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TOP APPELATE JUDGES’SUIT AGAINST NEW YORK STATE FOR JUDICIAL PAY INCREASES BASED UPON FRAUD: E.N.D. Study reveals Litigation Filed by Judges Lippmann/Kaye against New York Tax Payers rejected by First and Third Depts

and willful abuse of "facts"

New York, N.Y. August 17^th, 2009:  “Retired” Judge Judith Kaye, director of the Judicial Commission for Judicial Nomination, and Judge Jonathan Lippmann, Chief Judge for the New York Court of Appeals, announced their intent to “escalate” the decade long scheme to force the New York Legislature to effect “retroactive” legislation to increase the pay of judges on average 20%.  at a time when the State is faced with closing a $2 billion budget deficit.   Judge Lippman announced that the demand for judicial pay raises was his “highest priority” last week.   Judge Kaye, now a practicing private attorney at Skadden, Arps, Slate, Meagher & Flom, has spearheaded the campaign and has been the chief author of two jurist lawsuits Matter of Edwin Maron v. Sheldon Silver and Honorable Susan Larabee v. Governor of New York State, New York State Senate et al, against the tax payers of New York.  The cases were dealt a set back when the Appellate Division Third Department and the First  Department respectively dismissed most of the cases based on the fact that the arguments of “ravaging inflation”  and the attempt to use “linkage” with Legislative salaries in order  to exert pressure on the Senate and Assembly, and that a “constitutional crisis” that was so severe that it allegedly “impaired the Judiciary’s ability to function” was created when the Legislature resisted these demands.    The Appellate Division also rejected Kaye’s alarmist argument that New York Supreme Court was “no longer able to attract the best and brightest” to the judicial profession because of the alleged compensation crisis, citing “no evidence…that the proper functioning (of the judicial system) has thereby been impaired”. The Appellate Panel dismissed “petitioner’s claim of a retaliatory motive” as “highly speculative in the absence of  any affirmative acts of the Legislature—such as enactment of a statute—from which we could discern an intent to react to the referenced decisions regarding separation of powers disputes between the Legislature and Governor”.   The Maron Third Department panel also concluded that there was no “equal protection” argument to be made either as there was no “diminution” of judicial compensation.

The Appeal of the First Department decision against the judges goes before the New York Court of Appeals, headed by Judge Lippman, sometime this fall.  Respondents’ briefs are due October 31st.  Although Judge Lippman  has officially recused himself from hearing the appeal, because he is the plaintiff in a third case, Chief Judge v. Governor, 400763/08, launched by his predecessor Judge Kaye, who admitted this cause has been her priority for the last decade, affirmed before her “retirement”, that she would recuse as well. However, she has signaled to the state’s highest court which she previously oversaw that the “Rule of Necessity” “could be invoked”.    This rule is rarely deployed except when “the case cannot be heard otherwise” and the circumstances “extraordinary”.   The last time the Rule of deployed of consequence, Matter of Morgenthau v. Cooke (1982) was when the DA challenged a judicial practice of temporarily assigning Judges to Supreme Court benches.   An in a “per curium ruling” the six associate jurists found “chief judge had acted without constitutional or statutory authority”. The current scenario is hardly “on point”.

E.N.D. President Kathryn Jordan, a former Fortune 100 businesses executive and management consultant, has provided a third perspective from the view of the taxpayer.

“First, their entire argument is based upon the erosion of judicial salaries due to the “ravages of inflation” is just ridiculous.  The CPI-U fell 0.2 percent in July before seasonal adjustment, due to a 28% decline in the energy index.   So there is no “ravages of inflation”.  Second, as far as their comparisons of judges’ salaries to the private sector, it is unimaginable that anyone would want to hire judges that would just as soon be employed as  high powered corporate attorneys or hedge fund managers.   You want people with a calling to justice”, Kathryn Jordan, President of END stated.    “Third,” Jordan elaborated “We’ve read the now decade old “Report of the Commission to Review the Compensation of New York State Judges March 1998.  The comparisons used to justify the arguments are beyond ridiculous and extremely transparent about the motives of the authors”  They compare the salaries of New York State Judges to “Federal Judges”, citing a 21% premium, they complain that the Fed judges “earn 6% more than the Chief Judge”.  “There should be a large differential between Federal and State judges’, Jordan attested.   They go on to denigrate Federal Magistrates as somehow lower than Supreme Court judges and deserving of lower salaries.

