On April 1, the New York Legislature snubbed state judges for the second year in a row, scrapping a promised judicial pay raise during last-minute budget negotiations.

The state had earmarked $111 million of the 2007 budget for increasing judicial salaries around the state, which would have been the first raise since 1999. (The proposed plan would have raised the paycheck of a Supreme Court justice from $136,000 to $165,000.)

The reversal sparked newspaper stories, speeches, editorials, and press releases, but in the entire hullabaloo, most commentators overlooked four judges who had already abandoned negotiations and taken the Legislature to court. (Click here to see a LexMetrics comparison of state judicial salaries.)

Last December, Joseph A. DeMaro’s frustration with stalled judicial salary negotiations had boiled over.
 
“The issue had gone on for years, nobody was taking anything seriously,” he said in an interview this week. “We were all told to be patient. At the end of 2006, we realized we had been put on the backburner for years. Other issues had been added to the mix that had nothing to do with us. They kept putting it off and off and off.”

Tired of waiting for his raise, the judge did what any other talented lawyer would do. He sued.

The judges filed the lawsuit, Maron v. Silver, claiming that the state Legislature had a duty to deliver the pay raises as promised. Supreme Court Justice DeMaro, Supreme Court Justice Arthur M. Schack, Nassau District Judge Edward A. Maron, and Supreme Court Justice Alice Schlesinger (who has since removed herself from the lawsuit) made the first big judicial headlines of the year when the news broke.

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

The suit alleged that the Legislature had yoked judicial salary issues to debates about other internal political squabbles. Additionally, one draft of the plaintiff’s memo accuses the state Legislature of wrongly linking judicial and legislative salaries, a move it contends could breach the constitutional separation of these two branches of government.

The suit also alleged that judicial pay raises had been denied in retaliation for judicial rulings about the death penalty and state budget issues that the plaintiffs suggested might have displeased the influential politicians named in the suit.

As of mid-April, the plaintiffs were planning on filing their first memo in the case on April 23, and on April 12, the state Attorney General had requested an additional 30 days to consider the memo before responding.

The judges asked Chief Judge Judith S. Kaye to join their suit. But she demurred.

Steven Cohn, the lead attorney at Steven Cohn & Associates, is heading the case for the three judges. He emphasized Kaye’s refusal quite clearly in an interview. “To our amazement, there has been no attempt by Justice Kaye to interact with us,” he said.

“You would think that Justice Kaye or [Chief Administrative] Justice [Jonathan] Lippman would want to interact with us, but we have not heard a peep from them.”    

(Note to readers: Justice Lippman has scheduled an interview with Judicial Reports for next week. Stay tuned.)

In the wake of the Legislature’s backtracking, Justice Kaye drafted a new set of marching orders for state judges on April 9. In a passionate speech, however, she once again resisted the route of litigation.

“To my mind,” she said, “bringing such a lawsuit at this moment would be ill-conceived and counterproductive, as it would impede necessary intergovernmental dealings, paralyze and distract us in executing our constitutional mission, and expose us to extended adversarial proceedings, all of this with no guarantee of achieving our goal. I believe that my constitutional obligation to represent the Judiciary as an institution requires me to exhaust every possible option before taking this radical step.”

The Chief Judge’s five-point plan for dealing with the crisis focused mainly on transparent legislative negotiations, withholding legal action until all other avenues have been exhausted.

An editorial in the New York Post on Thursday was dissatisfied with even the mention of last-resort litigation, asking rhetorically what judge could possibly hear such a suit, given the inherent conflict.
 
The three judge-plaintiffs obviously aren’t so patient, and their legal action could ruffle plenty of feathers during this delicate time.

Ranking officials from both the state Senate and Assembly declined to discuss the lawsuit, saying only that they were sanguine that the matter can be resolved before the current legislative session closes in June.

“[Assemblyman Silver] thinks he can work with the Chief Judge to reach a successful resolution before we conclude the session at the end of June. He speaks to her all the time and feels that with everyone’s good efforts we can resolve it,” said Charles Carrier, a spokesperson for the Speaker.

While the Democratic Assemblyman seemed confident that the dispute could be worked out through negotiations, Republican Senator John A. DeFrancisco’s camp stressed that they have supported the measure all along.

“Senator DeFrancisco was very vocal about this issue,” said Deanna Cohen, a spokesperson for the Judiciary Committee Chairman. “He thought it wasn’t fair that the judges have to go to the Legislature with hat in hand every time. He desperately wanted [judicial raises],” she said.

Other leaders were less forthcoming. "We are open to continue discussing this issue," said Mark Hansen, a spokesperson for Senate Majority Leader Bruno, about the possibility of pay raises. Still, he avoided speaking about the lawsuit that names Senator Bruno as a defendant.

