Judicial Reports: Sacrificial Judge

By Leah Nelson
lnelson@judicialstudies.com
Posted 04-02-08

A case involving the rights of homeless families in New York City is now roiling its fourth mayoralty. For years, it has been overseen by one of Manhattan's premier jurists. Whatever the merits of the underlying arguments, however, there's one word for the attacks on Justice Helen Freedman. But we won't print it here.

In a December 6, 2007 editorial entitled “Bang the Gavel,” the Daily News urged New York State Supreme Court Justice Helen Freedman “finally” to “bow out” of overseeing the enforcement of a decades-old injunction requiring the city to provide safe shelter for homeless families with children, and “let politically accountable officials do their jobs.”

The New York Post’s editorial staff made even fewer bones about it. “Let Go, Judge Freedman,” also published December 6, 2007, castigated the judge for “usurp[ing] the role of commissioner for family-shelter policy.” The Post concluded: “That the case wasn't ended long ago is a travesty - and itself a grave miscarriage of justice. It's time — past time — for Freedman to do right by the city.”

Peculiar words to read about a jurist in Manhattan’s Commercial Division who is respected nationwide for pioneering new methods for state judges handling mass torts. This is the same judge who in 1990 shared a bench with Eastern District Judge Jack Weinstein to adjudicate 600 state and federal asbestos cases — and who today coordinates all discovery and pre-trial motions for asbestos cases in the five boroughs, Long Island, and Westchester.

The tabloids’ invective seems even odder given that, in the two decades since Freedman was handed the homeless rights case (now known as McCain v. Bloomberg), not a single one of her decisions on it has been reversed. Nor, she confirmed in an interview, has the City asked that she recuse herself, which might otherwise have been expected, given that the judge is married to Henry A. Freedman, executive director of the Welfare Law Center of New York City and a longtime advocate for the poor.

So why are the tabloids calling for her head?


McCain v. Bloomberg is the progeny of a 1984 decision by then-State Supreme Court Justice Edward J. Greenfield of Manhattan. The Court of Appeals modified and affirmed it in 1987, ruling that New York City is required by the State Constitution to provide homeless families with children “safe, suitable and adequate” emergency housing while remanding it to Freedman for any future litigation.

She’s been dealing with administrative wrath for over a decade, beginning in earnest in 1996 when, after she put a stop to his plan to screen the homeless for work while they waited to be assigned shelter, then-Mayor Rudolph Giuliani fumed to the press that, “[s]he has no sense of what it means to be a judge.”

Through four mayoralties, the bottom line has remained the same — and the parties have clashed in court repeatedly over disagreements ranging from who is eligible for housing and for how long, to the precise meaning of “safe, suitable and adequate.”

In 2003, Freedman appointed a panel of “Special Masters” charged with assessing the shelter system and making suggestions for reform.

On November 20, 2007, the City said via a press release from the Department of Homeless Services and the Law Department that it wants Freedman to “end court oversight of the family shelter system” — in other words, to vacate the underlying order and let the City run its own system.

That, says Stephen Banks, Attorney-in-Chief for the Legal Aid Society and chief counsel to the plaintiffs, would be a catastrophe.

Ongoing litigation in McCain has resulted in about 50 standing orders clarifying the City’s responsibilities under the original injunction, Banks said, and “[t]hat relief would be wiped out if the City’s request were granted.”


The most recent court battle is over Legal Aid’s finding that a third of families who ultimately qualify for shelter must apply and reapply several times to even have a chance to be found eligible. It was Freedman’s November 14, 2007 decision to appoint a panel to mediate the issue that triggered the city’s press release.

“No purpose would be served by appointment of yet another Panel of Special Masters other than to delay conclusion of this litigation ad infinitum,” Corporation Counsel Michael Cardozo wrote in reply. “What is needed now — and what the city is entitled to — is its day in court and a decision on its motion to end this nearly 25-year-old litigation.”

Cardozo and the tabloids have been beating this drum for some time.

But there are two problems.

One, the first panel of Special Masters did not issue a unanimous opinion. According to Cardozo’s own summary, one said that judicial oversight should end immediately, one said that it should end within six months, and the third said that it should end within a year.

