Lippman Sets Course for New York

Top Judge Sets Liberal Course for New York
The New York Times by WILLIAM GLABERSON - February 17, 2010

Gov. David A. Paterson nominated Jonathan Lippman to head the New York Court of Appeals in January 2009, making him the chief judge of the state. The choice was a gamble: The judge, a longtime court administrator, did not have a long history of deciding cases, and there was almost no record of his political views. Now, a year in, the parameters of the Lippman court are coming into focus. He has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show. To get the rulings he wants, the decisions show, the new chief judge has built alliances case by case with each of the four judges who were nominated by the last Republican governor, George E. Pataki, cracking the conservative majority. The changes to the culture of the court, New York’s highest — which has sometimes been one of the most influential state courts in the country — are especially striking when Chief Judge Lippman’s approach is compared with the judicial style of his predecessor, Judith S. Kaye. She had prized unanimity.

In the past year, the court has issued a series of sharply divided decisions that have been surprising from a judicial body with a clear 4-to-3 conservative majority. They have included decisions favoring criminal defendants and injured workers, expanding environmental challenges and extolling individual rights against the police. “The message he is sending is he doesn’t mind fighting for a much more progressive direction at the court,” Vincent M. Bonventre, a professor at Albany Law School who studies the court, said of Judge Lippman. Though fiscal and political problems have plagued Mr. Paterson, a Democrat, Judge Lippman’s nomination may be one of his most enduring accomplishments in shaping policy. Judge Lippman, 64, does not reach mandatory retirement age until 2015. Noting that the Supreme Court had yet to rule on questions presented by Global Positioning Systems, for example, the Court of Appeals ruled 4 to 3 that the State Constitution barred the police from placing GPS tracking devices on cars without a warrant. A different Republican judge joined the three Democratic appointees in another divided ruling, this one striking down a youth curfew in Rochester as unconstitutional, though other courts around the country have approved such laws. The Lippman court has also shifted ground on worker injury suits, saying that in the past the court too rigidly limited some of them. It has also signaled a new interest in arguments from criminal defendants, sharply increasing, at Judge Lippman’s urging, the number of appeals it is considering. In an interview, Judge Lippman acknowledged that he had a different approach from that of Judge Kaye, a longtime collaborator in running the courts. She was also nominated by a Democrat, former Gov. Mario M. Cuomo, but during her nearly 16 years as chief judge, she often worked for unified rulings. “I am a result-oriented person,” Judge Lippman said, “and the result I am looking for is not necessarily unanimity.” According to the court, unanimous rulings declined from about 82 percent during 2008, Judge Kaye’s final year, to 69 percent in Judge Lippman’s first year.

During Judge Kaye’s tenure, the court became more conservative partly because of the arrival of the four Pataki judges. Professor Bonventre, the Albany Law School expert, said that divided decisions became more common in Judge Kaye’s final years but that dissents increased further after Judge Lippman arrived. The rulings indicate that on occasion, Judge Lippman has tailored his arguments to attract one of the four Pataki judges. In a decision he wrote in September, the court waded into politics by overruling two lower courts that had said Mr. Paterson’s appointment of Richard Ravitch as lieutenant governor was unlawful. That view, Judge Lippman wrote, would “frustrate the work of the executive branch.” It was an argument that seemed crafted to appeal to Judge Susan P. Read, a staunch conservative but a former top legal adviser to Governor Pataki, who was not shy about exerting executive authority. It was a party-line vote, except that Judge Read broke with the other Pataki appointees. In the environmental case, Judge Lippman and the other two Democratic appointees aligned with two of the Republican-appointed judges, Victoria A. Graffeo, a onetime Republican legislative lawyer, and Robert S. Smith, who had sometimes expressed libertarian views. The decision, written by Judge Smith, appeared to involve tradeoffs. It tartly noted that the suit sought to kill a proposed hotel to protect obscure species, the Eastern spadefoot toad and the worm snake. The hotel got a green light. But in the process, the case gave environmentalists one of their most important court victories in New York in nearly 20 years. The majority said a 1991 ruling of the court had been too narrowly applied to limit those who could bring such suits to immediate neighbors. Stephen F. Downs, the lawyer for Save the Pine Bush, the Albany group that brought the suit, said someone on the bench seemed to be paying for an environmental victory with a defeat for the spadefoot toad. “My impression,” Mr. Downs said, “was there was a certain amount of horse trading that went on.” That would be vintage Lippman, people who know him say. He was a get-things-done administrator, said a retired judge, Betty Weinberg Ellerin, who has known him throughout his 38-year legal career.

