Some New York judges have taken aim at the law firms of legislators for cases pending in front of them, due to the failure of the legislature to give them a pay raise, according to the New York Post. New York's judges here have not had a pay raise, even for cost of living, for nine years.

According to the Post, emails have circulated with titles like "How to Get Our Salary Adjustment," and the e-mails have included a "blacklist" of 50 state legislators who are registered as attorneys and the firms where they are employed.

A prime target is Weitz & Luxenberg, with thousands of asbestos and other mass tort cases pending in New York's judicial system, because Assembly Speaker Sheldon Silver is a partner at the firm and is blamed by many for the delay in passing legislation for the salary increase.

Particularly interesting is that some judges are recusing themselves from cases that involve the Speaker's firm. This money quote comes from the Post article:

"I think the speaker is a slug," said Cattaraugus County Judge Larry Himelein, a Democrat who said he couldn't be fair to Silver's firm. "The whole New York state political process is a joke."

According to the article, "judges say the recusals are about avoiding any conflict of interest because of the ongoing pay dispute."

But if the judges claim to be biased against the Speaker's firm then, of course, the opposite must also be true: They will be forced to recuse themselves from any case where Wachtell Lipton is counsel, as that firm is representing Chief Judge Judith Kaye pro bono in her suit on behalf of the judiciary in favor of pay raises against Silver, Senate Majority Leader Bruno and Governor Patterson). (See: Wachtell and Judicial Ethical Violations in New York's Judicial Pay Raise Suit?)

The pay raise issue will be no doubt be the source of additional litigation by savvy attorneys who don't want judges sitting on their cases when Wachtell is also appearing in the case. This work slowdown by judges on Weitz & Luxenberg cases will be powerful evidence of bias in the judiciary for those firms involved, on both sides.

Addendum: Last week, the state's Advisory Committee on Judicial Ethics issued this opinion that Chief Judge Kaye's lawsuit on behalf of the judiciary does not require judges to recuse themselves when a legislator appears before them as counsel, or his/her firm, or a firm representing one of the parties, but that they may do so as a matter of individual conscience.

Regarding my post on Wachtell's appearance, the advisory opinion states:

Regarding the appearance before a judge by a member of a law firm representing one of the parties in the Chief Judge's litigation itself, we note again that the inquiring judges are not named parties in that lawsuit. Consequently, the law firms involved in that action neither represent those judges nor parties adverse to those judges. Accordingly, the Committee concludes that recusal is not required when a member of a law firm representing one of the parties appears (see Opinions 07-176; 01-24[Vol. XIX]).

The advisory opinion does not address the issue I had raised with respect to the substantial gift of pro bono services that was made, and accepted by Chief Judge Kaye, to the judiciary.

See also: Chief Judge Writes N.Y. Governor to Deny Work 'Slowdown' by State's Judges (NY Law Journal via Law.com)

(hat tip, Overlawyered)

Labels: Judiciary

Justice Antonin Scalia has once again hauled out the "get over it" line when referring to the 2000 election and the part he played in stopping votes in Florida from being counted. As if the suspension of democracy was something to be forgotten instead of something to learned from.

His comments came in an interview with 60 Minutes that will be broadcast this Sunday as he pitches a new book on appellate persuasion:

"I say nonsense," Scalia said, when asked about critics who say the 5-4 ruling was based on politics and not justice. "Get over it. It's so old by now."

But I'm a bit uncertain as to why it made headlines, since he has trotted out this routine before to defend his conduct. It was reported back in January 2007 (See: A Response to Justice Scalia on Bush v. Gore and Scalia and Alito Hit the Lecture Circuit)

A few others on the subject:

• 60 Minutes: Scalia On Bush v. Gore 2000: "Get Over It" (Crooks and Liars)
• Scalia---'Mister Justice'--- Defends Bush v. Gore... (Buck Naked Politics)
• Scalia on 2000 election ruling: 'Get over it. It's so old now.' (USA Today)
• Sure, We'll Get Over It When Conservatives "get over" Roe v. Wade (Shakesville)
• His Historical Legacy (Hullabaloo)
• Scalia wants everyone to 'get over it' (Carpetbagger Report)
• Scalia to country get over it (Where's the Outrage)

Updated with a few more:

• Scalia on Bush v. Gore "Get over it" (The Political Voices of Women)
• Why People Hate Antonin Scalia (Economist.com)
• Scalia's Old Material (BLT: The Blog of Legal Times)
  

Labels: Judiciary

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.

