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Who Judges the Judges?


bloomberg
Photo by Joe Gratz

On June 8, 2009 -- the same day as the notorious State Senate coup -- a group of state senators began hearings on the Commission on Judicial Conduct and New York's system for disciplining attorneys. During the hearings, witnesses testified as to how the state's judicial watchdog group had ignored their complaints about judges and rebuffed their attempts to ascertain what happened to their complaints. Overall, many said, they were left feeling helpless before the justice system.

On Sept. 24, 2009 another hearing was held in Manhattan. The parade of witnesses with complaints about judges who allegedly flout the law, hold grudges against lawyers and levy absurdly large fines for perceived slights continued. In fact so many people wanted to testify on the matter that a third meeting was scheduled for Dec. 16, 2009.

That hearing never took place. A notice was issued that the hearing had been cancelled and would be rescheduled. It never was.

No findings were issued, no committee report was put together and no task force was called to investigate as some senators had suggested while reacting to testimony.

What happened? According to Senate Minority Leader John Sampson who headed the proceedings, he got too busy. “We started these hearings right when the coup happened. I believe that it was just the demands I had as leader. I couldn’t do everything,” he said. Sampson was anointed leader of the Democratic conference after the coup and continued to lead it after the Democrats returned to power. Many other Senate hearings continued during and after the coup.

In the two years since, no one has held any additional hearings on judicial accountability, but critics say the issue has not gone away. Observers and many people who have had bad experiences say the state's judicial watchdog ignores major complaints to focus on infractions of low-level judges, dismisses many worthy complaints and does all this in secrecy.

When Judges Misbehave

The Commission on Judicial Conduct is tasked with accepting complaints against judges and investigating complaints deemed meritorious. But a number of critics say the commission investigates lower level town judges for small infractions while ignoring repeated complaints against higher ranking judges such as those on the state Supreme Court. The Commission on Judicial Conduct has 11 members, each of whom serves a renewable four-year term. The governor appoints four members, the chief judge three and the speaker of the Assembly, the minority leader of the Assembly, the temporary president of the Senate (the majority leader) and the minority leader of the Senate each appoint one.

Of the governor's appointees, one must be a judge, and one must be a member of the state bar. The chief judge must appoint a justice of the Appellate Division, a judge who is not from the Court of Appeals or Appellate Division, and one who is a justice of a town or village court. Legislative leaders may not appoint anyone who has served as a judge.

Saratoga Family Court Judge Gilbert Abramson was the only judge removed by the commission in 2010. He allegedly made comments about a woman’s shirt that were “full of sexual innuendo.”

Two other judges resigned while under investigation. One had approved of anti-semetic comments in court, the other hadn’t bothered to sentence 100 people who had been convicted. Twelve judges were censured last year for a variety of reasons.

A number of observers, including commission members feel that the commission is far too reserved in its disciplining of judges. Albany Family Court Judge Gerald Maney tried to use his position to get out of a driving while intoxicated charge and yet he kept his seat. But critics say even more serious allegations are ignored -- ones about cases being fixed, rights being ignored and clear conflicts of interest.

Watchng the Watchdog?

So what came out of the hours of testimony, the money, time and miles witnesses spent getting to Albany, the risk lawyers took by complaining about judges in a public forum?

In 2010 Sampson began pushing a piece of legislation that would open judicial disciplinary hearings to the public -- not the actual complaints against judges, but the proceedings that take place after the commission has found sufficient reason to proceed against a judge. Proceedings such as these are open to the public in 35 other states. In New York, the proceedings are public only if the judge waives the right to a private hearing and agrees to have the accusations aired in public. Information about cases that result in disciplinary action are available to the public after a decision has been made.

Robert Tembjeckian, administrator and counsel to the Commission on Judicial Conduct, supports making the proceedings public. But he points out that no one is exactly in a rush to act on such legislation. “There is a preoccupation with economic and budgetary issues. At the moment it doesn’t seem to be a major concern," he said, adding, "The best case to move it forward is hopefully one house will see fit to have public hearings, generate momentum and public discussion.”