For nearly 20 years, Judge Lippman climbed the ladder in behind-the-scenes positions in the rough-and-tumble courts of Lower Manhattan that handle personal-injury suits, matrimonial cases and business battles. He was a court attorney, researching and writing rulings for judges and then supervising other lawyers. Then, from 1989 to 2007, he was first the deputy and later the chief administrator of all the state courts, running the vast system with a budget of more than $2 billion and thousands of employees. Justice Ellerin said that from the start, the young Mr. Lippman was more interested in getting to results he considered right than in technical rules. The way he often got there, she said, was by using a keen sense of what motivates people he works with. That politician’s method of operation is evident now at the Court of Appeals, where the power of the chief judge is a matter more of leadership and influence than of control. Justice Ellerin said he had a skill at winning people over, even when he refused to give them what they wanted. He makes them feel he understands what makes them tick, she said. “After he says ‘no,’ the person walks out thinking he is the greatest person in the world,” she said. For years, officials at the state’s Office of Court Administration used a term to describe Judge Lippman’s ability to persuade people to do things they did not want to do. The term was coined by the court system’s communications director, David Bookstaver: The officials would say they had been “Lippmanized.” Such maneuvering appears to have been on display at the court — in personal injury cases, for example. Conservatives often describe these as the measure of an out-of-control pro-plaintiffs legal system that grants huge awards for fraudulent suits. In a series of cases decided by the Court of Appeals, however, Judge Lippman has declared that he takes a different view.

Early in his tenure, he wrote a 6-to-1 decision in favor of an injured patient against two doctors, a ruling that the dissenter, Judge Smith, called a “gross injustice” to the doctors. In early December, Judge Lippman went further, indicating that he planned some changes in injury cases. He “reluctantly” agreed with the dismissal of a damages suit against New York City by a public school teacher who was injured by a student, saying an earlier ruling limiting such suits should be changed. A couple of weeks later, he got all seven votes in the case of an injured worker, declaring that the court in the past had too narrowly construed a law originally intended to help workers win suits against employers. Legal commentators have noted the change from Judge Kaye’s court, which had voted 7 to 0 the opposite way in at least one case involving an injured worker. The protection of the law for injured workers, Judge Lippman wrote, had “been construed to be less wide than its text would indicate.” In the coded language of the courts, that was a hand grenade tossed at the old Court of Appeals, before the arrival of Chief Judge Lippman. Both Judge Lippman and Judge Kaye said in interviews that there was a clear difference in their approach to judicial decision-making. “I landed on the side of unanimity, where possible, without compromising principles,” Judge Kaye said. When there were disagreements, she said, she would often try to “fold something into the majority opinion” that would get more votes. Judge Lippman was appointed chief administrative judge by Judge Kaye in 1996 and was widely perceived to be her closest aide. But in the interview, he seemed to relish fostering a more divided court and having differences over cases aired publicly. “Sometimes you have a choice,” he said. “You can compromise and get a unified court, or sometimes it’s better to have a divided court because you have decisions that are not fuzzy. You have bolder decisions.” Some lawyers who follow the court say the tone does seem different under Judge Lippman, who grew up on the Lower East Side of Manhattan, from the tone under Judge Kaye, who grew up in the Catskill Mountains village of Monticello. Judge Kaye worked for many years at New York’s prestigious corporate law firms, a different legal world from the one of the Centre Street courts where Judge Lippman was a young man. “There is more testiness than I have seen in the past,” said Oscar G. Chase, a law professor at New York University.

Among the comments dissenters on the court have made about the majority rulings under Judge Lippman are “illogical,” “nightmarish,” “doomed to fail” and intended “to elicit editorial approval.” Judge Smith seemed beside himself in one dissent, saying the majority ruling was so detached from reality that it was like “deciding whether I would be a bicycle if I had wheels.” For the moment, the noise sounds like music to Judge Lippman. He had great respect for Judge Kaye’s way of running the court, he said. “We were joined at the hip during all of those years,” he said. “But this is different. This is me meeting my constitutional responsibility in the best way that I can.”