Labels: Judiciary

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. (Those issues are covered today at Judicial Reports.)

Now here are the other ethical questions:

1. Wachtell Lipton is representing the Chief Judge pro bono through Bernard Nussbaum, former chief counsel to Bill Clinton. But isn't that type of free representation a gift, and a very substantial gift at that, in violation of the ethical rules? According to New York's Disciplinary Rule 7-110:

A lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal except as permitted by the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with the Code of Judicial Conduct.

So what does the Code of Judicial Conduct say? Here it is:

(5) A judge shall not accept, and shall urge members of the judge's family residing in the judge's household not to accept, a gift, bequest, favor or loan from anyone except:

(a) a gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system or the administration of justice;

(b) a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;

(c) ordinary social hospitality;

(d) a gift from a relative or friend, for a special occasion such as a wedding, anniversary or birthday, if the gift is fairly commensurate with the occasion and the relationship;

(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under section 100.3(E);

(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;

(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or

(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and if its value exceeds $150.00, the judge reports it in the same manner as the judge reports compensation in Section 100.4(H).

So that leaves one exception: Section 100.4(H). What is that? It follows at the same link. And the point of the regulation is that payments to judges should not "give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety." And I can't see how a gift that is worth many hundreds of thousands of dollars in legal fees, or over a million the way BigLaw likes to bill, would not give the appearance of impropriety. There are exceptions in that section, with a reporting limit of anything over $150. I don't see any exception that fits this type of gift.

2. Next question: Did Judge Kaye commit an ethical violation by accepting such a gift from Wachtell Lipton on behalf of the judiciary?

3. And now on to Wachtell's own problem: Will those who are litigating against Wachtell in New York's state courts now move to have the firm disqualified because of their gift? At the very least, a horrible perception will arise when any Wachtell lawyer steps into the courtroom in any case to appear in front of his own client, with its apparent conflict of interests. I have to assume that anyone litigating against Wachtell will now look into making motions to disqualify the firm.

Now this is not an argument against judicial pay raises. Far from it. I think our judges are badly underpaid and have deserved he increase for many years. No, this goes only to the manner in which they are going about it by accepting a major gift from a law firm that litigates in front of these same judges, who are now their clients.

Even if the legal services fall into some legal loophole, and I haven't seen it yet, it still seems to smell. Especially if I were a litigant where Wachtell was on the other side.

And one other, unrelated, issue. Among the defendants is the State of New York. But the State can only be sued in the Court of Claims, not the Supreme Court. Why did Wachtell, with the approval of the state's top judge, bring the action in a court where it is not permitted to do so? (Explanation here: Doh!)

See also:

• N.Y. State Chief Judge Sues State to Secure Judicial Pay Hike (NY Law Journal)

Labels: Attorney Ethics, Judiciary

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.
--------------------
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.

  
  

Labels: Judiciary

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.

Labels: Judiciary

I hate it when someone with so little experience is nominated for a judgeship. And when I write "so little experience," I mean I apparently had more in my first full year than Bush's nominee for the Middle District of Tennessee has had in an entire career. Gustavus Adolphus Puryear IV is the subject of a Stephanie Menicmer skewering that just appeared in Mother Jones.

Leaving aside the roman numerals after his name - blame his parents for that one -- what does he bring with him to the bench if confirmed by the Senate? He has this courtroom resume: He has tried two cases, though the article doesn't say if that means they were actually tried to verdict or he picked a jury and settled.

His current position is that of an executive for a private prison company. And in that capacity had this to say: "Litigation is an outlet for inmates. It's something they can do in their spare time." Legal issues that may be raised are, apparently, unimportant.

Now I'm not saying that courtroom experience is a requirement to be a judge. I don't say that because the Constitution doesn't say that. But it damn well should be to get past the Senate in their capacity to give advice and consent for judicial nominees.

If you want to know how political connections result in judicial nominations, check out the Mencimer article.

This isn't about politics of the left or the right, but about basic competence to do a job. Considering that the lives of others would be in his hands, I think that's kinda important.

The Senate Judiciary Committee held a hearing on February 12th, and has not yet voted on the nomination.

