Summary Salary Judgment
By Jason Boog
jasonboog@judicialstudies.com
Posted 06-11-08
In one of the three salary suits by New York judges that are pending against the State, round one goes to the plaintiffs. And now?
In what could well spawn a protracted appellate battle, a State Supreme Court Justice told New York’s Legislative and Executive branches Wednesday that they have 90 days to raise judicial salaries — an order that includes his own paycheck.
“I direct that defendants, within 90 days of the date hereof, remedy such abuse by proceeding in good faith to adjust the compensation payable to members of the judiciary to reflect the increase in the cost of living since such pay was last adjusted in 1998, with an appropriate provision for retroactivity,” wrote Supreme Court Justice Edward H. Lehner, granting summary judgment in Larabee v. The Governor of New York State.
Click here to read an official copy of his decision.
The suit was filed in 2007 against the Governor, Assembly and Senate, arguing that legislative deadlock — combined with cost of living hikes that effectively diminished their pay — had unconstitutionally stalled judges’ raises for the last 10 years.
It was filed by four different lower-court judges: Manhattan Family Court Judge Susan Larabee, Cattaraugus County Family Court Judge Michael Nenno, Brooklyn Civil Court Judge Patricia Nunez, and Manhattan Civil Court Judge Geoffrey Wright.
Despite having a financial interest in the lawsuit’s outcome, Justice Lehner heard the case under the “rule of necessity” — a rarely-applied legal principle that allows conflicted judges to hear cases because necessity dictates that some judge must hear the case.
Adding no small irony, one of the attorneys spearheading the judges’ case was George Bundy Smith, a former Court of Appeals Judge who left the bench when then-Governor George Pataki took the unusual step of not re-appointing him. Smith is now a partner at Chadbourne & Parke.
“I think it’s something that’s long overdue,” he said in an interview. “Even before I left the bench in 2006, pay-raises had been discussed for years. It’s something that quite frankly has demoralized many judges.”
The former judge said his firm was prepared to face any appellate challenges, a likely possibility since the Attorney General’s office has already appealed in one of two other pending pay-raise suits. The AG’s office did not respond to a request for comment.
While most of the major players in the three suits declined to comment on the possibility of appeal, Burt Neuborne, a New York University School of Law Professor, predicted more litigation. “I assume the Attorney General is going to appeal and that this is the first step in a longer judicial appeal process,” he said.
Of the three pending pay-raise suits, the one already winding through the appellate courts, Maron v. Silver, was filed in 2007 by three Upstate judges. Like Larabee, it was filed against State politicians, suing to recover a once-promised pay-raise. An Albany Justice ruled against most of that suit in December 2007, but allowed the plaintiffs’ claim that the raise inaction amounted to an unconstitutional breach of judicial independence, and both sides have filed appeals before the Appellate Division, Third Department.
This case will be of particular interest to Chief Judge Judith S. Kaye, who sued the Governor and State Legislature on behalf of the more than 1,300 judges in April. Justice Lehner is also hearing that suit (Kaye v. Silver), and oral arguments are expected to begin July 17.
Court spokesperson David Bookstaver declined to comment on the pending litigation. But the Chief Judge’s counsel, Bernard W. Nussbaum, was cheered by the decision. “We are pleased with Judge Lehner’s thoughtful decision, and we now trust that the Governor and the Legislature will do the right thing,” he said in an interview.
“I think this decision is a benchmark,” explained Smith, the plaintiff’s lawyer. “It will hopefully guide all the parties — the Legislature, the Executive, and Judiciary — with those other cases.”
Neuborne agreed with that assessment, handicapping the Chief Judge’s next step as well. “If I were representing the Chief Judge I would be encouraged by this case. It shows that [Justice Lehner] is sympathetic to the basic legal claim. You don’t grant summary judgment unless you are fundamentally sympathetic to the claim,” he concluded.
“I direct that defendants, within 90 days of the date hereof, remedy such abuse by proceeding in good faith to adjust the compensation payable to members of the judiciary to reflect the increase in the cost of living since such pay was last adjusted in 1998, with an appropriate provision for retroactivity,” wrote Supreme Court Justice Edward H. Lehner, granting summary judgment in Larabee v. The Governor of New York State.
Click here to read an official copy of his decision.
The suit was filed in 2007 against the Governor, Assembly and Senate, arguing that legislative deadlock — combined with cost of living hikes that effectively diminished their pay — had unconstitutionally stalled judges’ raises for the last 10 years.
It was filed by four different lower-court judges: Manhattan Family Court Judge Susan Larabee, Cattaraugus County Family Court Judge Michael Nenno, Brooklyn Civil Court Judge Patricia Nunez, and Manhattan Civil Court Judge Geoffrey Wright.
Despite having a financial interest in the lawsuit’s outcome, Justice Lehner heard the case under the “rule of necessity” — a rarely-applied legal principle that allows conflicted judges to hear cases because necessity dictates that some judge must hear the case.
Adding no small irony, one of the attorneys spearheading the judges’ case was George Bundy Smith, a former Court of Appeals Judge who left the bench when then-Governor George Pataki took the unusual step of not re-appointing him. Smith is now a partner at Chadbourne & Parke.
“I think it’s something that’s long overdue,” he said in an interview. “Even before I left the bench in 2006, pay-raises had been discussed for years. It’s something that quite frankly has demoralized many judges.”
The former judge said his firm was prepared to face any appellate challenges, a likely possibility since the Attorney General’s office has already appealed in one of two other pending pay-raise suits. The AG’s office did not respond to a request for comment.
While most of the major players in the three suits declined to comment on the possibility of appeal, Burt Neuborne, a New York University School of Law Professor, predicted more litigation. “I assume the Attorney General is going to appeal and that this is the first step in a longer judicial appeal process,” he said.
Of the three pending pay-raise suits, the one already winding through the appellate courts, Maron v. Silver, was filed in 2007 by three Upstate judges. Like Larabee, it was filed against State politicians, suing to recover a once-promised pay-raise. An Albany Justice ruled against most of that suit in December 2007, but allowed the plaintiffs’ claim that the raise inaction amounted to an unconstitutional breach of judicial independence, and both sides have filed appeals before the Appellate Division, Third Department.
This case will be of particular interest to Chief Judge Judith S. Kaye, who sued the Governor and State Legislature on behalf of the more than 1,300 judges in April. Justice Lehner is also hearing that suit (Kaye v. Silver), and oral arguments are expected to begin July 17.
Court spokesperson David Bookstaver declined to comment on the pending litigation. But the Chief Judge’s counsel, Bernard W. Nussbaum, was cheered by the decision. “We are pleased with Judge Lehner’s thoughtful decision, and we now trust that the Governor and the Legislature will do the right thing,” he said in an interview.
“I think this decision is a benchmark,” explained Smith, the plaintiff’s lawyer. “It will hopefully guide all the parties — the Legislature, the Executive, and Judiciary — with those other cases.”
Neuborne agreed with that assessment, handicapping the Chief Judge’s next step as well. “If I were representing the Chief Judge I would be encouraged by this case. It shows that [Justice Lehner] is sympathetic to the basic legal claim. You don’t grant summary judgment unless you are fundamentally sympathetic to the claim,” he concluded.