Tuesday, May 5, 2009

The New Chief Judge

As the speculation grows as to who will be Justice Souter's successor on the Supreme Court, of more immediate concern to New Yorkers and members of the New York Bar is the state's new Chief Judge, Jonathan Lippman.
While Chief Judge Lippman has been sitting on the Court of Appeals for only three months, his rulings and public pronouncements already offer a glimpse of what lies ahead.

Cases: it appears that the Chief Judge will not be shy about dissenting. The first day on which his name appeared on a full opinion--March 31, 2009--he and Judge Jones joined Judge Ciparick's dissent in People v. Kalin, in which the majority made it easier for criminal complaints to state a prima facie case.

That same day Chief Judge Lippman wrote the majority opinion holding that in a civil case it is reversible error--not subject to harmless error analysis--for a trial judge to refuse a request to poll a jury after it announces its verdict. The decision (Duffy v. Vogel) is a thoughtful statement on the importance of the jury poll.

Since March 31st Chief Judge Lippman has been the author of two more opinions, both criminal cases: In People v. Goldstein he wrote for a unanimous court in rejecting a claim that the defendant was not adequately informed of the consequences of his guilty plea; and in People v. Borrell (decided today) he wrote for the majority that the defendant was not denied the effective assistance of appellate counsel. The Borrell opinion is notable for its frankness in acknowledging that the standard for the effective assistance of appellate counsel is not very demanding, a conclusion that will be disheartening for those of us who think the courts have not been demanding enough in assessing the constitutional effectiveness of counsel in criminal cases.

On the civil side, Chief Judge Lippman has not authored any other full opinion except for the jury poll case. He did, however, join Judge Pigott's dissent from the grant of summary judgment against an injured worker (Ferluckaj v. Goldman Sachs & Co.); he joined Judge Ciparick's dissent from a ruling which absolved a town of liability for a personal injury because notice of the sidewalk defect was not filed with the correct town official; and he joined Judge Pigott's majority opinion in Passante v. Agway Consumer Products, Inc. which the three dissenters claim has rewritten New York's product liability law.

At the time of his selection as Chief Judge the conventional wisdom was that Chief Judge Lippman would be one liberal vote replacing the liberal vote of outgoing Chief Judge Kaye. The early signs suggest that he will be more liberal than Chief Judge Kaye, and not hesitant to dissent.

Public Pronouncements: since his elevation to Chief Judge, there has been a flurry of announcements on a variety of administrative and substantve matters. Two are of particular note.

First, the Chief Judge has stated he wants to examine why the Court of Appeals grants so few criminal leave applications. For example, in 2006 there were 2,436 applications, and the judges of the Court granted 53 applications, or approximately 2% of the requests. The Bar has long complained that too few criminal cases are accepted by the Court, and the new Chief Judge's interest in the matter is welcome.

Also welcome, is the announcement that the Chief Judge is creating a commission on wrongful convictions. The fact that the Chief Judge has expressed such a concern so early in his tenure sends an important message--but only time will disclose whether the incidence of wrongful convictions will change.


  1. Mr Olch,

    Good Luck on your new blog. It certainly is interesting reading.

    After reading your comments on both a replacement for Justice Souter and your insights regarding our 16th President --- I was inspired to read Lincoln's Address at Gettysburg.

    A thought --- Will Souter's replacemrnt bristle at the thought that Lincoln stated in his address "That this Nation, under God" --- or will he be more comfortable citing the law of Zimbabwe or Cuba as reliable precedent ??

    I do realize that Lincoln's words were not legal precedent --- but Church of the Holy Trinity vs. United States 143 U.S. 457,470-471 (US Sup. Ct. 1892) is legal precedent.

    E. Wolfgang Armstrong

  2. Rumpole of the Old Bailey was the patron. M.A.