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?

I mentioned this subject quickly this morning as the bottom of a post on the ethical implications of Chief Judge Kaye’s legal counsel making a big gift to her and her fellow judges: Free legal services. But it seems that this subject deserves a post of its own. After all, if the Chief Judge and Wachtell Lipton can make such a blunder (if, in fact, it is a blunder) what does that mean?

This quote comes from a footnote out of the New York’s Court of Appeals, our highest court and the one Chief Judge Kaye sits on, in a case last year (Haywood v. Drown):

New York’s waiver of sovereign immunity is conditioned on submission to the exclusive jurisdiction of the Court of Claims ( see N.Y. Const, art. VI, § 9; Court of Claims Act § 8).

It sits as a footnote because this is well known law. That jurisdiction is for any case demanding money damages, and it seems that Chief Judge’ Kaye’s suit certainly fits that bill, especially since one of the things the suit asks for is that it be retroactive for a couple of years.

But wait! Having chipped in my two cents yesterday on the subject, I felt a need to continue the exploration, and found I was wrong, wrong, wrong. And the reason is that the constitutionality of the State’s conduct is at issue. I now shamelessly crib from a lower court decision by Justice Walter Tolub in 2006 against Comptroller Hevesi and the State (citations have been omitted):

It is well settled that the Court of Claims has exclusive jurisdiction over actions for money damages against the State, State agencies, or State officials acting in their official capacities in the exercise of governmental functions. This is because claims seeking money damages which arise out of actions and determinations made by State officials acting in their official roles are, in essence, actions against the State, for the State is the real party in interest. Court of Claims Act § 9[2] provides the court with jurisdiction to hear and determine claims against the state for the appropriation of any real or personal property or any interest therein.

“However, the Court of Claims does not have jurisdiction over challenges to the constitutionality of statutes, even if such determination is necessary to resolve a claim for money damages against the State. Rather, a declaratory judgment action in the Supreme Court is an appropriate vehicle for challenging the constitutionality of a statute.

So there you have it. That “Doh!” belongs to me.

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.

Now apparently, a year after saying in a press release that the judiciary will not remain “docile in the face of the shabby treatment,” she is finally pulling the trigger and starting suit.

It is, of course, shameful that the legislature hasn’t acted to fix this problem of underpaying the judiciary. While no one expects them to be on a par with the private sector, one has to recognize that substantially underpaying them will ultimately cause the best of the bench to move into private practice, or to politely decline the opportunity if they do not yet wear the robes.

The suit, long awaited by the judiciary, is being filed today in Supreme Court in Manhattan (Supreme Court being the main trial court, not an appellate court). Of course, since every judge in the courthouse has a vested interest in seeing the case succeed, it remains to be seen who, exactly, will hear this thing.
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And now…moments after posting the above, I am back…here is a copy of the filing…/Kaye-v-Silver.pdf

The suit names Sheldon Silver, head of the Assembly, Joe Bruno, head of the Senate, David Paterson, our newly minted Governor, and, of course, the State of New York.

According to the suit, “no other state or federal judges anywhere in the United States have gone longer without an increase in their compensation — not even a cost of living adjustment.”

While titled “Complaint,” the document doesn’t read like any Complaint you have likely seen before. It looks more like a manifesto of judicial pay raise problems before finally alleging in paragraph 12 that the current situation is unconstitutional as a violation of the separation of powers between the branches of government, with pay so low that judges are held hostage to political whims about which they have no say.

The suit also claims (paragraph 15) that by failing to account for cost of living increases, that judicial salaries have been lowered, in violation of the constitutional mandate that they judicial salaries “shall not be diminished.”

The suit is accompanied by a 12 page Memorandum of Law asking for a prompt trial. Also part of the filing is a seven page letter to Justice Edward Lehner asking for the same relief. What Lehner will do is anyone’s guess since he is part of the class that Kaye has sued on behalf of (see paragraph 19 of the Complaint).

Justice Lehner has been hearing another judicial pay raise case (Larabee v. Spitzer) brought by four other justices: New York City Family Court Judge Susan Larabee, New York City Criminal Court Judge Patricia Nunez, New York City Civil Court Judge Geoffrey Wright and Cattaraugus County Family Court Judge Michael Nenno.

Updates:

• Senate: Blame It On Shelly (Silver) (Capitol Confidential)
• Chief Judge Kaye Pulls The Trigger (Simple Justice)
  

  While framed as if it was really a summons and complaint, I don’t believe that is how it’s meant. This isn’t a complaint of a group that seriously expects to litigate and intends to win.

