New York’s Chief Judge, Judith Kaye, has hit the mandatory retirement age of 70. She gave her farewell speech yesterday, according to this story in today’s New York Times.

Elevated in 1993 under Gov. Mario Cuomo, she was not only the first woman to hold the top spot, but also served longer than any other chief. She had been an associate judge for 10 years before that, giving her 25 years up on Albany’s Eagle Street where the courthouse sits.

She has opined on everything from jury selection to court consolidation to judicial salaries, in which she is the lead plaintiff in a landmark suit against the executive and legislative branches to force higher pay. And on that last subject, she held forth again during her remarks. According to the Times:

She also restated the case for a pay raise for judges, even in tough fiscal times. She said in her speech that she did not want to talk about the lawsuit she filed in April to force lawmakers to increase judges’ salaries. But she said it was “heartbreaking and frustrating and demoralizing beyond description” that “our proud judiciary” — some 200,000 full-time employees, including judges — had been the only part of state government to be denied “the increases they seek.”

Her lasting legacy might be (based on the fact that the Times led with this) that judicial salary lawsuit. The Times elected to lede with this:

After delivering what she called her “swan song,” an hourlong speech on Wednesday in which she said her role as “chief plaintiff” in a lawsuit over judicial pay “sickens me,” the state’s chief judge said she had not endorsed anyone as her successor.

Judge Kaye — and this probably comes as no surprise from a blog that (tries) to focus on New York law — has been the subject of more posts here than any other individual. Since I only started two years ago, my posts on here deal primarily with her flip-flopping decision on whether she should, or should not, try to gain those long-needed judicial pay raises by suing the other branches of government.

This is a wrap-up of my posts on Judge Kaye:

• Spitzer Moves To Restructure Courts With Chief Judge Kaye’s Plans (1/4/07)
  

  …she described the frustrations involved with fixing New York’s archaic court structure, and the decades long struggle to do so…

• Where Are Our Judicial Pay Raises? (1/29/07)
  

  New York’s Chief Judge Judith Kaye is again speaking out on the appalling situation where our judges must go “hat in hand” to the legislature to get paid a decent wage. This comes fresh on the heels of Simpson Thacher’s decision to give rookie associates $160,000 plus a $30,000 bonus, a decision followed by other firms.

• New York Trial Justices Oppose Role In Chief Judge’s New Screening Committees (2/12/07)
  

  New judicial selection rules in New York faced a new problem today when the New York Law Journal reported on its front page that trial justices are opposed to their being part of new screening committees, being set up by Chief Judge Judith Kaye.

• New York’s Chief Judge Threatens To Sue For Pay Raises (4/9/07)
  

  With badly needed judicial pay raises being left out of New York’s April 1st budget agreement, New York Chief Judge Judith Kaye threatened to bring suit against the legislative and executive branches for the raises. In harsh and emotional language she held a press conference and put out a statement on the issue.

• A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat (7/9/07)
  

  New York’s Chief Judge Judith Kaye has abandoned her previous threat of a lawsuit against the legislative and executive branches for the failure to grant even a cost-of-living pay raise over the last nine years…….Justice Goodman, using an extraordinarily sharp tone considering her target, and often dripping with sarcasm that attorneys are unaccustomed to hearing from the bench, is anything but kind to Chief Judge Kaye…

• New York Chief Judge Flip-Flops On Lawsuit. Again (12/11/07)
  

  What, exactly, is the rest of the state’s judiciary to think?

• New York’s Chief Judge Kaye Finally Brings Suit for Judicial Pay Raises (4/10/08)
  

  A year ago last April New York’s Chief Judge Judith Kaye threatened to bring a lawsuit because the judiciary hadn’t had a raise, even for the cost of living, for eight years. Their salaries remained stuck at $136K while first year associates at BigLaw top out over $200K including their bonuses.

Then in July she reversed herself, setting off a furious brawl among the judiciary when she said she would not bring the suit.

Then in December our Chief Judge Hamlet flip-flopped again and said she would bring suit.

• Wachtell and Judicial Ethical Violations in New York’s Judicial Pay Raise Suit? (4/10/08)
  

  Yesterday Chief Judge Judith Kaye brought a lawsuit for long sought judicial pay raises on behalf of the New York judiciary. In doing so, some ethical issues now present themselves based on the free legal services offered to the judiciary by Wachtell Lipton, an issue quite apart from the more obvious question of how any judge that is part of the plaintiff’s class can actually hear the case.

• Did New York’s Chief Judge Sue State in the Wrong Court? (4/11/08)
  

  Yesterday Chief Judge Judith Kaye sued the State of New York (among other defendants) in Supreme Court, the state’s trial level court. But New York law provides that the Court of Claims has exclusive jurisdiction of suits against the state for money damages. Did New York’s Chief Judge sue in the wrong court?

