More Changes From NYS Chief Judge Jonathan Lippman

With Bow to the Past, Lippman Defines Own Role and Priorities
The New York Law Journal by Joel Stashenko - April 20, 2009

ALBANY, NY - Nine weeks after Jonathan Lippman took over the chief judge's office at Court of Appeals Hall, he has not really moved in.  The desktops and wooden shelves that Judith S. Kaye filled with mementos, keepsakes and family photos during her unprecedented 15 years as chief judge are still largely empty.  But while it is no longer Ms. Kaye's office, it is not quite Chief Judge Lippman's yet, either. The same could be said for the chief judge's job, although he has taken the first steps to put his own stamp on the position.  Chief Judge Lippman said it would be "foolhardy not to in so many ways follow the script and absolutely continue in the large footsteps set by Judith Kaye," whom he served as chief administrative judge from 1996 to 2007. But he also said he is intent on re-evaluating every aspect of the state court system as it evolved during the long tenure of his predecessor - with due regard for the challenges posed by a faltering economy and with a focus on "the judges and their courtrooms."

"I think honoring the past is not at variance with setting your own sails and your own vision, your own tone, your own persona as chief judge," Judge Lippman said in a recent interview. "That's life. That's the way it is. I am proud of Judith Kaye and her spectacular tenure as a chief judge and I very much now set forth on a new adventure for me, which is my own accomplishments, hopefully, as chief judge, my own priorities, my own tone that we're setting." Judge Lippman, 63, said his first moves since becoming chief judge on Feb. 12 have been made with an eye on charting his own course in his dual role as the head of nation's second busiest court system and as the chief judge of the state's highest court. He has condensed the command structure of the courts, retaining Ann Pfau as chief administrative judge but trimming to two from six the number of deputy administrative judges (NYLJ, March 12). He has done away entirely with another layer of bureaucracy, that of the administrative judges for the Civil and Criminal courts in New York City (NYLJ, April 9).

Judge Lippman also helped negotiate two initiatives approved by the Legislature as part of the 2009-10 state budget, the elimination of the last vestiges of the Rockefeller Drug Laws (NYLJ, March 30) and an agreement for Judge Pfau to set caseload limits for criminal attorneys assigned to defend the indigent in New York City starting in April 2010 (NYLJ, April 6). Drug law reforms will extend the existing drug court model - a particular favorite of Ms. Kaye's - across all courts dealing with drug offenders. Caseload caps will mean better prepared lawyers and improve the quality of justice for the indigent in New York City courts, the chief judge said. Judge Lippman said all these moves are guided by the need to make the most efficient use of resources in a system that has 1,300 judges and 16,000 non-judicial employees. "We need to have a direct line from administration to the trial courts," the chief judge said. "We are making sure that everyone understands that our main focus, my main focus, is on the judges and their courtrooms and helping them to do their jobs every day along with our non-judicial work force."

'Lean and Mean'

Influential state legislators say the consolidation of the top administrative posts is setting the appropriate tone for the court system in a time of fiscal distress. "He has indicated to us and also the court system that he wants to make the system lean and mean and efficient," said state Senator John Sampson, D-Brooklyn, and chairman of the Senate Judiciary Committee. "I think he is concerned about the morale of those who are in the court system and in restoring the trust and the faith to the litigants who are in that system. . . . I think he has done a good job so far, a real good job." Mr. Sampson's predecessor as Senate Judiciary Committee chairman, John A. DeFrancisco, contended for years that the Judiciary's command structure was bloated, filled with, as he put it in an interview, "special assistants to the special assistant." He applauded Judge Lippman's initial moves to shave away some of the top levels of that leadership structure. "For him, it's a great statement to reverse some of those things he doesn't think are necessary," said Mr. DeFrancisco, R-Syracuse. "I hope there is more to come."

