As the State Legislature slouched toward adjournment late Thursday with no breakthrough on the issue of pay raises for judges, an infuriated judiciary began to contemplate an escalation in the salary wars.

For many that might mean new or expanded litigation. Some are even whispering “strike.”

 “Judges don’t need to hire lobbyists or public relations people, we need to hire an FBI hostage negotiator,” said Montgomery County Family Court Judge Philip V. Cortese in an interview — distilling the judges’ collective belief that the Legislature essentially held salary negotiations captive to other legislative priorities.

Cortese has a stack of email correspondence between furious judges on his desk, which he summarized pithily: “The judges are clearly at their wit’s end.”

A state Senate staffer, meanwhile, said that the upper chamber wouldn’t contemplate new pay raise proposals this session: “We passed Judge [Judith S.] Kaye’s proposal, and it’s clearly in the hands of the Assembly whether or not the plan will go through,” said Mark Hansen, a spokesperson for Senate Majority Leader Joseph L. Bruno.

The spokesman referred to a judicial pay bill that the Senate approved at the end of April — a plan that included judicial pay raises and Kaye’s proposal to create a commission to determine future pay raises. Governor Eliot Spitzer has shied away from endorsing the bill, hoping for campaign finance reform before enacting pay raises for judges or legislators.

“I know it’s one of the issues that has been discussed, but it’s just impossible to tell you if it’s going to be resolved today or not,” said Dan Weiller, Assembly Speaker Sydney Sheldon’s press secretary when asked to comment. The Assembly and Senate had not adjourned as of late Thursday night.

Chief Judge Kaye and the judicial administration have constantly demurred when asked to discuss litigation, reserving lawsuits as the last resort. However, since the Senate won’t act, and the April pay raise bill continued floating in limbo at session’s end — rank-and-file jurists are expected to put even more pressure on their leadership.

Court spokesperson David Bookstaver said the Chief Judge would release an official statement Friday morning. Some observers have speculated that the judiciary's leadership might delay joining the suit yet again, citing the prospects for a special session of the Legislature during the summer.

For now, the inaction seems to have prompted precisely the level of anger among jurists that Judge Cortese observed, as reflected in a number of emails obtained by Judicial Reports. Some judges (such as Cortese) confirmed their authorship of the emails, but others did not.

Nevertheless, the correspondence revealed a judiciary that was positively seething.

“[S]ometimes, you have to go on strike,” said one message attributed to a New York City Criminal Court judge whose identity could not be confirmed. “And you would be surprised [at] the support which other working people will give to a strike. You never know who will join your strike. Of course, all of this is hypothetical, but for those of you who cannot understand this; YOU ARE NOT GETTING ANY RAISE.”

The judge to whom the message was attributed did not return repeated calls.

Much like the transit workers’ strike that brought the city to a standstill in 2005, a judicial slowdown could bring the legal system to a grinding halt — with some sticky legal repercussions. (To read what one of Judicial Reports's favorite blogs attracted on this subject, click here.)

Just like the transit workers, judges are explicitly prohibited from striking under New York’s labyrinthine Taylor Law — a statute governing labor organizing of state public servants.

According to Jerome Lefkowitz, chairman of the Public Employment Relations Board, the law treats judges as “management” whose members are not allowed to unionize. At the same time, it prohibits them from striking.

In other words, judges have even fewer options than transit workers or other public employees. “The law says that managerial employees are excluded from the Taylor Law, except Part 210 which says: ‘Thou shalt not strike,’ ” Lefkowitz explained.

In the stern language of that section, no judge can "cause, instigate, or condone a strike."

Another email write offered another alternative to a flat-out strike. In that missive, attributed to an Upstate Surrogate judge, the writer seemed to suggest using the tactic of a work slowdown:

“Another idea is to review all papers submitted very carefully for any errors — typos, misspellings, matters left out — particularly orders and decrees. No handwritten corrections or having your own secretary retype to fix them up. Return them to attorney for correction, and return them again until they are totally correct. Particularly for any firms with legislators in them.”

The judge to whom that missive was attributed also did not return repeated calls.

A number of judges are advocating lawsuits as a potential response to legislative apathy, and a trio of judges already sued the state government for pay raises.

Albany County Family Court Judge W. Dennis Duggan has been an active participant in the flurry of emails among judges demanding action — and confirmed that he sent one of the emails obtained by Judicial Reports.

“I’ve seen emails where several law firms have approached judges offering to do pro-bono work,” he reported in a telephone interview. “I’ve heard over emails that there have been consultations with attorneys.”

Civil Court Judge Susan K. Knipps is the Supervising Judge of the Family Court in New York County, but she did not return phone calls for comment on these rumors of lawsuits percolating in her ranks.

With the prospects for legislative action dwindling, these conversations might become more concrete.

“I expect you’re going to see two or three more lawsuits filed. Perhaps they will be consolidated. I think it’s going to go to court — that’s what the Chief Judge promised,” concluded Judge Duggan, recalling Kaye’s declaration that legislative inaction might lead her to litigate in the end.

For three judges, Kaye’s promises weren’t enough. They have already sued.

“We’re disappointed that the thing hasn’t come to a close at this point. We’re not totally without hope,” said Supreme Court Justice Joseph A. DeMaro, one of the three judges who filed the lawsuit, Maron v. Silver against the state for judicial pay raises.

The lawsuit — filed by Justice DeMaro, Supreme Court Justice Arthur M. Schack, and Nassau District Judge Edward A. Maron — alleges that the state Legislature had a duty to meet a pay raise promise made to judges in 2005.

Filed in Nassau County Supreme Court, the suit took the major state budget players to court, naming Assembly Speaker Sheldon Silver, Senate Majority Leader Bruno, and former Governor George Pataki as defendants.

The suit alleges that the Legislature had yoked judicial salary issues to debates about other internal political squabbles — such as legislative salary raises, campaign finance reform, and most recently, plans to control traffic congestion in New York City. In particular, the suit contends that tying one governmental branch’s pay to another’s violates the state’s constitutional separation of powers.

The suit was recently moved to Albany and assigned to Acting Supreme Court Justice Thomas J. McNamara. Final submission for the case is tentatively set for September 7th, so there still is time for a legislative solution.

“We heard a rumor that there is some hope for return [to session] in August,” said DeMaro, thinking about ways the legal action could be prevented. “Perhaps Judge Kaye will take some step to push the matter towards resolution.”

As of late Thursday, the three maverick judges were still awaiting word from their leadership.

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Jason Boog can be reached at jasonboog@judicialstudies.com