Judicial Reports: LexPress: Stoking Fears, Calming Fears

By Jesse Sunenblick
jsunenblick@judicialstudies.com 
04-30-08

Chief Judge Judith Kaye reassures the Governor that judges won't grind their dockets to a halt amid the pay raise lawsuit. In other news, the Appellate Division finds the Port Authority liable for damages stemming from the 1993 World Trade Center terrorist bombing.

 

A MATTER OF INDIVIDUAL CONSCIENCE
Chief Judge Judith Kaye’s lawsuit seeking a judicial pay raise may or may not result in financial redress for New York’s judiciary. It has, however, already managed to stoke court watchers’ fears of recriminative judges purposefully slowing down their calendars and wantonly recusing themselves from cases in which law firms with State Legislators as members are appearing before them. Today The New York Law Journal reports that Kaye addressed both of those issues in a letter to Governor David Patterson, in which she wrote that “while some judges have individually chosen to recuse themselves from matters in which legislators or their firms appeared before them, there has not been — nor will there be — an adverse impact on litigants.” Meanwhile, on Monday the court system's Advisory Committee on Judicial Ethics issued an opinion specifying that the pay raise suit does not require judges to recuse themselves, but they may do so as a matter of individual conscience. The committee said that the filing of a lawsuit with the Chief Judge and the unified court system as plaintiffs is "too remote a factor, in and of itself, to reasonably call into question a judge’s impartiality.”

A “GAPING VULNERABILITY”
The New York Times reports on the Appellate Division’s upholding of a 2005 Manhattan Supreme Court jury verdict that found the Port Authority liable for damages stemming from the 1993 World Trade Center terrorist bombing that killed six people and injured 1000. “The evidence placed before the jury entitled it to conclude that the defendant’s negligence was, if not gross, dramatically out of the ordinary,” the unanimous court found. “The documentary proof persuasively demonstrated that the defendant, years in advance of the bombing, had been repeatedly placed on notice of a gaping vulnerability in its subgrade parking facilities, rendering its premises susceptible to a potentially catastrophic car bombing; indeed, defendant was repeatedly advised, not simply to the vulnerability, but as to the precise manner in which it could with little practical difficulty be exploited to devastating effect.”

THE JUDGE, AND ONLY THE JUDGE
Newsday reports that the Court of Appeals has ruled that New York’s Department of Correctional Services cannot authorize post-release supervision (PRS) on inmates as they leave prison when the sentencing judge did not. “The sentencing judge — and only the sentencing judge — is authorized to pronounce the PRS component of a defendant’s sentence,” wrote Judge Carmen Beauchamp Ciparick in a unanimous decision. “PRS represents a significant punishment component that restricts an individual’s liberty.”

RAMBLING ROAD SHOW CONTINUES
Perhaps following in the footsteps of the Court of Appeals, which ventured to the Bronx to hold its docket for a day earlier this month, the Second Circuit, based in Manhattan, will head to Albany next month to hear five cases. “We have Circuit Judges who are residents in cities around the Circuit, and we draw our cases from around the Circuit, and this is a big Circuit with an active federal bar in a number of major cities. This is a recognition of that fact,” Chief judge Dennis Jacobs told The Albany Times Union.

FOOD FIGHT
Finally, from Forbes comes word that the Second Circuit has lifted a stay preventing New York City from instituting its new calorie display regulation in restaurant chains (with more than 15 locations nationwide), but only after the city agreed to delay in assessing fines for noncompliance until after mid-July. The Second Circuit also left some wiggle room for opponents to the measure, when it requested the Food and Drug Administration’s opinion on whether FDA rules allow cities to determine what restaurants must tell customers. Restaurant Association lawyer Kent Yalowitz urged the City to show restraint with fines until conclusion of the court battle. “If they start putting big yellow stickers on people’s windows citing violations, to me that would be outrageous. Nobody is saying they’re not going to comply if we don’t win.”

Posted by Jesse on April 30, 2008 08:42 AM to Judicial Reports