Saturday, October 22, 2011

New Chief Administrative Judge Is Praised By All Judges In The NYS Unified System

And the public is supposed to be happy about this unanimous support?

Just asking, Editor Betsy Combier
Gail Prudenti
Judges Say Prudenti Will Bring Political Savvy to Her New Post
New York Law Journal
October 24, 2011
The appointment of A. Gail Prudenti as the state's chief administrative judge was warmly received by current and former judges around the state. They credit Chief Judge Jonathan Lippman with promoting a woman well-known and well-liked by the judiciary, who has the temperament, personality and political acumen to succeed in a challenging position in difficult times.
While observers are quick to credit Ann T. Pfau, who will remain chief administrative judge until Dec. 1, with the quiet, calm and capable leadership necessary at a time when the judiciary was frequently at odds with the executive and legislative branches, they portray Justice Prudenti as more of a networker and coalition-builder.
"She is more of a 'political' person, in the small 'p' sense," said Robert A. Spolzino, who served with Justice Prudenti on the Appellate Division, Second Department, bench for five years before recently returning to private practice with Wilson, Elser, Moskowitz, Edelman & Dicker.
"I don't mean partisan and I don't mean to detract at all from Judge Pfau, but [Justice Prudenti] is very much a person who understands what people want to accomplish and makes situations a win-win for everyone," Mr. Spolzino said. "She understands people and how the process works and she doesn't let nonsense get in the way of getting from here to there."
Last week, Judge Pfau announced she will step down after about four years in the position to become coordinating judge of the New York State Medical Malpractice Program and to hear medical malpractice cases in Brooklyn as an acting Supreme Court justice (NYLJ, Oct. 20). Justice Prudenti, the presiding justice of the Second Department, was named the 10th chief court administrator, the second woman to hold the job (NYLJ, Oct. 21).
While Judge Pfau has no political experience, Justice Prudenti grew up around politics—her father, Anthony Prudenti, was the Suffolk County Republican chairman in the early 1980s—and waged three campaigns for judicial office. She ran twice for Supreme Court positions and once for a Surrogate's Court post, and won all three times. She faces re-election in 2014.
"She is really not that safe as a Republican in Suffolk County and is not assured of winning and I think she needs a safe place to be if she loses," said one judge, who requested anonymity. "She doesn't have to be a judge to be chief administrator."
The chief court administrator is not required to be a judge, although all but one, Matthew T. Crosson, were judges. Others, however, were appointed to the Court of Claims so they could have the title of chief administrative "judge," but never worked in that court.
"She brings a certain skill-set as far as dealing with the Legislature," the judge said. "Gail is a different kind of person than Ann and I think Lippman feels she is equipped to handle the legislative buzz saw upstate. It is a very rough job, and you get knocked around a lot. It is hard to walk into a room full of politicians and feel comfortable, but she does."
Presiding Justice Henry J. Scudder of the Appellate Division, Fourth Department, said Justice Prudenti is "more of a relationship-type person" than Judge Pfau.
"That is not a knock at all on Judge Pfau," Justice Scudder said. "It's just a different style. Judge Pfau has been excellent and I can truly understand why, after going through the budget process and the pay raise process, she wants to get back to the courtroom."
Acting Presiding Justice Thomas E. Mercure of the Appellate Division, Third Department, said Judge Pfau did a "tremendous job in very difficult times." He said Justice Prudenti, whom he worked closely with this year on the administrative board of the courts is "loaded with energy and will do a wonderful job."
"I just think she is terrific, a dynamic worker who knows the court system well," Justice Mercure said. "I call her all the time to ask her questions."
Former Second Department Justice Joseph Covello, now of Lynn, Gartner, Dunne & Covello on Long Island, predicted the appointment of Justice Prudenti will boost morale in the court system.
"Everybody loves her and she is incredibly competent, hard-working and has a personality that everyone loves and admires," Justice Covello said. "She keeps the Appellate Division running like a well-oiled machine. Morale is high there and it is largely because of her at the helm. She is just an upbeat person. Judge Lippman couldn't have done better."
Justice George B. Ceresia Jr., administrative judge for the Third Judicial District in Albany, said that while the "loss of Judge Pfau is a big loss," Justice Prudenti is an appropriate successor.
"Judge Pfau was always very open and very accessible and had a very positive attitude," Justice Ceresia said. "I would expect Justice Prudenti will have a similar approach, perhaps with a different style. She is not only very nice, but very approachable and smart and obviously capable. I think it is a good choice."
Justice Michael Coccoma, the chief administrative judge for the courts outside New York City, said he welcomed Justice Prudenti and expects to find her as accessible as he has Judge Pfau.
Justice Coccoma said he and Justice Prudenti have at times worked closely, in particular, as state court administrators this spring were devising a plan to lay off more than 300 employees to deal with state budget cuts.
"In my dealings with her on matters from policy to personnel issues, I found her very accessible," he said. "You have her attention when you speak with her about issues. She offers good insights on proposed decision and how we should proceed on matters. I look forward to having that continued relationship with her."
Justice Coccoma said both Judge Pfau and Justice Prudenti are "good listeners" whose professional lives have been spent in the court.
Justice Prudenti "is a good judge of personalities," Justice Coccoma said. "Also, she recognizes the hard work that people do to keep our courts open. She is supportive of our people."
Justice William E. McCarthy of the Appellate Division, Third Department, who sat with Justice Prudenti on the Second Department bench for about two years, called her an "incredible administrator."
"Everyone has great respect for her as a leader, a judge and, more importantly, as a person, a human being," Justice McCarthy said. "She is just very kind and compassionate and caring and it shows collegially on the court and in terms of her interaction with the staff, judges, lawyers and litigants. Her personal skills and ability to work with people are second to none."
'Symbiotic Relationship'
Justice McCarthy noted that even though Justice Prudenti does not come out of the Office of Court Administration, she has worked closely for many years with Judge Lippman, who was previously chief administrative judge and a deputy administrator.
"They developed a very close working relationship and friendship, and I think he is very comfortable with her and she is very comfortable with him," Justice McCarthy said. "It is a symbiotic relationship that will serve the people of the state well, and the judiciary very well."
Victor A. Kovner of Davis, Wright, Tremaine, a past chairman of the Fund for Modern Courts, said Justice Prudenti's dual experience as an administrator and as a sitting trial and Appellate Division justice make her "extremely well-qualified" to become the state's top administrative judge.
"It's an asset for anyone who comes into that job to know the challenges facing the trial and the Appellate Division judges, particularly the trial judges, having sat in their seats, and having a broad and deep understanding of the structure and the workings of the judiciary," Mr. Kovner said.
Mr. Kovner actually appeared before Justice Prudenti last month when she sat in at the request of the state Court of Appeals to hear a case on liability for the 1993 terrorist bombing of the World Trade Center in Matter of World Trade Center Bombing Litigation v. Port Authority of New York and New Jersey, 217 (NYLJ, Sept. 23). Justices Prudenti and Mercure were "vouched in" to guarantee that an under-manned court would have enough votes for a four-judge majority.
An open question is how Justice Prudenti will deal with the unions, and whether she will make top staff changes.
Dennis Quirk, head of the New York City Court Officers Association, said he did not expect any "skipping of a beat" after the good relationship he said his 1,600-member union has enjoyed with Judge Pfau and looks forward to working with Justice Prudenti when the baton is passed on Dec. 1.
"She started out as a court employee in 1978 in Suffolk County, and she was instrumental in the first union that was formed in the Unified Court System," Mr. Quirk said. "She is very pro-employee. I don't expect anything major to change."
Mr. Quirk said the arrival of a new chief administrative judge should have no effect on the ongoing budget negotiations between the Office of Court Administration and the 11 other unions representing non-judicial court employees.
The court employees have been working without a new contract since April 1.
"The tone of the contract is not set by the Office of Court Administration or the chief administrator," he said. "The tone of the contract is set by the CSEA [Civil Service Employees Association] and PEF [Public Employees Federation] and the executive branch. CSEA has set a pattern, which the PEF people has rejected. If PEF accepts it, then the contract will be set. …OCA doesn't have the ability to set a separate contract. They are not going to approve something for us that is different than what the administration reached with CSEA and PEF."
After rejecting a first contract with the state, PEF members in the executive branch will have until Nov. 3 to vote on a slightly revised pact or face up to 3,500 layoffs.

