Judges mobilize to fight for Prop 6, with Lippman to the fore
ALBANY—Court of Appeals chief judge Jonathan Lippman has become the leading advocate for a proposal to increase the mandatory retirement age for many judges to 80, an extraordinary level of involvement for someone in his position.
The judge urged several longtime associates to form a political action committee that has since raised over $500,000 to spend on public relations and mail advertising, according to several prominent attorneys familiar with Lippman's efforts. Most of the donations to the group, called Justice for All, came from major law firms and lawyers.
Lippman has also met with several editorial boards, as well as the New York City Bar Association and the Fund for Modern Courts, to push for endorsements of the measure, which is on the November ballot as Proposition 6. Both groups lined up behind the proposal. And last month, the Office of Court Administration sent a memorandum with supportive talking points to judges around the state, should they wish to speak up on the issue.
While the measure would affect hundreds of judges across New York, it would also allow Lippman, 68, to serve an additional decade on the court.
“When it comes to judges, they should be Caesar's wife," said Blair Horner, legislative director for the New York Public Interest Research Group, a good-government advocate that has no position on the proposition. "They should be beyond reproach."
He said setting up a PAC would be a “big mistake,” given ethical prohibitions against fund-raising by sitting judges.
In response to questions about Justice for All, the Office of Court Administration made Chief Administrative Judge A. Gail Prudenti, New York's second-highest ranking jurist, available for an interview. She said the proposition should go forward because it will make the court system run more smoothly, keep more judges circulating in the system and prevent the arbitrary retirement of seasoned jurists.
“I think it's a matter of education, and for us it's a matter of administration of justice,” she said. “I have had absolutely no involvement with the Justice for All PAC whatsoever. We steer clear, both the chief judge and I, steer clear of all issues involving any sorts of groups that are raising money or have anything to do with raising money.”
She directed questions about Lippman's role in the PAC to the chief judge, as did Justice for All's executive director, Bruce Gyory. Lippman's spokesman, David Bookstaver, said: “Judge Lippman and Judge Prudenti are acutely aware that they cannot be involved and have not been involved with anything that raises money because that's an ethical violation. It is simply abhorrent that folks are speculating and spreading rumors to that effect as nothing could be further from the truth.”
He declined to answer, specifically, whether Lippman had urged others to form the PAC, saying that Capital was “being misled” in its line of inquiry.
“There are those willing to play dirty here and raise allegations to sidetrack from the real issue, and that is simply mean-spirited and unfortunate, because all it is is people raising allegations with no foundation whatsoever,” Bookstaver said.
Much of the legal community has lined up in support of the proposal, which passed the Assembly and Senate with comfortable, bipartisan majorities, though the New York State Bar Association has not taken an official position. Earlier this week, the good-government group Citizens Union announced its opposition to the proposal.
Gov. Andrew Cuomo, a Democrat, said this week that he has no official position on the referendum, but he has spoken negatively of it in the past. If approved, the change would deprive Cuomo of the ability to make several nominations to the Court of Appeals in coming years to replace judges forced into retirement.
Supporters note that the current mandatory retirement age was enacted in 1869, when lifespans were considerably shorter. But detractors wonder why the proposition only applies to judges in the trial-level supreme courts, as well as the Appellate Division and Court of Appeals, rather than jurists in county and family courts. Supreme Court justices can apply for up to three two-year waivers, effectively increasing their retirement age to 76. In 2007, the State Bar Association recommended changing the retirement age to 76.
But because the current limit is written into the State Constitution, it is not easy to change. Constitutional amendments must be approved by two successively elected crops of state legislators, and then be affirmed by voters in a popular referendum. Legislative arm twisting is one thing, but it's rare for judges to be in a position to try and move the statewide electorate.
Enter Justice for All, which follows the same model as countless other PACs and lobbying groups pushing everything from casino gambling to term limits. It was formed by a group of lawyers including Robert Haig and Mark Zauderer, many of whom currently or previously have held appointments to advisory committees in the court system. It also counts Judith Kaye, a former Court of Appeals chief judge, among its ranks.
“We need more judges in the system, and more judge time in the system. I think there's general agreement on that. The present proposal, while not accomplishing in full all of the objectives that people have in terms of having more judges, means effectively we have more judge time,” said Zauderer, a partner in Fleming, Zulock, Williamson and Zauderer, a plaintiff's firm. He said he had not spoken with Lippman about the PAC, and that his involvement stemmed from a long relationship with the court system.
His firm donated $10,000 to the PAC's coffers, which also count contributions from Debevoise & Plimpton, Latham & Watkins, Kramer, Levin, Naftalis & Frankel and Greenberg Traurig. The biggest donation—$100,000—came from Kramer, Dilloff, Livingston & Moore, a plaintiff's firm that specializes in medical malpractice. Tom Moore, a senior partner there, did not return a call seeking comment.
Lawyers from these firms routinely practice in state courts, as Horner noted, underscoring how “the inherent potential for a conflict exists” when political contributions from lawyers mix with the judiciary.
Prudenti and Bookstaver said they were vigilant about such issues, and had consulted with their counsel at every step of their advocacy.
Gyory dismissed any concern about attorneys contributing thousands of dollars to an effort that has been explicitly pushed by top court officials. It was natural, he said, for “the most respected and accomplished lawyers in New York State [to be] weighing in on a public policy question they both know in detail and feel strongly about.”
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