On April 10, Chief Judge Judith S. Kaye rocked New York when she sued three State leaders to obtain pay raises for the 1,300-plus judges in the court system.

The 30-page suit named Assembly Speaker Sheldon Silver, Senate Majority Leader Joseph L. Bruno, and Governor David A. Paterson, making three claims: that judges are entitled to “adequate compensation,” that the State Legislature has discriminated against the judicial branch, and that by the State Constitution, judicial cost-of-living adjustments should not be bound to Legislative pay raises.

It also raised a host of conflicts.

The attorneys in the suit, Kaye v. Silver, have specifically requested that it be heard by Supreme Court Justice Edward H. Lehner, despite any pay raise’s direct effect on his own wallet. Lehner — a certificated Justice with a long history both on the bench and in the State Legislature — is already hearing another lawsuit filed by four lower-court judges about the same pay-raise deadlock, Larabee v. The Governor of New York State.

The Chief Judge’s attorney, Bernard W. Nussbaum — the former Clinton White House Counsel who is now a Wachtell, Lipton, Rosen & Katz partner—explained the legal maneuver.

“We assumed under the regular rules, that the case would be brought before him,” said the attorney. “He was the logical person in New York County, because he has a related case in front of him.”

Fearing a onflict of interest about Larabee and daily appearances in front of the New York judiciary, the State Attorney General’s office recused itself from Kaye’s suit last week. As of this writing, the state had not secured outside counsel.

Neither Justice Lehner nor the Attorney General’s office returned calls for comment.

As of this Tuesday evening writing, there had been no further developments in the week-old filing from the court.

JUDGE LEHNER’S FIRST SUIT

Justice Lehner has been tangled up in judicial pay raise litigation since September 2007, back when Family Court Judge Susan Larabee and three other lower court judges filed suit against the Governor of New York.

Justice Lehner was randomly selected to hear the case; a suit claiming that legislative deadlock had unconstitutionally stalled judges’ payraises for the last 10 years.

The Attorney General’s office made a motion to dismiss two claims set forth by the suit: first, that 10 years without a cost-of-living adjustment broke state constitutional mandates that judges’ salaries  “shall not be diminished” while they are serving; second, that the legislative standoff violated the separation of powers doctrine.   

In February 2008, Lehner made statewide headlines when he dismissed the diminishment claims but allowed the separation of powers argument to proceed.

Thomas E. Bezanson, the Chadbourne & Parke partner who helped lead the judge’s paysuit, thought Lehner delivered a fair decision even though he had tossed out half of Bezanson’s argument.

“He was very well prepared, he granted us a great deal of time for the argument. Together, we had an hour and a half to argue. It was a generous amount of time to give parties on a motion to dismiss. It was a very robust affair,” he recalled.

Bezanson and his clients have filed a motion for summary judgment on the separation of powers claim, and the State must respond by April 29, according to the attorney. Both sides are set to return to court on May 7.

Asked about a judge hearing a case that would affect his own wallet, Bezanson was dismissive. “I don’t think Justice Lehner has any problem retaining his judicial objectivity in this case. I think the State Attorney General’s office agrees with me,” he said.

RULE OF NECESSITY

The Chief Judge’s lawsuit seeks to set the salaries of all state Supreme Court justices equal to the salaries of U.S. District Court Justices — an increase to $165,000 a year, retroactively applied from January 2005. The suit also includes pay raises for all state court judges, following a different formula for lower court salary increases. The suit does not mention retirement benefits.

As a certificated Supreme Court Justice, Lehner would still directly benefit if the lawsuit succeeded. Indeed, the suit would generate conflicts of interest no matter where it was filed in New York. But since the suit only makes state constitutional claims, it would be difficult to move the case to federal court.

Even though the Attorney General’s office didn’t return calls, some speculated that the state’s yet-to-be-hired counsel might make motions to recuse state judges from hearing Kaye’s lawsuit.

One former member of the Office of the Illinois Attorney General remembered facing a similar situation in his state in the suit, Jorgensen v. Blagojevich. Kaye’s filing refers to this case multiple times.

In 2004, Illinois’ highest court ruled on a lawsuit filed on behalf of the state’s judges. The judicial plaintiffs argued that the state had a constitutional mandate to fulfill pay-raise promises that were made by the Legislature.

