More Change At Appellate Division, But Corrupt Friedberg and Cohen Linger

Buckley's Move Continues Reshaping of First Department
The New York Law Journal by Daniel Wise - October 19, 2009

Justice John T. Buckley, the former presiding justice of the Appellate Division, First Department, will hear his last case tomorrow. While Justice Buckley, 73, who was presiding justice from 2003 to 2006, will retain his seat, he will be devoting full time as the new head of appellate education at the Judicial Institute in White Plains. The move is the latest in a recent series of far-reaching personnel changes at the court. Governor David A. Paterson last month created an additional judgeship, bringing the department's total complement to 20, including Justice Buckley. The new slot was the third added in the last two years to cope with an increasing backlog. Since Jan. 1, 2008, nine new justices have been appointed to the First Department, two by former Governor Eliot Spitzer and seven by Mr. Paterson. The appointments of women and minorities have greatly increased the bench's diversity. Of the last nine justices named, one is a black man, two are black women, two are Hispanic men and one is a Hispanic woman. Three are white women, one openly gay. As of Dec. 31, 2007, there were 13 white men, one black man, one Hispanic man, one Asian-American man and one white woman on a court of 17 members. Now there are 13 men—including one black, three Hispanic and one Asian-American—and seven women, including two black and one Hispanic. One of the court's Hispanic members—Luis A. Gonzalez—was named presiding justice after Jonathan Lippman was appointed chief judge (NYLJ, March 25). Mr. Paterson approved the latest additional judgeship a few days before he made his last two appointments (NYLJ, Sept. 25). They were Justices Nelson S. Roman and Sallie Manzanet-Daniels, both from the Bronx, increasing that borough's representation on the court to four from two. Justice Roman began his career as a prosecutor, and Justice Manzanet-Daniels with the criminal division of the Legal Aid Society. Justice Manzanet-Daniels, 45, who is married to Randy A. Daniels, secretary of state under former Governor George Pataki, was elected to the Supreme Court in 2001. She was Justice Gonzalez's law secretary when he was sitting in the Bronx before his appointment to the First Department in 2002. Justice Roman, 49, who is married to Deputy Mayor Carol A. Robles-Roman, was elected to the Supreme Court in 2002.

Backlog Creeps Up

Under the state Constitution, the governor is authorized to approve an additional appellate division justice when a department certifies that another judge is needed for the "speedy disposition" of its work (NY Constitution Article VI, §4). Justice Gonzalez said the latest additional judgeship was created because the court, in effect, is losing the services of Justice Buckley. The other two positions were added in an effort to make a dent in the court's backlog (NYLJ, Nov. 1, 2007; June 2, 2009). When the court broke for its summer recess in July 2006, the year before Judge Lippman's arrival as presiding justice, there were 177 appeals unresolved, 21 pending more than six months. Two years later, at the court's 2008 summer recess, the number of unresolved cases was reduced to 34 with only three pending more than six months. This past June, however, three months after Justice Gonzalez had taken the helm, the number of cases pending at the break climbed back to 79, including 14 pending more than six months. Justice Gonzalez said he hoped that by next summer's break only a "few" appeals will remain unresolved. "We owe the legal community relatively quick dispositions without sacrificing scholarship," he said. At 20 judges, the First Department is nearly as large as the Second Department, which has 22 judges. The last time an additional judge was authorized in the Second Department was 2002. Before the latest additions, the First Department last received an additional justice in 2004. The recent additions mean judges need to sit on panels only four times a month rather than five. Also, Justice Gonzalez said, the added slots have enabled the court to dispense with a half-day session on Fridays except in months with multiple holidays. But space is getting tight. The judges squeeze to fit around the courthouse lunch table and the table where the court holds its weekly meetings, sources said. Five of the judges have their chambers in the building at 41 Madison Ave., which is adjacent to the courthouse at Madison Avenue and 25th Street, where the rest of the justices have chambers. There is an interior entrance from the second floor of 41 Madison directly into the courthouse. Additionally, many of the non-judicial personal are either doubled up or work in cubicles. John McConnell, the court's clerk, said the space problems pre-date the three added judges, and that plans have been developed to convert unused basement space in the courthouse into added offices.

Impact on Practitioners

The changes in the court's personnel have already caused some practitioners to take notice. "The impact of the new judges has been a hot topic of discussion, and many lawyers—both for tenants and landlords—have noted an increased receptivity to tenants' arguments," said Samuel J. Himmelstein, of Himmelstein, McConnell, Gribben, Donoghue & Joseph, a tenants' firm. Several criminal appeals specialists, from both the prosecution and the defense side, said several of the new judges are more receptive to defense arguments than the judges they replaced. One criminal defense lawyer said, "It's fair to say that the center of gravity on the court has shifted slightly" toward the defense, Robert S. Cohen, a matrimonial specialist at Cohen Lans, said the Pataki-era court was more generous to husbands than wives in dividing marital assets. "The life experiences of the recent appointees is somewhat different from those of the judges they replaced," Mr. Cohen said. "In view of those differences, it will be very interesting to see what happens." But another appellate specialist, with a practice representing insurance companies in personal injury cases, said the "intellectual power" of the veteran judges on the court is likely to forestall any major change in his field of practice.

Justice Buckley's New Job

With Justice Buckley relinquishing his judicial duties, only two of five justices appointed by Mr. Pataki—James Catterson and John Sweeny—from outside New York City remain active on the court. Mr. Pataki appointed Justice Buckley, a former state assemblyman from Oneida County, to the First Department in 1999. Four years later, Mr. Pataki appointed him as presiding justice, a post Justice Buckley held until the end of 2006, when he was required to relinquish it because he had turned 70. Justice Buckley will continue to receive his $144,000 salary and will have access to a court car and driver to take him to and from the Judicial Institute's suburban campus, 22 miles north of New York City. Justice Gonzalez said in a statement, "It gives me great pride and pleasure to announce that, upon the invitation of the Judicial Institute, Justice John T. Buckley has consented to accept the first Chair of Appellate Practice at the Institute. In that capacity, he will assist in the development of research and training programs for judicial staff on appellate practice and the operations of appellate courts." The Judicial Institute was established by the court system in 2003 in collaboration with Pace Law School. Justice Gonzalez said "the appointment of a distinguished jurist of such broad experience is designed to enhance the Institute's goal of developing cutting-edge approaches to judicial administration and public policy." Justice Buckley did not return calls for comment. Judge Juanita Bing Newton, the institute's dean, was not available for comment. Daniel Wise can be reached at dwise@alm.com.