Gov. Paterson Taking Charge: Vetos Court Power Scam

Paterson Rules Out Interlocutory Appeals In Jury Selection
The New York Law Journal by Joel Stashenko - September 29, 2008

ALBANY - A bill that would have established an interlocutory appeals process for disputed juror selections in civil trials was vetoed Friday by Governor David A. Paterson. The legislation (A11715/S8661) would have designated administrative judges in each judicial district to hear disputes over jury selection as they arose and created a right for parties to bring Article 78 proceedings if decisions by the administrative judges reflect a "deliberate failure" to adhere to selection procedures. The measure also called on the administrative board of the state courts, comprised of Chief Judge Judith S. Kaye and the four presiding Appellate Division justices, to establish new standardized selection procedures for Supreme and county courts throughout New York. The legislation has been pushed for years by the state Trial Lawyers Association, which contends that some judges and judicial hearing officers are flouting established procedures for choosing jurors.  In opposition were the Fund for Modern Courts, the New York State Bar Association, New York City's Corporation Counsel and the state League of Women Voters. The New York City Bar Association's Committee on State Courts of Superior Jurisdiction also urged a veto of the bill. Opponents argued that the measure would have delayed the jury selection process in many cases, stretching already thin court resources, and undermined Chief Judge Kaye's campaign to make courts more juror-friendly.

In a veto message, Mr. Paterson explained that he had heard no "urgent or compelling justification" for signing a bill that makes several significant changes in court procedures.  "The problem with this bill is that the proposed mechanisms contravene well-settled legal principles governing review of trial court determinations and would create logistical burdens that could unnecessarily delay trials and seriously inconvenience citizens performing their civic duties by appearing as jurors to hear civil cases," the veto message said. Mr. Paterson also noted that parties aggrieved by an error in the jury selection process can still seek to file a conventional appeal of an adverse judgment.

The bill had passed in the Assembly by a vote of 137-1 and in the Senate by 62-0. It was sponsored by the Judiciary Committee chairs in both chambers of the Legislature, Senator John A. DeFrancisco, R-Syracuse, and Assemblywoman Helene Weinstein, D-Brooklyn. Neither returned a call seeking comment Friday. The president of the Trial Lawyers Association, Nicholas Papain, said he was disappointed with the veto and would renew efforts to pass the measure during the next legislative session beginning in January.  "We feel strongly that this bill was necessary to ensure that jury selection is conducted more fairly and that there are remedies when those in charge fail to follow the rules," Mr. Papain, a partner at Sullivan, Papain Block McGrath & Cannavo, said in an interview Friday. "A fair jury selection process is a cornerstone of our civil justice system."

The legislation was something of a compromise from an alternative measure (A8964B) that would have adopted the new procedures in a statute and not given any discretion to the administrative board (NYLJ, June 20). The state's chief administrative judge, Ann Pfau, lobbied against that bill, arguing that juror selection procedures were a matter for the court system to set and enforce.  Court administrators say they can accomplish through court rule some of the reforms sought by the trial lawyers. Among other things, the group has complained that jury selection procedures can vary from court to court, sometimes from judge to judge, and should be standardized statewide in fairness to litigants and their attorneys. "The Trial Lawyers have brought to our attention some concerns that they have and we take their concerns very seriously," Judge Pfau said. "We look forward to working with them productively to address those concerns."

Mr. Papain said he would welcome changes by the administrative board to standardize jury selection procedures, but would not abandon the legislative approach. Legislation would be needed to create the appeals process for parties claiming that jury selection rules were being deliberately violated. "We feel very strongly that we must continue to pursue this avenue, that being legislation," Mr. Papain said.  Lawpac, the Trial Lawyers Association's political action committee, gave Mr. Paterson's campaign committee a total of $54,900 in two donations on May 29. The donations were for $36,800 and $18,100.

Delays Feared

Appeals "have to [cause] more delay," said Victor A. Kovner, the chairman of the Committee for Modern Courts. "Unfortunately, there will be some lawyers who will try to take advantage of the system and play games with the process. We just can't have the jurors subjected to that." Modern Courts favors adoption of a uniform method of selecting civil juries throughout the state, Mr. Kovner said in an interview. "I think all of this can be accomplished by a court rule without delaying and stopping the jury selection process," he said.

New York City Corporation Counsel Michael A. Cardozo was also a critic of first A8964B and later of the bill that Mr. Paterson vetoed (NYLJ, Sept. 5). "I am very pleased that the governor has recognized that there is no need for this bill and that it could potentially cause substantial mischief in the selection of juries," Mr. Cardozo said in an interview.  Typically, jury selection begins in between 400 and 500 civil cases a year in which Mr. Cardozo's attorneys defend New York City. The corporation counsel's office tried 122 cases to verdict last year.

"If everything was slowed down, we were going to have to find more lawyers to try those cases," Mr. Cardozo said. "Particularly at this time of budget crunch, I don't think we could have done it. It could have paralyzed the system." Mr. Papain said his 4,000-member group has received complaints about several aspects of unfair jury selection procedures, including instances where judges or judicial hearing officers have ignored rules calling for lawyers for the plaintiff and the defendant to alternate their challenges striking jurors. The situation is unfair where a lawyer is made to use challenges on jurors that the other side would have removed if the attorneys had alternated, Mr. Papain said. Other times, he said, lawyers have not been allowed to voir dire jurors on their attitudes toward damages in bifurcated trials, even though those same jurors would consider the question of compensation if they found the defendant liable for damages. Joel.Stashenko@incisivemedia.com