As Judicial Reports explained last week (“Backdoor Pay Push” by Jason Boog), a trio of New York judges has become so frustrated with Albany’s failure to address the gnawing issue of judicial salaries that they are pursuing litigation against the state.

The judges’ lawsuit was filed in Nassau County Supreme Court at the end of Governor George Pataki’s administration.

Governor Eliot Spitzer adopted a roughly 25-percent raise and included it in the 2007-08 state budget that he sent to the Legislature earlier this year. But at the 11th hour, that was sacrificed on the altar of politics (read: legislators wanting to link it to their own belated pay raises).

The judges’ lawsuit was suddenly the only game in town.

Or was it?

In a highly unusual press conference on April 9, Chief Judge Judith S. Kaye declared that she would still pursue a legislative fix. She asked to address a joint session of the Legislature to force action on the present “crisis,” and she proposed creation of a quadrennial commission to administer cost-of-living adjustments for judges and legislators alike.

And, although she said that legislative failure to act before the June recess might force her hand, she pointedly rejected near-term pursuit of litigation. “That," she said, "truly would be a sad day for us, for state government, and for the people of New York.”

Readers will be forgiven if they think they're watching a giant game of chicken.

To help make sense of it all, Judicial Reports' Editor-in-Chief Dirk Olin sat down this week with Kaye’s right-hand-jurist, Chief Administrative Judge Jonathan Lippman, to explore the roiling debate.

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JR: Your honor, given the Albany meltdown on judicial raises, why don’t you support the pending lawsuit?

Lippman: I can’t talk about the particulars of it, but a lawsuit at the present time would be counterproductive. It’s the last thing we would want to do. There are lots of downsides.

JR: For example?

Lippman: Number one, you paralyze, for all practical purposes, the branches of government. Number two, you distract the judiciary from our Constitutional mission — and, God knows, we’re distracted enough. Number three, you have to weigh in the end the chances of success as against the length of time tied up in a lawsuit. We want to get this done now. The program that the chief judge set out is designed to do that.

JR: What if the Legislature won’t give?

Lippman: All we know is that litigation is not going to produce a result in the short term, and it offers no guarantee of success. At this point in time. We’re not saying what would or wouldn’t happen down the road. We want to promote dialogue now.

JR: At least one of the original judge plaintiffs seems to agree with you. There were four, now there are three. Justice Alice Schlesinger withdrew. Has pressure been put on her or the others?

Lippman: I won’t talk about the litigation itself. I can’t. We’re defendants in that, after all.

JR: Are you gun-shy because of the nasty court battle that took place between the judiciary and Governor Mario Cuomo back in the early 1990s?

Lippman: Exactly. I was deputy state court administrator at that time. I don’t think it’s fair to say that anybody gained by that. It was not a pretty sight.

JR: And Judge Kaye took some grief from the New York Post editorial board for leaving the door open, right?

Lippman: The chief judge said there might come a point, but our purpose out there was not to threaten a lawsuit. She doesn’t exclude anything. We’re not going to besmirch the judiciary, but we’re also not going to be docile in the face of great harm to the judiciary. You have to understand the level of frustration and anger among my colleagues. One of our problems is that we are, by Constitutional definition and our very natures, deliberative. Are we saying to our people, ‘Just have patience’? No. We are telling them we have constructed a program to achieve results now.

JR: Now?

Lippman: When we look at today being April 17, and see a Legislature adjourning in two months’ time, we don’t’ seen another option. If we don’t get results, and the Legislature adjourns, we reassess. We do everything we can, but without wearing rose-colored glasses.

JR: Does the public at large “get it”?

Lippman: The one thing we have is broad public support about the merits. Every paper, every good government group, and major governmental leaders throughout the state. It’s not the public’s fault. It’s the political situation in Albany.

JR: The political situation or particular politicians?

Lippman: This is not about naming names. It’s not about individual blame. There’s a systemic failure that threatens our branch of government. It’s not always the most logical process. It’s not always about the merits. It’s a complicated labyrinth. That is why there has been such a call for transparency and systemic reform. Ask anybody who has dealt with the Legislature.

JR: If it’s not individual members, what’s the sticking point?

Lippman: It’s linkage to other issues, whether it’s the salaries of other branches or reform of other branches.

JR: It’s not linkage to outcomes — to the jurisprudence, to particular rulings?

Lippman: I do not believe that at all. Do I see any of that at all? No. I think all the parties sincerely believe that the judiciary deserves a raise, needs a raise now. I also think all parties believe that we need a permanent solution that cuts across all branches. The Chief Judge has proposed something that is frankly unprecedented.

JR: The Chief Judge also promised a big lobbying push. What does that mean?

Lippman: We don’t have tremendous resources. We don’t have fancy lobbyists. We don’t have money to hire public relations people. So this means letting the members of the Legislature see and hear from our judges directly. They can make clear why this is important for judicial independence — if you have a branch going hat in hand on bended knee to the other branches, this is not what a coequal branch does. It’s getting to the point of being ridiculous. Judges shouldn’t even have to consider lobbying and boycotting and slow-downs. This is why the founders created long terms, with no diminishing of judicial salaries.

JR: And you would argue that eight years without a raise, given the rise in the cost of living, amounts to just that?

Lippman: People who are in this branch of government cannot support their families. Of course it threatens judicial independence.

JR: But if that rises to a Constitutional threat, isn’t litigation warranted?

Lippman: I’m not going to get into the legal theory of what level reaches a Constitutional threshold. From a policy perspective, it threatens. On litigation, we’re not saying we won’t ever, we’re just saying that for now we firmly reject it.

 
JR: And who could hear such a case? Unless you moved it to federal court, you'd have to invoke the doctrine of necessity to get over the conflict of a state judge ruling on state judicial salaries, wouldn't you? And wouldn't it still be awfully messy?

 
Lippman: The doctrine is there, but I'm not going to comment on the litigation.

JR: Do you suffer from the public not understanding the role of the judge under our system? And do you suffer from the scandals in Brooklyn?

Lippman: The biggest misconception is that judges impose their personal views or ideologies. We apply the law. We’re not saying whether we agree with this or that. Where there is aberrational conduct — in Brooklyn or Buffalo or the central tier of the state — you have to put it in the context of the 1300 judges in the state and realize that judges more than anybody want it cleared up. I don’t think you’ll find the public viewing these couple of incidents as reflective. Remember, we’re talking about a state that handles four million matters a year, more in one day than the federal system does in a whole year.

JR: But the reality is that many see some members of the bench acting cravenly or dictatorially.

Lippman: That's partly because you don't see the story about judge x and how much the jury loves him or her. You don't see stories of new efficiencies out of the court systems.

JR: And yet, despite that disconnect between general perception, on the one hand, and the everyday realities of judging and the judicial system, you’re sanguine about Albany dealing with pay?

Lippman: Number one, I think they’ll adjourn having addressed this. Number two, if not, we’ll cross that bridge when we come to it. We’re not thinking about what’s not going to happen. We’re focusing on what needs to happen in a laser-like way.