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Lippman Backs Economies But Not at Cost of Access
The New York Law Journal by Joel Stashenko - February 16, 2011

ALBANY, NY - Chief Judge Jonathan Lippman vowed yesterday to vigorously pursue economies in the judicial system, but not to the point of denying access to the courts for people buffeted by hard times. "Surely, we could close courts or greatly reduce the number of days and hours our courts are open, but at what cost to our citizenry?" Judge Lippman asked during the annual State of the Judiciary address at the Court of Appeals. "What are the consequences? Do we tell a victim of domestic violence seeking a protective order to come back tomorrow or next week? Can we ignore constitutional and statutory speedy trial requirements and allow justice to be delayed at the expense of public safety and the rights and liberties that everyone is entitled to in this country?" Answering his own questions, Judge Lippman said, "Of course not…These are very difficult times that require all of us to pull together, but they are also the times when the courts and justice system matter more than ever."

See a video of Chief Judge Lippman's speech or read the State of the Judiciary address.

However, speaking with reporters after the speech, Judge Lippman downplayed apparent differences between the Judiciary and Governor Andrew M. Cuomo, who has complained that the courts are "not participating" in his efforts to close a projected $10 billion budget gap in the 2011-12 budget. Mr. Cuomo has mandated 10 percent spending cuts for the agencies he controls. The Judiciary's proposed budget would increase spending by 1.7 percent. Judge Lippman said he is not against considering cuts in the coming budget negotiations with the governor and the Legislature, as long as they do not affect access to the courts. "We're absolutely open, willing, receptive, to sacrifices," Judge Lippman said. "Everybody has to [sacrifice] in this state…But I will not abdicate my responsibilities as the chief judge of the state." With cuts of the magnitude proposed by Mr. Cuomo, Judge Lippman told reporters, "We would have to close down large parts of the court system and I don't think that's helpful for New York state, helpful for the governor and certainly not helpful for the people of this state and the judicial system." In his speech, Judge Lippman reiterated his support for a new rule that would require removing judges from cases involving attorneys or litigants from whom the judges have received large campaign contributions ($2,500 or more from individuals and at least $3,500 from firms or multiple parties) within the previous two years (NYLJ, Feb. 15). "In a state that elects 73 percent of its judges in partisan elections, these changes will go a long way toward putting New York at the forefront of national efforts to promote public confidence in the independence, fairness and impartiality of the Judiciary," he said. "I have no doubt that this new rule will generate a great deal of public comment, and I welcome it." The rule will be adopted after a 60-day comment period.

Other announcements yesterday by the chief judge included:

• Robert Fiske Jr. of Davis Polk & Wardwell and Kathryn S. Wylde, president of the Partnership of New York City, will be his two selections to the commission that will begin work on April 1 to make recommendations on pay and benefits for the state's 1,300 judges.

• William J. Leahy, former chief counsel to the Massachusetts Committee for Public Counsel Services, will head the new Indigent Legal Services Office.

• A pilot program will be introduced in Queens and Orange counties to assure legal representation for poor residential property owners at state-mandated pre-foreclosure conferences.

Pay Commission Choices

In addition to defending what he called the "constitutional mission" of the Judiciary to keep the courts open to all comers, Judge Lippman argued that the courts must provide judges with "fair compensation." To that end, he said that both Mr. Fiske and Ms. Wylde are well qualified to serve on a pay commission he hopes will recommend the first raise for judges since 1999, effective on April 1, 2012. Mr. Fiske, a former Southern District U.S. attorney, has the "wisdom to properly value the work" that judges perform, Judge Lippman said. And no one "better understands the connection between a strong economy and a well-qualified Judiciary" than Ms. Wylde, according to the chief judge. The pair will be among seven unpaid members of the commission (NYLJ, Dec. 1, 2010). Three members, including the chair, will be appointed by Mr. Cuomo, and one each by the Assembly speaker and the Senate majority leader. The Indigent Legal Services Office was created to move toward statewide oversight of the now-fractured legal assistance programs for low-income New Yorkers in criminal cases. Its board is chaired by Judge Lippman. The chief judge said that Mr. Leahy has a "superb record as an administrator and nearly four decades of experience" in the field of public defense. Judge Lippman said Mr. Leahy was recommended to him by Massachusetts Governor Deval Patrick and that state's former chief judge, Margaret Marshall. Judge Lippman also urged the expansion of civil legal services for the poor, calling for the adoption of a $25 million increase he has proposed in the Judiciary's next budget for such representation. He told reporters after his speech that he considers providing civil legal representation to poor people facing the loss of the "necessities of life"—housing and health care—to be akin to the duty that the U.S. Supreme Court recognized for the representation of indigent criminal defendants in its ruling in Gideon v. Wainright, 372 U.S. 335 (1963). "There is a moral and ethical obligation," Judge Lippman said. "I say to you, not to be a biblical scholar, which I'm not, but the Old Testament doesn't talk about rights, it talks about obligations. And this is our obligation." In particular, Judge Lippman said about two-thirds of those facing foreclosure do not have legal representation at state-mandated conferences before banks foreclose on residences. Under his proposed pilot program, legal services attorneys from the Legal Aid Society of New York City and from Hudson Valley Legal Services will be assigned to courthouses in Queens and Orange counties, respectively, to represent homeowners at pre-foreclosure conferences in as many cases as possible. After the conference, those attorneys will either keep the cases or refer them to legal service providers, pro bono attorneys or law school clinics. Judge Lippman said the two legal services providers have agreed to run the pilot program with no additional state funding, but he conceded that an expansion statewide would undoubtedly entail higher funding for legal aid groups. "I believe this approach is a major step toward addressing the foreclosure representation crisis in New York," Judge Lippman said. Joel Stashenko can be contacted at jstashenko@alm.com.