Why Former Chief Judge Kaye “Couldn’t Be Happier”

Marisa C. Floriani, Staff Writer

Now that Chief Judge Judith Kaye has retired from the New York Court of Appeals bench, yesterday it was time for her replacement to literally take her seat.  Just last month New York State Governor David A. Paterson nominated Justice Jonathan Lippman as the newest addition to the state’s highest court.1 “I am thrilled to choose Judge Lippman to serve as our next chief judge . . .” Governor Paterson is quoted saying in The New York Times.2 Governor Paterson’s only criticism, however, is of the nomination process itself because he wants to ensure “that those under consideration represent all New Yorkers.”3 But who is to say that Justice Lippman won’t do just that?

Justice Lippman has always called New York his home.  A native of Manhattan, Justice Lippman graduated Phi Beta Kappa and cum laude from New York University with a degree in Government and International Relations in 1965.4 He continued his education at New York University’s School of Law where he received his J.D. in 1968.5

Although Justice Lippman never served on the Court of Appeals bench before, he devoted his legal career to several judicial positions.  Justice Lippman started at an entry level position in the court system, and he has not left the court house since.6 In 1983, he was appointed Chief Clerk and Executive Officer of the Supreme Court in the New York County Civil branch.7 From 1989 to 1995, Lippman was Deputy Chief Administrator for Management of New York State Courts.8 Then, he was a Judge of New York State Court of Claims.9 In January 1996, Chief Judge Kaye appointed him Chief Administrative Judge of the New York State Court system.10 In that position he oversaw the statewide court system with a $2 billion budget, over 3,000 judges, and 15,000 non-judicial employees.11 By serving from January 1996 to May 2007, Justice Lippman was the longest serving Chief Administrative Judge.12 In May 2007, former Governor Eliot Spitzer appointed Justice Lippman as the Presiding Justice of the Appellate Division in the First Department, a position he served in until his recent nomination.13

In addition to his work experience, his honors and recognitions speak for themselves.  Since 1987, he has received four honors for his outstanding service, numerous others for his judicial excellence and integrity, as well as for leadership.14

His past experience could bode well for his role as Chief Judge of the State of New York. In addition to leading the New York Court of Appeals, his main responsibility is to run the entire state court system with a budget of at least $2 billion.15 Justice Lippman sounds like the perfect fit-intelligent, qualified, and established in the court system, but that still doesn’t answer the question- why wasn’t someone already on the Court of Appeals nominated for the prestigious job?

Vincent Bonventre, renowned for his analysis of the federal and state court system and professor at Albany Law School, has been asking the same question.  The last time a non-member of the Court of Appeals was appointed Chief Judge was in 1898.16 That’s right, 1898.  So why the sudden need in 2009 to change the rules of the game?  For one, political alliances are always a factor.  The New York Times reported, “As a confidant of Ms. Kaye’s, Justice Lippman is expected to continue some of the innovative approaches Ms. Kaye championed, like drug courts and domestic violence courts.”17 Former Chief Judge Kaye stated that she “couldn’t be happier” with the choice of her successor (probably because she “always relied on him for his unique familiarity with the budget . . .”).18 As Professor Bonventre articulates, “what’s important is experience dealing with the kinds of difficult and consequential issues that high courts decide.”19 Although Justice Lippman has been a judge for almost his entire career, he will be faced with new challenges as Chief Judge for the Court of Appeals.  Despite his prior working relationship with former Chief Judge Kaye, there is no reason to believe that he will blindly follow her legacy as opposed to establishing his own mark on the Court of Appeals.  An analysis of some of his decisions from the Appellate Division could be the best indication of his future opinions.

Some research on the First Department’s website unveiled an interesting discovery-since his time on that bench, Justice Lippman has only written twelve decisions. In the criminal context, he wrote the majority opinion for three cases.  First was People v. Packer, decided in January 2008.20 There, the defendant was a passenger in a car driven by a person who was accused of check forgery.21 Once the car was pulled over by the police, the defendant was asked to step out of the car.22 After the defendant complied with the police, he was frisked and a small knife was uncovered.23 The arresting officer then asked the defendant for his identification, and after the defendant instructed the officer to get it from his bag, the officer found another knife.24 The lower court held that the small knife obtained from the frisk was illegal, but that the knife found in the bag should not be suppressed because it was “voluntary.”25 Justice Lippman, however, disagreed that the defendant had given his consent to “search” his personal bag and suppressed the evidence.26

Justice Lippman’s next criminal opinion was in People v. Valdez.  In the lower court, the jury convicted the defendant of grand larceny.27 During the trial, a witness testified to the defendant’s character and background, both of which were irrelevant to the charged crime of grand larceny.28 Justice Lippman felt that this was an evidentiary error against the defendant, and as such it should not have been discussed at this point in the trial.29

