The Flacks Report [7 Aug. 2009]
"Rule of Necessity" Could Be Invoked in Judicial Pay Suits
By Joel Stashenko N.Y.L.J., July 21, 2009
Here are excepts from New York Law Journal reporter Joel Stashenko's July 21st, 2009, excellent Albany dispatch on judicial pay raises.
The six associate judges of the state's highest court, who normally are expected to recuse themselves in cases where the outcome would affect them personally, now face the prospect of invoking a "rule of necessity" to consider whether they and the state's other judges must be given a raise.
The Court of Appeals has determined that there is an appeal as of right in two judicial pay cases, Maron v. Silver, 58 AD 3d 102, and Larabee v. Governor, 880 N.Y.S. 256. But if the Court is disqualified from hearing the issues involved, there apparently would be no other forum for their resolution, and the litigants would be left in limbo.
Chief Judge Jonathan Lippman has said he will recuse himself from the pay cases because he is the plaintiff in a third case, Chief Judge v. Governor, 400763/08, which was launched by his predecessor, Judith S. Kaye. Ms. Kaye also said before her retirement that she would recuse herself but that the rest of the Court could hear the matter under the rule of necessity.
"It is the quintessential rule of necessity case," Ms. Kaye. . . .
While not codified in state law, the rule of necessity has developed within the judiciary in New York and elsewhere as a last resort to having cases adjudicated when there are no other courts to turn to. While seldom used by the Court of Appeals, the rule has been invoked in some of the more memorable cases in the past quarter century. . . .
Appellants' briefs in Maron v. Silver and Larabee v. Governor are due Aug. 31 and respondents' briefs Oct. 15. Each case would likely be calendared for oral arguments in November or January. The Court has not officially invoked the rule of necessity, but it is widely expected to do so.
The Appellate Division, First and Third departments, both rejected the plaintiffs' claim that allowing the judges' pay to fall behind inflation unconstitutionally diminished their compensation. The Third Department also rejected the argument that the Legislature had breached the separation of powers by linking judges' pay to unrelated issues (NYLJ, Nov. 14, 2008). However, the First Department accepted that argument as well as Justice Edward Lehner's decision ordering a raise. . . .
Victor A. Kovner, an attorney with Davis, Wright, Tremaine, L.L.P., who has long been active in the reform of the judiciary and is the Chair of the Fund for Modern Courts, says that if the State legislature doesn’t enact the long-overdue judicial pay increases, the courts should do it as a last resort. The legislature ought to do this--and probably will in the Fall--as well as establish a separate commission on judicial salaries in order to take the issue of judicial pay increases out of the legislative process. Kovner feels that having court-ordered raises for judges could be viewed as self-serving and rub many people the wrong way. This could engender hostility toward the judiciary with the effect on how the public perceives the operations of the courts and its decisions.
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Interesting Comment by a Former Borough President's Press Secretary
[A “City Hall News dot com” story 28 July 2009 anent the Manh. Boro. Pres.’s deputy press secretary’s departure was recently sent to you in a separate E-mail.]
"This item raises an interesting, if tangential question. Why does the Manhattan Borough President need a Deputy Press Secretary?
"When I was Press Secretary to the Manhattan Borough President (Percy Sutton 1966-1977), the office was vastly more powerful and we generated substantially more news. There was still a Board of Estimate and the BP’s office still had a direct vote in budget, capital budget, zoning, planning, franchises, and other important matters.
"The Press Secretary’s job included speech writing and radio/TV production duties, advisor on communications policy, in addition to the usual press functions which included publicizing the activities of the community boards. We were able to operate with a Press Secretary and a modestly paid assistant. My assistant was a talented writer, now arts expert and author, Arlene Katz Nichols, who performed both writing and secretarial duties.
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Nora Anderson Up-date
The decision by trial judge Obus on the defendants' motion to dismiss the indictment has been adjourned to Friday, 25 September 2009.
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New Paper Launched to Bash Bloomberg
Link to story in City Hall News: