Judicial Reports: Judging Judge-Pay Judgments
By Jason Boog
Posted 05-11-2007
New York judges suing New York policymakers over New York judge salaries. Now how do you adjudicate that?
The most surreal New York trial of the year opened in a quiet Mineola courthouse this week.
Three state judges sued the New York Legislative and Executive branches last year, hoping to force them to grant judges a pay raise that they say was promised to the judiciary in the 2006 state budget. That suit has put three judges on the other side of the bench and immediately raised an essential question: How can any state judge possibly adjudicate a case about his or her own salary?
The short answer to that question resides in a rarely invoked doctrine of jurisprudence, the so-called "rule of necessity." But members of the bench should take note of a cautionary tale on the use of such extraordinary intercession, which recently cost a judge in a neighboring state his re-election.
THE FIRST QUESTION
Nassau Supreme Court Justice Thomas Feinman has handled an important procedural question preceding the lawsuit proper, tackling the thorny question of what to do with the $69.5 million from the state budget that the judges argue was designated for judicial pay raises in 2006. (The lawsuit itself has been assigned to Court of Claims Judge Thomas A. Adams.)
Feinman made his personal biases clear as he opened proceedings: “Just as every judge has a financial interest in this case, so do I,” he told the courtroom on Tuesday. The judge made his opinion even clearer in a 2007 Newsday article where he said low salaries forced him to rethink his career: “I never want to leave the bench, but out of necessity I have now given it serious consideration.”
Complicating the interplay, the lawyer charged with defending the state in this case once applied for a job as Justice Feinman’s law secretary.
Despite these glaring conflicts of interest, that lawyer, Assistant Attorney General Dorothy Oehler Nese, did not ask Judge Feinman to recuse himself. “I have no doubt that Judge Feinman can decide this fairly and impartially — as could all judges in New York,” she said in an interview.
The question at issue for Feinman was summarized during a break in the proceedings this week by one of the plaintiffs: “We asked Judge Feinman to stay the comptroller from transferring the allocated funds [for pay adjustment] from the 2006 budget to the general funds which would be the normal course,” said Justice Joseph A. DeMaro, one of the three judges filing suit against the state.
CHANGE OF VENUE
As for the broader litigation, Nese filed for a change of venue motion on Tuesday afternoon, hoping to have the lawsuit itself moved to Albany, where the respondents keep their main offices. Justice Adams will rule on this motion May 15, and Justice DeMaro said that the plaintiffs would not oppose the venue change.
In April, the legislature released a budget that did not include the pay raises for judges that had been promised for the last two years — prompting the judicial administration to intensify lobbying efforts to keep the debate out of court.
If legislative wrangling can’t solve this problem in time, the lawsuit could embroil the state in an ethical standoff in which judges are deciding the fate of their own salaries. In the most extreme cases, the rarely applied “rule of necessity” allows obviously biased judges to hear a case that directly affects their own interests.
Last year, the Pennsylvania Supreme Court was rocked by a similar salary showdown, as five judges on a panel ruled that state judges (including themselves) deserved a highly contested pay raise — prompting many legal minds to ponder the rule of necessity and how to handle these cases in state courts.
New York judges have waited eight years for a pay raise. For the last few years, the judicial administration has focused on legislative solutions to the problem, eschewing litigation until all political avenues are exhausted. For more information about the pay raise debate, read this Judicial Reports article about the lawsuit, these LexMetrics statistics about judicial salaries, and this exclusive interview with Chief Administrative Judge Jonathan Lippman.
NO BILL, SO SUE
The litigation began late last year, when a trio of impatient judges filed the lawsuit Maron v. Silver, arguing that the state Legislature was obliged to deliver these oft-promised pay raises. Supreme Court Justice DeMaro, Supreme Court Justice Arthur M. Schack, Nassau District Judge Edward A. Maron sued the state’s most powerful leaders in Nassau County Supreme Court.
Their suit named the major state budget players: Assembly Speaker Sheldon Silver, Senate Majority Leader Joseph L. Bruno, and then-Governor George Pataki.
In court filings, these judges allege that the Legislature and Executive unfairly tied judicial pay raises to unrelated political squabbles. They contend that this ploy breeched state constitutional separation of powers by linking judicial and legislative salaries in pay raise negotiations.
MAKING A FEDERAL CASE?
Asked about whether he and his colleagues might have avoided the conflict question by bringing the case in federal court, Justice DeMaro demurred. “There’s no federal question,” he argued. “It’s a state constitutional question. It’s our position that the Legislature acted in 2006 [when they approved the budget allocation], and we’re entitled to what they did.”
According to one expert, that state budgetary question effectively binds the lawsuit to state courts. “There’s no basis for the exercise of federal jurisdiction. I can’t think of a good federal constitutional argument,” said Kermit Roosevelt, Assistant Professor of Law at the University of Pennsylvania Law School, who specializes in issues of federal jurisdiction.
“The federal Constitution doesn’t say much about state budgeting decisions,” he concluded.
That dynamic makes the invocation of necessity almost mandatory. The Association of Justices of the Supreme Court of the State of New York — the public face of the state’s roughly 600 justices — voiced its approval of the lawsuit in an amicus curiae brief supporting the plaintiffs.
