Judicial Reports: Price Fight — Live!

By Jason Boog
jasonboog@judicialstudies.com
Posted 07-17-08

The referee in Thursday's judge salary slugfest seemed to be leaning to one side.

Supreme Court Justice Edward H. Lehner cracked a joke while listening to oral arguments Thursday in a suit that could raise judicial salaries around the State.

“My daughter worked as a summer associate,” said Lehner. “She’s trying to get me a job there. I’d make more money.”

The aging but spry jurist — presiding over the suit filed by Chief Judge Judith S. Kaye against the Executive and Legislative branches of State government — oversaw some stormy arguments in a three-hour session at 60 Centre Street. Lehner alternated between interrogating and bickering with the attorneys on both sides of the case, Kaye v. Silver.

With oral arguments concluded, the judge is now considering two separate motions: the defendant’s  to dismiss the case and the Chief Judge’s for summary judgment. After Thursday’s blustery session, the judge seemed to be favoring the plaintiff’s arguments — which might result in all State judges (including himself) receiving their first pay-raise in 10 years.

Indeed, the judge has already ruled for similar plaintiffs, in a separate lawsuit filed by four lower-court judges over the same issue, Larabee v. The Governor of New York State. In that case, the Justice ruled that judicial salaries were unfairly linked to Legislators’ salaries and ordered New York’s Legislative and Executive branches to remedy the situation in 90 days. (That ruling is on appeal.)

The Chief Judge was represented by, Bernard W. Nussbaum, the former Clinton White House Counsel who is now a Wachtell, Lipton, Rosen & Katz partner. Nussbaum flushed palpably at the peak of his arguments, dancing like a boxer around the courtroom table.

His presentation centered on a series of eight charts that illustrated the effects of inflation and took a comparative look at State judicial salaries. At one point, he too invoked the trope of the day: “The summer associates who worked on this case, they all make more than your Honor.”

But Nussbaum added rhetorical insult to financial injury: “In the middle of the Depression, [Court of Appeals] judges were making as much as a senior associate. Now, they make as much as a summer associate.”

Click here to read more about comparative judicial salaries.

Later, Richard L. Dolan, an attorney at Schlam Stone & Dolan, empolyed a quieter, more measured tone. Dolan was representing Governor David A. Paterson, Assembly Speaker Sheldon Silver and the Assembly, as well as the State of New York.

“Your daughter is trying to get you to take a more lucrative position,” he said, “But here you sit. You didn’t do it.” Over and over during oral arguments, Dolan returned to the point that State judges aren’t motivated by money, and that current salaries levels aren’t keeping strong candidates off the bench.

The judge seemed unconvinced by this argument. “Wouldn’t you agree that [current] salary won’t attract what your client calls ‘an essential part of attracting top-flight talent’?” the judge asked. As he did so, he produced a folded copy of The New York Sun that contained a story about how a 28-year-old communications officer in the Governor’s office who earns more than Chief Judge Kaye.

Coincidentally, Nussbaum also read from the same article, headlined “How Payroll of Paterson Dwarfs All.”

Dolan shared the defendant’s table with David L. Lewis, a Lewis & Fiore partner, who is representing the State Senate Majority Leader Joseph Bruno and the State Senate. He countered arguments about the alleged unconstitutionality of linking legislator and judge salaries by citing the decision that rocked judicial reformers earlier this year.

“The U.S. Supreme Court made a point that our laws might be stupid, but there’s nothing [the U.S. Supreme Court] can do about it,” said Lewis, referring to the Lopez Torres vs. New York State Board of Elections case — in which the country’s highest court found the state’s judicial nomination system unseemly, but not unconstitutional.

Click here to read Judicial Reports’s exclusive Lopez Torres coverage.

“This is a public policy matter. You are not the public policy part of the government,” Lewis concluded, urging the judge to dismiss the suit.

The Lopez Torres ruling haunted the proceeding.

“The essence of government is compromise,” said Dolan, arguing that the Executive and Legislative squabbles that caused the pay-raise stalemate were part of the normal functioning of the government. “Politicians tend to disagree. At some point, they have to reach a compromise.”

It was a lesson Lehner said he didn’t need, having served for six years in the State Assembly during the 1970s. “I used to be in the Legislature,” he said. “I’m aware of the compromising.”


Posted by Jason on July 17, 2008 04:24 PM to Judicial Reports