• Kaye v. Silver, Judicial Pay Raise Suit (Today’s Argument) (7/17/08)
  

  I just came back from the courtroom where the matter of Judith Kaye (NYS Chief Judge) against Sheldon Silver (Speaker of Assembly) is being argued. This is the judicial pay raise suit that is, perhaps, the most unique suit ever filed in the state.

New York elects judges, and when judges are up for election, where to do they get their contributions from? That’s right. Lawyers. Lawyers that often appear before them. The judicial candidates are forbidden from asking who gave what. But the information is available to the public on the internet.

Mark Lagerkvist at Judicial Reports has a piece tomorrow on this subject and the problems inherent in such a system (The System is the Crime). The piece focuses on the contributions from the well-regarded Albany firm of Powers and Santola, a firm that does what I do, plaintiffs personal injury and medical malpractice.

And the article is well worth the read because John Powers, a former President of the New York State Trial Lawyers Association, acknowledges the problems inherent in the system as he also discusses his firm’s contributions of $10,000 and more to various judges before whom the firm practices.

When election day comes, as it is now, my local train station is always chock fully of politicians showing their faces and talking to people. Judicial candidates make regular appearances. And that is one thing I was never comfortable with; politicking judges.

While judges can never be above politics — and anyone who watches a Supreme Court confirmation proceeding can see that — the idea of asking for votes doesn’t seem to be an improvement over the appointment process. It debases the judiciary and, I think, leaves a taste in the public eye that the judges are little more than politicians.

I’d like to see nominations by the executive and confirmations by a super-majority of the legislature (or legislative committee). That would protect everyone against radicals appearing from the wings of either party. It seems to be the safest way to get protect the public. And the judiciary.

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Note on courtroom sketch – That is Judge John Sirica with H.E. Haldeman on the witness stand. The original hangs in my office.

Over at Concurring Opinions, Kaimipono Wenger asks the readership about what the worst “still-current” Supreme Court decision.

And the answer, to me, is a no-brainer. As I discussed back in January 2007, when I had a readership of three, the classic bombs were Plessy v. Furgeson, Dred Scott and Korematsu.

But Bush v. Gore stands in a league of its own, well above the others. For each of the others could be reversed by the voters either in Congress or by constitutional amendment. But since Bush v. Gore dealt with the actual disenfranchisement of voters, it could not. All legally cast ballots should have obviously been counted, since it is the people that hold actual power in a democracy.

One simply can’t compare a reversible decision with an irreversible one.

I just came back from the courtroom where the matter of Judith Kaye (NYS Chief Judge) against Sheldon Silver (Speaker of Assembly) is being argued. This is the judicial pay raise suit that is, perhaps, the most unique suit ever filed in the state. The Assembly leader, Senate leader and Governor were all sued by Chief Judge Kaye in her capacity as head of the judiciary. (See: New York’s Chief Judge Kaye Finally Brings Suit for Judicial Pay Raises)

Supreme Court Justice Edward H. Lehner was taking the arguments on summary judgment motions, just minutes after I had argued one of my own cases. So I stuck around. I listened for over an hour before having to bail out. And it looks like it could go all day.

The Chief Judge has created a thicket of issues by suing the Assembly, Senate and Governor, with the case being heard by the judiciary. Justice Lehner noted at the outset that he stands to benefit from a raise if he were to order it.

With about a dozen lawyers and assistants involved in the well of the courtroom or sitting in the gallery, it was at the outset hard to tell the lawyers without a scorecard. Numbers and names on the back of suits would have helped.

Peering out over his reading glasses from his dark wood paneled courtroom at 60 Centre Street — and using the same demeanor he used to discuss whether a fall on wire on a floor was a slip or a trip, at issue on the case preceding this — Justice Lehner delved into the legal morass of what he called “the most novel case of my court career.” (Complaint)

Here is a sampling of the issues presented, just during the time I was there:

Is state Supreme Court the proper place for the case, or does it belong in the Court of Claims? (I hit this issue the day after suit was brought: Did New York’s Chief Judge Sue State in the Wrong Court? ) Counsel for the legislature says this is a salary dispute that belongs in the Court of Claims while the Chief Judge argues that the money is ancillary to the constitutional issues that have been raised and that constitutional issues belong in Supreme Court.