Justice Lippman also wrote the opinion for People v. Florestal.  In that case, the issue was whether the defendant was given the proper charge of depraved indifference for the murder of her infant.30 Because the jury was not given the proper definition, Lippman’s court reversed the conviction.31

Justice Lippman also authored two very important civil cases while on the bench in the First Department.  First, he wrote the majority opinion for Fabiano v. Philip Morris, Inc. in July 2008.32 In that case, Maureen Fabiano died of lung cancer, and her estate brought the suit because the defendant was “instrumental in inducing” the plaintiff to consume cigarettes even though the company had knowledge of the correlation between smoking and cancer.33 Justice Lippman’s court had to decide whether the Fabiano estate was entitled to punitive damages.34 Justice Lippman held that punitive damages should be left to the Attorney General as opposed to the private individual, because punitive damages are “quintessentially and exclusively public.”35 For Justice Lippman, it would have broken precedent to hold otherwise.36 He did, however, agree with the plaintiff’s general claim against the company, except solely on the issue of punitive damages.37

In April 2008, Justice Lippman wrote an opinion concerning the 1993 World Trade Center attack.38 The plaintiff contended that the defendant breached its duty to “maintain its premises in reasonably safe conditions” the day the terrorists were able to drive a van filled with explosives into the attendant-less garage.39 The Port Authority actually was aware the garage was “vulnerable” to attack; however, no action was ever taken to rectify the situation.40 The lower court held the defendant was liable, but on appeal the defendants were looking for the Appellate Division to agree that it should be given immunity because it was acting in a governmental capacity.41 Justice Lippman, writing for the First Department, declined to upset the jury verdict, and he found the Port Authority had no such immunity, emphasizing it was aware of the risk and that the garage’s security was “inadequate.”42

Professor Bonventre warns against making sweeping generalizations of Justice Lippman’s tendencies because he has authored so few decisions upon which to make such predictions.43 However, based on those decisions he has authored it appears Justice Lippman does look to protect the rights of defendants in criminal cases and has found in favor of plaintiffs in civil cases.  Does that make him a liberal?  Labels can be misleading in the judicial decision making process.  The best that can be said about Justice Lippman is that he is intellectually honest in coming to a decision based on the facts and law without any preconceived agenda.  Not just former Chief Judge Kaye, but all of us “couldn’t be happier.”

Sara Chase & Eric Schillinger, editors.

________________________________________

1 John Eligon, Paterson Picks Nominee for Top Judge, and Objects That His Choices Included No Women, N.Y. Times, Jan. 14, 2009, at A.

2 Id.

3 Id.

4 Judge Jonathan Lippman, http://www.courts.state.ny.us/admin/directory/lippman_jonathan.shtml (last visited Feb. 12, 2009).

5 Id.

6 Id.

7 Jonathan Lippman Candidate for the 9th  Judicial District, http://www.nycourts.gov/vote/2005/bios/Jonathan_Lippman.shtml (last visited Feb 12, 2009).

8 Id.

9 Id.

10 Jonathan Lippman, supra note 4.

11 Id.

12 Id.

13 Appellate Division, First Department, Justices of the Court, http://nycourts.gov/courts/ad1/justices_lippman.shtml (last visited Feb. 12, 2009).

14 Id.

15 Eligon, supra note 1.

16 New York Court of Appeals: The New Chief’s Judicial Record (Part 1: An Overview of Not Too Much),http://www.newyorkcourtwatcher.com (Jan. 21, 2009).

17 Eligon, supra note 1.

18 Id.

19 New York Court of Appeals, Part 1, supra note 14.

20 People v. Packer, 49 A.D.3d 184 (N.Y. App. Div. 1st Dep’t 2008).

21 Id. at 185.

22 Id.

23 Id.

24 Id.

25 Id. at 185.

26 Id.

27 People v. Valdez, 53 A.D.3d 172, 173 (N.Y. App. Div. 1st Dep’t 2008).

28 Id.

29 Id. at 174.

30 People v. Florestal, 53 A.D.3d 164, 166 (N.Y. App. Div. 1st Dep’t 2008).

31 Id.

32 Fabiano v. Philip Morris Inc., 54 A.D.3d 146 (N.Y. App. Div. 1st Dep’t 2008).

33 Id. at 147.

34 Id.

35 Id. at 150.

36 Id.

37 Fabiano, 54 A.D.3d at 150.

38 Nash v. Port Authority of N.Y. & N.J, 51 A.D.3d 337 (N.Y. App. Div. 1st Dep’t 2008).

39 Id. at 339-40.

40 Id. at 340.

41 Id. at 343.

42 Id. at 346.

43 New York Court of Appeals: The New Chief’s Judicial Record (Part 2: His Criminal Opinions), http://www.newyorkcourtwatcher.com (Jan. 28, 2009).

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