• Judge Kaye Sues to Obtain Pay Increase for New York Judges (Sui Generis)
  

  Judge Kaye has thrown down the gauntlet

• Breaking the Bank (Judicial Reports)
  

  The 30-page suit makes three primary claims: that the New York judiciary is entitled to “adequate compensation,” that State judges were unfairly discriminated against by the State Legislature, and that the judicial branch pay raises are unfairly attached to Legislative pay raises.

• Wachtell and Judicial Ethical Violations in New York’s Judicial Pay Raise Suit? (This blog)
  

  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.

If the high court takes this case, an interesting question is posed: Can participating in a fantasy baseball league require Unites States Supreme Court judges to recuse themselves? In particular, will Justices Samuel Alito or John Paul Stevens find themselves watching this suit from the sidelines if it goes up to the high court?

Stock investment, we know from the recently decided 4-4 decision in the Rezulin drug case (Warner-Lambert v. Kent), can cause a conflict of interest recusal, as Chief Justice John Roberts didn’t participate due to a $15,000 stock investment in Pfizer, parent company of Warner-Lambert. The subjects of recusal and the problems of a 4-4 split have been discussed by many, including Howard Bashman (advocating an appellate judge sit by designation), Drug and Device (the problem of forum shopping due to splits in the Circuits, and its impact on multi-district litigation), and SCOTUSblog (noting that this is a rare occurrence). It had previously been discussed by Eugene Volokh (sell your stock judge!) and Stephen Bainbridge.

That recusal may now come up again, not due to stock holdings, but quite oddly in an altogether different manner: The subject of Rotisserie Baseball (a/k/a “roto” or fantasy baseball) is now before the court on a petition for certiori to determine if baseball statistics are owned by Major League Baseball or are free to the world under the First Amendment (see Above the Law, Sports and the Law: Supreme Court Might Hear Dispute Over Fantasy Sports Property Rights, CBC v. Major League Baseball).

Here’s how it impacts players of the game, which could easily include one on or more high court judges: Fantasy team owners draft real players from around the league at the start of the season to form their own teams in their own leagues, and use those very real statistics as their own to compete and trade against other team owners in their fantasy league. But it’s not just a few bucks in gambling money at stake for the winner. Those statistics are complied by various services that make them available to the public for a fee. So even if you aren’t in a roto money league, you still need the stat service to compile the data to determine which fantasy team has more homers, RBIs, stolen bases, etc. than the other teams in your league. And Major League Baseball wants a cut of that money by licensing the information out.

If you play roto you know this drill well. Now heading into my 20th season, I haven’t yet won, despite the heroic efforts of my brother that does 99% of the heavy lifting. But if you have to pay more money at the beginning of the season for the right to use those stats then there will be real economic issues for every single team owner. We fantasy team owners don’t want to pay money to the multi-millionaire real team owners just to have our fun.

Setting up dates for the start-of-the-year drafts are going on now across America as the season prepares to open. These fantasy leagues are very popular, with a considerable industry devoted to it (hence the litigation). So this leads us to this oddball question with its constitutional issues: Are any of the Supremes fantasy team owners? If so, they have an interest in the outcome of the suit. What does that lead us to?

Free league or not? Does fair use of the statistics come into play if the league is non-money, meaning no gambling fees, but you still need to pay for the stats? Will free leagues still be required to pay a fee for use of the stats if the court were to decide that Major League Baseball owned them or does the First Amendment protect them? Is it different for leagues with money involved?

Oh, I know what you think, this a silly long shot. But read this from US News and World Report on Justice Samuel Alito:

“A longtime Philadelphia Phillies fan, he uses sports metaphors in speeches. As a child, he played second base and dreamed of becoming a baseball commissioner. As an adult, he coached his son’s Essex County Little League team, and his wife once sent him to a fantasy Phillies baseball camp where he played second base alongside professional ballplayers.”

Reviewing a photograph of the chambers of Justice John Paul Stevens, I see a signed Cal Ripkin baseball, a picture of The Babe and a 1932 Word Series scorecard. You gotta be a pretty big fan to have a framed scorecard in your chambers.

Roto in the high court? Seems like a possibility.

Either Alito or Stevens (or others) might have to consider recusal since they may be forced to pay money to buy the stats if the case is decided in favor of Major League Baseball.

As ballplayers limber up in Florida and Arizona for the coming season, the issue of money hangs over the heads of fans who play fantasy baseball. Or at least, it will hang over their heads if the Supremes take the matter and render an unfavorable decision.

Last: The petition for certiori, now pending, may tell the tale of whether one or more recusals are in the works.