Sampson says he may initiate hearings on the Commission on Judicial Conduct early next year. “Reforms are necessary. Lady Justice is supposed to be blind but she has a hole in her blindfold and her scales are not balanced. There is a call out there [for hearings],” Sampson said. Sampson said he plans to start early in the year, and thinks he will enjoy the support of Gov. Andrew Cuomo. “I know our governor is all for reform. He believes people lost faith in our government and he wants to restore it, so I know this is something governor would truly support.” Cuomo’s office did not return calls for comment.

While Sampson may be prepared to hold hearings, other supporters of the measure aren’t exactly chomping at the bit. Dennis Hawkins, executive director of The Fund for Modern Courts, says the economy has led his group to focus on court budgets and working for judicial pay raises. He expects the budget to be a major focus during the 2012 session as well. “Sometimes larger issues block out other issues,” he said.

Peter Barlet, president of the New York State Magistrate’s Association, said his organization has no position on the issue but said making hearings public could “be a concern among judges who have to run for office.” He said opponents could use baseless cases as ammunition against sitting judges.

Case Dismissed

Despite the talk about opening hearings, that was not the key concern of a majority of the people who testified in 2009. “None of those people said they lacked confidence in the commission because hearings weren’t open,” said Elena Sassower, director of the Center for Judicial Accountability, a group that describes itself as "a national nonpartisan, nonprofit, citizens’ organization documenting how judges break the law and get away with it." Instead, Sassower said, "They lack confidence because their detailed, documented complaints were dismissed without reason and they were told the reasons were confidential.

A majority of the testimony focused on complaints the commission decided not to pursue. Attorney Regina Felton described how one judge routinely altered the court record, failed to file motions and repeatedly fined her large amounts. Since these motions were not filed. Felton had difficulty appealing them. Eventually when the judge demanded she pay $6,700 in fines Felton told the judge she had appealed, but he sent her to Rikers Island where she spent 11 days. Other complainants detailed how judges who oversaw their cases had conflicts of interest thanks to business relationships.

Currently there is no way to judge how the commission performs its duties when it comes to investigating meritorious cases, because all complaints are secret.

In 1989 then State Comptroller Edward Regan attempted to audit the Commission on Judicial Conduct. The report that came of the attempt was titled “Not Accountable to the Public: Resolving Charges Against Judges is Cloaked in Secrecy.”

"The commission has denied our request for access to confidential files and has refused to propose legislation to open its records to my office," Regan said in a statement accompanying the report. "As a result, my auditors cannot determine if the commission is complying with applicable state laws and regulations." Regan added, "The potential exists that the commission could be abusing its authority by wrongfully dismissing complaints against judges without cause and justification."

The only group pushing to actually make these complaints available to the public is the Center for Judicial Accountability. Sassower said, "Making the hearings public is like snow in the wintertime. Opening hearings will only give us an idea of what is going on with a handful of complaints, not addressing the 95 percent that do not result in an investigation."

Sassower says she has a good idea about the number of complaints the commission gets and does not act on, because she encourages complainants to forward their grievances to her organization. Sassower’s group has brought suit against the commission a number of times, each case has failed and she has since been barred by the judiciary from bringing any further cases.

Sassower says the commission routinely ignores meritorious cases and even destroys complaints it has held for five years, thereby making it impossible to track a pattern of complaints against judges who serve long terms. She wants the veil of secrecy to be lifted so that the public can see whether the commission is doing its job.

The Power of the Purse

The center has recently started pushing its case in a new way: attaching the issue to the very sensitive topic of judicial pay raises.

The Special Commission on Judicial Compensation was created by a 2010 law that mandates the group recommend salaries for judges. This year, the group issued a report recommending a 27 percent pay increase. The recommendation is binding and will go into effect next year unless the legislature blocks it. Late last month Sassower’s group issued its own report, which said the increase should not be given and charged that that the testimony given to the Senate in 2009 adds up to “evidence of systemic corruption” that “disqualifies judges from pay raises by a constitutional bar.”