More at:

• Bush Judicial Nominee: Private Prison Executive With Little Court Experience (TalkLeft);
• Ex-Inmate Crusades Against Judge Nominee (SF Chronicle)
• D.C. Liberals have Gus Puryear in their sights (Conservatives for Corker);
• Bush Picks A "Brownie" for TN Bench (Southern Beale);
• AFJ opposition to Puryear nomination makes the Associated Press (Justice Watch)
  

Labels: Judiciary

I've had the misfortune of appearing in the Bronx County Family Court a few times in the past. And I've almost blogged about my experiences because they were so horrible.

And by horrible, I mean that the people who appear for family disputes and custody hearings can't even get into the courthouse and to the hearing rooms because of broken elevators. It can easily take two hours just to get to the hearing room. Then the hearings get adjourned until another date because everyone isn't present.

Today, the New York Times has a piece on this very problem, front page of the Metro section, above the fold.

Many law blogs discuss great principles of the law. But principles mean nothing if you can't get in the door to argue your case.

British Prime Minister William Goldstone once said, "Justice delayed, is justice denied." And nowhere is that more true than in the Bronx Family Court.

Labels: Judiciary

New York's Chief Judge, Judith Kaye, threatened to bring a lawsuit for judicial pay raises in April (New York's Chief Judge Threatens To Sue For Pay Raises).

Then she changed her mind in July (A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat).

Now, according to this AP report, she is once again threatening a lawsuit (NY's chief judge says she may sue over judicial pay raises, via Judicial Reports).

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

Labels: Judiciary

Nine years is a long time to go without a raise. And that's how long New York's judges have gone without. And when I say no raise, I mean they haven't even received a cost of living increase to their $135,900 salary.

So Staten Island's Acting Supreme Court Justice Philip Straniere is letting his whiskers go as his way of protesting.

The story comes out of the Staten Island Advance (hat tip: How Appealing), and here is they money quote on his four-month old beard:

[T]the way things are going, my beard should be long enough by Christmas for me to get work as a sidewalk Santa for some charity."

Since first year associates at big firms blow the judiciary out of the water with the money they make, we can expect a decline in our state's judiciary if this continues.

And if the beard idea gets traction in the courthouses, things could get interesting.

Previously covered:

• Where Are Our Judicial Pay Raises? (1/29/07)
• New York's Chief Judge Threatens To Sue For Pay Raises (4/9/07)
• A Judicial Brawl in New York As Chief Judge Kaye Abandons Lawsuit Threat (7/9/07)
  

Labels: Judiciary

Sol Wachtler, formerly the Chief Judge of New York's highest court, has been readmitted to the New York bar. Wachtler, who had served in the Court of Appeals for 20 years, had plead guilty to threatening and harassing his former lover 14 years ago. I had covered his motion to be re-admitted on February 21st (Sol Wachtler Getting Law License Back?).

Amongst other transgressions that involved stalking and hiring a private detective and anonymous obscene messages so that she would turn to him for help, he also had threatened to kidnap her teenage daughter.

He served a 13 month jail sentence and wrote a book about his experiences in which he blamed an undiagnosed mental illness and prescription drugs for his problems.

In a a biography of Wachtler (King of the Mountain) by Albany Times Union editor John Caher, he writes of the former Chief Judge:

"Wachtler struck down the 'marital exemption' to rape. Prior to his court's decision, there was an exemption in the rape statute that essentially allowed a man to rape his wife, even a wife with whom he was estranged, with absolute impunity," Caher says.

"Wachtler declared the law unconstitutional and initiated a reform. Other Wachtler decisions broadened the human rights law to prohibit discrimination against obese people and provided women with a far stronger sword against gender bias. He wrote a passionate dissent when his court found nothing wrong with a prison guard openly displaying his affinity for the KKK. Long before it was socially acceptable to tolerate homosexuality, Wachtler publicly and gratefully accepted the endorsement of a gay rights group."

Coverage can be found here:

• Once a top judge, now 'delighted' just to be a licensed lawyer (Newsday)
• Sol Wachtler, former chief judge, able to practice again (NY Daily News)
• Disgraced Ex-Chief Judge Is Readmitted to Bar (New York Law Journal, via New York Lawyer)

(Eric Turkewitz is a personal injury attorney in New York.)

Labels: Judiciary

When I watched the Clarence Thomas confirmation hearings many moons ago, I was more than a bit surprised to hear him fight back with a claim that the Anita Hill allegations of the hearings were, in his words, a "high-tech lynching for uppity blacks."