Gail A. Prudenti, Second Department Appellate Division Appointed NYS Chief Administrative Judge

Gail A. Prudenti
Appellate Judge Gail A. Prudenti Named New York State Chief Administrative Judge
The appointment was announced on Friday, October 21, 2011, by Chief Judge Jonathan Lippman. Prudenti's husband, Attorney Robert J. Cimino, was, from 1980 through 1991, the senior partner in Cimino & Prudenti, a firm practicing trusts and estates law and litigation and from 1977 to 1980, he was the Chief Clerk, Chief Law Assistant, and the Law Secretary at the Suffolk County Surrogate's Court. Prudenti was formerly the Surrogate in Suffolk County, 1992-1999, It's nice to keep Trusts and Estates cases in the family.

Robert J. Cimino, Prudenti's husband
Prudenti Named Chief Administrative Judge
John Caher, New York Law Journal, October 21, 2011

Presiding Justice A. Gail Prudenti of the Appellate Division, Second Department, yesterday told her colleagues that she has accepted an appointment as chief administrative judge, a position she will assume on Dec. 1 following the departure of Judge Ann T. Pfau.

The appointment will formally be announced today, according to Chief Judge Jonathan Lippman.

A Long Island Republican, Justice Prudenti, 58, has served in administrative roles for most of her judicial career.

Justice Prudenti was elected to the Supreme Court bench in 1992. But two years later, when a spot opened in Surrogate's Court, where she had clerked and practiced, she ran for and won that judgeship.

Chief Judge Lippman, then chief administrative judge, appointed Justice Prudenti the Suffolk County administrative judge in 1999, when she was still in Surrogate's Court.

A year later she ran for and won another Supreme Court position. Justice Prudenti said she sought the Supreme Court job because her administrative duties cut into her time to handle Surrogate's Court matters and the county needed a full-time surrogate.

Justice Prudenti's election to the Supreme Court made her eligible for appointment to the Appellate Division, and Governor George E. Pataki promptly promoted her in 2001. Justice Prudenti was on the court for only a year when Governor Pataki named her presiding justice.

Judge Lippman said he actually "discovered" Justice Prudenti a few years before he appointed her as Suffolk County's administrative judge, when she had applied for the position under a different administration, and he immediately realized she was a "unique talent and a unique person."

"She didn't get the job, but she blew me away at the interview as a competent and capable judge with a wonderful ability to relate to people and see the big picture," said Judge Lippman, who was then deputy chief administrator for the courts under Chief Administrative Judge E. Leo Milonas. "In that first interview, I was sold and thought we had a star on our hands, and I was right."

Justice Prudenti said she was first approached by Judge Lippman for the top administrative post several months ago, when Judge Pfau expressed an interest in serving on a trial court, and hesitated.

"I have total mixed emotions about leaving the Appellate Division, Second Department, and I think he was well aware of that," Justice Prudenti said. "I work with fabulous and incredibly hard working people, and I wasn't sure I was ready to leave."

A. Gail Prudenti, 58


•?Presiding justice, Appellate Division, Second Department: 2002 to present
•?Associate justice, Appellate Division, Second Department: 2001 to 2002
•?Suffolk County administrative judge: 1999 to 2001
•?Elected to Supreme Court: 2000
•?Acting Supreme Court justice: 1996 to 2000
•?Elected Suffolk County Surrogate: 1994
•?Elected to Supreme Court: 1991
•?Private practice in Hauppauge concentrating on trusts and estates: 1982 to 1991
•?Suffolk County assistant district attorney, 1980 to 1982
•?Law clerk, Suffolk County Surrogate's Court 1978 to 1980


•?L.L.B. (bachelor of laws), University of Aberdeen, Scotland, 1978
•?B.A., Marymount College, 1974


Husband, Robert J. Cimino, former Suffolk County attorney now in private practice with Lewis Johs in Melville.

Major cases

Campbell v. Thomas, 73 AD3d 103 (2010)
Held that a caretaker who secretly married a dying retiree with dementia cannot claim an elective share of his estate (NYLJ, March 23, 2010). Although Justice Prudenti acknowledged that the woman, who married the retiree while his daughter—the primary caretaker—was away, "technically" had a legal right to an elective share as the surviving spouse, she wrote for the court: "It is 'an old, old principle' that a court, 'even in the absence of express statutory warrant,' must not 'allow itself to be made the instrument of wrong, no less on account of its detestation of everything conducive to wrong than on account of that regard which it should entertain for its own character and dignity.'"

Prichep v. Prichep, 52 AD3d 61 (2008)

Ordered interim counsel fees in a divorce action where the husband earned 100 times his wife's income. In this case, where Second Department reversed the trial court, Justice Prudent said: "An application for interim counsel fees by the non-monied spouse in a divorce action should not be denied—or deferred until after the trial, which functions as a denial—without good cause, articulated by the court in a written decision." (NYLJ, May 20, 2008)

Majlinger v. Cassino Contracting, 25 AD3d 14 (2005)

Justice Prudenti and her colleagues rejected an Appellate Division, First Department, ruling and held that illegal immigrants who are involved in workplace accidents can sue for lost wages (NYLJ, Sept. 23, 2005). "While state courts may not award damages that would interfere with or frustrate federal immigration policy, it is not appropriate for them to augment that policy by imposing upon undocumented aliens an additional penalty not authorized by federal law," she wrote in an opinion affirmed by the Court of Appeals.

Matter of Tara X. (NYLJ, Sept. 18, 1996)

As an acting Supreme Court judge, Justice Prudenti held that a court evaluator is not entitled to review an alleged incapacitated person's medical records if the individual opposes appointment of a guardian. "To hold otherwise would afford respondents in Article 81 proceedings a modicum of due process which falls below that afforded their counterparts in other legal proceedings and would effectively nullify the heavy quantum of proof imposed upon the petitioners seeking guardianship over non-consenting persons," she wrote.