Other groups that work on court issues are loathe to tie judicial pay raises to increasing transparency at the Commission for Judicial Conduct. After all, those same groups have been pushing for judicial pay raises for years.

“I don’t think that’s the way government works,” said Dennis Hawkins of the Fund for Modern Courts. “That seems like a way of coercion by the legislature against the judiciary. We need to keep the judiciary a separate, independent branch of government. Judges don’t have the ability to change the Commission on Public Conduct, so we shouldn’t be penalizing people who aren’t in charge of it.”

Others disagree with the very idea of opening the records. Tembjeckian, the commission’s administrator and counsel, says that the promise of confidentiality regarding complaints made against judges is “important and explicit. The statutory mandate precludes that even a grand jury cannot subpoena commission records. You are innocent until proven guilty.”

But Sassower argues that it is public record when a judge is sued. She notes that she has tried to get members of the press to write about the many complaints she has collected over the years, but to no avail. “The media is not running to cover complaints against judges. The fear is baseless.”

Sassower has distributed her report to the office of Chief Justice Jonathan Lippman, the governor and the heads of the legislature. She is currently awaiting response.

Police Found Not Liable for Failure to Protect Shooting Victim


pushed out
Photo by Dave Hosford

When Carmen Valdez's onetime boyfriend threatened to shoot her, a New York City police officer assured her that he would be arrested. The boyfriend followed through on his promise, but the police did not.

Still, the case of Valdez v. City of New York alleging failure to provide adequate police protection has now been dismissed by New York's highest court. Five of the seven judges of the Court of Appeals in Albany reversed a Bronx jury verdict and determined that the plaintiff did not have a "special relationship" with the police department that would allow her to have a "justifiable reliance" on the city's promise to arrest her assailant, Felix Perez, before the shooting.

A Promise, Not a Guarantee

The events surrounding this case go back to 1996. Because she had been abused, harassed and threatened by Perez, Valdez had a Criminal Court order of protection against him. After the telephoned death threat, the victim and her children set out for a relative's home, but stopped to call the police Domestic Violence Unit to make a report. Officer Jose Torres, who had previously been assigned to the case and was familiar with it, told her to go home and that Perez would be arrested "immediately."

The next day, though, when Valdez stepped out of her apartment door, Perez was waiting. He pushed her back inside and shot her three times -- twice in the face, once in her arm -- in front of her five-year-old twins. He then killed himself. She survived.

During the trial in 2006, Torres denied that the exchange with Valdez about arresting Perez had ever taken place. The jury, though, believed it had occurred. Despite that, the appeals court found that Torres' contention that Perez would be arrested "immediately" did not mean she was "entitled to pursue a claim against the municipality."

Providing police protection to the public does not create a duty to a particular individual who is a victim of violence, the judges determined. "The government is not an insurer against harm suffered by its citizenry at the hands of third parties," their ruling said, adding that a call or conversation with a member of the police force does not create a "special relationship" beyond the duty owed to the general public.

Sharing the Blame

The Bronx jury had awarded the plaintiff damages of $9.93 million, but found that she and the city were each 50 percent at fault for the attack. They attributed fault to Valdez because she returned to her home and stepped out of her apartment into a "zone of danger," even though she had no reason to assume Perez was actually in custody.

The Court of Appeals opinion written by Judge Victoria Graffeo relied on this finding. It was not reasonable, according to the judges, for Valdez to conclude, based on nothing more than the officer's statement, that the police were going to arrest Perez "immediately" and "that she could relax her vigilance." This erroneous belief on her part apparently led her to exit her apartment some 28 hours later without having any further contact with the police.

Valdez testified that she did not call Officer Torres again to inquire because she believed he would not be at the precinct but would be looking out for Perez. The city argued that arresting Perez "immediately" would be impossible since the police would have to find him first.