Judge DeMaro theorized that the state would request to move the case to Albany, possibly delaying the suit. Still, the judge stressed that they will not wait for the Chief Judge and the Legislature to sort out the pay raise issue.

“What some people think is that we have thrown mud at the wall,” he said. “We in the lawsuit think we have strong legal issues. This is not a charade, a gambit or a tactic. It’s for real. We believe we’ve got a lawsuit here that’s based on strong legal principles.”

None of the judges are strangers to political wrangling or public controversy.

Justice Alice Schlesinger, (although no longer a plaintiff) is married to Thomas H. Nooter, a Democratic district leader in Manhattan.

Justice Schlesinger was one of six judges called as witnesses in the Lopez Torres v. NYS Board of Elections lawsuit that overturned the state’s method for selecting Supreme Court justices. While attorneys for the Association of New York State Supreme Court Justices of the State of New York had hoped her testimony would illustrate how a hard-working judge could earn a spot on the Supreme Court — defying critics who called the backroom selection process rigged — her matrimonial connection convinced some that politics was indeed at play.

Judge John Gleeson declared the system unconstitutional, and referred to Justice Schlesinger in his decision. “In 1991 or 1992, she commenced her efforts to become an elected Supreme Court Justice. In 1993, her husband became a district leader. By 1999, she and her husband had achieved [Manhattan Democratic leader Denny] Farrell’s support, and she became a Supreme Court Justice.”

Justice Schlesinger did not return a call requesting an interview.

Nassau District Judge Edward A. Maron joined the bench in 1999, a tempestuous year for that county’s bench. Maron and three other Democratic-endorsed judges beat out two Republican incumbents that year, upsetting the party balance in the traditionally conservative county.

Since his election, Maron has made headlines for handling bail hearings for some of Nassau County’s most notorious cases. In 2006, he did not set bail for Sayed Khaled El-Waraky, an Egyptian national arrested for allegedly hitting four people while driving intoxicated.

Justice Maron did not respond to requests for an interview.

Elected to the Supreme Court in 2003, Justice Arthur M. Schack received some criticism from a local paper following that election, when the New York Post included him in a 2005 article criticizing New York judges for spending campaign funds on trips and parties.

According to the paper, he spent $4,600 on an “induction party” and $4,900 on a fundraising event.

More recently, the justice made headlines for handling a 2006 personal injury suit against the Transit Authority — the end of ten years’ worth of litigation. In that case, a Brooklyn jury awarded $5 million to a paralyzed man who was thrown out of his wheelchair and hurt on a city bus.

Justice Schack was unable to respond by press time, but he subsequently contacted Judicial Reports.

"Like Justice Kaye, I am 'infuriated,'" he said. "I share her sentiments, but I think it's time for judges to stand up for themselves ... enough is enough. We've waited eight years for a salary adjustment."

As for Justice DeMaro, in 2005 he found himself in the middle of a different sort of political furor.

That year, he ruled that two insurgent Republican candidates in an Islip, New York town board race could return to the primary ballot after Suffolk County election officials knocked them off the ballot. According to a Newsday story about the election fracas, the judge called the Board of Election’s decision “patently inadequate.”

The Appellate Division sent the case back to the judge, and DeMaro recused himself, explaining that a family member had signed one candidate’s petitions. A new judge allowed the candidate to return to the ballot, and the insurgent candidate won the primary.

These budget issues could present some sticky ethical issues for judges in the future. On February 22, 2007, in Advisory Opinion 07-25, the state Advisory Committee on Judicial Ethics ruled that “a judge should not exercise recusal where a State Legislator or a member of his / her law firm appears as attorney in a case before the judge on the ground that there is a long standing issue of judicial salary increases presently before the Legislature.”

Some state legislators also practice law, and a few judges began recusing themselves every time they heard a case litigated by a state legislator (or someone from a state legislator’s legal firm). Since these legislators have a direct influence over judicial salaries, the judges felt they would be biased because they had strong feelings about the legislature’s delay in raising judicial pay.

 “We believe that the judge should be able to make their own decision about recusal,” DeMaro explained, disagreeing with the opinion. “Recusal is appropriate, based on the individual judge and case. You can’t make a blanket rule like that.”

The judge also stressed that the advisory opinion neglected to mention that three state judges are currently suing the legislature and that the state appellate courts have already laid down a body of case law about this subject.

He cited a few cases, including the landmark People v. Moreno. That 1987 Court of Appeals case has been cited in hundreds of other decisions and offers this frank assessment of a judge’s ability to recuse: “Absent a legal disqualification under [Article 2 of] Judiciary Law [Section]14, a Trial Judge is the sole arbiter of recusal,” wrote the state’s highest court.

This decision was not mentioned in Advisory Opinion 07-25.