f/k/a archives . . . real opinions & real haiku

Some of New York’s black-robed judges are engaging in their version of the Blue Flu, in order to pressure the Legislature to give them (long-overdue) pay raises: They are “recusing” themselves — taking themselves off a case due to bias or a conflict of interest — if a party is represented by a law firm that employs a state legislator (especially Assembly Leader Sheldon Silver’s firm of Weitz and Luxenberg). See Eric Turkewitz’s posting “New York Judges Slowing Cases From Legislators’ Law Firms Over Pay Raise Issue” (NYPILaw Blog, May 2, 2008, with hat tip to Overlawyered.com); and “JUSTICE OF THE CEASE: REVOLT OF ROBES AS STATE JUDGES STALL ‘POL CASES'” (New York Post, April 27, 2008).

Also, see the Advisory Judicial Ethical Opinion (No. 08-76, April 24, 2008), which concluded that the judges’ pay raise lawsuit does not require recusal, but also stated that an individual judge must step aside if he or she has “genuine doubts” regarding the ability to be fair

This time last year, I was chastising Chief Judge Judith Kaye for her tacky use of Law Day Ceremonies to threated a lawsuit to get their pay raise. This year, she is — at least publicly — doing her best to prevent the judicial work slowdown, and deny its existence. See “Chief Judge Writes N.Y. Governor to Deny Work ‘Slowdown’ by State’s Judges” (New York Law Journal/Law.com, April 30, 2008); and “Chief judge cautions against recusals as protest” (AP/Syracuse Post-Standard, May 2, 2008). The AP story says:

Kaye, who after turning 70 will retire at the end of the year, in an e-mail Thursday cautioned them not to refuse to hear lawmakers’ cases as a form of protest. She wrote that “using recusal as a strategy rather than as a matter of individual conscience” would be perceived as retaliatory and weaken their cause.

sua sponte –
her honor
catches me staring

. . . by dagosan

Our rabble-rouser weblog friend Scott Greenfield at Simple Justice disagrees with Judge Kaye, and instead is egging on the judges to “stand up for themselves” and ignore calls to maintain their judicial dignity, because “there’s nothing dignified about poverty.” As I told Scott in a Comment at his website,

It is not a matter of dignity (and you know how often I deride our profession’s Dignity Police at my weblog); it is a matter of duty. No judge has the right to fabricate reasons to recuse himself or herself as they are doing here in order to pressure legislators.

I believe that judicial salaries should be higher, but that does not justify using a judicial variant of the Blue Flu. If pay is intolerably low, then an individual judge should resign. There are dozens of competent lawyers (some making far less now and some much more) who would gladly fill each of their slots on the bench at current salary levels. [Indeed, in many locales across the State — including Schenectady County — fulltime judges are among the highest-paid members of the legal profession (starting at $108,800), and they get plenty of other perks.]

This work action will indeed cause the judiciary (and unfortunately the entire justice system) to lose the respect of the average New Yorker.

My position here is similar to my opposition to the illegal boycott tactics used in Massachusetts by their “bar advocates,” in their fight for higher assigned counsel fees. It may be old fashioned, but I really do hold lawyers and judges to a higher standard than I hold your run-of-the-mill politician or bureaucrat — especially when the dispute really comes down to a matter of money.

My bottom line:

• judges should know better than anyone else that good ends do not justify unethical or coercive means — especially when the “end” (no matter how dressed up in cries of constitutional crisis) comes down to personal financial gain
• if any particular judge “doubts his/her ability to remain impartial” merely because a lawyer works for a firm that includes a NYS legislator, he or she does not have sufficient judicial temperament to stay on the bench and should leave

Hey, it’s Saturday afternoon, and thoughts of haiku (not court hi-jinx) should be on my mind. Before Mainichi News posts its May haiku offerings, here are a pair of poems from its April edition, by two of f/k/a‘s Honored Guests. I had planned to post these poems before I decided to write about the judicial slowdown. So, any resemblance to a judge dead or living is purely coincidental.

spring thunder
dust from a slap
on the horse’s rump

…… by w. f. owen – Mainichi Daily News Haiku (April 2008, No. 706)

offshore breeze —
a girl with wild gestures
where the wave breaks

…….. by Jim Kacian – Mainichi Daily News Haiku (April 2008, No. 706)