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A state judge in Manhattan ruled yesterday that a lawsuit brought by four judges suing for a pay raise may proceed on a separation of powers claim. A similar ruling by an acting justice in Albany allowed a suit by three other judges to proceed on the same theory, but Supreme Court Justice Edward Lehner’s reasoning and language suggested a significantly lower level of proof will be needed for the judges to prevail. In Larabee v. Spitzer, 11201/07, Justice Lehner (See Profile) also relied on a concession by the four judges’ lawyers to narrow the suit to one for declaratory judgment and dismissed Governor Eliot Spitzer as a defendant. The state of New York and both houses of the Legislature, however, remain as defendants. The decision will be published Monday. Justice Lehner allowed the case to proceed because the tying of a pay raise to other legislative issues, such as raises for legislators or campaign finance reform, “raises an issue as to whether the two other branches have abused their power and thus unconstitutionally interfered with the separation of powers.” In the Albany case, Justice Thomas J. McNamara (See Profile) in Maron v. Silver, 4108/07, allowed the pay-raise claims of three judges to proceed but wrote that in order to establish a violation of the separation of powers “the plaintiffs face a difficult task.” He ordered a hearing to determine whether the independence of the judiciary had been impaired. (NYLJ, Dec. 3, 2007) At that hearing, Justice McNamara wrote, the three judges could try to show that “benign political branch neglect” was designed to influence the judiciary or that the Legislature had balked at raises because of unhappiness with judicial rulings on issues such as the death penalty and school funding. Thomas E. Bezanson, of Chadbourne & Parke, who represents the judges in the Manhattan suit, said that Justice Lehner’s ruling is “the first” to recognize that tying judicial raises to other legislative issues could violate separation of powers and is “a great milestone achievement in the law.” Mr. Bezanson added that the ruling did not set the same level of factual burden as Justice McNamara had in Maron, and that the burden outlined in the Albany case “is contrary to violation of the separation of powers.” Mr. Bezanson said that absent an appeal, the Larabee plaintiffs will submit a motion for summary judgment on their separation of powers claim. Errol Cockfield, a spokesman for Mr. Spitzer, said the governor supports a pay raise without any conditions. However, Mr. Spitzer also has discouraged judges from suing the state government. Mark E. Hansen, a spokesman for Senate Majority Leader Joseph Bruno, R-Brunswick, said “the Senate has twice passed a pay raise bill, and all the Assembly has to do is pass the bill and send it to the governor and the lawsuit will be moot.” Dan Weiller, a spokesman for Assembly Speaker Sheldon Silver, D-Manhattan, said the speaker is “strong supporter of pay raises for judges,” but declined further comment. John Milgrim, a spokesman for the Attorney General’s Office, said the decision is under review. The four judges who brought the lawsuit before Justice Lehner are New York City Family Court Judge Susan Larabee (See Profile), New York City Criminal Court Judge Patricia Nunez (See Profile), New York Civil Court Judge Geoffrey Wright (See Profile) and Cattaraugus County Family Court Judge Michael Nenno (See Profile). They are supported by their judicial associations. The three judges who brought the lawsuit before Justice McNamara in Albany are Nassau County Justice Joseph A. DeMaro (See Profile), Brooklyn Justice Arthur Schack (See Profile) and Nassau District Court Judge Edward A. Maron (See Profile). In addition, Chief Judge Judith S. Kaye has retained Bernard W. Nussbaum, a partner at Wachtell Lipton Rosen & Katz and a former White House counsel in the Clinton administration, to prepare a lawsuit for the court system (NYLJ, Jan. 28). Chief Judge Kaye has repeatedly said that she would only authorize the filing of a lawsuit as a last resort. ‘Political Dispute’ On the question of whether a pay raise has been stymied by wrangling over extrinsic legislative issues, Justice Lehner wrote that it “appears” that the failure of the Legislature to provide the judges with a pay raise, which the leaders of both the executive and legislative branches have publicly supported, “comes down in the end to the fact that the governor and the Senate are embroiled in a political dispute as to the proper means of reforming the State’s laws with respect to campaign financing.” Justice Lehner also rejected the defense offered by the attorney general that the judges would have to show that, because of the raise, “they are less hard working, dedicated and independent” in order to demonstrate an impairment of their independence. “Judges do not have to violate their oath of office,” Justice Lehner wrote, “in order to be able to establish that the defendants have violated the Constitution.” Moreover, he wrote, “there is no evidence that, although admittedly demoralized, the judiciary has not continued to function as it has in the past.” Like Justice McNamara, Justice Lehner dismissed claims that the absence of a raise since January 1999, while prices have risen 26 percent, violates Article VI, ?25 of the state Constitution prohibiting a diminution of judges’ salaries. There is no violation, he ruled, because inflation affects everyone alike and there is no “particularized discriminatory impact on judges.” In narrowing the lawsuit to one for declaratory judgment, Justice Lehner referred to Mr. Bezanson’s “acknowledgment” during oral argument that the court could not direct members of the Legislature to vote for a pay raise. Justice Lehner concluded that the complaint had “in essence” been amended to “only” seek a declaratory judgment. Mr. Bezanson said yesterday that the judges had sought an injunction in their complaint. But, he added, if Justice Lehner were to declare the judges entitled to a pay raise, the judges could nevertheless seek injunctive relief to compel the Legislature and governor to act if they failed to implement such a declaration. In dismissing Mr. Spitzer as a defendant, Justice Lehner held that he is entitled to immunity under the “speech and debate” clause of the state Constitution, Article III ?11. Justice Lehner found that, to the extent the judges sought an order requiring the governor to sign a bill increasing judges’ pay, they were seeking the performance of a “legislative function.” Legislative acts are entitled to immunity under the “speech and debate” clause, he concluded. Assistant Attorney General Joel Graber represented the governor and Legislature. Former Court of Appeals Judge George Bundy Smith and J. Carson Pulley, both of Chadbourne Parke, also represented the four judges in Larabee. - Daniel Wise can be reached at [email protected].

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