"Although, in a colloquial sense, we should be able to depend on the police to do what they say they are going to do -- and no doubt the police have an obligation to attempt to fulfill that trust -- it does not follow that a plaintiff injured by a third party is always entitled to pursue a claim against a municipality in every situation where the police fall short of that aspiration," Graffeo wrote. "The element of justifiable reliance must be assessed through the prism of reasonableness, and liability will not always extend to a municipality for injuries caused by the violent acts of a third party."

To illustrate what would constitute a special relationship, the judges cited an earlier case on Long Island in which a police car was stationed at the victim's home awaiting the purported assailant. In that case – Mastroianni v. County of Suffolk -- the victim was attacked when the officers left for a dinner break.

A Sharp Dissent

In the Valdez case, Chief Judge Jonathan Lippman came to the opposite conclusion from the court majority and would have upheld the jury's verdict. He found that the jury was entitled to determine that Valdez acted reasonably in relying on Torres' statement to her.

Using strong language in his dissent, Lippman wrote, "It does not seem possible to say as a matter of law that it is unreasonable to expect the government to act in accordance with its legal mandate... . This is from a legal perspective merely incorrect, but from an equitable and policy perspective devastatingly wrong. Orders of protection are intended to, and do, foster reliance. To now say that they may not be reasonably relied upon, even in a situation where the party who has been adjudicated in need of protection has been specifically promised that the order will be enforced and has no objective indication that her reliance was misplaced, fundamentally subverts the utility of these orders."

Lippman characterized the events as "lulling the injured party into a false sense of security" that induced her "to relax [her] own vigilance or to forego other available avenues of protection."

A second dissent was by Judge Theodore Jones. The judges joining in the majority opinion were Eugene Pigott, Susan Read, Carmen Ciparick and Robert Smith.

Emily Jane Goodman is a New York State Supreme Court Justice

Making Bikes a Part of the Neighborhood


Bike Share
Photo by nycstreets

The brouhaha in the press about bike lanes seems to have subsided for now and the buzz has turned to New York City’s plan to launch the largest bikeshare program in the country. Highly publicized efforts to erase new bike lanes, like the failed court case against the Prospect Park West bike lane in Brooklyn, may have run out of steam. But in the long run, the battles over street space are bound to move beyond downtown and City Hall to the city’s hundreds of neighborhoods where there are many cyclists and very few bicycle lanes, raising complex and long-neglected issues of transportation justice.

Next year New York City’s bikeshare program New York City’s bikeshare program will place 10,000 bicycles at 600 locations in Manhattan and Brooklyn, so that for a minimal charge New Yorkers can get around the city – as an alternative and supplement to private cars, taxis, walking and mass transit. People will be able to pick up a bike at one station and leave it at another. Boston, Washington, DC, Paris and scores of other large cities around the world already have successful bikeshare programs that are expanding bicycle use and changing the way streets are shared.

New York City’s bikeshare program didn’t just spring from nowhere. It crowns decades of gradual changes that have helped make the city safer for bicycles and pedestrians. Unless we begin to understand how biking got this far, however, the press and public could get sidetracked again by high-profile no-bicycles-in-my-backyard antics, and miss an historic opportunity to shape the city’s rapidly expanding bicycle network.

How We Got Here

It took New York City a lot longer than many other big cities to get to bikeshare, but it would not have been possible at all if there hadn’t been decades of advocacy both from outside and within government. While there was cycling in New York before there were cars, as street space became monopolized by motor vehicles, cycling became dangerous and difficult. Transportation Alternatives Transportation Alternatives, the city’s largest advocacy group, was founded by bicycle advocates in 1973 and has grown dramatically both in size (with 8,000 members today) and scope (it now works for pedestrian safety, better mass transit, and in general for “reclaiming streets” as public spaces). In the 1990s, partly as a result of pressure from advocates like Transportation Alternatives, the city’s Department of Transportation openly debated the agency’s standard orthodoxy – shared by many traffic managers around the country – that gave priority to the movement of motorized traffic as quickly as possible throughout the city. This engineering dogma actually contributed to congestion because it only encouraged more people to get in cars, and turned major roads like Queens Boulevard and Eastern Parkway into dangerous highways. DOT considered using a different approach that is widely used around the world: traffic calming – which slows car traffic to make streets safer for other forms of transportation like pedestrians and bicyclists. Research clearly shows that slow streets save lives and reduce crashes just as slow food is healthier for you.