Joseph L. Forstadt, the Stroock & Stroock & Lavan attorney who represents the association, thought it would be difficult to ask Justices Adams or Feinman to recuse. “When all judges are affected by a case and have some interest that might disqualify them [but] by necessity, there must be judicial review — then no judge is disqualified with the exception of the named parties [on the suit],” he explained.
Legal scholar Oscar G. Chase concurred. “If there’s no alternative for a court in deciding a case in which there’s a conflict of interest or a strong appearance of a conflict of interest for the deciding body, then the court m ay need to invoke the rule,” said the New York University School of Law professor who specializes in judicial administration.
Nevertheless, Chase cautioned administrators to reserve the rule of necessity for extreme situations: “The court should be extremely careful before it does so, and be sure that there isn’t any other solution,” he concluded.
THE PENNSYLVANIA WARNING
Those words of warning were made painfully clear in a recent judicial pay raise fiasco in Pennsylvania. Over the last two years, that state’s judiciary has grappled with the rule of necessity clause, and one judge discovered that the public is not so sympathetic to these pay-raise wrestling matches.
“There’s a definite parallel between the litigation that occurred in Pennsylvania that’s now occurring in New York,” observed L. Stuart Ditzen, a spokesperson for the Administrative Office of Pennsylvania Courts. “The cases aren’t exactly the same, but in both instances you have judges going to court about pay raises.”
In 2005, Pennsylvania’s chief judge Ralph J. Cappy followed a legislative strategy similar to that of New York Chief Judge Judith S. Kaye: He wrote editorials supporting higher pay and lobbied the Legislature hard for his state’s first judicial raises in ten years. The Legislature approved the raises in the summer, attaching the allotted funds to a legislative pay raise.
Retaliating against the pay raises and other complaints, a number of activists mounted a campaign against incumbent Supreme Court Justice Russell M. Nigro, who was then engaged in a non-partisan retention election. The public voted not to retain Nigro in the 2005 election, and the judge reportedly became the first judge ever to lose a retention election in that state.
The nasty re-election season shocked the state Legislature, and they voted to repeal the raise that same month. Finally, the Pennsylvania Supreme Court panel decided a trio of conjoined cases, ruling that he judges could keep their pay raises — despite the Legislature’s revocation of them.
“As you expect, there was a lot of criticism that the judges gave themselves back the raise. The court has been criticized. By the same token, I think many people have acknowledged that judges were deserving of a raise,” concluded Ditzen. His website now features a short essay about “Recusal and the Rule of Necessity.”
WHO ARE THESE GUYS?
Finally, court watchers must ask, who are the New York judges saddled with this bizarre pay raise lawsuit in New York?
State Supreme Court Justice Thomas Feinman spent the first two years of his legal career in the Nassau County DA’s office. For the next 18 years, he worked as a partner at the firm Annibale & Feinman until he was elected to Nassau County District Court in 1998.
That same year, Feinman issued an order of protection against prominent furrier Stephen Cowit — the man had been arrested for allegedly threatening an animal rights activist. Cowit was a leader in two prominent fur associations in the state, and the scandal earned the judge some headlines.
In 1999 and 2000, Feinman ran for Nassau County Supreme Court, but lost in close races both years.
Feinman joined the Supreme Court in a tight 2003 race, cross-endorsed by the Republican, Independent, and Working Family Parties. That year, three Republicans and a single Democrat won the election — surviving a crowded ballot with nine candidates.
In 2006, Feinman handled a defamation lawsuit between two Hempstead Village leaders. A minister had sued the village mayor for $2 million, alleging that the mayor had criticized him in a speech in front of area clergy. The minister never provided any documentation to support his claims, and Feinman promptly dismissed the suit.
Statistically, the judge has a higher reversal rate than average. Since joining the Supreme Court's Civil Term, Feinman has been appealed 20 times and reversed in 11 of those cases, for a reversal rate of 55 percent. The Appellate Division's Second Department reverses, on average, 45 percent of civil appeals.
However, he handles more motions than average, as Justice Feinman decided 3.4 motions per day on the bench in 2006. The county average was 1.9 for that same period.
Like Feinman, Justice Adams is a Long Island Republican. He used to sit on the Appellate Division, Second Department. He made headlines last year as he lost his re-election bid for the Supreme Court (all incumbent Appellate Division justices must run re-election races, just like any other state Supreme Court member), upset by a Democratic challenger.
Last December, outgoing Governor George Pataki nominated him to the Court of Claims where he was re-assigned to hear the civil caseload of an Acting Supreme Court Justice. Since he has been a trial judge for less than a year, no statistics are available for Judge Adams.
Adams also began his legal career in the Nassau County District Attorney’s office. He spent six years as a law secretary to County Court Judge Marvin I. Goodman, and joined the Nassau County District Court in 1988.
In 1992 he won election to the Supreme Court, endorsed by the Republican Party in what was then primarily a Republican area. Since 2000, however, the Democratic Party has gained a stronger foothold in these suburban counties.
Posted by Jason on May 11, 2007 03:49 PM to Judicial Reports