Judge Pfau will on Dec. 1 become coordinating judge of the New York State Medical Malpractice Program, and she will also hear medical malpractice cases in Brooklyn.

The chief judge said he recruited Justice Prudenti to succeed Judge Pfau because of her ability to bring out the best in the people who work for her, while also winning their admiration and affection.

"She understands people and appreciates them, and engenders a loyalty you don't get just by snapping your fingers," Judge Lippman said.

"She is very much a people person who recognizes she is dealing with human beings who need to be listened to, understood and appreciated," he added. "She sets a very high standard, but she does it in a way that endears her to people and fosters a loyalty to her and, more importantly, to the institution. "

Looking for New Resources

Justice Prudenti said she will begin by taking a microscopic top-to-bottom look at court operations, with an eye toward finding ways to utilize public-private partnerships and foundation resources to achieve goals that otherwise might be unattainable in this fiscal climate.

"I am very, very sensitive that we cannot burden the taxpayers," Justice Prudenti said. "So I am going to be taking a good, hard look at revenue sources and funding streams. I really believe that we can form some public-private partnerships, that we can build some good relationships with the executive and legislative branch. I think we have to look outside the box to deploy new resources."

Justice Prudenti said outside resources are especially important in expanding civil legal services and reforming juvenile justice, both high priorities for Judge Lippman.

"I want to work with the Center for Court Innovation and look for partners that have the same goal of equal justice for all," she said. "I understand, I really, really do understand, what the state is facing and what the governor and Legislature are facing in these difficult fiscal times."

Justice Prudenti said she sees her role as the court system's "resource coordinator."

"I will take the resources we have and utilize them where they are most needed, and then look for other sources that can be of assistance in initiatives that are important to the chief judge," she said.

Judge Lippman acknowledged Justice Prudenti's new position will be "no picnic," especially in this fiscal environment.

"These are difficult times—difficult financial times, difficult fiscal times, a time of doing more with less, a time of great stress for state government and the judiciary," Judge Lippman said. "Gail is a very creative and innovative administrator and leader, and I think she recognizes that you have to think outside the box, that you can't just sit there and say 'woe is me.'"

Judge Lippman said that when he first approached Justice Prudenti about the position, "she was already thinking of new avenues and ways to get done what we need to get done."

Yesterday, Leslie D. Kelmachter, president of the New York State Trial Lawyers Assocation, said Judge Lippman made an “excellent choice” in Justice Prudenti, who has shown “outstanding leadership."

Judge Ann Pfau led the court system through difficult financial times "with intelligence, industry and integrity. We will miss her," Ms. Kelmachter said, adding, "We are confident that Justice Prudenti will bring her considerable energy and skills to this new challenge. We look forward to working closely with her in the years to come."

Justice Prudenti is a graduate of Marymount College in Tarrytown and the University of Aberdeen in Scotland.

She said she attended law school in Scotland because of an interest in international law and a plan to practice in either London or Edinburgh, but found herself "terribly homesick."

As the graduate of a foreign law school, she had to petition the Court of Appeals for permission to take the bar examination. Years later, in 2006, Justice Prudenti was among the seven judges recommended by the Commission on Judicial Nomination for a position on the Court of Appeals. That appointment, by Mr. Pataki, went to Eugene F. Pigott Jr.

Justice Prudenti lives on Long Island with her husband, Robert J. Cimino, who previously served as Suffolk County Attorney and is now in private practice with Lewis Johs in Melville.

As chief administrative judge, Justice Prudenti will be paid $147,600 annually. She makes $142,700 as presiding justice.

Until a successor as presiding justice is designated by Governor Andrew M. Cuomo, William F. Mastro, the senior associate judge of the Second Department, will serve as acting presiding justice.

@|John Caher can be reached at

Justice is Blindsided:
Wayne Barrett: How Shelly Silver Made His Pal Chief Judge

Wayne Barrett, Village Voice, February 10, 2009

Jonathan Lippman and Sheldon Silver grew up together on the Lower East Side in the 1950s, living next door in the insular Grand Street projects and sitting near each other's family in the neighborhood's Orthodox shul. After both graduated from law school in 1968 and drifted into low-level courthouse gigs in Manhattan in their early careers, one went on to become the longest-serving Democratic legislative leader in modern New York history, master of an unprecedented 107 to 43 majority in the State Assembly. The other remained largely unknown, except inside the state's vast court system.

Last month, the two old friends reunited in the Red Room in the State Capitol to celebrate their emergence as the most powerful duo in state government.

Below the political radar, the black-hatted, still religious, and gravel-toned Silver, who is celebrating his 65th birthday and 15th year as speaker this month, has been quietly boosting the more secular Lippman for years. Now, he's finally pushed Lippman from the series of back-office management posts where he's labored for years to the job of top gavel in the State Judiciary.

Appointed Chief Judge of the Court of Appeals in mid-January by the accidental governor, David Paterson, whose troubled tenure continues to erode his own ranking among the state's power elite, Lippman is awaiting virtually certain confirmation in the next few days from the new and narrow Senate Democratic majority. He will take over a court system that spends $2.3 billion a year, employs 21,000, and is likely to deal with issues like gay marriage, the housing foreclosure crisis, Wall Street criminality, and the still anti-city school aid formula during the six years he will reign until his mandatory retirement at 70.

A year younger than his boyhood friend, Lippman awaits State Senate confirmation before becoming the first chief judge since 1898 to lead the state's highest court without ever serving as one of the court's seven members . When Silver gave a short speech at Paterson's announcement of the appointment, Lippman quipped: "Two kids from the Lower East Side--not too shabby."

In fact, the story of how Lippman reached this pinnacle has its shabby side. He exudes an above-politics reform aura, but he did not climb to the top of the state's judiciary without making some stops in the dark along the way. His ally, Silver, helped clear that path to power, working a system whose anti-democratic ways have been rebuked by two federal courts.

Lippman has been a hardworking ambassador and manager of the courts for decades, visiting almost all of the system's 343 locations and acquainting himself with virtually every one of its 1,300 judges. But he has also been its consummate political player, seemingly more interested in influence than law.


Jonathan Lippman will soon preside over the most complicated and significant cases in New York, even though he's never practiced as a private attorney.

His legal career began in a judge's chambers as a law secretary and, when he turns 70 in six years, it will end there. In fact, he has spent so much of his career as a bureaucrat that he's written only 16 signed judicial opinions, 14 of them since Paterson's predecessor, Eliot Spitzer, made him the presiding justice of Manhattan's Appellate Division in 2007. With that scant a record as a jurist, it's impossible to know what his judicial philosophy is, and even his 24-year tenure in three appointive administrative posts offers no consistent thread about his judicial values or independence.

On one hand, he described himself in a 2006 speech as "unencumbered by parochial or partisan or political agendas," and is so widely considered a champion of court reform that New York's Bar Association found him "exceptionally well qualified" for chief judge, ahead of the "well-qualified" ratings it gave long-standing Appeals judges. The Times endorsed him, and he was given the Rehnquist Award for Judicial Excellence in November by U.S. Supreme Court Chief Judge John Roberts.

