor. The Court was simply mandating that those branches do consider the issue objectively and on its own, uncluttered merits.

At the same time [You know something to the contrary is coming!], at the very end of its decision the Court made another thing "pellucidly clear." In no uncertain terms, the Court affirmed its role and authority to determine whether the obligation just imposed, to fairly consider judicial salaries, is henceforth satisfied. It then closed with: "We therefore expect appropriate and expeditious legislative consideration." [My emphasis.]

[There are other fascinating aspects to the Court's decision. E.g., the fact that the Judges themselves have a vested interest in their decision on judicial salaries, and the brief but pointed dissent of Judge Robert Smith that the situation is hardly "disastrous" even if the legislature is acting "irresponsibly." ]

Chief Judge Lippman's Public Statement
When the decision rendered by his colleagues was released, Chief Judge Lippman called it "groundbreaking" and made clear his expectation that the legislature comply. A few weeks earlier, in a public response to the Governor's criticism of the judiciary's (i.e., Lippman's) proposed budget, the Chief Judge referred to the 11 year inaction on judicial salaries as a "travesty." [That January 19th statement can be found at http://www.nylj.com/nylawyer/adgifs/decisions/012010statement.pdf.]

Here, in full, is the February 23d statement released publicly by his office in reaction to the Court's decision:

"Chief Judge Jonathan Lippman delivered the following message to the
Judges of the New York State Unified Court System via a web cast today at 1:00
p.m.

'The judicial compensation decision handed down by the New York Court
of Appeals today represents a groundbreaking legal precedent. This is the first
decision by a state court of last resort to find a violation of the separation of
powers doctrine based on a legislature’s failure to address, on the merits, the issue
of judicial compensation. Today’s decision vindicates our longstanding position
that the judiciary is an independent, co-equal branch of government, and must be
treated as such.
In essence, the decision says that the legislature, in its present and future
deliberations, must consider the judicial salary issue independently of any
unrelated issues.
I would make clear that while the decision has great force, it does not set a
precise time frame for the legislature to act, and leaves to the legislature the
ultimate decision of whether and to what extent it must increase judicial salaries.
But make no mistake, the legislature is now obligated under the court’s declaration
to consider judicial salaries on the merits. The court also makes clear – and this is
critically important – that whether the Legislature has met its constitutional
obligations in this regard is subject to the continued scrutiny of the court, and that
the court “expect[s] appropriate and expeditious legislative consideration.” The
legislature must now remedy the constitutional violation, and we expect them to do
so in good faith and expeditiously.
I am calling upon the other branches, publicly and privately, to comply with
the court’s decision and honor their constitutional obligations and the respective
functions of the different branches of government. The court has shown sensitivity
and respect for the very different roles of all three branches of government, and the
legislature must do likewise. We are cognizant of the state’s fiscal situation, but
that does not detract one iota from the fact that judges have not received so much
as a single cost of living adjustment in more than 11 years.
If the other branches do not proceed in accordance with the court’s decision,
I will not hesitate to act in a manner consistent with the constitutional duties and
obligations imposed upon me as the head of an independent branch of government.
How exactly all of this develops remains to be seen. I would be less than
forthright if I said to you that this decision represents all that we hoped for in terms
of an immediate remedy. But our resolve is strengthened by the court’s
declaration. Our cause has been upheld, and the independence of the judiciary has
been resoundingly affirmed on the issue of judicial compensation.
The result we have achieved today would never have been possible without
the support and perseverance that you have shown during so many years of unfair
and frustrating treatment. Your hard work and professionalism are the keystones
of the judiciary. We above all remain faithful to our constitutional oaths while
committing ourselves to seeing this journey through to finality. I also want to
express our great appreciation to all the lawyers who labored tirelessly on our
behalf.
After all that we have been through, we have every right to have our spirits
lifted by this landmark decision of the highest court of our state. There is clearly
still much work ahead, but today we have taken a significant and meaningful step
forward toward just and equitable compensation for the judiciary.'

"After his remarks, Chief Judge Lippman added that he had recused himself
from consideration of any of the issues in the judicial compensation lawsuits
because he is the plaintiff in one of the three lawsuits. The remaining judges of the
Court of Appeals decided the cases pursuant to the Rule of Necessity, a legal
doctrine dating back to the 15th century which provides that where no other judge
can be found who is impartial with regard to a particular case, then the court
assigned to the case is compelled to hear it. This doctrine has previously been
invoked by the federal courts and other state courts in judicial compensation cases.

"New York State judges have not received a cost of living increase since
January 1, 1999. They have received only one pay adjustment in the last 15 years,
and only two adjustments in the past 22 years. Of the 50 states, New York has
gone the longest without a judicial pay increase. New York ranks last nationally
when judicial pay is adjusted for statewide cost of living."

Tomorrow, in Part 2, a very different perspective in the commentary of Michael Friedman.

Justice Alito's Goat--What Gets It? (Part 4: One Last Thing)

Haiti
[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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Were the other conservatives on the Court with Alito? When Justice Samuel Alito wrote a dissent, was he joined by the other conservative Justices on the Court? In those cases where he dissented, was it simply a matter of the liberal Justices versus the conservatives? Did Alito's dissenting opinion simply represent the views of the Court's conservative bloc?

Stated otherwise, when a decision of the Supreme Court--i.e., of a majority of the Justices--was so wrong in Alito's view that he authored a dissenting opinion to air his disagreement publicly, did the other conservative Justices share his view? Did the other conservatives share his view at least enough to join his dissenting opinion, if not to write one of their own? In short, did the decisions that got Alito's goat also get the goats of the other conservatives?

Let's see. Let's revisit those 10 cases from the last 2 posts. (The last 2 posts in this series on New York Court Watcher looked at the 10 most recent Supreme Court decisions against which Justice Alito authored a dissenting opinion. See Justice Alito's Goat--What Gets It? (Part 3: Connecting the Dots), Feb. 28, 2010; (Part 2: His Dissents), Feb. 22, 2010.)