LexPosition: Crisis? What Crisis?
Judicial Reports by Scott H. Greenfield - October 15, 2008
A small case of judicial misjudgment draws histrionics from a tabloid and a misguided "protocol" from the court administration. The law presents so many emergencies. Babies yearning to be returned to their mothers. Innocent men begging to be saved from the noose. But freaked-out mergers-and-acquisitions lawyers? Sorry. With so much injustice in the world, the Daily News has decided to pick on New York County Supreme Court Justice Charles Ramos as its poster child for judicial neglect.
At issue was Citigroup’s emergency application to stop its newest potential main squeeze, Wachovia, from hooking up with Wells Fargo. For this, they knocked on the door of Justice Ramos’s weekend home in Connecticut. Ramos granted a stay. Within 24 hours, the stay was vacated because it had been issued out of State. The Daily News editorial decries the absence of a readily available Manhattan judge in an “emergency.” What emergency? “It is an understatement,” opined the News editorialist, to say that the stakes are astronomical in the battle . . . where depositors, shareholders, employees, and taxpayers deserved the highest level of judicial attention.”
And the rest of New York is chopped liver? Apparently, when there are billions at stake (that’s with a “B”), a different level of judicial attention is demanded — a drive-through judicial window should be open past midnight and on weekends. Sure, one can question Justice Ramos for seeking a piece of the big financial crisis action and forgetting the arcane detail that he lacks the jurisdiction to render an order from Connecticut. But one could similarly be critical of the legion of well-dressed lawyers, to be paid mere millions (that’s with an “M”), for their inattention to detail when they neglected to mention the problem.
But aside from the sexy zeros involved, this was never an emergency to begin with. Nothing compelled the litigants to move so decisively or irrevocably over a weekend, or precluded them from waiting until Monday morning to seek relief. No agreement made on Saturday can’t be unmade on Monday. And if a party acts precipitously, as parties sometimes do, then the same damages could be collected on a weekday as would be available to any other contract-breacher. The numbers were huge, but the issues were no different from any other dispute. This was a business deal gone south, not life or death.
That Justice Ramos allowed his day of rest to be disturbed, and sought to accommodate the demands as best he could, was an indication of his willingness to give the parties far more judicial attention than they deserved. The courthouse doors have never been open 24/7 before to any party for the asking, and yet the State of New York has survived. The Daily News cites Appellate Justice James McGuire’s vacating the stay as proof of Ramos’s judicial failing. To the contrary, the reason we have appeals is to challenge a lower court’s decision. This isn’t a new concept, and every reversal, or “chuck the whole megillah” as the Daily News so colorfully describes it, isn’t a badge of shame on the judiciary. It’s the way the system is supposed to work.
But none of this explains what differentiates this attack on Justice Ramos — and the entire New York judiciary for its failure to have a judge happily waiting in the wings lest a billion-dollar deal go bust on a Saturday — from the myriad true emergencies that have happened throughout New York’s history. There’s only one outstanding feature that I can smell: The Daily News had to get a piece out on one of the most significant stories capturing the hearts and minds of tabloid readers in New York, and darn those judges for not conveniently being available before deadline. The upshot, unfortunately, is that Chief Administrative Judge Ann Pfau has issued a memorandum to address this (anomalous, mind you) media catastrophe. The current economic crisis, she said, will "foster additional emergency applications," and she cited the importance of having a "protocol in place" so that lawyers can find a judge in an "orderly" fashion during evenings, weekends, and holidays.
No doubt, judges will be clamoring for the chance to be the “go to” judge on holidays, especially when they feel the compulsion to prove that they’re worth that big, huge pay raise sent with love from Albany. Maybe not. An intake desk for the courts on the weekend is fine, but wouldn’t this latest crisis have been resolved by a standing order for weekend judges to put in a call to their Administrative Judge in (so-called) emergencies? What's more, as NYU Law Professor Oscar Chase points out, the new protocol still doesn’t mention that the judge needs to be within her jurisdiction to issue an effective order. So what happens if the AJ reaches a judge on her cellphone at the Jersey beach instead of East Hampton? One wave sounds the same as another.
While Justice Ramos praises the new protocol as a way to stop judge-shopping (which Justice Pfau says isn't a problem), the new protocol isn't a requirement, but an adjunct to the old way of calling up your favorite judge. So anyone seeking a friendly robe (which Pfau says no one is doing) can beat the system anyway. Ultimately, the only lawyers who will avail themselves of this new system to avoid "scratch[ing] around" for a judge will be the ones who don't know where to find a friendly jurist when they need one. And if that's the case, then the litigants have a bigger emergency on their hands than they thought.