Overpaid Judges

If the judges in the State of New York want to understand why the people of the State of New York haven't raised their pay in nearly a generation, let them study the decision handed down this week by Judge Jonathan Lippman in the case involving the first bombing of the World Trade Center. It's hard to recall a decision that is more outrageous. Judge Lippman, whom Governor Spitzer appointed to the First Department, upheld the notion that the Port Authority was 68% liable for the 1993 World Trade Center bombing, while the terrorists were only 32% liable.

The absurdity of the decision is clear from the precedents upon which Judge Lippman and the judges who joined him — Angela Mazzarelli, Luis Gonzalez, John Sweeny Jr., and Rolando Acosta — relied. They cited one case in which the New York City Transit Authority was held responsible in a suit filed by a subway patron viciously assaulted while a token clerk slept. In another cased cited by Judge Lippman, the transit authority was held liable when a passenger intentionally pushed another passenger in front of a train, because the train the passenger was pushed in front of was going 10 miles an hour too fast.

These are flawed precedents. It's not the transit authority's fault when a crime is committed on a subway platform. It's the criminal's fault. The reason the transit authority gets dragged into it is that it has deeper pockets and thus is a more convenient target for a trial lawyer than a criminal. That this matter is being litigated in 2008, 15 years after the attack, is itself a sad commentary on the inefficiency of the state's legal system. But so long as the state's judges are agitating for a pay raise, a lot of New Yorkers are going to be asking whether they deserve one. Not on the evidence in this case.

This is, for starters, an example of the kind of thing that's behind the jibe we published in an editorial when Judge Kaye's lawsuit was first filed. We said what we favor for judges is merit pay. The judges who do a creditable job and issue intelligent, judicious decisions, certainly they deserve a raise. But the judges who mock common sense and aid and abet the class action and trial lawyers in efforts to raid the public purse (New Yorkers and taxpayers in New Jersey, after all, are the ones who are being sued in this case), these kinds of judges are an affront and sap credibility from the whole system.

Judge Kaye is, whatever one may think of her lawsuit, a serious jurist (she certainly deserves a raise). But her lawsuit is igniting a bonfire of absurdities, and not just the question of judges hearing lawsuits seeking to raise their own pay. In the latest episode, according to reports in the New York Post, some judges are calling their own professionalism into question by threatening to retaliate against the law firms of members of the state legislature who have failed to vote the judges a pay raise.

Some want the pay of judges tied to the pay of the legislators. Others say it should be set, in the end, by an independent commission. But to understand the problem with judges in this state, let the be-robed sages study the World Trade Center case. It is the latest argument against a judicial pay raise. If the judges think that the Port Authority is more liable than the terrorists for the trade center bombing, they are already overpaid.