And so I waited for the questions that would address the issue:

Judge Thomas, do you think that allegations of sexual harassment against a candidate for the Supreme Court should be investigated by this committee as part of the advice and consent function of the Senate?

If such allegations were true -- for a hypothetical candidate, for we know you deny them -- do you think that they would be fair grounds for us to deny our consent?

Those questions, I think, would most fairly be answered as "yes." And if the answers are yes, then the investigation has nothing whatsoever to do with race.

One could quibble with whether the allegations should be aired in open or closed session, but that doesn't address the issue of whether the issue should be explored. Ultimately, those that were interested in the classic he said / she said dispute claimed to believe the person that aligned with their politics.

But as far as I could tell, those important questions never came, and Senators were too cowed by the remarks to respond to the issue.

And now Judge Thomas is doing it again in a new book. From Jan Crawford Greenburg at ABC News:

Thomas says he had told [his wife] Virginia that some of his opponents "would try to kill me," and he had grasped how. It dawned on him that he was being treated no differently that those Southern blacks in his grandfather's time.

"We knew what their weapon of choice was to be: the age-old blunt instrument of accusing a black man of sexual misconduct," Thomas wrote. "And it did not matter that a black woman was being used to make the accusations."

And so, Judge Thomas once again walks down the road of blaming racisim for the sexual harrassment investigation.

And I am wondering who will call him on it.

See also:

• The Smear This Time (Anita Hill, New York Times Op-ed)
• The Clarence Thomas-Anita Hill Controversy and Irrational Hatred of Ideological Adversaries (Ilya Somin @ Volokh)
• The Left's Strategic Mistake (?) Regarding Clarence Thomas (David Bernstein @ Volokh)
• Witness for the Persecution (Eugene Robinson at Washington Post)
  
• Anita Hill reemerges, as she must, to respond to the Clarence Thomas memoir (Ann Althouse)
• Anita Hill Fights Back (Peter Lattman @ WSJ Law Blog)
• An Angry Justice Thomas Targets Liberal Groups (ABA Journal)

Addendum:

• ABC Sympathetically Spins 'Withering' Media Attacks on Anita Hill (Scott Whitlock, NewsBusters)
• Justice Thomas: I'm not "bitter", you "uninformed ... traitor" (PrawfsBlog)
• Justice Thomas Appreciation Page;
• Clarence Thomas: "Character" is What Matters (Subject to Complete Defeasance)
  

Labels: Judiciary

It started in Brooklyn with an angry Civil Court Judge Margarita Lopez Torres trying to get on the ballot for a Supreme Court slot. And it goes next week to the U.S. Supreme Court.

Judge Lopez Torres merely wanted to move up from a lower court (Civil Court) to Supreme Court (New York's trial court of general jurisdiction). The problem? She couldn't get on the ballot because the nominations for these elected offices were ordained by political bosses at party conventions, and not the electorate via a primary.

And why couldn't she get the nomination from the party bosses to get on the ballot? Because, she contends, the bosses that do the picking wanted to use her staff a dumping ground for unqualified patronage.

So she, and nine others, sued in United States District Court, claiming that the voters were deprived of their civil rights by being disenfranchised by New York's archaic judicial selection practice.

After a 14-day hearing, Judge John Gleeson in the Eastern District of New York (covering Brooklyn, among other local parts) found that Judge Lopez Torres:

"demonstrated . . . that indisputable qualifications for the job and immense popularity among the candidate's fellow party members are neither necessary nor sufficient to get the party's nomination. Something different is required: the imprimatur of the party leadership."

She has now won twice, in U.S. District Court and the Second Circuit Court of Appeals, and oral argument in the U.S. Supreme Court will be heard next Wednesday.

The case centers on this provision of New York's constitution:

the justice of the supreme court shall be chosen by the electors of the judicial district in which they are to serve.

Judge Lopez Torres says that this means the electorate must chose, for to allow the party bosses to make the picks is to leave power in the hands of the entrenched interests.

The party bosses, on the other hand, claim that this can be accomplished either by primary or party convention, as the legislature has prescribed. This is the position of both the Democratic and Republican machines, as well as the Association of Supreme Court Justices.

There are 33 states that election judges. Only one does not allow for primaries to pick them. New York.