In 1997, with the City Planning Department and federal funds, the city made a major breakthrough with its Bicycle Master Plan (full disclosure: I was on the technical advisory committee). At that time there were 119 miles of bicycle lanes and the plan proposed another 900 miles, still covering only about 15% of all streets and highways. The planned bike network reached into the five boroughs and set clear standards for safety and design. Progress was slow and almost all of the new bicycle lanes were simply stripes painted on the pavement, which offered limited protection to cyclists from motorized vehicles. The city’s long-term sustainability plan PlaNYC2030 in 2007 boosted the importance of the lane network and called for its completion by 2030 – hardly an ambitious goal but at least it projected an end date. The promotion of cycling fit in with the 2030 plan’s call for cleaner air, a healthier environment and decreased reliance on fossil fuels that contribute to global climate change.

Mayor Michael Bloomberg'’s appointment of DOT Commissioner Jeanette Sadik-Kahn in 2007 logically followed this long and slow shift in transportation policy; the new commissioner was a clear voice for a more integrated approach to transportation that focused more on the long-neglected infrastructure for safe cycling and pedestrian circulation while still filling the potholes. DOT’s comprehensive approach took the form of the 2008 Sustainable Streets Strategic Plan – the agency’s first strategic plan -- and adoption of a “Complete Streets” approach that values access by all street users and not just cars. DOT also led an inter-agency group that prepared a new Street Design Manual, effectively setting out planning rules for the city’s most valuable public places. New physically-separated bicycle lanes were built on Ninth, First and Second Avenues in Manhattan, among others, addressing the problems of safety for cyclists as well as vehicle parking in bike lanes. The pace of lane development quickened and in four years 250 new miles of bike lanes were put in place, more than doubling the number of miles. Bicycle use more than doubled, and both pedestrian and cyclist casualties declined. In addition, DOT applied traffic calming principles more often, turning some traffic-clogged streets into popular public plazas, putting speed humps on residential blocks, and widening sidewalks at intersections to increase pedestrian safety.

The Neighborhoods and Community Boards

Not everyone is delighted with the trails blazed for bicycling. Vocal opposition in some places has forced DOT to slow down. Some new lanes were erased, like the eight blocks in Williamsburg, Brooklyn that some residents opposed. But so far there are many more bikers filling up new lanes as they get created and bikeshare is likely to give cycling a huge boost, helping to overcome widespread concerns by people who want to bike that they will be out there alone facing a sea of fast-moving cars and trucks. There is still the question of whether the city’s next mayor, who takes office in 2013, will put the brakes on or go in reverse. But those who dream of going backwards haven’t studied the history I’ve cited and underestimate the support for change. Whichever way the next mayor goes, there is likely to remain institutional support for cycling throughout government and beyond, and that will not evaporate after an election.

With bikeshare, and looking beyond it to the future, neighborhoods and community boards are shaping up as more critical players in the game. The next round of decisions on bicycle lanes will depend less on the route system laid out in the 1990s and more on what neighborhood residents and businesses have to say. DOT is inviting proposals for bikeshare stations from community organizations and on its website. This can open up possibilities for creating new, neighborhood-based networks for safer cycling – a logical next step given that most cycling is for short local trips and not long-distance commuting, and many of the original bike lanes covered long distances.

A looming problem, however, is that the traditional institutions for community participation – the city’s 59 community boards – are not equipped to participate as an equal partner in the planning process. Community boards Community boards are the closest thing we have to neighborhood-level government. Since community boards have limited authority, city agencies tend to ignore them and the first slight is in the city budget. The average community board has a (declining) budget of about $1.42 per capita each year (compared to $7,500 that goes into the city’s big budget pot). Their staff is small and even though the City Charter calls for each to have a professional planner, the city has never appropriated the money. Most boards have transportation committees, but there’s no training and support for the volunteer members. Community boards routinely review proposals for bicycle lanes and even though they have no veto power it can take only a few disgruntled speakers angry at losing a parking space to kill a proposal.

