New York Law Journal by Noeleen G. Walder - January 24, 2011
Mayor Michael R. Bloomberg used his weekly radio broadcast Friday morning to sound off against Manhattan Supreme Court Justice Emily Jane Goodman's decision to block the city from laying off several deputy sheriffs, which the mayor complained could cost taxpayers more than $1 million annually. Appearing on "The John Gambling Show With Mayor Mike" on WOR 710 AM, Mr. Bloomberg criticized a ruling issued Thursday night by Justice Goodman, in which she granted a temporary restraining order barring the city from "laying off, displacing, discharging, or demoting any New York City Sheriffs" or taking any retaliatory action against members of the New York City Deputy Sheriffs' Association. Davis v. City of New York, 100722/11. The judge scheduled a preliminary injunction hearing for Feb. 10. The mayor's remarks highlighted the city's growing dissatisfaction with rulings by Justice Goodman. The mayor said on the show that Justice Goodman had no legal basis to second guess the decision by city Finance Commissioner David N. Frankel to lay off nine deputy sheriffs and demote three. "In the meantime, we're going to waste…over a million dollars a year just because this judge decides to step in, [and] says, 'Oh I feel sorry for those people.' What about the taxpayers?" the mayor said. Mr. Bloomberg also faulted Justice Goodman for failing to make the sheriffs' association post a bond that would enable the city to recoup its lost funds should it ultimately prevail in the case. In a statement issued Thursday night after the ruling, Mr. Frankel said the judge had "clearly overstepped the court's authority." "[S]ubstituting her judgment for what is clearly an executive prerogative does enormous damage to our ability to manage the Department in an efficient manner that preserves the Sheriff's mission at an appropriate cost to taxpayers," Mr. Frankel added. The mayor told his radio audience Friday that "the trouble is we've got a trial judge like this who makes decisions that the appellate courts don't step in to reverse right away." He called on Chief Judge Jonathan Lippman, whom he called a "pretty good guy," to "step in and fix this system so this doesn't happen or we're going to start laying off people." In an interview, Justice Goodman said that "no litigant has a right to come to judge shop and I think attacks on judges are unfortunate and may have the effect on some people of interfering with judicial independence." On Friday, Justice Helen Freedman of the Appellate Division, First Department, denied the city's motion to vacate Justice Goodman's ruling, or in the alternative, require that the petitioners post a bond. Justice Freedman also denied the city's request that the case be reassigned. "Expedited decision upon submission is urged," she wrote on Friday.
History of Complaints
This in not the first time the city has been upset with Justice Goodman. In papers filed with the First Department, it accused the judge of dragging her feet in two other cases involving the city, including one litigation in which it took 14 months to get a ruling that New York City's 2008 rent regulations were improper, a move Mr. Bloomberg said forced 300,000 landlords to recalculate rents. In another case concerning a challenge to a development project in Brooklyn, the city said Justice Goodman issued a temporary restraining order, which has now been outstanding for 13 months, and has refused to enable the city to obtain a bond (NYLJ, May 24, 2010). In the interview, Justice Goodman said that case, Broadway Triangle Community Coalition v. Bloomberg, 112799/09, is stayed because there is an ongoing federal investigation. She said in complicated matters like the rent case, "We probably got papers from the floor to the ceiling." In a subsequent e-mail, Justice Goodman said that during the rent case her law assistant "had major spinal surgery and could not work/could not be seated in a chair for a considerable period of time; I had asked the administration for more help and that was denied." She added, "On a personal basis, my mother was dying." Ronald E. Kliegerman of Kliegerman & Joseph, who represented the sheriffs' association, said in an interview that it was inappropriate for the city to comment on cases it had pending before Justice Goodman.
According to an Article 78 petition filed by the association, the decision to lay off nine sheriffs and demote three others "was made in large part by a new commissioner without any background in law enforcement or public safety." Mr. Frankel took office in September 2009.
"The City is attempting to trade public safety for dollars, notwithstanding its obligation to protect and act in the best interests of its citizens," the sheriffs' association argued in its petition. The city in its appellate papers said that when the parties appeared before Justice Goodman on Thursday, Law Department attorneys told her the layoff proposal was meant to affect cost savings. The judge commented that deputy sheriffs frequently appear in her courtroom, and "suggested the NYPD would need to allocate resources to perform the functions now being performed by" the sheriffs, the city said in court papers. After granting the sheriffs' associations' request for a temporary restraining order, the judge instructed counsel to arrange a conference call to discuss the issue of a bond. "When counsel for the parties called chambers this morning at approximately 9:15 a.m., no one answered the phone," the city claimed. In the interview, Justice Goodman said that the parties came in the midst of her motion day and she could not drop everything to consider the bond issue. "We have about 700 cases. For one case to jump the other cases is not equal justice for everybody," the judge explained, adding that she wanted to have time to read the city's papers before considering whether to require a bond. The attorneys might have been calling chambers on Friday morning, she said, but she explained that she went directly to her courtroom for a trial and her secretary was out sick, as well as her law clerk. "What can I say if no one answered the phone at this moment?" Judge Goodman said. Her law clerk eventually arrived and arranged for a phone conference with the parties for later in the day, the judge said.
Late Friday, after Justice Freedman had ruled against the city, Justice Goodman rejected the request for a bond, saying that CPLR 6313, which governs TROs, did not require one. In any case, she said that the city had not substantiated its damages claim. In an interview on Friday before that ruling, Corporation Counsel Michael A. Cardozo acknowledged that "judges have a very hard job." There's no question that "we shouldn't have to answer in court," he said. However, given that Justice Goodman took a "very, very long time to enter a decision to the city's detriment" in the other two cases, he said one of his "grave concerns is that this TRO might last for a very long time," which would cost the city $4,045 a day. The judge's decision to put off until Feb. 10 arguments on the preliminary injunction "compounds the problem," he said. Justice Goodman reached the mandatory retirement age of 70 last year, but court administrators certificated her to remain on the bench until Dec. 31, 2012 (NYLJ, Jan. 7). Mr. Cardozo said he told the Office of Court Administration that he opposed her recertification. Mr. Cardozo said he also has discussed with court officials "the more general problem of… injunctions being entered in this fashion." There are judges who have entered temporary restraining orders without a bond that "also last a long time," he said. This would not happen in the federal system, where a movant must post a bond before a temporary restraining order is issued and the order lasts only 14 days unless the court finds good cause to extend the period, Mr. Cardozo said. The city has proposed legislation that would bring the CPLR provisions on temporary restraining orders and injunctions in line with the federal rules, he said. David Bookstaver, an OCA spokesman, said that as a courtesy, Mr. Cardozo had forwarded the proposed legislation "to us for review." But he added that this is an issue for the Legislature, not the courts. Responding to Mr. Bloomberg's comment that Judge Lippman should "step in and fix the system," Mr. Bookstaver said, "Our system is founded on an independent judiciary. It's clear that no judge can interfere with another judge's ongoing case." Senior Counsels William S. Frankel and Fay Ng handled the case for the Law Department.