Stay tuned...

Other links:

• Brennan Center for Justice at NYU School of Law (counsel for Lopez Torres, with links and documents)
• New York Judicial Conventions: A Failure of Transparency (American Constitution Society Blog);
  
• Supreme Court Docket for the case;
• The questions presented;
• Supreme Court Will Review the Way New York Selects Judicial Candidates (New York Times Linda Greenhouse, 3/21/07)
  

Labels: Judiciary

The appeal was argued in June 2000. The decision came down last week. Let the bar take notice.

The case was one of employment discrimination. There were no exceptional or unusual points of law.

It comes from the District of Columbia Court of Appeals. The decision is here: SevenYearOpinion.PDF

A footnote on page 24 says:

The court sincerely regrets the unusual delay in issuing this opinion.

Has the court set a record for judicial delinquency?

(hat tip: Ben Glass)

Labels: Judiciary

An interesting question was raised yesterday by Sen. Arlen Specter, who chaired the confirmation hearings of Chief Justice Roberts and Justice Alito. Yesterday he called for a probe into decisions this past term that over ruled precedent.

The basis of the probe will be to see if Roberts and Alito have "lived up" to their assurances that they would respect legal precedents.

Since the judges are, of course, lifetime appointees, and there is nothing that can be done about them short of impeachment and removal, then is stands to reason that the only possible outcome of any hearings -- other than seeking publicity, but politicians would never do that -- is to determine if they lied during their confirmation hearings. And if so, to proceed to impeachment, since that is the only remedy available.

The reasoned claim for the hearings, by the way, is not impeachment but to help with future confirmation and candidates who aren't candid. But that is a charade. If the Senate wanted better answers, they should ask better questions. Instead of posturing for the cameras as is all-too-often the case.

(hat tip, American Constitution Society Blog)


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Judiciary

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.

In a letter to the judiciary over the past holiday week, Chief Judge Kaye, pictured at right, backed down. In an unsigned, four page letter marked "Confidential," she wrote that any such lawsuit by the Third Branch of government against the other two "must withstand the strong light of day," and that formulating an appropriate theory has "not be an easy task." The judge added that had such a suit already been brought, it would not "have helped us one whit" and "it would have damaged our cause."

How did this conidential letter come to light? Because sitting Justice Emily Jane Goodman of Manhattan has now written about it, publishing both the Chief Judge's letter and her own response online in an exclusive report at Judicial Reports. And Justice Goodman wants to know why, if such a suit would not have been helpful or couldn't be brought, was the threat so publicly made?

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. A few snippets of of Justice Goodman's response:

The Chief Judge writes that she understands my "mounting frustration," though I suspect she will find it unseemly when I, a New York State Supreme Court Justice, am forced into bankruptcy. She's assuring me that our problems with the Governor and Legislature are not unique in the nation; but show me one other judicial entity in its ninth year without a pay raise or cost of living increase.

...

Yet all is not lost. They are "doing something," and, "please be assured that we are wholly dedicated to achieving our objectives and unrelenting in our daily calls and visits." Calls and visits are sweet, but have little to do with the urgency felt by those of us who are losing control of our lives.

I'm sure the Chief Judge believes that these contacts will do the trick. But, by the way, she and the other administrators have never been elected, have never run for office or been touched by politics, in a way that would enable them to understand politics and political negotiation. Those who are appointed are the beneficiaries of politics, without experiencing the dynamics themselves. Almost all court administrators (I can think of few exceptions) are appointed, and almost none have ever been elected to the Supreme Court.

There is much more at the Judicial Reports link above.

The publication of the confidential letter and the sharp commentary accompanying it, has the sound of an insurrection against Chief Judge Kaye from the ranks of our trial judges, if others feel as betrayed as Justice Goodman. And it is possible that, if the trial judges don't see acceptable action from their leadership or the legislature, that a work "slow down" may be in the future.