Next up, Justice Lehner wanted to know what, exactly the co-plaintiff “New York State Unified Court System” was, as opposed to the Office of Court Administration, and whether or not a “system” was a proper plaintiff in this action. Who, he wanted to know, actually employs the judges? Is this an agency, a department, a legal entity of some kind that can bring a suit with Chief Justice Kaye? That answer came definitively from the attorney for the OCA, who asserted it was an independent institution of government established by the constitution. And while it has been a party before, both as plaintiff and defendant, no one, it seems, had yet raised the issue of whether it was proper as an entity as a party.

The third issue, and we are still a long ways from the actual merits of the case, was whether Chief Justice Kaye was suing solely in her representative capacity of the judiciary, or in an individual one also. Defendants had raised objections to her acting as a representative. Wouldn’t this issue be resolved, the judge wanted to know, if we just amended the caption to make her an individual plaintiff also? That would raise the question — and this wasn’t mentioned in the oral argument — about what happens if this thing doesn’t settle and the case goes up to the Court of Appeals? Can Chief Judge Kaye hear her own case? While the instinct is to say “of course not,” the fact is that every judge that touches this case will be impacted the same way. Even though she is plaintiff, this is really a class-action type of case in which the entire judiciary is affected.

Next in the dock, Justice Lehner wanted to know the ramifications of the Governor threatening a veto of pay raise legislation if the legislature didn’t also vote for campaign finance reform. He was looking for a moral response devoid of legalisms, but alas, lawyers being lawyers, defense counsel couldn’t say, “Of course that’s wrong! But the remedy is at the ballot box,” which any sane person would have said because it’s pretty obvious.

Finally, now 45 minutes into argument, the real issues started to get touched upon, as Justice Lehner asked, “Why are we here?” The fundamental problem is that the legislature and executive branches are linking the judicial pay raise to other issues, principally a legislative pay raise. But Judge Lehner, in another case (Larabee v. Governor), had already rules that unconstitutional. Defense counsel wanted him to reverse himself, which the judge obviously couldn’t do since that other case was not before the court at the moment. But it didn’t stop them from trying.

It’s at this point, when they start to get to the merits that Chief Judge Kaye’s counsel, Bernard Nussbaum of Wachtell Lipton, starts to get particularly impassioned and animated, his arms flailing this way and that while he speaks, to the point I thought he was going to inadvertently smack one of the other lawyers. (Since his legal credits include representing Bill Clinton, I don’t think my characterization will hurt him any.) Watching what lawyers do with their hands and arms while in the middle of a high-pressure argument can be fun. One lawyer kept his nervously twitching hands locked behind him while he spoke (and spoke well, I might add) while another kept them folded calmly over his belly. OK, I’m digressing, back to the action…

Nussbaum goes on to argue about discrimination of the judiciary, which is the heart and soul of his case. Judge Lehner suggests that if he wins on just one of his issues, that will be enough, but Nussbaum wisely asserts he wants all issues decided in case the Appellate Division or Court of Appeals (chief Judge Kaye, presiding) should toss out the one he wins on.

Then it was on into politics and Albany’s legendary “three men in a room” that basically decide everything that happens in our dysfunctional capital. One of those three men, the judge notes, is changing as we argue (Joe Bruno, Senate Majority Leader, will resign his office tomorrow.) Everyone, Nussbaum argues, is up to their ears in the linkage issue. And on they go to discuss bills that get authored with no intent of passage, and the linkage of judicial salaries to legislative one, and the judiciary being held hostage and not being independent.

From there the court goes on to arguments of the speech and debate clause of the constitution, and whether that immunizes the comments about linkage that were made. The defendants say these comments can’t be the basis of a lawsuit. Plaintiffs assert that this is a constitutional issue of protecting the weakest branch of government.

Folks, that was just the first hour and 15 minutes. Nussbaum showed up with a few large bags of giant charts and an easel for display (Our easels aren’t good enough, Justice Lehner wanted to know?)

One last thought as I left the courtroom. A spectacular amount of legal work is going into the suit by Wachtell Lipton on behalf of the Chief Judge in her representative capacity. That work is being done for free. It seems to me that this represents a very substantial gift to the judiciary (See: Wachtell and Judicial Ethical Violations in New York’s Judicial Pay Raise Suit?) While I support the judicial pay raises — they are badly needed — the idea that a private firm would make such a huge gift leaves me scratching my head in wonder both that the gift was made and that the gift was accepted. The value of the services must easily exceed a million dollars at Wachtell’s billing rate. Every judge in the state is represented by Wachtell. How, I wonder, can any judge sit fairly on a Wachtell case if this firm is also representing the judge?

More:

• Price Fight — Live! (Jason Boog @ Judicial Reports);
• Of Silver and Judges (Elizabeth Benjamin @ NY Daily News)
• Paterson, Lawmakers Argue Against Raising Judges Pay (Daniel Wise @ New York Law Journal)