Judicial Reports: Exclusive: No Salary Suit

Posted 07-08-07

On the Friday following July 4th, after much of official New York had decamped for the weekend, a somewhat mysterious email was "broadcast" from the Office of Court Administration. The email carried a "confidential" communique  from Chief Judge Judith S. Kaye, though that attachment held no letterhead or signature. (A copy is linked to the story.) What it did include was an official demurral on the one thing that salary-strapped members of the bench have been clamoring for at least since the Legislature adjourned without addressing payraises: a suit by judges against the State.
 
In an exclusive interview with Judicial Reports on Monday morning, Chief Administrative Judge Ann Pfau disputed the notion that the missive represented a complete renunciation of a lawsuit: "I would disagree with that, it’s really an update. People ask us all the time 'Why didn’t you initiate a lawsuit already?' This responds to that. It says nothing in it about what tomorrow may bring."

Notwithstanding that position, the editors asked our sometime LexPosition correspondent Justice Emily Jane Goodman to react to these developments. She did — and then some.

By Emily Jane Goodman
Posted 07-08-07

It’s official. The Office of Court Administration (OCA) will not sue the state of New York over the issue of stagnant judicial salaries.

With, as we say, all due respect, it seems that what I, at 3:29 on the Friday afternoon after July 4th, mistook for a script from Saturday Night Live, or maybe The Daily Show, was actually a communication from a nameless writer whom an OCA email identifies as Chief Judge Judith S. Kaye. The letter, albeit without salutation or signature, is meant to explain why the Judiciary vs. State lawsuit that nobody seriously thought would materialize, will, in fact, not materialize.

A pattern has emerged of late Friday afternoon bulletins from OCA to the worker bees in our courts, so I was not altogether surprised when one popped up on my computer screen. The word "confidential" was typed at the top of a document. But the contents had already been discussed with, and sent to, judges, via the internet. So this was the public, official statement. The opening paragraph succeeded in getting my attention, because it said this message could be helpful to me. But the only thing that could be helpful to me (and some other judges I know who happen not to be independently wealthy) is a meaningful payday.  
 
Still so far, so good. The Chief Judge writes that she understands my "mounting frustration," though I suspect she will find it unseemly when I, a New York State Supreme Court Justice, am forced into bankruptcy. She's assuring me that our problems with the Governor and Legislature are not unique in the nation; but show me one other judicial entity in its ninth year without a pay raise or cost of living increase.
 
Okay, I keep going. They "still expect to resume discussions shortly," and the Governor and the legislators have the judiciary " ‘front and center’ in their minds." That is really big news, and I obviously have been in contact with the wrong elected officials and Albany insiders.   
 
We're getting to the good part, the part about the lawsuit that the Chief Judge threatened in a widely covered public statement in the first week of April. That was part of a Five Point Plan. Someone out there probably remembers the other four and whether they ever came to pass. But the lawsuit didn't materialize, and the lawsuit won't materialize.
 
Since April, "we have done a good deal of research on various theories . . . [which] must withstand the strong light of day."

We can stipulate to that. But, alas, "that has not been an easy task." No such lawsuit, it seems, has been successful. Stipulate to that, too. But didn't we know that back in April?

Instead, now we allow our position to be defined by those with whom we are negotiating:

"Moreover, . . .  a lawsuit chills our dealings with our partners in government." Here comes the Big Chill. "The Governor has already made clear that in his view a lawsuit by the court system would be 'frivolous' and would end any discourse between us." Oh, who is talking truth to power, now? "Sometimes real strength lies in deferring potentially counterproductive action." So we're getting stronger the longer we do nothing (other than the December lawsuit brought by several justices without any official approval.)
 
The writer explains, "I have no doubt that a lawsuit by me . . . would not have helped us one whit had it actually been brought." So what was all the talk about in April and May and June — including an announcement to business leaders about the potential lawsuit?

"Indeed," she continues, "given these players, it would have damaged our cause." Damaged? And just when we were winning the day.
 
Yet all is not lost. They are "doing something," and, "please be assured that we are wholly dedicated to achieving our objectives and unrelenting in our daily calls and visits." Calls and visits are sweet, but have little to do with the urgency felt by those of us who are losing control of our lives.

I'm sure the Chief Judge believes that these contacts will do the trick. But, by the way, she and the other administrators have never been elected, have never run for office or been touched by politics, in a way that would enable them to understand politics and political negotiation. Those who are appointed are the beneficiaries of politics, without experiencing the dynamics themselves. Almost all court administrators (I can think of few exceptions) are appointed, and almost none have ever been elected to the Supreme Court.
 
So now Chief Judge Kaye and Chief Administrative Judge Ann Pfau are reviewing "other [undisclosed] measures." One of those would appear to be one of the points in the April Five Point plan, the possibility of paying judges out of previously allocated funds in the judiciary budget. "We have reminded the Attorney General and the Comptroller of our request for their opinions on this."

It is the second week of July, and still no opinions? We judges get 60 days to make decisions. Beyond that we must submit written explanations and plans for doing better in the future. So the AG can just ignore the Chief Judge? I guess so, because the past AG, who is now the Governor, has been doing just that.
 
Well, the writer thanks us for our support, and here's her kicker: "I remain confident that, with diligence and dignity, we can together achieve our objectives." There's always next year. And the year after that.

Having subsequently talked to colleagues, I can add that even some who have never supported a lawsuit had said, "We have to do something!  It's the only game in town."

Ironically, some who were warming to the Chief's (hypothetical) lawsuit as a reaction to  the
Governor's threats, now find there is nothing to support. Other judges are "sympathetic to Judge Kaye's plight," as much as to our own.

Meaning that the Supreme Court Justices Association scheduled to take a position this week on joining other associations in the existing or separate lawsuits this week, after avoiding the issue for many months, willl undoubtedly follow Judge Kaye's lead and vote it down .

Of course, it is not really about the lawsuit; it's about being pumped up and let down yet again.

Posted by Jason on July 9, 2007 08:14 PM to Judicial Reports