But, as Banks pointed out, it did not resolve the issue of how the systematic violation of homeless families’ constitutional rights would be safeguarded absent judicial oversight. And its recommendation was not binding.

Two, no motion to dismiss is even pending before Justice Freedman. According to Connie Pankratz, Deputy Director of the NYC Law Department, in 2006, the City submitted an omnibus motion to “get everything rolling” in the direction of dismissal. (The department declined further comment.)

As for the omnibus motion, Legal Aid opposed, and the opponents have been engaged in discovery ever since, according what Banks described as a schedule they had agreed upon.

In November 2007, Cardozo asked Justice Freedman not to convene a second panel. In addition, while accusing Legal Aid of delay tactics, he requested that she “set a schedule for the prompt determination of the City’s omnibus motion to end the litigation.”

Justice Freedman declined to comment on when she would act on Cardozo’s request that she create a schedule. But, at least as the procedural differences go, her defenders note that in December 2007 she directed the newly convened panel not to proceed, saying that she would rule on allegations of families being forced into multiple applications “in the normal course along with defendants’ omnibus motions when the latter have been finally submitted to the Court.”


Freedman would seem to have black letter law on her side.

Until a motion is fully briefed, “it would be highly improper” for a judge to decide it, explained Professor Oscar Chase, an expert in New York Procedure at NYU Law School. Though he could not speak to the details of McCain v. Bloomberg, the professor added that no judge “could properly dismiss [a] case if there is ongoing discovery.”

Moreover, both as a professor and a lawyer who has appeared before Freedman many times, he added, “She’s a very careful, creative and thoughtful judge” who he regards as “extremely able.”

Many private practitioners agreed.

Perry Weitz of Weitz and Luxembourg has litigated asbestos cases before Justice Freedman for 23 years. Managing the thousands of cases on the asbestos docket, he says, “Is an earth-shattering, monumental job that she doesn’t get credit for in New York. . . . She’s nationally renowned for the ways she’s expedited the system, not clogged [it] up. The fact that people have anything bad to say about this woman as a judge is absolutely outrageous.”

A New York-based asbestos defense attorney who appears before Freedman regularly gave not quite as glowing a review, but, speaking on condition of anonymity, he did praise the judge for two recent decisions that made life substantially easier for the asbestos defense bar. In 2002’s Tancredi v. A.C. & S., Inc., which the defense attorney described as a “sea-change in asbestos litigation,” she ruled that bankrupt companies could be allocated liability for asbestos-related tort claims even if it meant that plaintiffs couldn’t collect full damages. (Before Tancredi, liability was only allocated to viable entities, even if they weren’t fully responsible for plaintiffs’ ills.)

In 2003’s Holdampf v. A.C. & S., she ruled that companies could not be found liable for illnesses contracted by people not employed by companies that used asbestos, even if they became ill as a result of constant contact with people who were so employed.

While she might have started out as a bit of a plaintiff’s judge with respect to asbestos litigation, the defense attorney said, “I feel that over time [she] has become more fair. I think she’s been pulled more to the middle.”

What’s more, one of the city’s best-known and arguably most powerful attorneys — and one who has shown many times since his expertise at capturing the press’s attention with his opinions — rushed to her defense in late 1997 after Guiliani attacked Freedman again. As the New York City Bar Association’s president at the times, Michael Cardozo wrote to The New York Times that “Mayor Ruldoph W. Giuliani’s response to Justice Helen E. Freedman’s decision . . . underscores the demarcation between appropriate criticism and bashing the justice system. . . .This has become an all too common theme — the critics of a judicial decision assigning to a judge motives beyond interpreting the law. In this instance, as in many others, the critics have no basis for saying that the judge ‘wants’ to do anything other than decide the case fairly.”

He concluded: “The City should pursue its desired result by seeking to change the law rather than try to bully the courts to bend decisions to the City’s will.”

Now that he is Corporation Counsel, Cardozo might be grateful that YouTube did not exist back then.


Posted by Jason on April 2, 2008 12:55 AM to Judicial Reports