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N.Y. Judges' Associations Prepare to Sue State for Salary Hike
New York Law Journal
June 26, 2007
Volunteer attorneys for judges' organizations are drafting a lawsuit to force New York Gov. Eliot Spitzer and the state Legislature to give state judges their first pay raise since January 1999.
The complaint is being developed on a pro bono basis by Chadbourne & Parke partners Thomas Bezanson and George Bundy Smith, a former judge on the Court of Appeals.
"We are preparing a suit," said Chadbourne & Parke spokesman Andrew Blum. "We intend to go ahead with it as soon as it is clear that the Legislature has yet again abandoned responsibility to assure an appropriate pay raise for the judiciary."
Staten Island Civil Court Judge Philip S. Straniere said the group he heads, the Board of Judges of the Civil Court of the City of New York, is among the judicial associations backing the suit.
"Everybody is frustrated," he said Monday in an interview. "They feel there is nothing they can do. Disappointment and frustration. They feel they have to do something to call attention to the seriousness of the situation and how the continued failure to treat judges equitably as to all areas of compensation and benefits undermines democracy."
Other groups backing the suit so far are the state Family Court Judges Association, the New York City Family Court Judges Association, and the city Criminal Court Judges Association, said Mark T. Meddaugh, a Sullivan County Family Court judge who heads the family court group.
Supreme Court Justice Marsha L. Steinhardt, head of the Association of Supreme Court Justices of the State of New York, said the group's executive committee will discuss the possibility of backing the litigation developing at Chadbourne & Parke during a meeting July 11.
Personally, Steinhardt said the only litigation she sees as succeeding would be one brought by Chief Judge Judith S. Kaye on behalf of all 1,200 state judges.
If filed by mid-July, as expected, the associations' suit would be the second before the courts seeking higher judicial pay. In January, four judges sued in Nassau County Supreme Court for more money.
The suit from the judges' associations would also be separate from a complaint that several New York City law firms are preparing at the behest of Kaye and the Office of Court Administration. Kaye has said she does not want to sue the other branches of government, but is preparing to do so as a last resort if the governor and Legislature fail to act.
On Friday, the chief judge and Chief Administrative Judge Ann T. Pfau sent an e-mail to judges discouraging an immediate pay suit. However, many of the judges apparently are unwilling to wait.
"We certainly understand and recognize that the judges are very angry and frustrated," Pfau said in an interview. "It is not unreasonable that they would want to address this situation in litigation."
Straniere said there is still some discussion among leaders of the judicial associations about whether to bring their action separately or seek to join the pending suit filed by Supreme Court Justices Joseph DeMaro, Arthur Schack and Alice Schlesinger and Nassau District Court Judge Edward Moran. That action has been transferred to Albany County Supreme Court and been assigned to Justice Thomas J. McNamara.
Meddaugh said the associations have yet to sign a retainer agreement with an attorney to represent them in an action. The suit would have to name as plaintiffs judges who can demonstrate they have suffered actual harm through the long pay raise drought. It would not name the associations as plaintiffs, Meddaugh said in an interview.
He declined to outline the theory of the suit, saying the complaint has not been finalized and the arguments could change.
LONG BATTLE
Judges have been growing increasingly impatient after years of being told they deserve a raise only to see progress stalled by unrelated issues to which a pay hike has been linked.
Last year, money was appropriated for a pay raise but no authorization was given to spend it. This year, passage of a pay bill has been held up while Spitzer, a Democrat, and Senate Republican Majority Leader Joseph Bruno, R-Brunswick, have battled over placing new restrictions on campaign contributions.
The Legislature concluded its regular session last Friday without final passage on a pay bill that would also create an independent commission to set future pay raises for judges, top officials and legislators themselves. Spitzer has promised to veto the pay bill if the Legislature does not enact campaign finance reforms.
Bruno last week said he would bring the chamber back on or before July 16. That is one of the deadlines New York City must meet to qualify for additional federal aid for enacting a fee for driving on congested Manhattan streets.
Pfau said she and Kaye consider the legislative session still to be under way and the pay bill to be alive.
In their e-mail, she and Kaye referred to the "difficulty" of formulating a "creditable complaint" and issues to be considered in the timing of such an action.
"We have to balance against the splash of a lawsuit the long delays inherent in litigation, the effect of a litigation by the court system on operations generally, and the particular impact on the ongoing dialogue regarding salary increases, which remains our best shot at achieving our objective," they wrote.
With Bruno and the Senate expected back in July, the two judges wrote, "This is a critical time for keeping the lines of communication open.
"Closing off communications at this time is likely only to cloud the issues and delay our reaching our goal of achieving fair judicial salaries and salary reform as promptly as possible," they told the judges.
On Friday, Spitzer said a suit by judges asking the courts to grant raises would be "frivolous" and a step back in the process of getting agreement at the Capitol on the pay raise.
Steinhardt said it was "discouraging" to hear Spitzer's comments.
"It was kind of like your last chance [litigation] was taken away," she said. "It made me pause and made me think of my own position on a lawsuit, that the filing of a suit might end up to being damaging."
Spokesmen for Spitzer and Bruno and Assembly Speaker Sheldon Silver all declined comment Monday.
