NY Judges Advised Not to Link Their Pay Dispute to Recusals

By Daniel Wise
New York Law Journal
New York Lawyer
March 9, 2007

The court system's Advisory Committee on Judicial Ethics has concluded that judges should not recuse themselves from cases where state legislators or members of their firms are representing parties before them solely because of the "long-standing issue of judicial salary increases pending before the Legislature."

As judicial morale sagged after the Legislature failed to enact a pay increase in December, several judges around the state began to take themselves off cases handled by legislators or members of their firms.

Chief Administrative Judge Jonathan Lippman said in an interview said that he had requested an opinion from the committee because he had gotten "a lot of inquiries from judges who had been asked by other judges to recuse themselves."

Judge Lippman also said that he had received a letter from state Senator John A. DeFrancisco, R-Syracuse, chairman of the Senate Judiciary Committee, questioning whether the recusals were ethical.

The advisory committee responded to Judge Lippman's request, though it did not identify him by name, by issuing Opinion 07-25, dated Feb. 22.

To base recusals on the pay raise dispute, the committee wrote, would "erode public confidence in the integrity, impartiality and independence of the judiciary."

Some judges suggested, however, that the opinion did not address the main reason that they had qualms about presiding over matters being handled by legislators or lawyers from their firms.

The problem was not the Legislature's inaction, they said, but the pendency of a lawsuit brought by three judges to compel a salary increase. The suit, Maron v. Silver, 021984/06, which seeks an order mandating increases in judges' salaries by as much as 30 percent, was filed Jan. 2 in Nassau County.

All judges in the state have a stake in seeing the suit succeed, said Acting County Court Judge Edward A. Maron, one of the three plaintiffs. His position, he said, is that when a lawyer appears before a judge, and the lawyer and judge are in the posture of adversaries in a separate litigation, the "safer course is recusal."

Judge Maron explained that a ruling by the judge in the lawyer's favor could be construed as "pandering" to win favor in the judicial pay suit. Similarly, a ruling against the lawyer could be viewed as "retaliation."

Mr. DeFrancisco, however, said he sees the recusals as retaliatory given current circumstances. In an interview, Mr. DeFrancisco said after the pay raise issue had been "in full gear for the last two years, it was more than coincidence" that judges started recusing themselves shortly after the Legislature failed to act on an increase in December.

"It was not a sudden burst of conscience," he said, but "clearly a retaliatory message for not getting what they felt they were entitled to and an unethical act on their part."

Extent of Recusals Uncertain

It is not clear how many judges have actually recused themselves. Brooklyn Justice Arthur Schack and Judge Maron, two of the three plaintiffs in the pay raise litigation, said that they have recused themselves but have not encouraged others to do so. The third plaintiff, Nassau Justice Joseph DeMaro, said he would "actively encourage every judge to consider recusal," but that he "would not presume" to tell a judge what he or she should do.

Nassau County Justice Leonard B. Austin confirmed that in early January, Suffolk County Justice Arthur G. Pitts informed judges throughout the state that he would recuse himself when legislators or members of their firms appeared before him. Justice Austin said that he had answered Justice Pitts' e-mail by saying "me too" and that response had likewise gone to all the judges on Justice Pitts' mailing list.

Justice Austin added that he had recused himself from several cases because of the pendency of the pay raise lawsuit. When the issue comes up, he said, he counsels other judges that the decision is a matter of "individual conscience." Justice Pitts did not respond to a request for comment.

Justice Austin said he was aware of "at least a half dozen" judges on Long Island who have recused themselves, adding that he is "fairly certain there are more." He also said he had heard that there were some judges in Kings, Queens and Onondaga counties who had recused themselves.

Another judge said that a list of the state legislators' law firms had been circulated to judges throughout the state.

Pay Lawsuit on Hold

Meanwhile, the lawsuit to force a raise is on hold until after this year's state budget is adopted, said Steven Cohn, who is representing the three judges. Governor Eliot Spitzer has included $111 million in the executive budget to fund pay raises for the state's judges retroactive to April 1, 2005. The state's 2007-08 fiscal year begins April 1.

Likewise, Judge Maron said it was his understanding the recusals are on hold as well.

Last year, even though the Legislature had approved the judiciary's budget, which contained funds for raises, required companion legislation to establish new salary levels was never enacted.

As 2006 drew to a close, the required enabling legislation fell victim to wrangling over raises for the legislators themselves, charter schools and other issues.

By including funds for the pay raise in the executive budget, Mr. Spitzer has forced the Legislature to take the raises out of the budget if they oppose them. Mr. DeFrancisco said it is highly unlikely the Legislature would take such an action, though some judges expressed concern that the retroactive portion of the raise would be dropped.

Under the pay raise proposal, Supreme Court justices would be paid at the same level as federal district court judges and other state judges' salaries would be pegged at a percentage of the Supreme Court justices' salary.

Supreme Court justices are paid $136,700 a year, a level that has been static since 1999. The executive budget provides that, if Congress approves a scheduled cost-of-living increase for federal judges, the pay of Supreme Court justices would rise to $168,000 on April 1.

Issue of 'First Impression'

The judicial ethics committee, in concluding judges should not recuse themselves because the Legislature is considering the "long-standing issue" of pay raises, resolved what it described as an issue of "first impression."

In an earlier opinion, No. 89-93, the committee had instructed that judges need not recuse themselves when a state legislator, or other lawyers with their firms, appear before them because the connection between a state legislator, with a vote on the salary of a county-level judge, was too attenuated.

The added fact that the Legislature is considering the "long-standing" pay raise issue does not change the calculus, the committee found. Indeed, adding that factor to the mix does not give rise to a situation in which a judge's impartiality might be reasonably questioned, the committee wrote.

But Justice DeMaro said the committee went too far in fashioning a hard-and-fast rule barring judges from recusing themselves.

The case law makes it clear, he said, that with narrow exceptions, recusal is to be left to the discretion of the individual judges "to decide whether, as a matter of conscience, they can be impartial."

For the update on New York judicial pay raises and judicial selection click here