On the other hand, he is such a skilled and connected insider that when he ran for the first and only time in 2005, he was the only candidate in the state running for Supreme Court who couldn't be voted against. Lippman was on all five ballot lines: Democratic, Republican, Working Families, Conservative, and Independent. In fact, he had refused to allow his name to be put in the nomination unless every party backed him for the seat, which is the top trial court of the unified court system. (In New York, the "Supreme" Court is not actually supreme: The Court of Appeals is at the top of the judicial pile, above the Appellate Division and the Supreme Court, where major civil and criminal cases are heard.)

David Alpert, the onetime Democratic leader in Lippman's home county of Westchester, says the first time he ever heard of the man was when he got a call from a Republican, State Senator Nick Spano. Spano told him that he and a Westchester Democratic assemblyman, Richard Brodsky, had passed an amendment creating a new Supreme Court seat in Westchester, and Spano wanted Lippman "to be cross-endorsed for it." That meant Spano wanted the Democrats, Republicans, and other minor parties to all vote at their judicial nominating conventions to put Lippman's name on their ballot lines for this new, vacant seat, in exchange for which the Republicans would demand that the Democrats endorse at least one of their candidates.

"I didn't even know [Lippman] lived in Westchester," says Alpert, who was accustomed to promoting attorneys and county judges who had done their time for the party to Supreme Court slots. "I had breakfast with him, and the first thing he told me was that he and Shelly were raised together. He said he wanted to be cross-endorsed and that he wanted to go on to be an appellate judge." Alpert was just one of a legion of county leaders Lippman had to deal with over the years as he sought a Supreme Court seat--five counties with five parties occupy the 9th Judicial District--but Alpert says "we tried twice" (in 2000 and 2002, he believes) to deliver a multi-party cross-endorsement deal and couldn't.

Joseph Ruggiero, the Democratic leader from Dutchess County in 2002, said that on the day of the judicial convention when Democrats picked their Supreme Court nominees, Silver placed a conference call to a group of party leaders gathered at the Westchester headquarters and asked them to support Lippman. "We all said yes," recalled Ruggiero. How could they say no? With a Republican governor and Senate majority leader at the time, Silver was New York's top Democrat, and Denny Farrell, Silver's right hand in the assembly, was the state party chair.

When the current Westchester Democratic leader, Reggie LaFayette, finally did deliver a deal for Lippman in 2005, he explained Lippman's unusual candidacy--clearly more top-down than the typical grassroots designation--to his executive committee this way: "I told them I don't create judge seats. It was created higher up than me, by the two houses of the legislature. And someone yelled out, 'You mean Assemblyman Silver,' and I said, 'Well, he had to vote for it.' " But the bigger problem for LaFayette was cajoling his fellow leaders into giving up a seat in a cross-endorsement deal and backing a Republican. Cross-endorsements are easy when the two parties are competitive and no one knows who will win, but Democrats had won five of six judgeships in 2004, without any deals, and felt no need to give the GOP anything.

The executive committee understood LaFayette's argument and signed on, but a few weeks later, the price of the Lippman package deal got much steeper. The leaders could live with cross-endorsing the initial Republican candidate, a respected county judge named Stewart Rosenwasser. But just days before the September judicial conventions, the Republicans replaced Rosenwasser with a candidate that horrified many Democrats: Joseph Alessandro, also a county judge.

Alessandro had been found "not qualified" by the Bar Association and was dogged by tawdry tax and lawsuit charges. The New York State Commission on Judicial Conduct is still investigating those charges, and Alessandro, who did become a Supreme Court judge, is now facing possible severe sanctions. Yet it was Lippman's demands that would put Alessandro on the bench.

Lippman wanted to be endorsed by all five parties, and that insistence created an opening for the county's most voracious party boss, Dr. Giulio Cavallo, who controlled the Independence Party. He wanted Alessandro, not Rosenwasser, to become Lippman's opposite number in the multi-party swap and get the cross-endorsements. LaFayette and the Republican leader, RoseMarie Panio, eventually decided to back Alessandro, but fights against the deal broke out on the floors of both of these ordinarily scripted and staid conventions. Challengers ran against Alessandro and, had he lost at either convention, Lippman's precious deal--and ultimately his route to the Court of Appeals--would have died.

The inclusion of Alessandro so offended Working Families party chair Pat Welsh that he endorsed Lippman but refused to back Alessandro, telling the Voice that the deal was "unconscionable." (Lippman ran on five ballot lines; Alessandro, apparently unconcerned about the Working Families Party, four). A disgusted Rosenwasser wound up quitting the bench altogether.


At Lippman's January 2006 induction ceremony for Supreme Court in White Plains, Silver regaled the audience of bigwigs--at a special celebration separated from the swearing-in of the other new judges--with "our gang" stories from their first meeting at the age of six. Saying, "We have shared a common path," Silver joined in celebrating "with my colleagues in the legislature," many of whom were there, "who I say had a good hand in making today happen." While Lippman is now said to be downplaying Silver's role in his rise, he called him "family" in his speech and praised him for "marshaling the troops, and, boy, can he marshal the troops."

Lippman called himself "basically an apolitical person," and then thanked 16 party leaders, referring to each of the five from Westchester, including Cavallo, as "my leader," singling out Spano, who, he said, "vouched for me on the Republican side." Judge Gail Prudenti, the presiding justice in the Appellate Division covering Westchester, spoke on behalf of what she called "the many, many, many campaign advisers to the seemingly never-ending 'Lippman for Justice' campaigns."

The unexamined side of the Lippman saga is revealed in these salty Westchester tales, where the judge who pretends he is above self-serving politics played it as skillfully as his sidekick from the neighborhood who does it for a living. Lippman created the state's Judicial Campaign Ethics Center to guide candidates for elected judgeships, but he told Alpert, and many others, that he wanted the seat handed to him without the inconvenience of an election because it would be unseemly for the chief administrative judge to solicit contributions.

Yet he had no problem brandishing the calling card of Silver's friendship, or dialing up county leaders and other powerbrokers, some of whom, including Senate Assistant Majority Leader and onetime GOP boss Spano, were receiving lucrative patronage assignments from his courts. He even had no hesitation about going forward with the deal though he knew it would result in the elevation of an already tarnished judge, Alessandro, who may soon be repudiated by the Conduct Commission.

In fact, just as he began his efforts to secure a Supreme Court slot in 2000, he opened an elaborate office for himself in state space, across the street from the White Plains courthouse, and began spending a lot of time there, deeply involving himself in the judicial politics of that district. Shortly before that, he abruptly asked the district's administrative judge, Angelo Ingrassia, a Republican from a small county in the district, to step down a year before his mandatory retirement age. He even gave Ingrassia a car and chauffeur for his final year to induce him to do it.

He then split Ingrassia's job into two positions and gave both to Spano allies--one a Republican and the other an influential Democrat from Westchester, the populous center of the district. The new administrative judge, Frank Nicolai, denied in a Voice interview that he "campaigned for Lippman" in the long-running effort to secure a Supreme Court seat, as some sources contend. That would be a violation of judicial ethics, which only permit judges to campaign for themselves. "If someone asked," Nicolai said, "I'd say he'd be an outstanding judge." Asked if he might have initiated some of those conversations, Nicolai added: "I might have."

