Judge Not

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State Supreme Court judge Helen Freedman has heard promises, promises from city lawyers. For the past 14 years, she’s been the state Supreme Court judge who has handled many advocates’ complaints about the city’s treatment of the homeless, notably in a case known as McCain v. Koch. She’s heard how the city hadn’t set aside enough permanent and temporary housing for homeless families and children. How the city denied homeless families shelter without letting them know they had other options. How the city interviewed homeless mothers for workfare jobs before it had found shelter for them and their children. How unrepaired leaks in a shelter dribbled rain on residents for weeks.

Pressed by the Legal Aid Society, the city promised changes and signed on the dotted line, only to have Judge Freedman subsequently find that its efforts didn’t make the grade. Through several cycles of this promise-and-punishment dance, she has held the city in contempt of her orders, fined it $6 million, even tried to force David Dinkins’ first deputy mayor to spend a night at a Bronx emergency shelter.

Mayor Rudolph Giuliani and his lawyers hope to never see a case like McCain again. They can tolerate the endless chiding by the court and the advocates. It’s the micromanagement they can’t stand. “This type of litigation ties agencies’ hands,” contends city lawyer Jonathan Pines. “It forces agency administrators to concern themselves with issues that are peripheral to their mission. It distracts from the question of how well the agency is doing what it’s doing, to how well is it documenting what it’s doing.”

To keep these legal quagmires at bay, for the past year and a half the mayor’s chief lawyer, Michael Hess, has taken a new strategy into court: keep the judges out of it. Confronted with a case that challenges the mayor’s policies, from police practices to workfare rules, he pushes to settle it. Settle it, before any other jurist can possibly replicate the detailed contempt findings and orders that Judge Freedman has authored. In New York’s overburdened court system, where a quarter of all cases take more than a year just to see a trial, many judges are happy to help broker a settlement. Equally critical in forging these deals have been public interest lawyers, who are torn between their distrust for an administration that has failed them time and again and the opportunity these settlements present for them to quickly get what they want.

“When I came to the office,” says Hess, “there were two or three or four big, big institutional cases taking a tremendous toll on everybody in terms of resources and time. One of my goals was to get them settled.” He’s still working on it.

“The mayor really dislikes consent judgments,” Hess adds, referring to court-supervised remedial plans that a city agency agrees to undertake to correct past wrongdoing. “They burden the city for years to come and somebody else runs his agencies. He appoints quality commissioners, and they should be running them and overseeing them.” Not the judges, he says. And certainly not Legal Aid.

Since Hess took over as the city’s corporation counsel in March 1998, he has settled one thorny class action involving prison abuse and another one concerning the protection of the city’s 38,000 foster children. In a third, the city agreed to prosecute juvenile defendants more fairly. Unlike the court decisions that saddled previous administrations, none of the settlements left the city answering to either judges or outside monitors. And now, several ongoing high-impact cases are ripe for settlement, including a state court class action challenging arbitrary denials of home care services for Medicaid recipients, a federal claim that welfare applications were improperly rejected and a state suit against workfare.

Hess even says he sees enough of a breakthrough in the interminable McCain homeless rights case, filed in 1983. He tells City Limits he’s confident that this case, too, will get resolved soon.

The surge in settlements means fewer opportunities for New York’s most committed judges to take an active role in shaping city policy. Conservatives sometimes call their ilk “judicial activists.” Historically they have served as shadow commissioners, changing life for thousands of city residents at a time with a stroke of the pen.

Judges have given 209,000 city welfare recipients more money to pay their rent; guaranteed the homeless the right to sleep in a shelter overnight rather than on the floor of a city office; required the city’s child welfare agency to investigate child abuse reports within 24 hours; ordered the Human Resources Administration to provide toilets, drinking water and protective clothing to workfare workers; and decreed that the city’s 42,000 disabled, homebound residents should receive better health care.

But the only thing these judges have given the Giuliani administration is headaches. In return, they pay a price: insults and interference from Republicans and the right. Mayor Giuliani singled out Judge Freedman as “biased for the plaintiffs from the start,” “using judicial imperialism” and “trying to maintain a system of failure.” The New York Post has written one editorial after another slamming her for being extreme even among loony lefties. “Just because the Soviet Union failed doesn’t mean Socialism’s dead,” the paper railed. With George Pataki as governor and Republicans controlling the State Senate, palm trees will grow in Albany sooner than they’d allow Judge Freedman to climb to a seat on a higher bench.