More to Come

The chief judge promised that a system-wide evaluation is taking place, starting with the 58 administrative and supervisory judges and extending to the non-judicial personnel at the Office of Court Administration. "Our administrative and our supervising judges should understand that we are re-evaluating, reassessing, not only the structure of the system - and there's more to come in terms of the structure of the system - but also re-evaluating and reassessing each and every person in that structure because this is the appropriate time to do so," Judge Lippman said. "We have a new chief judge and, I must say, I am a new chief judge who is very conversant with court administration and the administrative structure." The ultimate goal will be to keep the trial courts operating over the next few recessionary budgets, Judge Lippman said. He noted that courts in other states have been forced to reduce hours of operation and to make other cutbacks. In New York, he does not anticipate layoffs or reductions in courts' hours. "I don't see it," the chief judge said. "We don't want it and we have absolutely no anticipation that that's going to be the case. Even recognizing the fiscal climate that we live in, it is the last, last resort that we never want to go through again as we did in 1991."

In 1991, then-Governor Mario M. Cuomo and Chief Judge Sol Wachtler became embroiled in a legal battle over revisions made in Judiciary budgets that the former chief judge said were illegal. Short some $77 million in the budget during the economic recession of the early 1990s, the Judiciary temporarily laid off 500 employees and reduced the hours of operation in some civil courts. Closing courts "goes to the core function" of the Third Branch and would be the last option he would consider, Judge Lippman said.  "The last thing in the world that we want to do is lay off any court personnel or have any court closings or deferred hours," he said. "We run the risk of not performing our constitutional mission if these things happen." Judge Lippman said he plans to spend significant time in May and June visiting courtrooms around the state "talking to judges, seeing what's on their minds, seeing how to help them to do the best."

Pay Raise Challenge

The Legislature approved the $2.52 billion Judiciary budget for fiscal 2009-10 largely as presented by the courts, though minus a schedule of raises for judges that lawmakers insist the OCA needs to activate a $48 million re-appropriation approved in the budget for long-delayed pay raises (NYLJ, April 3). Judge Lippman said he is discussing a pay raise with legislators and considers it his top priority as chief judge, even given declining state tax revenues. "I won't fool anybody, including our constituency," Judge Lippman said. "I recognize given the fiscal situation in the state and based on my lifetime experience dealing with this issue and dealing with the other branches of government that this is a daunting challenge in the present fiscal climate. That being said, we will seize every opportunity, no matter how narrow it might be, to push this agenda forward."

The sobering fiscal times have made the Judiciary "realistic" about the short-term prospects of a pay raise, but judges remain optimistic, according to Judge Lippman. "We together have decided that we are not going to be paralyzed by this," he said. "I don't think we are in the state of frenzy that has characterized this particular unfortunate situation." Judge Lippman has not dropped the lawsuit filed by Ms. Kaye in April 2008 to force the state to give judges their first raises since 1999. The suit, Kaye v. Silver, puts the Judiciary in direct legal conflict with Assembly Speaker Sheldon Silver, a friend of Judge Lippman from their childhood on Manhattan's Lower East Side. The suit is now before Manhattan Supreme Court Justice Edward Lehner, who is considering a motion for summary judgment and a motion to dismiss.  Larabee v. Silver, another pay-raise suit filed on behalf of four judges and four judges' associations, is being appealed to the Appellate Division, First Department, after Justice Lehner denied the state's motion for summary judgment.

"The lawsuits are out there, they are part of this puzzle," said Judge Lippman, who recused himself from hearing Larabee v. Silver when he was presiding justice of the First Department. Thanks to the 12 years he spent as chief administrative judge, Judge Lippman is familiar with the lawmakers in Albany who are most influential on legal and judicial legislation. Legislators said that puts him in a position to lobby effectively in the corridors of the state Capitol. "With all due respect to Ms. Kaye, he had been the operative for her, so he is continuing in the job he knows how to do already," said Assemblyman Joseph Lentol, D-Brooklyn, and chairman of the Assembly Codes Committee. "In his job as administrative judge, he did all the dirty work for the chief judge, so to speak, so I think he can put that in the bank and also use Judge Pfau to his advantage." Mr. Lentol said Ms. Kaye often deferred to Judge Lippman when it came to promoting the Judiciary's legislative agenda.

