OCA: Out with the Old, In with the New, Same old OCA

Counsel Guided Court System With a Steady Hand
The New York Law Journal by Joel Stashenko - December 31, 2009

"Unflappable" is a word colleagues invariably use to describe Michael Colodner, whose 35-year career as a lawyer for the New York State court system is coming to an end. The recently retired chief counsel's even temperament stood him in particularly good stead during the 1970s as tensions mounted with the creation of a statewide court system, a transition that prompted angry demonstrations by court employees and generated what Mr. Colodner called an "enormous amount" of litigation. "He didn't get too excited about victories and he took his occasional defeats in stride and he never lost sight of the goal of trying to improve the court system," said Richard Bartlett, the state's first chief administrative judge. "I have great admiration for him." "We went toe-to-toe with him many times, but it was always professional, never personal," said Dennis Quirk, president of the New York State Court Officers Association. "He is probably the last of the people who know the history of the OCA [Office of Court Administration]. He was always a gentleman, even when you cursed him out. I don't think I ever saw him lose his temper. He will be sorely missed." Over time, new rules and regulations have clarified the role of the state court administration, and much of the initial rancor has died down. Chief Judge Jonathan Lippman, who was chief administrative judge from 1996 to 2007, said that Mr. Colodner had been instrumental in the evolution of the system from a "mom-and-pop operation" to a "professional, cutting-edge" judiciary.

As chief counsel of the Unified Court System, Mr. Colodner headed a legal department of 15 lawyers who represent the court system in litigation, write judicial ethics opinions, advise administrative judges on the legality of court management issues such as the temporary transfer of judges and write proposed legislation and administrative rules. "Basically, it's a working law office," said Mr. Colodner. The current administrative judge, Ann Pfau, credits Mr. Colodner with "teaching me how to be a lawyer" starting in 1984, when he hired her as a counsel. She said that his vast institutional and legal knowledge has made him an invaluable sounding board. "I probably walked down that hallway four times a day to consult with him about this and that," Judge Pfau said. "He was also very much kind of a counselor for the judges. I know a lot of judges would call him with the same purpose. That is to ask him, 'What do you think?' That is something that is very valuable." Mr. Colodner, 67, who earned $136,500 as chief counsel, resigned effective Dec. 13. But he will remain with the court system part-time for now, working on special projects and assisting his replacement, John W. McConnell. Mr. McConnell, 50, had been chief clerk at the Appellate Division, First Department. Mr. Colodner's exact assignments and the money he will receive in his part-time role remain "in discussion," he said. Longer-term, Mr. Colodner said he is not sure what he will do next. "I can never think of myself as fully retired," Mr. Colodner said in a recent interview. "It is just not clear to me what that next thing is going to be. It may be something outside the legal field. It may be something within the legal field. It is a good time right now for me to reflect."

A 'Rough' Transition

Mr. Colodner was hired in 1974 as an assistant counsel as the state began to gear up for its takeover of all courts above the town and village court level. The Columbia Law School graduate became chief counsel in 1983. An amendment to the state Constitution approved in 1977 took responsibility for the administration of the state courts away from the four appellate divisions and vested it in the state's chief judge who, in turn, designated a chief administrative judge to handle the day-to-day management of a new state Unified Court System with some 1,300 judges and 16,000 non-judicial employees. Mr. Colodner recalled that he was brought into the court system because it was anticipated that a litigation specialist would be needed to coordinate defense of the suits that would arise with the new system. Mr. Colodner had spent the previous seven years as an attorney for then-state Attorney General Louis J. Lefkowitz, for whom he argued two appeals before the U.S. Supreme Court. Consolidation of state courts under the chief judge "created a good deal of tension in the transition," Mr. Colodner said. "It was rough. Rough," Mr. Colodner recalled. "The transition to the state in 1977 generated enormous amounts of litigation because the employees were basically paid locally and had their own rules governing them based on what their local rules were. Suddenly, we had to assimilate them [in a state system]. We had to reclassify all their job positions." Judges, too, sometimes exhibited a "great deal" of resistance to assignments outside of their home counties, Mr. Colodner said.

Mr. Bartlett remembered that court officers demonstrated outside the apartment building that housed then-chief judge Charles Breitel, as well as Mr. Bartlett's homes in Glens Falls and Lake George. The officers outside Mr. Breitel's home chanted, "Drop dead, Breitel! Drop dead, Breitel!" Mr. Bartlett said. Mr. Quirk said he helped organize a 1978 demonstration of nearly 1,000 court officers who were bused to Glens Falls and Lake George to protest benefits packages and job classifications outside Mr. Bartlett's homes. Mr. Quirk remembered that the chant of those protesters was, "Bartlett is a pear!" "I was picketed, but I was never hung in effigy. It was everything short of that," said Mr. Bartlett, who later headed Albany Law School and is now a partner at the Glens Falls firm Bartlett, Pontiff, Stewart & Rhodes. "It was a very exciting five-plus years. I found deaning at Albany Law School to be a piece of cake after that." Mr. Quirk said he got to know Mr. Colodner at the same time, when Mr. Colodner was chief assistant to the court system's first counsel, Michael Juviler, and found Mr. Colodner to be "hard-working" and "dedicated." Mr. Colodner said a series of court rulings and administrative actions in his tenure have helped mold what he called the still-evolving shape of the court system. They include Morgenthau v. Cooke, 56 NY2d 24 (1982), in which the Court of Appeals rejected former chief judge Lawrence H. Cooke's system of temporarily assigning judges to Supreme Court benches in New York City and Maresca v. Cuomo, 64 NY2d 242 (1984), in which the Court upheld the constitutionality of mandatory retirement rules for state judges. Over time, collective bargaining agreements between the state and unions representing what had been locally paid non-judicial court employees helped clarify and standardize employees' relationships with the Unified Court System, Mr. Colodner said. "Things became much clearer," Mr. Colodner said. "It was not only a question of clarity, but a question of acceptance. The court system, ultimately, began to see that it was working and you got used to how the administrative lines were drawn and it turned out it wasn't so terrible."

Today's court system is "a far cry from the edge-of-the-seat-of-the-pants operation that we had at the beginning," Judge Lippman, who joined the system as a counsel in 1989, said in an interview. "Accountability, standards, criteria, it is all part of what the pioneers built, people like Mike Colodner." Mr. Colodner said he regrets that legislators have spurned calls for further court reform, such as the merger of trial courts. "It is fragmented," he said. "We would prefer to have something a bit more universal. But it works." Judge Lippman said that Mr. Colodner's knowledge of the way the system has evolved since the 1970s will be missed. "You can be a great lawyer and not understand your client," Judge Lippman said. "But in this case, Michael understands his clients better than anyone else. His knowledge is encyclopedic about the courts, all of the legal/policy issues that have come up over the years.…Everyone knows when you get into trouble and don't know what to do, you call Michael up." Joel Stashenko can be reached at jstashenko@alm.com.