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No case has been more offensive to the Giuliani administration’s lawyers, no consent decree more redolent of aggressive advocates and compliant judges, than the Benjamin v. Jacobson federal class action suit slamming Rikers Island conditions. A 1976 consent order has cost the city treasury $265 million, officials claim. City lawyers say its provisions were persnickety, like a requirement to put four ounces of Borax in a floor-cleaning formula. Its stipulations govern virtually every aspect of operating Rikers, including requirements for improving health care, overcrowding, prisoner safety and food services.

For years, city lawyers have asserted that the consent order should be retired because officials have complied with the terms of the settlement. They were therefore overjoyed when Judge Harold Baer voided the consent decree in response to Congress passing the Prison Litigation Reform Act in 1996. To this day, though, it lingers on. To make sure that the controversial federal law didn’t undo any progress that had been made at Rikers, Judge Baer immediately put a freeze on his own order until higher courts could give the case a look. To their chagrin, city lawyers are to this day writing up briefs about why the Benjamin decree should be finished off. The U.S. Supreme Court will decide by the end of November whether it wants to take the case.

Hess and his team don’t want to see another Benjamin. So in cases they get first crack at, they’re looking to put the city–and not the judges–in the leading position.

In 1995, shortly after the death of 6-year-old Eliza Izquierdo at the hands of her abusive mother, the advocacy group Children’s Rights, Inc., filed Marisol v. Giuliani, which called for a federal judge to oversee the city’s troubled child welfare agency. At that time, the agency had already been under review by judges for 15 years thanks to an earlier suit by Children’s Rights, which culminated in a consent decree that spelled out what the city must do to abolish racial discrimination in foster care. For Hess, Marisol would mean twice the trouble. His first priority was to eliminate it.

As the New York Law Journal reported, Hess happened to be old friends with David Brodsky, an attorney who was helping Children’s Rights with the case–both had worked together in the U.S. prosecutor’s office. So they had lunch. By the time the bill came, they had decided that the two sides would pursue a settlement.

U.S. District Judge Robert Ward lent a hand to get a settlement underway by making it clear early on that he wasn’t going to let the plaintiffs fire Administration for Children’s Services commissioner Nicholas Scoppetta. Once the two sides started working out the deal, Judge Ward scheduled meeting after meeting, imposed short deadlines and limited the length of trial.

Hess believes this case was a triumph. “It’s a very favorable settlement–they can’t tell us what to do at all,” he says. Under the agreement, Scoppetta retains complete control over the agency and has no monitor to answer to.

The city’s only concession was to agree that an advisory panel would review the agency’s performance, offer recommendations for improvement and publish its findings. The commissioner, however, is not required to act on these recommendations, making for a much softer deal than any judicial order or court-ordered panel. On top of the free advice, the city got its own concession: no other advocates for children could file a class-action suit against the agency for two years. The settlement was wrapped up last December.

The agreement is being challenged by lawyers at the Urban Justice Center, but Hess isn’t worried. “We’ve been trying to address this question of consent decrees,” he says. “One of the proudest things I did was making sure we didn’t enter into one of those.”

Hess took the same approach to Sheppard v. Phoenix, filed by Legal Aid’s Prisoners’ Rights Project on behalf of men detained at the highest-security unit at Rikers. “We were going to go to trial with massive evidence of abusive conduct and coverups, with culpability going pretty high up the chain of command,” says plaintiffs counsel John Boston of Legal Aid. “If this case had gone to trial, it would would have been a horror show.”

It didn’t. To avoid a trial, the city proposed that reports be presented by two experienced observers, one chosen by each side. As with the Marisol settlement, their recommendations aren’t binding. But from Legal Aid’s point of view, the slice of victory that a settlement provided was better than no action at all. Explains staff attorney Jonathan Chasan, “We ended the injunction because the city’s comprehensive compliance plan, if implemented correctly, will protect the prisoners at Rikers Island much better than before.”

City lawyers will probably also push to settle Davila v. Turner, which accuses the city Human Resources Administration of refusing to give workfare participants appropriate jobs and interfering with their schooling. That case is in state court before Judge Richard Braun, who is known as a settlement specialist. The same is true of Best v. Giuliani, a class action in which the city stands accused of arbitrarily denying home health care services to the elderly. A settlement is also possible in Morel v. Giuliani, in which Judge John Keenan–no bleeding heart–has already declared that the city illegally stopped payments to welfare recipients who were waiting for an eligibility hearing. If the city can’t avoid court-ordered monitoring, it will at least ask the advocates to keep it short, predicts Valerie Bogart of Legal Services for the Elderly, who’s litigating Best–an offer she says she would be reluctant to accept.