Gary Feinerman was the former Solicitor General of Illinois during that lawsuit. The now-partner at Sidley Austin said his office decided not to ask the judges to recuse over the obvious conflict of interest.

“Nobody challenged the ability of the trial court judge or the Supreme Court justices to hear the case, and that was because of the rule of necessity,” he explained.

In the end, the high court ruled that the more than 900 Illinois judges — including themselves — could keep the cost-of-living adjustments — citing Illinois’ “rule of necessity” in their decision. That rarely applied standard permits conflicted judges to hear cases because necessity dictates that some judge must hear the case.

The last time that rule was invoked in New York was 2000, in the Court of Appeals decision N.Y. State Association of Criminal Defense Lawyers v. Kaye. In that case, a legal association sued Chief Judge Kaye over the handling of court-appointed fees for defense attorneys. The Association made a motion to recuse five judges on the appellate panel, since they were named in the lawsuit in their administrative capacity.  

“Requiring disqualification whenever the judges are sued as individuals upon a challenge to an act of the Court could result in substitution of the entire constitutionally appointed Court, leaving the most fundamental questions about the Court and its powers to persons whose selection and retention are not tested by constitutional processes,” wrote the state’s highest court, referring to the rule of necessity’s role in New York State Judiciary Law.

If the lawsuit proceeds, any motions to recuse would most likely be answered by similar reasoning.

In addition to the live litigation, both sides in Larabee have filed cross-appeals to the State Appellate Division about Lehner’s decision, but as of this writing, there had been no response from that court.

MEET JUSTICE LEHNER

Attorneys from both suits should take note of Justice Lehner’s strong record on appeal.

According to statistical research by Judicial Reports, Justice Lehner is one of the most appealed justices in New York with 310 in the last seven years.

Out of all those appeals, his opinion was affirmed 204 times. His reversal rate stands at 34 percent, three percentage points lower than the average First Department reversal rate for civil cases.
 
Most recently, Lehner made headlines when he overturned the New York City Department of Consumer Affairs’ attempts to change regulations about who could apply for pedicab licenses. The department had hoped to loosen restrictions, allowing more people to apply for the limited number of licenses.

Lehner’s decision sided with the New York City Pedicab Owners' Association, who had filed a motion to overturn the regulations, arguing that new applicants would ruin their competitive edge and drive them out of business.

The Justice agreed, writing that more applicants would “create a hardship to businesses that had previously invested in the industry by reducing the number of licenses available to them.”

Lehner was also in the news in 2006, when he ruled that Dr. Albert Ellis should be reinstated to the board of the psychotherapy organization he founded in the 1950s. The judge found that the pioneering doctor had been unceremoniously taken off the board, and revoked the removal because of the doctor’s “lack of notice and opportunity to defend against the basis for removal.”

In 2004, the New York Daily News included Lehner in an article berating judges for not disclosing financial conflicts-of-interest in trials. The paper reported that Lehner’s wife owned 200 shares in American Express while he took on a 2001 case that involved the company.

“I can't believe anybody may want me to recuse because I own a couple of hundred shares of a company," the paper quoted the judge.

Separately, the Justice became the public face of an internal Office of Court Administration struggle in 2000, when a letter he wrote to his administrators was leaked to the press.

Justice Lehner had criticized an internal OCA memo ordering judges to appoint attorneys and caseworkers personally to help manage various aspects of complex cases. In the past, some judges had relied on court-appointed receivers to dish out these sometimes-lucrative assignments.

The judge defended these receivers for taking the burden off judges, and added that they should also "have the right to unilaterally discharge the attorney at any time for any reason whatsoever."

BIOGRAPHY

After earning his law degree at New York University Law School, Lehner’s legal career began in private practice, spending time at three different law firms. He stayed the longest at Aranow, Brodsky, Bohlinger, Einhorn & Dann, serving as an attorney there from 1966 to 1972.  

His private practice also included a two-year stint as attorney for Towers Mart International.

In 1973, he was elected to the State Assembly, serving in that public post for six years. He won an elected Civil Court seat in New York County in 1980, and was elevated to Acting Supreme Court Justice seven years later.

Lehner won his Supreme Court seat in 1995, a position he held until 2003 when he reached the constitutional age limit for state Supreme Court Justices. Since then, he has been certificated by the OCA every two years. His current term expires in 2009 when he turns 76-years-old.

By the New York State Constitution, he must officially retire that year.