"Jonathan Lippman is certainly his own man, but he has learned at the foot of a master chief judge," Mr. Lentol said. "Chief Judge Kaye started out and had a great relationship with the Legislature. But in the end, she just got too distracted with the other workings of the courts and whatever and he became more effective as an advocate. She saw that he had a skill with the Legislature and she left the job with him. That is the mark of a good administrator." Victor A. Kovner, chairman of the Fund for Modern Courts, said Judge Lippman inherits a political dynamic Ms. Kaye never had.  With the Democratic sweep in last November's elections, the state Senate now has a 32-30 Democratic majority and Democrats hold both the governor's office and the two majority leaders' posts in the Legislature. Ms. Kaye always dealt with a left-leaning Democratic Assembly majority and a right-of-center Republican Senate, a mix that often left the two chambers at philosophical loggerheads and stalled major legislation, such as drug law reforms.  "He has the advantage of dealing with a more united Legislature, at least in these next two years," said Mr. Kovner, of Davis Wright Tremaine.

Short-Term Legislative Goals

Judge Lippman said he is focused on legislative goals that can be achieved in the relative short-term, such as improving both criminal and civil defense services for the indigent, upgrading town and village courts, improving Family Courts by creating new judgeships and exploring ways that police, prosecutors and courts can avoid wrongfully convicting criminal suspects.  Setting bolder, longer-term agendas would be silly in the current economic climate, Judge Lippman said.  "Look, when you have a state in the fiscal condition it's in today, I think it'd be foolhardy to put out a five-year plan or something not knowing the resources that are available and, again, with the recognition that our focus, the court system's focus, first and foremost, is on the courtroom, on the judges, on our core function," Judge Lippman said. He said he continues to support many of Ms. Kaye's long-advocated projects, such as consolidation of the state's court system, but that the current economic realities make any sweeping changes unlikely.

"When that time comes, I want to talk to the different judicial groups, to our entire constituency," about consolidation, he said. "When the chief judge [Ms. Kaye] and I put that forward in an earlier time, there was a lot, even in our own ranks, of contentiousness. This is a time we really need to be together." Judge Lippman said it is "crucial" to his role to be a hands-on lobbyist with the Legislature and that he frequently meets with legislative leaders and rank-and-filers when he is in Albany.   "I am not going to be a chief judge who is going to be in an ivory tower," he said. "I think that is the worst thing I can do. I am a regular customer over there." Judge Lippman called Mr. Silver a "good friend." "I am in touch regularly," the chief judge said. "I am proud of that relationship. We come from the same part of the world. I very much admire that relationship and what he's made of his career and I think he does mine."

A Typical Day

The chief judge said his typical day in Albany, when the Court of Appeals is in session, begins between 6 and 7 a.m. After the judges' customary dinner together at a favorite Albany restaurant, he returns to his chambers for more work, leaving at 10 or 11 p.m. for the hotel where he stays. When he is in New York City, Judge Lippman said his days are similarly long but focused more on the administrative side of being chief judge, interspersed with the circulation of memos and proposed decisions among the members of the Court of Appeals. Days in the city generally end with appearances or speeches at events sponsored by area legal groups.

He spends most nights when he is downstate at a Manhattan apartment he and his wife, Amy, took when he was selected as the presiding justice of the Appellate Division, First Department, by then-Governor Eliot Spitzer. They also have a home in Rye Brook, Westchester County.  Judge Lippman said he has acquired a new appreciation of how all-consuming it is to be chief judge, even having worked so closely for so many years with Ms. Kaye. But he welcomes what would be for some a crushing workload. "I think it's fair to say that . . . there could be no more fun for anybody than to be chief judge of the state of New York," Judge Lippman said. "I could not be happier, more enjoying it, having more fun. But I guess it matters what one considers fun. . . . Is it everyone's cup of tea? Would other people find it overwhelming or not what a sane person would do? Well, that's very, very possible." Joel.Stashenko@incisivemedia.com