Commentary and Opinion

February 25, 2010

Separation of Powers Regarding Judicial Funding in the State of Connecticut

Two days ago I posted information on this blog related to the New York Court of Appeals decision (Maron v. Silver, 16 ‘ Larabee v. Governor, 7 ; Chief Judge v. Governor, 18) addressing judicial compensation in that state within the framework of separation of powers. Today I have learned that the State of Connecticut is also confronted with separation of powers issues related to its judiciary. These issues relate at least in part to the unilateral reduction of Other Judicial Expense line items (where the law libraries are placed) by the Office of Policy and Management (Executive Branch) after the initial budget allocations have presumably been agreed upon.

Of special concern to many readers of this blog is the severe negative impact these judicial line item reductions are having on judicial law libraries in the State of Connecicut, as indicated in testimony of the Connecticut Chief Court Administrator to the Appropriations Committee included in this post and by the many expressions of concern among Connecticut citizens as reported elsewhere.

The Chief Court Administrator of Connecticut, Judge Barbara M. Quinn has argued before the Appropriations Committee on February 9 that the unilateral reduction of Other Judicial Expense line items by the Executive Branch infringes on the Separation of Powers and can be remedied by OPM simply transmitting the Judicial request unchanged to the legislature. Two sections of Judge Quinn’s testimony are especially important and are highlighted below in this posting. The section on Law Libraries which highlights the importance of law libraries in Connecticut to both the Judiciary and the public has relevance both in Connecticut and throughout the nation. A second part of Judge Quinn’s testimony highlighted below is her statement on “Concurrence in Allotment Reductions and Rescissions,” which frames the issue nicely.

February 23, 2010

Eben Moglen’s Speech: “Freedom in the Cloud”

by David Badertscher

The webcast of Eben Moglen’s speech ‘Freedom in The Cloud’ is proving to be one of most popular ever, and has received over 20,000 hits representing about a 1000 views since Feb 14. In the talk Eben challenges the tech community to provide the public with the means to recapture its privacy from social media/cloud juggernaut through the development of personal social media servers operating in a robust distributed network.

Note that free DVDs of this talk are available to libraries,

educators, and other interested in running screenings – email dvd@isoc-ny.org and ask for DVD1710.

February 23, 2010

New York Court of Appeals Decision Regarding Dispute Over Judicial Compensation

by David Badertscher

February 23, 2010
In a 5 – 1 decision the New York Court of Appeals found that the legislature and the executive branches had undermined the independence of the judicial branch by tying judges pay raises to unrelated legislation, including bills to raise legislators own salaries, thereby violating the separation of powers doctrine. The last pay raise for New York judges was in 1998.

In his dissent Judge Robert S. Smith stated that while he shares his colleagues’ dismay at the Legislature’s behavior in dealing with, or rather failing to deal with, judges’ salaries, he “cannot agree that any of its actions or inactions are unconstitutional….”

The current Chier Judge of the Court of Appeals, Jonathan Lippman, recused himself from the deliberations because he was a plaintiff in one of the cases the ruling addresses.

Public Statement of Chief Judge Jonathan Lippman, delivered on February 23, 2010 at 1:PM.

Here are excerpts from the beginning and end of the decision:

PIGOTT, J.:

“The constitutional arguments raised in these judicial compensation appeals are premised upon, among other things, alleged violations of the New York State Constitution’s Compensation Clause and the Separation of Powers Doctrine. Because the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis and this constitutes a violation of the Separation of Powers Doctrine.”

Conclusion It is unfortunate that this Court has been called upon to adjudicate constitutional issues relative to an underlying matter upon which all have agreed; namely, that the Judiciary is entitled to a compensation adjustment. By ensuring that any judicial salary increases will be premised on their merits, this holding aims to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature. Therefore, judicial compensation, when addressed by the Legislature in present and future budget deliberations cannot depend on unrelated policy initiatives or legislative compensation adjustments. Of course, whether judicial compensation should be adjusted, and by how much, is within the province of the Legislature. It should keep in mind, however, that whether the Legislature has met its constitutional obligations in that regard is within the province of this Court (see Marbury v Madison, 1 Cranch 137, 177 [1803]). We therefore expect appropriate and expeditious legislative consideration.

Accordingly, In Maron, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for – 35 – No. 016; 017; 018 – 35 – further proceedings in accordance with this opinion, and as so modified, affirmed.

In Larabee, the order of Appellate Division should be modified, and in Chief Judge, the judgment of Supreme Court and the order of the Appellate Division should be modified, without costs, by granting judgment declaring that under the circumstances of these cases, as a matter of law, the State defendants’ failure to consider judicial compensation on the merits violates the Separation of Powers Doctrine, and by allowing for the remedy discussed in this opinion, and, asmodified, affirmed.

SEE FULL TEXT OF DECISION AT:

New York Court of Appeals Judicial Compensation Decision February 23, 2010
Continue reading

February 22, 2010

President Obama’s Health Care Proposal

by David Badertscher

Summary

The President’s health care proposal as released on February 22 purports to put “…American families and small business owners in control of their health care. To help those who are following this issue we are providing in this post, links to a 10+ page Summary prepared by the White House. This document provides a good overview and discussion regarding provisions in the proposed legislation.

SUMMARY

by David Badertscher

We are not court reporters and normally do not become involved in discussions related to that field. Nevertheless we recently came accross an interesting exchange of e-mails which helps to identify and highlight the challenges and sometimes emotial reactions regarding how stenographic reporting and electronic recording relate to one another within the court reporting process.

The first e-mail, which we refer to as a comment, presented here in exerpted form, raises concerns about the impact of increased digitization of the process and a percieved lack of planning and resources to deal with these impacts.

The second e-mail is a response to the first. It defends some of the issues criticized in the first e-mail and presents an altervative perspective regarding the roles of stenographic reporting and electronic recording in the court reporting process.