Tuesday, May 18, 2021

Report of The Special Advisor on Equal Justice in the Courts

Recommendations from the  Special Adviser on Equal Justice in the Courts 

From: National Public Voice

New York’s courts continue efforts to combat racism

By Rachel Vick, Queenseagle.com, May 17, 2021

Just six months after the release of a report outlining racism in the state’s court system, leaders shared an update on the steps they are taking to eliminate system-wide bias.

The dozen recommendations made by the Special Adviser on Equal Justice in the Courts, former U.S. Secretary of Homeland Security Jeh Johnson, were issued in October 2020 to mitigate pervasive racism within the courts by declaring a zero-tolerance policy and implementing bias training. 

“There is no greater priority for the court system than the implementation of the Special Adviser's recommendations,” Chief Administrative Judge Marks said on Monday. “I am gratified by the significant progress made these past few months and look forward to further developments in our pursuit to combat racial and other bias systemwide.” 

Marks described the task force’s ongoing efforts as a “critically-important undertaking” and “a wide-ranging endeavor that relies on the collaboration and support” from all parties involved. 

To date, the courts have taken steps including improving high ranking court official’s outreach, mandatory training for all judges and nonjudicial staff on racial bias and implicit bias, mandatory name tags for court personnel, updating the court system’s juror orientation video to address juror bias, increasing visibility of the Franklin H. Williams Judicial Commission and Office of Diversity and Inclusion, increasing language access and the inclusion of diversity in a new Unified Court System mission statement.

“In the service of our mission, the UCS is committed to operating with integrity and transparency, and to ensuring that all who enter or serve in our courts are treated with respect, dignity, and professionalism,” the new statement reads.  “We affirm our responsibility to promote a court system free from any and all forms of bias and discrimination, and to promote a judiciary and workforce that reflect the rich diversity of New York State.” 

They are also working to increase awareness of the Inspector General’s office, including its Bias Matters Unit, where court system employees and court users can file complaints, and increase access through an intermediary. 

Judge Edwina Mendelson, who is overseeing the overhaul, is launching a website to highlight the vision and ongoing work of the Equal Justice in the Court's Initiative in the coming weeks. She is also in the process of organizing court officer community outreach programs and a community affairs appointee in each courthouse to improve public trust.

“It is a professional and personal privilege for me to oversee implementation of the Special Adviser’s recommendations for eliminating racial bias in the courts and promoting meaningful diversity, equity, and inclusion at all levels,” Mendelssohn said. “I have deep faith in the strength of our commitment and a strong belief in our collective will to meet this moment – and to fulfill our obligation to provide equal justice in all our courts.”

Saturday, May 15, 2021

Cornell Law Student Defends Blogger's First Amendment Rights in Anti-SLAPP Case


Law student plays key role in blogger’s defamation defense

A decision in a defamation case argued primarily by a Cornell Law School student is one of the first in New York state court to address a legal question spurred by recent legislative changes strengthening free speech protections.

On May 10, a New York Supreme Court judge in Ontario County dismissed a construction company’s lawsuit against James Meaney of Geneva, New York, publisher of the Geneva Believer watchdog blog, who was defended by the Law School’s First Amendment Clinic and co-counsel Michael Grygiel of Greenberg Traurig LLP.

Judge Brian Dennis

During a virtual hearing on Dec. 9, 2020, third-year law student Rob Ward led the defense team’s argument for why the amended anti-SLAPP laws – short for Strategic Lawsuits Against Public Participation – should apply retroactively. Judge Brian Dennis agreed that amendments approved in November to New York’s so-called “anti-SLAPP” statutes, which seek to deter use of the courts to silence criticism in public matters, should apply to the case retroactively. But he also found that the previous version of the statute would have applied as well and that Massa Construction Inc. could not meet its statutory burden to show that its claims had a substantial basis in law and fact. Dennis ruled that Meaney’s challenged articles were comprised of true facts and constitutionally protected opinions, rejecting Massa’s theory of defamation by implication and holding that satirical images in the articles were non-actionable.

State and federal judges have recently reached that conclusion in unrelated cases, but at the time of the hearing no courts had weighed in on the matter.

Ward pointed to legislative history revealing state lawmakers’ intent to clarify the original purpose of statutes enacted in 1992, which was for the statute to apply more broadly than courts have previously interpreted it, and for the amendments to take effect immediately.

“New York has a long history of being at the forefront of expansive definitions of free expression,” Ward said. “This decision helps build on that tradition and will help protect journalists and other citizens trying to make their voices heard in their communities.”

The victory was the First Amendment Clinic’s second on Meaney’s behalf since Massa filed its defamation claim in January 2020. Last June, the same court on First Amendment grounds denied Massa’s request for a temporary restraining order demanding Meaney take down articles reporting on the company’s ties to the Geneva city council, which according to Meaney’s reporting has awarded Massa more than $4 million in contracts since 2010.

Meaney’s articles highlighted potential conflicts of interest involving a city council member who was also a Massa employee, and a former council member whose son worked part-time for both the company and the city. He reported on missing bid records – revealed by his Freedom of Information Law requests – and questioned the rationale for certain projects.

The First Amendment Clinic said the defamation case lacked merit broadly, including the fact that Meaney’s reporting – based on public meetings and public records – was accurate. The company claimed the allegedly defamatory statements implied wrongdoing and corruption – a disfavored legal theory, according to First Amendment Fellow Tyler Valeska.

Meaney’s reporting on and criticism of the city’s spending “is protected at the core of the First Amendment and the New York Constitution as speech on a matter of public concern,” the defense team argued in requesting the case be dismissed.

Valeska was thrilled with the comprehensive victory. He emphasized the court’s conclusion that Meaney would have been protected even under the narrower prior version of New York’s anti-SLAPP law. And he noted that the amended laws, applied retroactively, made the case a slam dunk. Application of the anti-SLAPP law increased Massa’s burden of proof, facilitated the case’s early dismissal and entitled Meaney to collect attorney’s fees.

The case was part of the First Amendment Clinic’s Local Journalism Project, which supports newsgatherers and media outlets lacking the resources to defend themselves against expensive, potentially frivolous litigation. Associate Director Cortelyou Kenney and a group of students including Michael Mapp were also part of the clinic team handling the case.

“The clinic believes that such threats have a dangerous chilling effect on local journalism and must be fought to ensure that the public receives newsworthy information,” said Mark Jackson, the clinic’s director and adjunct professor of law.

For Ward, helping to shape a novel aspect of state law was a rewarding opportunity, one that is relatively rare for a law student.

“I was grateful to play a role in defending this journalist who, if the clinic weren’t here, might have had to stop publishing,” Ward said. “Getting to not only write on his behalf but to argue before a judge on his behalf was an amazing experience.”

Ward said the skills and courtroom experience gained during his three semesters in the clinic will serve him well in a career that will start in tax law, and that First Amendment issues will remain a passion. Meaney’s challenges in Geneva, a city of 13,000, resonated personally with the native of Broadalbin, New York, a town of 5,000 about an hour northwest of Albany in Fulton County.

“This case hit close to home,” he said. “It was really appealing to me to work with someone who cares about his upstate New York community and is trying to report on it and make it a better place.”