Some public interest lawyers are concerned that the courts are moving away from vital monitoring of city government just when it’s needed most. “Courts are the only effective vehicle to insure that the city is forced to do what it is required to do,” says Marc Cohan, director of litigation at the Welfare Law Center. “Whether in areas of lead paint or housing discrimination, these are cases about law enforcement. This mayor, who treats law enforcement as one of the accomplishments of his administration, is told time and time again by the courts that he is violating the very laws which he is charged with a duty to uphold.”

Even a legal scholar known for his disdain of court-propelled government believes judges are getting hamstrung by a city driven to cut deals and advocates prepared to accept them. “The image of the aggressive activist judge running the agency is really more like the aggressive activist attorneys, working with the city attorneys, that actually write these orders,” contends Ross Sandler, director of the Center for New York City Law at New York Law School. “Instead of having the courts decide these issues, it essentially privatizes public policy.”

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Helen Freedman and other state judges antagonize City Hall from their chambers off a narrow hallway in 60 Centre Street. Their primary task is keeping track of 500 manila case folders at a time and finding time to read court papers for a case before its scheduled hearing arrives. “It’s a very lonely job. You can pass people in the hallway, and they won’t say hello,” says one judge who, like virtually all of her colleagues, did not want to be named.

Judges who serve in State Supreme Court, the confusingly named lower court where many public interest cases are filed, are elected to 14-year terms. In Manhattan, the Democratic Party has a virtual lock on judicial politics. It’s no small influence: most of these cases are brought in Manhattan by attorneys who hope to land before liberal judges.

The judges who hear these cases can’t simply play Solomon; they are obliged to defer to precedent and decisions by higher courts. Supreme Court Judge Sheila Abdus-Salaam cited this rule of jurisprudence this July, when she decided a case challenging the state’s practice of denying Medicaid to legal immigrants. The judge upheld the policy–with vocal regrets. A higher court decision issued just prior to hers left her no choice. In her decision she asked the higher court to reconsider its decision and even outlined arguments why it should.

Judge Abdus-Salaam has public interest experience (East Brooklyn Legal Services), as does Judge Freedman (DC 37 Legal Services). They and a handful of others like them started on the bench in the 1970s, when Legal Aid attorneys had more influence in the Democratic Party.

When judges do take an active role, they can have enormous influence. But few have been as openly confrontational toward the city as Judge Freedman. McCain appears to have brought out her fierce side–more typically, she’s known as judge who works hard but can be pushed around by attorneys. “She only did that because the city dissed her” by defying her McCain orders, says one colleague on the bench. Freedman misses few opportunities for action; after city lawyers invited her to visit Human Resources Administration offices at “any time,” she conducted several surprise inspections.

Supreme Court Judge Karla Moskowitz often gets mentioned in the same paragraph as Judge Freedman. They’re of the same generation (both are fiftyish), and the two are considered by colleagues to be very much alike, both serious about holding the city accountable. But where Helen Freedman has played McCain fast and furious, in one influential case Karla Moskowitz got her way by dragging matters out as long as possible.

In 1989, a Queens woman named Barbara Jiggetts approached Legal Aid because the rent subsidy that state welfare law granted her-$312 a month–was woefully low. The lawyers challenged the rate. In a 1990 decision, Judge Moskowitz ordered state welfare officials to provide an emergency rent supplement to clients who applied for it until the case could be resolved.

The court-ordered subsidy became a crucial life raft for welfare clients, keeping 26,000 families from being evicted. It was only in 1997, seven years later, that Judge Moskowitz finally ordered the state to recalculate its rent allowance, and this May an appellate court upheld the decision.

In the interim, Moskowitz took a measure that another judge calls “a stroke of genius.” Concerned that a state appellate court might overturn an increase in the welfare housing allowance if she simply granted one, Moskowitz decided to sit on the case like a mother hen, delaying permanent action for as long as possible. She got away with it because her temporary arrangement was a boon for tenants and landlords alike. The case only came back to life when New York State’s chief judge, Judith Kaye, called Moskowitz’ boss, Chief Administrative Judge Stephen Crane, to ask why Jiggetts was taking so long to resolve.

