New York's Chief Judge Judith Kaye engaged in threats and intimidation this week, angry because the state's higher court judges didn't get a pay raise with the passage of the new state budget.

She boldly made an ultimatum if no action was taken by June on judicial salaries "the only remaining course of action available to us may well be to institute litigation with the full weight of the state judiciary behind it".

She said that would "truly be a sad day for us, for state government, and for the people of New York".

That's a threat, if we ever heard one.

Three judges have reportedly already brought their own lawsuits against the state, seeking raises.

Kind of sounds like Kaye's trying to strong arm the Governor and state Legislature, playing the Godmother of the Judiciary---she'll make you an offer you can't refuse.

If three judges have already filed actions in state court, then Kaye has seemingly violated the Judicial Canons which prohibit any judge from making any public comment about a pending or impending proceeding in any court within the U.S. or its territories. Of course the Canons also state that a judge, even the Chief Judge, cannot lend the prestige of judicial office to advance the private interests of the judge---and the personal pay raise of the judge would seem to fit in the category of "private interests".

We certainly hope that she and her counterparts aren't planning on initiating their threatened legal action in New York State courts because no sitting state judge in the state could hear the case under the Code of Judicial Conduct and state Judiciary Law.

The landmark Supreme Court decision of Tumey v. State of Ohio, 273 U.S. 510 held that officers acting in a judicial or quasi judicial capacity are disqualified by their interest in the controversy to be decided as a general rule and it would violate the Fourteenth Amendment and deprive the defendant, in this case the State of New York and its taxpayers, due process of law if the judge has a direct, personal and substantial pecuniary interest in reaching a decision in the matter at bar.

Judges can't execute their office in their own case.

Kaye told reporters that she would recuse herself if the case was heard by the state's highest court, the Court of Appeals. How generous, she would mandated to disqualify herself as would every other state judge who would benefit by a favorable decision.

That's not discretionary, that's the law.

Kaye says that no judiciary can maintain public confidence in its independence if the public can question whether decisions are influenced by efforts to encourage pay raises or retaliate for their denial.

The public would have absolutely no public confidence in the judicial system as a whole if any state judge sat on any matter litigated in state courts considering his or her own pay raise.

Not only would it be unethical, it would be unconstitutional.

And even judges have to abide by the law and the Constitution, regardless of what the Godmother says. Of course, let's not forget, Kaye herself would stand to gain under the $111 million she wants, jumping her annual salary from $156,000 to $181,720.

While judicial activism and legislating from the bench seems to have become prevalent not only in New York but across the nation, this is one matter that New York State judges can't as a matter of law legislate from the bench.
4-11-07

© 2007 North Country Gazette