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Top Judge Sets Liberal Course for New York

By WILLIAM GLABERSON, Published: February 17, 2010

Gov. David A. Paterson nominated Jonathan Lippman to head the New York Court of Appeals in January 2009, making him the chief judge of the state. The choice was a gamble: The judge, a longtime court administrator, did not have a long history of deciding cases, and there was almost no record of his political views.

Now, a year in, the parameters of the Lippman court are coming into focus. He has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show.

To get the rulings he wants, the decisions show, the new chief judge has built alliances case by case with each of the four judges who were nominated by the last Republican governor, George E. Pataki, cracking the conservative majority.

The changes to the culture of the court, New York’s highest — which has sometimes been one of the most influential state courts in the country — are especially striking when Chief Judge Lippman’s approach is compared with the judicial style of his predecessor, Judith S. Kaye. She had prized unanimity.

In the past year, the court has issued a series of sharply divided decisions that have been surprising from a judicial body with a clear 4-to-3 conservative majority. They have included decisions favoring criminal defendants and injured workers, expanding environmental challenges and extolling individual rights against the police.

“The message he is sending is he doesn’t mind fighting for a much more progressive direction at the court,” Vincent M. Bonventre, a professor at Albany Law School who studies the court, said of Judge Lippman.

Though fiscal and political problems have plagued Mr. Paterson, a Democrat, Judge Lippman’s nomination may be one of his most enduring accomplishments in shaping policy. Judge Lippman, 64, does not reach mandatory retirement age until 2015.

Noting that the Supreme Court had yet to rule on questions presented by Global Positioning Systems, for example, the Court of Appeals ruled 4 to 3 that the State Constitution barred the police from placing GPS tracking devices on cars without a warrant.

A different Republican judge joined the three Democratic appointees in another divided ruling, this one striking down a youth curfew in Rochester as unconstitutional, though other courts around the country have approved such laws.

The Lippman court has also shifted ground on worker injury suits, saying that in the past the court too rigidly limited some of them. It has also signaled a new interest in arguments from criminal defendants, sharply increasing, at Judge Lippman’s urging, the number of appeals it is considering.

In an interview, Judge Lippman acknowledged that he had a different approach from that of Judge Kaye, a longtime collaborator in running the courts. She was also nominated by a Democrat, former Gov. Mario M. Cuomo, but during her nearly 16 years as chief judge, she often worked for unified rulings.

“I am a result-oriented person,” Judge Lippman said, “and the result I am looking for is not necessarily unanimity.”

According to the court, unanimous rulings declined from about 82 percent during 2008, Judge Kaye’s final year, to 69 percent in Judge Lippman’s first year.

During Judge Kaye’s tenure, the court became more conservative partly because of the arrival of the four Pataki judges. Professor Bonventre, the Albany Law School expert, said that divided decisions became more common in Judge Kaye’s final years but that dissents increased further after Judge Lippman arrived.

The rulings indicate that on occasion, Judge Lippman has tailored his arguments to attract one of the four Pataki judges.

In a decision he wrote in September, the court waded into politics by overruling two lower courts that had said Mr. Paterson’s appointment of Richard Ravitch as lieutenant governor was unlawful. That view, Judge Lippman wrote, would “frustrate the work of the executive branch.”

It was an argument that seemed crafted to appeal to Judge Susan P. Read, a staunch conservative but a former top legal adviser to Governor Pataki, who was not shy about exerting executive authority. It was a party-line vote, except that Judge Read broke with the other Pataki appointees.

In the environmental case, Judge Lippman and the other two Democratic appointees aligned with two of the Republican-appointed judges, Victoria A. Graffeo, a onetime Republican legislative lawyer, and Robert S. Smith, who had sometimes expressed libertarian views.

The decision, written by Judge Smith, appeared to involve tradeoffs. It tartly noted that the suit sought to kill a proposed hotel to protect obscure species, the Eastern spadefoot toad and the worm snake.

The hotel got a green light. But in the process, the case gave environmentalists one of their most important court victories in New York in nearly 20 years. The majority said a 1991 ruling of the court had been too narrowly applied to limit those who could bring such suits to immediate neighbors.

Stephen F. Downs, the lawyer for Save the Pine Bush, the Albany group that brought the suit, said someone on the bench seemed to be paying for an environmental victory with a defeat for the spadefoot toad. “My impression,” Mr. Downs said, “was there was a certain amount of horse trading that went on.”

That would be vintage Lippman, people who know him say. He was a get-things-done administrator, said a retired judge, Betty Weinberg Ellerin, who has known him throughout his 38-year legal career.

More . . .

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It is a significant shift.  Always interesting to see how the members of the small team of judges in the state level supreme court of appeals influences each other in such cases.

-- Edited by Sanders on Thursday 18th of February 2010 01:48:06 PM