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Paterson Seeks Reversal of Order to Boost Judges' Pay

Governor David A. Paterson yesterday filed his brief in the Appellate Division, First Department, asking for the reversal of an order requiring that judges' salaries be boosted to reflect the rise in the cost of living since 1999. In June, Manhattan Supreme Court Justice Edward H. Lehner (See Profile) ruled that a raise is required because the legislative and executive branches had violated the separation of powers doctrine by linking a raise to unrelated issues, such as a raise for lawmakers or campaign finance reform (NYLJ, June 11). In Mr. Paterson's brief, his lawyer, Richard H. Dolan, attacks Justice Lehner's ruling as creating "a wholly new Constitutional doctrine of forbidden 'linkage'" that is "as unworkable as it is baseless and unwise." The Attorney General's Office, which is representing the Assembly and Senate, did not submit a separate brief but instead endorsed the arguments advanced for the executive branch by Mr. Dolan of Schlam Stone & Dolan. Thomas Bezanson of Chadbourne & Parke, who represented the four plaintiff judges in Larabee v. Governor, 11201/07, said in an interview that "abandonment of linkage is an incredibly simple step to take" to comply with the state Constitution and "do the right thing" and provide the first raise for the state's 1,300 judges in nearly a decade. The judges' brief defending Justice Lehner's opinion granting them summary judgment on their separation of powers claim is due Oct. 24. The appeal will be argued during the week of Nov. 17. The First Department had stayed Justice Lehner's order, which required enactment of a raise within 90 days, but ordered the two sides to submit their briefs on an expedited schedule (NYLJ, Aug. 28). - Daniel Wise

Second Circuit Rules Valid Supervised Release Terms

The U.S. Court of Appeals for the Second Circuit ruled Tuesday that requiring a convicted possessor of child pornography to stay away from areas where children are likely to congregate is not an unconstitutionally vague term of supervised release. Defendant Christopher J. MacMillen claimed that being barred from such areas failed to provide him with clear guidance as to where he might go. But Second Circuit Judges Peter Hall and Debra Ann Livingston and, sitting by designation, Southern District Judge Colleen McMahon, ruled that "the condition challenged here provides MacMillen with adequate notice of what conduct is prohibited." Mr. MacMillen pleaded guilty last year to possession of child pornography, admitting to storing more than 600 computer images. He was sentenced to 6 1/2 years in prison followed by a lifetime of supervised release, which included a provision that he stay away from "schools, day care facilities, playgrounds, theme parks, arcades, recreational facilities, and recreation parks" unless he obtains prior approval from the probation office. United States v. MacMillen, 07-3377-cr, will be published Friday. - Mark Hamblett

Ramones' Ex-Drummer Loses Bid for Royalties

A former drummer for the Ramones failed to prove that the band's manager cheated him out of royalties, a Manhattan judge has ruled. Richard Reinhardt claimed he only received a fraction of the royalties he was owed for composing the hit song "Smash You" and other tunes during his four-year tenure with the punk-rock band. In 2001, following the death of Ramones guitarist John Cummings, or "Johnny Ramone," Mr. Reinhardt claims a "perceived resurgence" in the group led him to ask Ira Herzog, the band's ex-manager, whether he was owed additional royalties under a 1984 song-writing agreement. A year later, Mr. Reinhardt accepted a $32,500 payment for past due royalties. But in 2004, Mr. Reinhardt accused Mr. Herzog of lying about the band's earnings and falsely claiming the drummer's royalty percentage was capped at 12.5 percent. Last week, Acting Supreme Court Justice Jane S. Solomon (See Profile) held in Reinhardt v. Cummings, 601064/04, that while Mr. "Reinhardt insinuates that he agreed to the 2002 Settlement under sinister circumstances, the facts alleged do not make out a claim for fraud or negligent misrepresentation." The judge also threw out a breach of fiduciary duty and constructive trust claim against Mr. Herzog and his accounting firm, Taco Tunes Inc., which published the Ramone's songs, Ramones Productions Inc. and Mr. Cumming's estate. However, the judge allowed a limited breach of contract claim to proceed against Ramones Productions. The decision will be published Tuesday. - Noeleen G. Walder