Addendum 7/15/07: See also A Bold Move By Justice E.J. Goodman (Simple Justice)


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Judiciary

When looking for stories on personal injury law for this blog, I often come across comments bashing the jury system. So consider this: Would you want any of these judges sitting on your case:

• Judge Roy Pearson (D.C.), crying in court over his $54M pants;
• Elizabeth Halverson (Las Vegas), Ordering her staff to give her foot rubs, among other transgressions;
• Judge Larry Seidlin (Florida) - crying in the Anna Nicole Smith baby case;
• Judge Lance Ito - Who turned the O.J. Simpson case into a three-ring circcus

And they are not alone. Others get "selected" from time-to-time for their "jurisprudence:"

Readers Digest: America's Worst Judges;
Overlawyered: Worst Judges, cont'd.;
The Legal Reader: Memphis Judge Banned From Florida Resort For Harassment;

And these links don't even involve scandal of the bribery or bench-buying kind, as we've seen in Brooklyn, or those with political biases judges might bring to the bench.

The point, however, is not to bash judges in general. Not even close, since most I've seen are hard-working and conscientious (and I have to appear in front of them). But rather, to highlight that just as there may be bad jurors from time-to-time, so too are there bad judges. Humans are fallible.

When the nations founders enshrined the right to trial by jury, even in civil cases, they knew what they were doing.

Labels: Judiciary

The trial has been cancelled for the lawsuit started over New York's new attorney advertising rules that went into effect on June 1, 2007. According to Greg Beck, who has been litigating this matter for Public Citizen:

We had a trial scheduled on June 18, but since then we agreed that there were no disputed facts and cross moved for summary judgment. We have oral argument on June 18 instead of trial. We also have our [preliminary injunction] motion still pending, and there's a good chance the judge will at least rule on that, if not on the summary judgment motion, on June 18th....

Opening briefs are attached along with stipulated facts. Response briefs are due Friday.

• Plaintiffs-Memorandum.pdf
• Stipulation-of-facts.pdf
• State-Memorandum.pdf

Prior posts on the subject can be found here:

• New York Attorney Advertising Suit To Go To Trial;
• New York Responds to Lawsuit Challenging New Attorney Advertising Rules -- By Banning Humor;
• Skadden Website and Others Named In Ethics Lawsuit;
• New York Lawyer Advertising Rules-FAQ (Sui Generis)

Addendum 5/29/07: A responsive brief by Public Citizen has now been posted here.

Labels: Attorney Ethics, Judiciary

Last week, New York's highest court did something I've never seen. And lawyers I have spoken with have also never seen it.

They wrote a decision without any citations at all. Not one. If anyone else has ever seen such a thing from a state's highest court, I'd love to hear about it.

The decision is reproduced in full below (Scott Greenfield, loved the caption, People v. Person, and the substance is also discussed by Nicole Black at Sui Generis):

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on May 8, 2007
No. 66

[*1] The People & c., Respondent,
v
Paul Person, Appellant.


MEMORANDUM:
The order of the Appellate Division should be affirmed. Defendant orchestrated a robbery that was perpetrated by two accomplices whose actions resulted in the death of the victim. After being apprehended by the police, the accomplices gave videotaped statements incriminating themselves but exculpating defendant of involvement in the crime. The [*2]accomplices later entered into cooperation agreements with the People and gave testimony at trial detailing defendant's role in planning the robbery.

During cross-examination of the accomplices, defense counsel used the transcripts of the videotaped interviews to impeach the credibility of the witnesses by questioning them about the prior inconsistent statements each had initially made to the police. Both accomplices acknowledged they made the prior inconsistent statements. Defense counsel then sought to introduce the videotaped interviews into evidence. Supreme Court denied the request because the accomplices admitted they made the statements on the videotapes. Defendant was subsequently convicted of multiple counts of robbery in the first and second degrees.

Before our Court, defendant asserts that preclusion of the videotaped statements was erroneous as a matter of law because Supreme Court failed to recognize that the jury could not reliably gauge the credibility of the witnesses without viewing their demeanor and hearing their voices during the police interviews. At trial, however, the crux of defendant's argument was that he should be able to use the videotapes, rather than the transcripts, to prove the content of the prior inconsistent statements. Defendant at that time failed to explain how the videotapes would have conveyed information beyond that provided by the verbatim transcripts of the statements. As a result, he did not preserve his current contention that Supreme Court had discretion to admit the videotapes because they were relevant to the jury's ability to reliably evaluate the credibility of the witnesses. We therefore have no occasion to consider whether the preclusion of this evidence constituted an abuse of discretion as a matter of law. Defendant's constitutional claims are similarly unpreserved.

Labels: Judiciary

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.

New York's trial court judges have starting salaries at $136,700, and now trail the starting salaries of first year associates at Big Law firms by tens of thousands of dollars.