Nicolai presided at Lippman's 2006 swearing-in, where Lippman, Silver, and his other prestigious friends were so self-congratulatory it was almost as if he had actually won an election--when all he'd really done was collect chits and lean on the party bosses who'd installed him. With all the editorial hubbub about the judicial nominating process in New York, spurred by the federal court decisions that the process was an unconstitutional infringement of the franchise, Lippman the reformer had inadvertently established by his own experience how poisonously anti-democratic it was.

Yet, at his induction, he called his campaign "a unique experience," and even praised the mix of elective and appointive positions in New York's judicial system. Indeed, he has proven, from his Supreme Court fix to his culminating appointment as chief judge, that he is the master of both processes, each with their own brand of incestuous networking. If that is merit, then Lippman is what many of his supporters see him as, the embodiment of the merit system in our courts.


Lippman wanted a Supreme Court spot to make himself legally eligible for appointment to a second-tier appellate post, which he saw as a vital stepping-stone to the top-tier Court of Appeals. He had to do it then because his other sponsor, Chief Judge Judith Kaye, would have to step down when she turned 70 in 2008, and even a brief stint on the appellate bench would give him an opportunity to build a record as a scholarly jurist, though it would be quite a lean one in comparison with competitors who'd actually written opinions for lifetimes.

But his timely and controversial "election" was hardly the only awkwardly abetted step on his unprecedented career ascension. Prior to it, Lippman had only been a Court of Claims judge--an appointment bestowed by Governor George Pataki a few months into his first year in office (1995), when the Democrat Lippman managed to secure a spot despite the hunger of Republicans eager to grab judicial patronage slots after 12 years of Democratic rule.

At the time, Lippman was the top deputy in the Office of Court Administration, and all he had going for him were his Silver ties; an assiduously cultivated friendship with GOP Senate Judiciary Chair Jim Lack; and the backing of Judge Kaye, who argued that Lippman should hold a judicial title since she intended to install him, as she did a few months later, as the chief administrative judge.

Spano, who had just become the Republican county leader in Westchester in 1995, met Lippman in the few days between Pataki's appointment and the Senate's confirmation. Since Lippman was technically a candidate from Spano's home turf, he had to sign off and did, endorsing Lippman on the Senate floor and launching what he concedes became a series of efforts on Lippman's behalf that he would make over the coming years. Three of the pivotal party brass--Westchester Conservative Gail Burns, Rockland County Republican Vince Reda, and Cavallo--were on Spano-engineered Senate payrolls when Lippman collected his cross-endorsements in 2005, and the senator concedes that he spoke to them, as well as to Westchester Republican RoseMarie Panio, a close ally. "I'm sure I expressed support for Judge Lippman," Spano tells the Voice. "Anytime his name was up, I was an enthusiastic supporter."

In fact, Spano, who was widely viewed as the Senate Republican closest to Silver, confirmed his call to Alpert and acknowledged that he'd pushed midnight legislation through in 2005 and earlier, aided by Brodsky, that created new Supreme Court seats in the judicial district covering Westchester. The bill in 2005 was introduced by Pataki on June 24 and passed by both houses that day. While Spano said he didn't think "it would be fair to say" the seats were "created for anyone," he concedes that "Lippman's name came up" when the bills were adopted. Lippman needed more than one bill because the cross-endorsement deals with the Republicans fell apart, for reasons having nothing to do with him (once the Republicans demanded four Republican cross-endorsements for Lippman). He even went so far as to be nominated by the Democrats in 2002, only to file a formal declination when the deal with the GOP broke down.

A few months after Spano helped engineer Lippman's 2005 cross-endorsement, his brother, Mike Spano, an assemblyman mired in the hopelessly outmanned Republican minority, quit the assembly and joined a premier Albany lobbying firm run by Silver's former chief of staff, Pat Lynch, who is perceived to be the lobbyist closest to the speaker. When Nick Spano was defeated for the Senate in 2006, he formed his own lobbying company that Lynch invested in and allowed him to operate until this month out of her Albany suite. Mike Spano eventually went back to the Assembly, but he later became a Democrat at a press conference attended by Silver. Nick Spano, who reported half a million dollars in lobbying fees in 2007, denies vociferously that his aggressive support for Lippman has anything to do with his current business. But his ties to Lynch, and Lynch's hiring of his brother (who was hardly an influential Albany player), are a measure of his alliance with Silver, who Nick Spano says he "might have talked to" about Lippman's candidacy over the years "in social settings."

All the while that Spano was aiding Lippman's candidacy, he was reaping at least $79,739 in fees as a "court evaluator," a person paid to measure the mental competency of someone named in a legal petition. Though Spano isn't a lawyer, he has received 31 of these assignments and four other referee assignments. OCA regulations require the disclosure of these fees, but Spano's fees in 15 cases aren't listed on the office's printout. While Lippman's OCA had nothing to do with choosing evaluators (individual judges do that), it did collect applications for appointments; approved evaluators, like Spano, for the list; and set the qualifications for appointment, which appear to permit just about any professional to sign up.

Evaluators look into the eyes of the subjects of these court petitions, many of whom are elderly and in nursing homes, and decide whether they should retain control of property and other assets, the value of which they also consider. Spano sponsored the law that created this position, and he and other pols in Westchester, including then Senator Guy Velella, wasted no time collecting assignments. Velella, who has since been convicted on unrelated charges, was another social friend of Lippman's, and dined with him and Senator Lack and their wives at Rao's, the famously exclusive restaurant in East Harlem. Even one of the restaurant owners collected 19 appointments as an evaluator.

Lack, however, never dipped into the evaluator till, but he did collect 66 court appointments as a guardian or referee while chairing the Senate Judiciary, 26 of which were from Judge Prudenti, who spoke about her adviser role in Lippman's never-ending campaign at the 2006 induction. A Court of Claims judge himself by then, Lack was also present at the swearing-in and was saluted by Lippman, though he'd left the Senate after chasing a woman to her home in a road-rage dispute and ducking under the garage door when she tried to hide from him. "Do I think it's a terrible thing that people involved in public office receive this?" Lippman once told Newsday, referring to judicial patronage. "No, I don't."

There's no indication that Lippman did anything more than oversee this grab bag of goodies--with evaluators often earning $3,000 for a couple hours of work. But if Lippman was so concerned about the appearances of being political that he effectively exempted himself from the requirement that he actually compete in the electoral arena, he might have been a bit more careful about the appearances of his alliances with the beneficiaries of this dubious bonanza.


The day after Lippman became a Supreme Court Judge, in 2006, he asked Judges Kaye and Prudenti to name him to the Appellate Term, a job he would perform in addition to the administrative post he retained. This assignment--which allowed him to hear appeals of some lower court decisions--was his only way of acquiring appeal experience without being formally elevated by the governor to the full Appellate Division.

When a vacancy developed in the Manhattan Appellate Division and Spitzer selected Lippman as the county's presiding judge, howls were heard because two of the most respected sitting judges on that Appellate Division were bypassed by the screening panel of lawyers that vets judicial candidates, narrowing the governor's choice.