“While that might be true in certain circumstances, overall federal judges are more skilled than supreme courts judges” Jordan stated.  The Kaye campaign is also angry about the greater increases  of “non judicial” personnel.  And they made  unfavorable comparisons to attorneys in the private sector, citing “law firm  partners in the 50^th percentile earn a total cash compensation package of more than $260,000”   These ridiculous arguments, Jordan asserted.  It would be comparable to a marketing manager expecting to make a CEO salary.   Jordan also cited “the gross misstating of the “fact” of inflation’s impact upon judicial pay only reinforce two glaring facts:

<!--[if !supportLists]-->·        The Judiciary is jealous of the private sector compensation.<!--[endif]-->

<!--[if !supportLists]-->·        Judicial Leaders Judge Lippman and Kaye are completely out of sync with the  profession or "calling" of the Judiciary, and are more concerned with bolstering their private coffers and “friends” than enforcing the laws of New York.”<!--[endif]-->

Ms. Jordan has been an activist for Judicial Reform, which she deems the “only intelligent solution to the burgeoning overload of cases, the complete failure of the JCC, the willful disregard of the judicial mandate to enforce the Laws, the need to reward good judges while punishing or removing the bad ones, and the failure of the Governor to pick the right leaders for the Judiciary”.    Jordan believes that a complete overhaul of the Judiciary is needed to deal with the crisis of admittedly overwhelming caseloads, but that “increasing judicial compensation at time when unemployment is at a real rate of 16% and sick people cannot get medical care is just disgraceful”.  Jordan  also stated that Judges receive “many lucrative benefits that people in the private sector do not receive, including free heath care benefits, guaranteed Pensions, and virtual guaranteed lifetime employment”.   The value of these non tangible benefits would double or triple the salary comparisons, Jordan said.  “Obviously, they did not secure a forensic economic expert”.  One very good barometer is that United States Supreme Court Judges make around $202,000.

E. N. D. has criticized both Lippman and Kaye for neglecting their duties both as appellate judges obligated to enforce the laws and as judicial administrators.   “Lippman has repeatedly abused his discretion as a judge to dole out favors to employers who violate Federal and State Anti Discrimination laws” Jordan said “He has reversed verdicts and ruled against people in protected classes.  That is why the unemployment rate among “Black/African American” population is up to 15% (unadjusted) v. Whites of less than 9%”.   Jordan says that the unemployment of the Disabled has always been the highest but is not generally published by the BOLS.  It is estimated to be between 20-30%.     “Further, one out of five or 20% of young people are unemployed”, Jordan asserted.  “That’s a recipe for a real crisis in the future”.

E. N.D. has strongly criticized Governor Patterson’s appointment of Judge Jonathon Lippman to replace Chief Judge Kaye as head of the New York Court of Appeals and Kaye’s subsequent appointment to oversee Judicial Nomination.  At the June 2009 hearings held by Senator John Sampson , head of the Senate Judicial Committee, many complaints were surfaced about Judge Lippmann’s abuse of the Rules and Law.  Judge Kaye’s actions’ to “lobby” for judicial pay increases have included issuing ultimatums and threats to the New York State Senate, falsifying or exaggerating “facts” in her reports, inciting litigation by other jurists against the Governor, posting “ads’ on the Supreme Court website, attempting to extort a “deal” from the New York Legislature by blurring separation of powers, and abuse of her power as Chief Justice.   Many believe she will be removed as head of the Commission for Judicial Nomination before year end, as will the widely criticized Judge Lippman.

  “After the disastrous report by the Commission on Judicial Conduct for 2008, and it’s admitted failure to act as a disciplinary mechanism for bad judges”, Jordan said” it was apparent that the appointment of the Chief Judge was critical.   The Governor has made a series of disastrous appointments, including Judge Lippman and Kaye, many of which will result in impeachments, Jordan predicts, and the pain has been endured by the Minority and Middle Income Tax Payers.   “While the Legislature is trying to trim $2B off the State budget and President Obama is trying to get a compromise health care bill passed, these self serving jurists have consumed millions of tax payer funds on their own interests and greed”.

Jordan plans to publish a full and formal report of the misconduct of Judges Lippman and Kaye and the failure of the Commission on Judicial Conduct to enforce the Rules before year end and will be seeking impeachment of the two trouble making jurists.

“The average person does not understand how these judicial power plays affect them”, Jordan said. “So it is critical that the New York Senate resist these transparent powers grabs”.    Jordan predicts that complaints of discrimination will rise dramatically in the years to come because of the damage inflicted by jurists like Judge Lippman and Kaye. Apparently, this latest sordid chapter in New York’s Judiciary began with disgraced ex governor Elliot Spitzer who not only recommended Judge Lippman and Kaye for promotion, but backed Kaye’s litigation against Governor Patterson.

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