Chief Judge Kaye called the failure to give the raises "distressing and infuriating" in her press release. The New York Law Journal is reporting as follows:

An emotional Chief Judge Judith S. Kaye said yesterday the judiciary will not remain "docile in the face of the shabby treatment" it is receiving from officials of other governmental branches and is prepared to sue to get judges their first raises in more than eight years.

The chief judge said a suit would be the "very last resort," but she said she may take that step if lawmakers and the governor do not authorize a pay increase between now and June.

"If there is no action on judicial salaries before the Legislature adjourns in June, 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," Chief Judge Kaye said yesterday at a rare news conference at her Albany courthouse. "That truly would be a sad day for us, for state government and for the people of New York."

In the press release put out by the Chief Judge, she said that it was "disgraceful" that New York judges have not even had a cost of living increase in eight years, and that they must go "begging and pleading" for even such an adjustment.

When Eliot Spitzer was inaugurated as our new governor, I had written of my hope that this particular wrong would be righted. It is embarrassing for New York to continue on this path, and justice itself will suffer if we can not pay a decent salary to retain quality judges. While no one would expect head-to-head competition with the salaries a judge could earn in the private sector, if we can't even keep pace with inflation, the bench will seriously deteriorate.

Labels: Judiciary

The reply brief was filed regarding the lawsuit challenging New York's new advertising rules for attorneys. A copy of the brief by Public Citizen is here:Reply.pdf

I previously covered the opposition brief filed by New York's Attorney General here: New York Responds to Lawsuit Challenging New Attorney Advertising Rules -- By Banning Humor

The issue I had written on was the vagueness of the rules, and that even a simple family photograph could be viewed as a violation, and I had remarked that the State had failed to address the issue of vagueness. This is how Public Citizen responded:

Defendants Do Not Dispute That the Rules Are Unconstitutionally Vague and Thus Invite Arbitrary Enforcement.

Defendants do not respond to plaintiffs' argument that the rules are too vague to give adequate guidance to those seeking to avoid discipline and to prevent arbitrary enforcement. See Pls.' Mem. at 15-17. As explained in plaintiffs' opening memorandum, the rules do not define a "technique[] to obtain attention" or explain what sorts of techniques are "relevan[t] to the selection of counsel." Id. Nor do they provide any guidance as to what lawyer characteristics are deemed to be "unrelated to legal competence" or what sorts of statements "impl[y] an ability to obtain results in a matter." The vagueness of the rules creates a risk of self-censorship and arbitrary enforcement that cannot be tolerated under the First Amendment. Id. For this independent reason, the validity of which defendants effectively acknowledge, the amended rules are unconstitutional.

Additional links are at my prior posts linked above.

Labels: Attorney Ethics, Judiciary

In a brief dated yesterday, New York's Attorney General responded to the lawsuit brought by Public Citizen and an upstate law firm to challenge the new adverting rules for attorneys (see: Skadden Website and Others Named In Ethics Lawsuit). The reply brief was emailed to me and can be found here: ResponseMemo.pdf

One of the subjects I had harped on was how vague the rules were, so that it was impossible to know if they were being violated or not. This one in particular, prohibited:

"techniques to obtain attention that demonstrate a clear and intentional lack of relevance to the selection of counsel, including the portrayal of lawyers exhibiting characteristics clearly unrelated to legal competence." 22 NYCRR 1200.6(c)(5)1

Having pondered that question when I wrote Is My Family Photograph An Ethical Violation in New York?, I opened the brief and did a search for the word "vague" to see how the State responded to the plaintiff's brief on the critical subject.

But my search came up blank. The State didn't respond to the issue, which speaks volumes to me on how indefensible the point is.

In fact, the first point they make -- and indeed it appears to be the only one outside of the procedural issues that fill most of the brief -- is that the ads at issue were false. Why? Because the State has taken the position that humor is not allowed. Think I'm kidding? Here it is at pp. 12-13 of the brief:

Defendants suggest to the Court that the advertisements submitted by Plaintiff are not a complete catalog of their television advertisements. However, in just the few submitted there are patent falsities. Irrespective of whether Plaintiffs intend their commercials to be humorous, it cannot be denied that there is little likelihood that they were retained by aliens, have the ability to leap tall buildings in a single bound, or have stomped around downtown Syracuse, Godzilla-style. These absurdities, how