“It was very savvy decision by taking the heat away from the politicians,” remarks another Manhattan judge. “You’re giving them an out. If you’re the politician, you bear no responsibility. They can take the position that this is Judge Moskowitz doing this.”

But judges who go above and beyond the case at hand are an increasingly rare breed. Most state Supreme Court judges who spoke with City Limits contend that they have far less power in dealing with the city than the public might think. One took issue with the suggestion that judges have power they choose not to wield: “We are not [supposed to be] making those type of determinations where we overthrow an administrative policy that was determined by a duly constituted governmental body.” Another judge was equally yielding, saying “You make a decision, you take whatever the press hands you, and you go home and have dinner.”

Then there’s office politics. Twenty judges in Manhattan Supreme Court are “acting” substitutes promoted by the court administration from the lower courts. A hot case like McCain could easily burn them, says one judge who opposes giving them city cases for fear they’ll play it safe. “They’ve got enough to do as judges just learning their skills. And if they screw up, that’ll saddle them with a reputation. Politically, they want to keep their noses super-clean,” he says.

“The administrators want somebody that is not newsworthy,” contends Manhattan Supreme Court Judge Elliott Wilk, who has had more than his share of press attention for his rulings in favor of East Village squatters (as well as his brokering of the Woody-Mia divorce). “What an administrator wants is for this [case] to move smoothly and anonymously. Like you’re an umpire, you don’t want to be known,” he says. Another state court judge notes that most of her peers don’t want high-profile cases to return to their courts again and again as they cycle through appeals. The prospect of a settlement is attractive. “We don’t want to own and own and own these cases,” she says. “When we decide a case, we want it to be over.”

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For attorneys who sue the city, judges are only as necessary as their decisions are useful–getting results for clients is the bottom line. Courted by Hess, some have been willing to give settlements a chance. Among them is Scott Rosenberg of Legal Aid’s civil division. “When there are cases where there are clear legal obligations, it’s my impression that Michael Hess’ belief is the city should just settle those and get on with it,” says Rosenberg. “The question then is, how are we going to deal with the getting on with it?” For advocates, it boils down to a basic question: Can a settlement be made as strong as a judge’s own orders? Will the city even obey them?

Advocates report that Hess’ staff attorneys consistently arrive at the negotiating table with one request: no judicial monitoring of city agencies. That’s why battle-tested Legal Aid attorneys like Rosenberg and his colleague Steven Banks refuse to settle until the city actually delivers on the promises it’s making. Banks, the attorney seeing McCain through to the bitter end, says that all he wants out of Michael Hess is compliance with the court’s earlier orders to make shelter and permanent housing available to the homeless. “We wouldn’t be litigating in enforcement proceedings if the city would comply with the law,” Banks says.

Michael Hess certainly sounds like he wants to be the advocates’ man. Compared with his predecessor, the in-your-face Paul Crotty, he’s a conciliatory guy, pledging that the city will do the right thing this time around. “If I can end some of this contentiousness, and everyone can live with it, I’d like to do it,” he says.

Hess says the city is making strides on the case’s major sticking point: making sure that no homeless family has to sleep on the floor of the Bronx Emergency Assistance Unit. “The city made a commitment to the court that as of July 12, nobody is being forced to spend the night at the EAU. The judge considers that a major breakthrough,” Hess reports. “We’ve worked on it diligently, and basically succeeded. One night there was a huge influx of families. But aside from that, we’re in compliance.”

Banks remains wary. He says there are other issues to be resolved as well, including whether the city is providing enough permanent housing for the homeless and whether people are improperly being deemed ineligible for shelter. He’s not willing to settle yet. “We’ve been down the route of trying to give the city an opportunity to forge its own compliance plan and plan for monitoring,” he says. “The city has failed to keep its promises.”

He expects to keep an eye on the EAU office for a few more months and continues to hold conference calls almost every day with Hess’ lawyers. Then it’s possible, he says, that he will consider Hess’ offer: taking the case out of Judge Freedman’s hands and give it to a special monitoring panel, similar to the ones set up for Marisol and Sheppard.

If that happens, Banks won’t have the court around to make sure the city keeps its side of the bargain. Even if there is a settlement in McCain, there’s always the possibility that Legal Aid will have to come back to court again one day over the same issues. Without Judge Freedman there to play inspector, Banks may find himself at the EAU for a long time to come.

Matt Fleischer is the legal columnist for the New York Observer.