Attorney Bernard W. Nussbaum addresses Chief Judge Judith Kaye during an event at the New York State Bar Association in Albany in March.
Tim Roske/New York Law Journal

ALBANY - As the state Legislature prepared to begin passing the 10th consecutive budget that does not contain a pay raise for judges, Chief Judge Judith S. Kaye's attorney yesterday outlined her possible suit to force lawmakers and the governor to break the salary impasse.

"This is a legitimate case, a legitimate legal case," attorney Bernard W. Nussbaum told more than 100 judges and other supporters of a judicial pay raise who gathered yesterday at New York State Bar Association headquarters in Albany.

Though Chief Judge Kaye continued to insist that a pay suit by the judiciary against the other two branches of state government was a last resort, she spoke for the first time of when she was prepared to bring the action.

"I would say shortly, during April," she said. "Earlier rather than later."

Legislators were expected to start passing bills constituting the 2008-2009 budget last night and to finish adoption of the $124 billion spending plan by late this week. The fiscal year began after midnight this morning.

As with each budget approved by the Legislature since 2005, when Chief Judge Kaye started promoting a pay raise in earnest, higher salaries for the state's 1,300 judges were not included in the spending plan.

"Judges' pay is not in there," Senate Majority Leader Joseph Bruno said yesterday before telling a rally of state prison guards that four prisons or prison units slated for closure by then-Governor Eliot Spitzer would remain open. "Legislators' pay is not in there."

Chief Judge Kaye said the problem with the judicial pay increase was once again the refusal of some lawmakers to depart from tradition and raise judges' salaries without also increasing their own. Neither judges nor legislators have gotten a raise since January 1999, and the chief judge said judges have since suffered a 26 percent erosion in salary due to inflation.

For a number of reasons, chiefly the poor economy and the fact it is an election year for all state lawmakers, legislative leaders have discouraged their members from seeking a pay raise in the budget. More typically, lame-duck Legislatures return after Election Day to approve pay-raise bills in the increases that have been enacted over the past two decades.

Chief Judge Kaye said yesterday that court administrators and judges are tired of being given lip service that a judicial pay increase is "right on the horizon."

"Instead of the increases, we have been jollied along - believe me, we have been jollied along - from April going back all the way to 2005," the chief judge said at the headquarters of the New York State Bar Association. "From April [we hear], 'Well, it won't be April, but definitely it will be July. And don't worry, it's not July, but it will be September, it will be October. Oh, please, we assure you. You have our promise. You have our word. It will be November 2005, 2006, 2007.' I'm hearing that again in 2008."

Nevertheless, the chief judge said she would continue last-ditch lobbying efforts for a raise and creation of a commission to set future judicial salary levels, and she urged pay-hike supporters to do likewise.

Chief Judge Kaye has retained Mr. Nussbaum, a former White House counsel and litigation partner at Wachtell Lipton Rosen & Katz, to represent her in the threatened suit against the governor and Legislature (NYLJ, Jan. 28). Mr. Nussbaum is working pro bono.

'Hostage-Taking'

If it comes to a suit, Mr. Nussbaum said the action would probably be filed in Manhattan Supreme Court. The judiciary would seek to have the case heard as expeditiously as possible, he said.

"We're going to call the chief judge to the stand - she's the plaintiff - so she can describe some of the things she described today," Mr. Nussbaum told the pay advocates at the state bar yesterday. "And then we're going to call [Assembly] Speaker [Sheldon] Silver to the stand and we're going to call Senator Bruno to the stand. . . . We'll call [Governor] David Paterson to the stand. And let them explain the hostage-taking. Let them explain why for over a decade they've allowed judges' pay to be cut by 26 percent. That'll be our case and that'll be my arguments."

He said a suit by the judiciary would accuse the other two branches of failing their constitutional obligation to provide for an independent judiciary by not voting a raise sooner. The chief judge's suit would also contend that judges are being singled out for unfair pay treatment in a state government where virtually all other employees get cost-of-living adjustments and other salary increases.

The action also would argue that judges' constitutional protection against having their salaries diminished is being violated by denying them raises for nearly a decade. The effects of inflation during the period effectively represents a reduction in salary for judges, Chief Judge Kaye said.

According to Mr. Nussbaum, top state courts in both Pennsylvania and Illinois have upheld suits seeking higher judicial pay on grounds similar to those he would argue in New York on behalf of the chief judge.

'We've Got to Sue'

"This is not crazy, the notion of bringing a lawsuit against the governor and legislative leaders," he said.

Mr. Nussbaum got a standing ovation from the pay-raise supporters.

Among those applauding was Family Court Judge Patrick A. Sweeney of Suffolk County, who said, "We've got to sue." He added that "there is nothing embarrassing" about judges seeking to use the courts to redress their grievances over pay, though critics have questioned how impartial judges could be in cases involving their own salaries.

"Sure, some judges will disqualify themselves. Fine," Judge Sweeney said in an interview. "But we have plenty of fair-minded judges."

Supreme Court Justice Ralph F. Costello of Suffolk County said sentiment among the judges who heard the chief judge yesterday was clearly in favor of a suit if the judiciary is again denied a raise.

"When she asks for questions and no one asked any questions because all the questions have been asked over and over again and there's no new information," Justice Costello said. "That means it's time to move forward and get off the dime."

New York City Bar Association President Barry Kamins, who was also at the state bar event, said it was clear to him that absent a "miracle" from the Legislature, Chief Judge Kaye is "prepared to pull the trigger" on a suit.

"If I was chief judge, I'd understand from her position that there is nothing left to do," Mr. Kamins said in an interview.

Others speaking in support of the pay raise were: Bernice K. Leber, president-elect of the state bar; Fund for Modern Courts Chairman Victor Kovner; Kathryn Wylde, president of the Partnership for New York City; Barbara Bartoletti, legislative director of the League of Women Voters; and former Court of Appeals Judge Joseph W. Bellacosa.

Two other suits filed by judges or judicial organizations are headed to appeals, one in the First Department and one in the Third. In both instances, Supreme Court justices allowed the suits to proceed on the separation-of-powers claim Mr. Nussbaum said Chief Judge Kaye's suit would also contain.

The diminishment-of-salary contention under Article VI, §25 of the state Constitution, which Mr. Nussbaum said is also a basis of the chief judge's threatened lawsuit, failed at the Supreme Court level.

- Joel Stashenko can be reached at jstashenko@alm.com.