The same thing happened in December, when the screening panel for chief judge excluded two sitting Court of Appeals judges, as well as all women and Latino candidates--giving Paterson an invitation he couldn't figure out how to refuse. The panel included four Kaye appointees and one from Silver. Panel member Leo Milonas was so close to Lippman he spoke at the induction. Lippman saluted Milonas then as "truly my friend for life," calling their friendship, which began when Lippman worked for him at OCA, "an unforgettable relationship that, to my great benefit, continues today in every way."

Reminded of that by the Voice, Milonas saw it as no reason to have recused himself from anointing Lippman, noting that he was "more qualified" to help pick a chief judge "because I know people." The panel's chair, John O'Mara, a Pataki appointee, sat with Lippman on the court's Capital Construction Board for years.

An angry Paterson asked Attorney General Andrew Cuomo to investigate the panel's exclusionary list of seven nominees, but he never released Cuomo's report or recommendations. Instead, he began openly associating the chief judge selection with the other grand decision that faced him--the choice of a new senator to succeed Hillary Clinton--sending the signal that he had to pick a woman for the Senate since the panel's list barred him from picking one for the court.

When Silver reversed course and supported Caroline Kennedy, insiders suspected it was all about his love for Lippman. At that point, the governor had also just about convinced everyone that he wanted Kennedy, and the assumption was that Silver got the message that if he wanted Lippman, he'd better sing "Auld Lang Syne" to his Kennedy animosity. Paterson was asked about this connection at the Lippman announcement and denied it, adding that he "actually did not know the extent" of Lippman's "relationship" with Silver until he called the speaker to tell him about the appointment--which would make the governor the only high-ranking New York official unaware of it.

Ironically, of course, Paterson deserted Kennedy, and even claimed, improbably, that he never intended to pick her, though he revealed how important he thought Silver's opinion was about his eventual choice, Kirsten Gillibrand (another woman, to balance Lippman), when he said at her announcement that he moved it up to Friday from Saturday so the Sabbath-observing Silver could attend. It would be par for the course in Paterson's stumbling regime that he would agree to Silver's choice for chief judge in return for Silver's support of Kennedy, and then not get her, only to be stuck with Silver's pal for judge.

Whatever the deal, Paterson appeared boxed in when he announced that he would choose from the screening panel's list for chief judge. But there is one school of thought, citing interpretations from the OCA, that suggests that Paterson could simply have chosen to do nothing when the January 15 appointment deadline arrived. These analysts argue that Paterson could have named no one until later this year, when panel chair O'Mara steps down. That would have meant that Carmen Ciparick, a woman and a Hispanic who has been on the Court of Appeals for 15 years, could have continued serving as the acting chief judge, a position the other five judges voted to give her when Kaye retired in January. The press office at the court says Ciparick is the chief judge "as long as the seat remains vacant." If Paterson had simply done nothing, he could have eventually asked the new panel for a new list, and Ciparick, who applied and was rejected by O'Mara's very politicized panel, might actually have gotten a chance to compete for the job.

The same is true should the Senate take no action now. In fact, several Democratic state senators have been making a fuss for weeks about the lack of Latino representation in positions of power--at any level of city or state government. It is an issue that threatened the Democratic takeover of the Senate majority at the same time that Paterson was deciding, unknown to anyone, to displace a sitting Latina chief judge he could have allowed to remain, and perhaps even wind up appointing. His simultaneous selection of the anti-immigrant Gillibrand for the Senate seat compounded Paterson's trouble with Hispanics.

New York's first black governor preferred the comfort of Silver and Kaye and Lippman and the old-line judicial establishment. Lippman had even been careful enough to establish a personal rapport with the governor when Paterson was the Senate minority leader, meeting with him on OCA issues. Unelected himself and unsure of the extraordinary powers of his office, Paterson seems to shrink in Silver's company, now blaming the millionaire's tax on him as if the speaker sets the budget agenda.

The graying gang from Grand Street rolled the neophyte governor from Harlem, and will soon double their choke hold on state government, a triumph of loyalty and intrigue, which, in old New York, adds up to just another measure of merit.

Research assistance by Dene-Hern Chen, Jana Kasperkevic, Sudip P. Mukherjee, and Jesus Ron

Robert J. Cimino was the Suffolk County Attorney for 12 years. He has over 20 years of municipal law experience working in the Office of the Suffolk County Attorney, and before that as the Islip Town Attorney. As County Attorney, Robert managed and directed the County's municipal law office, providing legal representation to the County and prosecuting and defending all civil actions and proceedings brought by or against the County, its legislature, and the County's officers and employees. He is rated "AV" by Martindale Hubbell. In 2010, Long Island Pulse Magazine rated Robert a Top Legal Eagle in Suffolk and Nassau Counties for government.

From 1988 through 1991 Robert served as the Islip Town Attorney. From 1980 through 1991 he was the senior partner in Cimino & Prudenti, a firm practicing trusts and estates law and litigation. From 1977 to 1980, he was the Chief Clerk, Chief Law Assistant, and the Law Secretary at the Suffolk County Surrogate's Court.

Robert graduated from the State University of New York at Buffalo Law School in 1971. He graduated from the State University of New York at Buffalo with a Bachelor's Degree in 1968.

For a listing of representative appellate cases handled by Robert Cimino click here.