The problem with this system of neighborhood governance is that it could lead to the creation of a more sharply divided city, one for cyclists and pedestrians and another for the car culture. Community boards open to more bike lanes have usually gotten them. They usually have more cyclists who attend board meetings and get appointed to the boards. Those community boards opposed – especially in areas far from Manhattan with higher rates of car ownership – have not. Some of the boards – appointed by the borough presidents in consultation with city council members – are dominated by car owners and leave out cyclists entirely. There are no citywide standards that require all street users be represented. This is why the existing bicycle lanes tend to be concentrated in Manhattan and parts of Brooklyn nearest downtown – the very areas to be covered by bikeshare.

Community boards need the resources to do integrated transportation planning in collaboration with DOT, planning that addresses the needs of all street users. Community board members should include transit users, pedestrians and cyclists as well as car owners. However, DOT and the city are going to have to do more to avoid creating a more divided city. The agency’s legacy of top-down planning, reinforced by a top-down mayor, has contributed to bad blood with some of the city’s community boards and works against creation of a collaborative environment and a more representative planning process.

A proposal to fix the process, Intro 412A, currently under discussion by the City Council Transportation Committee would impose new requirements for review of bicycle lane proposals by community boards. But this just puts roadblocks in the way for even minor bicycle safety measures and hands to exclusionary community boards another tool for stopping the bicycle program. It does not address the institutional problems and would make them worse by generating more meetings without guaranteeing more democracy.

While DOT has to learn how to work collaboratively with community boards and all community-based organizations, the agency must retain the last word on street safety. It is a major steward, though not the only one, of our most prized public spaces. No community board should have the right to say no to safe cycling and pedestrian ways, throw thumbtacks in a bike lane, and declare “no-bike-lanes-in my backyard.” If it’s obvious that no board should exclude cars then it should be obvious they cannot exclude bikes. A city-wide transportation system must be balanced and guarantee safe access for all users – that’s what integrated transportation planning is all about. We need one street system connecting us all, not 59 isolated enclaves.

Transportation Justice

The broken system for making decisions about transportation in neighborhoods leads us to the issue of transportation justice. Contrary to the charges that the city is being taken over by cyclists, there are many thousands of cyclists who never get counted or consulted. They are virtually “invisible,” and many of them are new immigrants and people of color. In a nine-month study of bicycle policy conducted by graduate students in the Urban Affairs & Planning program at Hunter College (full disclosure: I taught the class), students developed a methodology for identifying and counting cyclists in the city’s many new immigrant communities. In Flushing (Queens), their tri-lingual survey found a large population of cyclists and almost no bicycle lanes and bicycle parking. They also found that most people used bicycles to go short distances, leading to a need for more than just a few select lanes and instead rethinking the whole street network. They propose developing neighborhood bike networks, working with community boards so that streets are truly “complete” and safe.

The Hunter students warn that we could be developing an even more segregated system of transportation: bicycle lanes, public plazas, and a safe and healthier environment in the wealthiest parts of the city – Manhattan below 96th Street and Brooklyn’s upscale neighborhoods – where bike lanes are concentrated and heavily used, while the rest of the city gets congested roadways, declining bus service, and unsafe conditions. Some people mistakenly think that bike lanes cause gentrification; this is clearly not true since cyclists in New York are truly a diverse population, representative of the majority which is Latino, African American, and Asian. But the myth is perpetuated by many real estate developers anxious to sell their new condos. Though bike lanes don’t cause racial, ethnic and class divisions, if they are perceived as only for the affluent young newcomers in spandex , and everyone else is invisible, the bike network won’t serve the majority of the population. In too many communities, it is not bicycle lanes but the lack of them that reinforces social exclusion.

Tom Angotti is Director of the Hunter College Center for Community Planning and Development and co-editor of Progressive Planning Magazine.



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