Wednesday, October 19, 2011

NYS Chief Administrative Judge Ann T. Pfau Resigns

Pfau to Resign as Courts' Top Administrator

Chief Administrative Judge Ann T. Pfau, (pictured above) who has managed the state court system through 4½ exceptionally tumultuous years, yesterday informed colleagues that she will step down on Dec. 1 to take over a new medical malpractice program and try cases in her home borough of Brooklyn.
She announced her plans in a conference call with the state's administrative judges. A successor was not immediately named.
Judge Pfau's tenure on Beaver Street coincided with rancorous and often bitter controversy over judicial salaries, early retirements, layoffs and budget cuts.
Yet the first woman to hold the highly stressful and often thankless job said in an interview that she "wake[s] up every day thinking I am the luckiest person in the world to have this job."
"This is the career of a lifetime," Judge Pfau said. "But there comes a time when you need to do something else. I want to be a judge."
Chief Judge Jonathan Lippman said Judge Pfau (See Profile) approached him several months ago expressing a desire to move to a new assignment, but agreed to remain in the position through the resolution of the judicial pay dispute and the submission of the next budget, which is due Dec. 1, the day she departs.
"She has been a great leader and is someone who has, by any standard, gone through the wars and come out as a strong, effective and inspiring leader for the troops," Judge Lippman said. "This is someone who has really paid her dues and at this point she deserves whatever she wants to do. I am delighted to make that happen."
The chief judge said he will appoint a new chief administrative judge within a matter of days, but declined to identify his choice.
Judge Lippman said he is reassigning Judge Pfau to the position of coordinating judge of the New York State Medical Malpractice Program.
In that position, Judge Pfau will administer a federal grant and oversee a program that promotes early settlement of medical negligence cases through judge-directed negotiation. She will be working with Bronx Supreme Court Justice Douglas McKeon (See Profile), who initiated the pilot program.
Judge Pfau, who has maintained a regular commercial caseload during her years as an administrative judge, will preside over medical malpractice matters in Brooklyn in addition to her coordinating role.
As chief administrative judge, Judge Pfau earns $147,600 a year. Her new salary has not yet been determined, Judge Lippman said.
Under the state Constitution (Article VI, §28), the chief administrative judge supervises the daily operation and administration of a court system that handles 4.7 million cases a year, overseeing a $2.5 billion budget, 3,600 state and local judges and 15,000 judicial employees spread over 300 different locations.
The position is inherently stressful, demanding a deft blend of political and organizational skills.
Except for Judge Lippman, who held the position for nearly 12 years before Judge Pfau's appointment in mid-2007 by Chief Judge Judith S. Kaye, no one has celebrated a fifth anniversary in the job, and no one other than Judge Pfau had extended service under more than one chief judge.
Judge Pfau's time as chief administrator coincided with an unusually difficult era for the courts.
Judges were infuriated that the Legislature had denied them pay raises for a dozen years. About 1,500 employees took early retirement last fall, and half the positions were never filled because of an impending fiscal crisis. The court system voluntarily cut $100 million from its budget request in a gesture of cooperation with the political branches—and then watched powerlessly as Governor Andrew M. Cuomo and the Legislature cut another $70 million. Consequently, nearly 500 employees lost their job.
"This has been a very, very difficult year with the fiscal and operational challenges," Judge Pfau acknowledged. "I couldn't be luckier than to be surrounded by such wonderful administrative judges who make the system work. I love the job and I adore the people, but you get to the point where you say to yourself, 'Can I do this for another year with a totally full heart and every bit of my energy?'"
Calm and Focused
Despite the struggles and setbacks that were beyond her control, Judge Pfau presided over the largest expansion of electronic filing in state history, guided the court system's response to the mortgage foreclosure crisis, overhauled the guardianship and fiduciary appointment system and focused attention on Family Court.
"I will miss her sterling leadership, her management skills and her ability to have the kind of dialogue with our judges and the other branches of government that gets things done," Judge Lippman said.
Case in point: At the judicial budget hearing earlier this year, Judge Pfau appeared before an angry and combative legislative committee that was clearly spoiling for a fight and portraying the judiciary as spendthrift and indifferent to the state's fiscal woes.
But Judge Pfau calmly diffused their anger, responding firmly and confidently to the acerbic questions and caustic comments.
"She's a trouper and she's a pro, and she does it with grace and dignity," Judge Lippman said. "That's why I have always given her the toughest assignments."
For the judiciary, the greatest achievement of Judge Pfau's tenure was passage of legislation creating a Special Commission on Judicial Compensation. The commission ensures that judicial salaries are objectively reviewed and adjusted at regular intervals.
Although many judges were disappointed with the result—a 27 percent pay raise over three years—they are relieved to finally see a pay raise, and more relieved that the new process should largely remove judicial compensation from politics.
"We can't guarantee the outcome will always be what people want, but at least there is a procedure," Judge Pfau said. "I was committed to staying through that process and promised [Judge Lippman] that I would do that."
Judge Pfau, 63, is a career court administrator who entered the court system in 1985, shortly after graduating from Brooklyn Law School with two young children.
"Like a lot of women in those circumstances, I went into government," Judge Pfau said.
She began her career in the courts as an assistant deputy counsel in the Office of Court Administration, an assignment she describes as "just marvelous."
In 1997, she was appointed to the bench by Mayor Rudolph W. Giuliani and later served as deputy chief administrative judge for management support, administrative judge for the Second Judicial District and first deputy administrative judge. Judge Pfau also has served as an acting Supreme Court justice in the Commercial Division of Supreme Court in Brooklyn.
In every court position she has held for the past 22 years, Judge Pfau worked closely with Judge Lippman.
"That personal bond that I have had with her for so many years, the friendship, the admiration, and the great, great affection I have for her, is for me and the courts a lifetime relationship, and I am very grateful to her personally and on behalf of the institution," Judge Lippman said.
Judge Pfau's parting advice to her successor: "Recognize that not every problem is solvable. The problems can seem overwhelming, but it all works out. And enjoy the trip between New York City and Albany, because you will make it often."

Sunday, October 16, 2011

The US Supreme Court Debates Church and State Boundary In Fired Teacher's Case

Supreme Court Debates Church And State Boundary In Fired Teacher’s Case
Fred Anderson
Few issues test Supreme Court justices like trying to find the proper boundary between church and state. And that difficulty was again on display Wednesday as they considered whether a former teacher at a church school could pursue her claim that she was fired after becoming ill. Only Justice Antonin Scalia seemed completely sure of the answer, repeatedly taking the position that a church’s personnel decisions about those who serve in ministerial positions are off limits to government inquiry. “It’s none of the business of the government to decide what the substantial interest of the church is,” Scalia said. From Betsy Combier: America puts religious institutions and their personnel above the law. The Perfect Crime: Misconduct By Church.

From Editor Betsy Combier:

We should question whether or not the US Supreme Court can place a church - or THE (collective) "Church"- above the law. In America, we do that.

The effect of this is to allow The Perfect Crime: Misconduct By Church.

I am a victim of that. My mom was a volunteer at Madison Avenue Presbyterian Church (MAPC) for more than 40 years, at least the last 20 years full-time. My mom died in her sleep on March 15, 1998, and her last Will left me her apartment and everything in it. The Pastor of my Church didnt like this, as I was the person who accompanied the African-American porters and handymen in the Church House to arbitration in the mid '90's whenever the Pastor, Fred Anderson filed false charges against any one of them. "Fred" hated me for this. He also hated me for noticing the $170,000 paid out from the endowment (worth more than $30 million) to pay the construction company when, in 2005, the company, Prudon & Partners, was hired to repair two toilets on the 9th vloor of the 4-year olds attending the Day School pre-kindergarden nursery school. My 4 daughters attended, as did I and my twin sister. Prudon write the wrong name on the work history, presumably to escape scrutiny. They didn't escape me. Theodore Prudon is an Associate Professor of Architecture at Columbia University. I sued him when I filed my RICO in Federal court for the theft of my mom's property, but I removed him in the Second Amended Complaint because while he is scamming the MAPC congregation, he was not one of the main culprits in the theft of my mom's estate.

Back to the tale of the 2 toilets: $170,000 for a repair of two toilets for 4-year olds? Something wasnt right, so I went to the Department of Buildings and found the work order. Prudon & Partners were paid $90,000 for this one job (still too high, I think). This left $80,000 for someone to take on this one work order. A source at the Church who was on Session tells me that everyone knew something was not right, but they all went along with it. He told me to look into the "921" Fund at the Church, and told me that the moneys paid into and out of this pot were suspect as well. A few days after my mom's sudden death, Pastor Fred took away my membership in the church and then withheld my mom's ashes from me, the daughter, beneficiary and proponent of her Will, for 8 days. The New York State Supreme Court and the Appellate Division First Department ruled, when I sued the Church and Appealed, that Pastor Fred Anderson, Associate Charles Amstein, and the Session and trustees were guilty of withholding my mom's ashes and liable for this, but they were "justified" in doing so. Above the law.

Supreme Court debates church and state boundary in fired teacher’s case
By Robert Barnes, Washington Post, October 5, 2011

Few issues test Supreme Court justices like trying to find the proper boundary between church and state. And that difficulty was again on display Wednesday as they considered whether a former teacher at a church school could pursue her claim that she was fired after becoming ill.

Only Justice Antonin Scalia seemed completely sure of the answer, repeatedly taking the position that a church’s personnel decisions about those who serve in ministerial positions are off limits to government inquiry.

“It’s none of the business of the government to decide what the substantial interest of the church is,” Scalia said.

But others on the court thought there might be a role for the government, although no consensus was apparent on that or on whether it would apply in the case before them, which involves Cheryl Perich, a former teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich.

After taking religious classes, Perich was promoted from a lay teacher to a “called” teacher in 2000, and she taught religious and secular classes, such as math, and occasionally led chapel.

She became ill in 2004 and took a leave, eventually receiving a diagnosis of narcolepsy. When she tried to return to her job, the school said that it had hired another teacher and that she probably would be terminated.

Perich threatened to sue under the Americans With Disabilities Act, and the church fired her. It said that she was not fit for ecclesiastical office and that her action violated Lutheran teachings that disputes be handled within the church, rather than in civil courts.

The Equal Employment Opportunity Commission took up Perich’s cause and sued the church.

A federal judge agreed with the church that Perich fell under the ADA’s ministerial exception, which keeps the government from interfering with church personnel decisions. But the U.S. Court of Appeals for the 6th Circuit reinstated her lawsuit, saying the exception didn’t apply because Perich’s primary function was teaching secular subjects.

University of Virginia law professor Douglas Laycock, representing the church, said its argument rested on a “bedrock” principle:

“The churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church.”

The justices did not find it so simple. Who decides if a teacher is just a teacher or someone who falls under the ministerial exception? Justice Ruth Bader Ginsburg said that even after her religious training, Perich’s duties did not substantially change.

Justice Sonia Sotomayor was interested in the government’s argument, advanced by Assistant Solicitor General Leondra R. Kruger, that it has an “overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.”

Sotomayor asked Laycock: “Doesn’t society have a right at some point to say certain conduct is unacceptable,” even if some religions sanction drug use or sexual contact with minors? “And once we say that’s unacceptable, can and why shouldn’t we protect the people who are doing what the law requires, i.e. reporting it?”

Justice Anthony M. Kennedy was concerned that Perich would not be able to pursue her claim, even before the church had proved that she fell under the ministerial exception.

Justice Samuel A. Alito Jr., on the other hand, questioned how the government would enforce discrimination laws. He pressed Kruger to explain why she said the government could never use gender discrimination laws to challenge the Catholic Church’s policy on priests.

“When you say that, are you not implicitly making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?” he asked.

The case is Hosanna-Tabor Church v. EEOC.

Copyrights and free speech

When Congress provided copyright protection to millions of works by foreign artists that once were in the public domain, it took away “core public speech rights” from the American public, a lawyer for those challenging the action told the court Wednesday.

Anthony Falzone, representing conductors, academics, film historians and others, said the action violated the First Amendment and went beyond Congress’s power to extend copyrights.

He found a quick adversary in Ginsburg, who said Congress was only correcting an inequality and extending the same kind of copyright protection to foreign artists that Americans had received.

She compared two composers: “Congress says: ‘No, we think [Dmitri] Shostakovich should be treated just like [Aaron] Copland. Yes, we took care of our own when we weren’t part of the world community, but now we are.’?”

Congress said that applying the copyright to such works was necessary to comply with treaties and foreign trade agreements and that the show of cooperation will mean copyright protection for the work of American artists overseas.

Solicitor General Donald B. Verrilli Jr. told the court that the decision did not unduly harm the First Amendment. But Chief Justice John G. Roberts Jr. wondered if there was not a problem with Congress extending copyright protection to works that for years had been in the public domain.

“There is something at least at an intuitive level appealing about Mr. Falzone’s First Amendment argument,” Robert said. “One day I can perform Shostakovich; Congress does something, the next day I can’t. Doesn’t that present a serious First Amendment problem?”

The case is Golan v. Holder.

Sunday, October 9, 2011

Conference Approves Standards & Procedures for Sealing Civil Cases


September 13, 2011
Contact: David Sellers, 202-502-2600
The Judicial Conference of the United States today adopted a national policy that encourages federal courts to limit those instances in which they seal entire civil case files.
The policy emphasizes that "an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort."
Any order sealing an entire civil case should contain findings justifying the sealing, and the seal should be lifted when the reason for sealing has ended, the policy says. The Conference also endorsed modifying the Judiciary's Case Management/Electronic Case Files system to include a mechanism "that would remind judges to review cases under seal annually."
In separate action, the Conference responded to inflationary pressures by increasing, effective November 1, certain miscellaneous fees for federal courts. The newly approved court fee schedule, the first inflationary increase in eight years, is expected to result in an estimated $10.5 million in additional fee revenue for fiscal year 2012. Fees in appeals, district, and bankruptcy courts are affected. The income the Judiciary receives through miscellaneous fees allows it to reduce its annual appropriations request to Congress.
The Conference also authorized an increase in the Judiciary's electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system. The increase in the electronic public access (EPA) fee, from $.08 to $.10 per page, is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary's Case Management/Electronic Case Filing system.
The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. Implementation of the two-cent per page increase will take a minimum of six months.
The Conference was mindful of the impact such an increase could have on other public entities and on public users accessing the system to obtain information on a particular case. For this reason, local, state, and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The expanded exemption means that 75 to 80 percent of all users will still pay no fees.
At its session today the Judicial Conference also adopted a courtroom sharing policy for bankruptcy judges in new courthouse and courtroom construction. In court facilities with three or more bankruptcy judges, one courtroom will be provided for every two bankruptcy judges. In those facilities with an odd number of bankruptcy judges, the number of courtrooms allotted will remain at the next lower whole number. (The Conference in 2008 adopted a courtroom sharing policy for senior district judges in new construction, and in 2009 adopted a courtroom sharing policy for magistrate judges in new construction.)
The Conference also was briefed today on the current budget situation facing the federal courts. To date, the only action by Congress on the Judiciary's fiscal year 2012 budget is a bill approved by the House Appropriations Committee on June 23, 2011. The proposed funding levels in this bill, if enacted, would result in the loss of thousands of clerk's office staff and probation officers and would have a significant negative impact on court operations. The Conference is hopeful that final action by the Congress will result in a more favorable budget for the Judiciary.
The 26-member Judicial Conference is the policy-making body for the federal court system. The Chief Justice serves as its presiding officer. Its members are the chief judges of the 13 courts of appeals, a district judge from each of the 12 geographic circuits, and the chief judge of the Court of International Trade. The Conference meets twice a year to consider administrative and policy issues affecting the court system, and to make recommendations to Congress concerning legislation involving the Judicial Branch.