The Flacks Report [23 February 2010]

Eminent domain---Franz Leichter---Alfred Charles---Joseph Crater---Judges Line Up Campaign Managers---C of A Supports Judges' Pay Raises

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Eminent Domain

Empire State Development gets an earful on public hearings

[The following commentary written by Ross Sandler is from the December, 2009, issue of CityLand.]

In a blistering opinion, the First Department overturned Empire State Development Corporation's decision to use eminent domain on behalf of Columbia University. The judges' anger at Empire State was palpable as they verbally destroyed the factual findings by which Empire State justified assisting Columbia's expansion plans. As a practical matter the decision only affects a few holdout properties, since Columbia controls most of the buildings in the designated expansion area. There is still the possibility of reversal by the Court of Appeals, but as judicial statement, the opinion sends a powerful message of encouragement to the communities fighting similar civic and economic developments in their neighborhoods.

The judges forcefully criticized Empire State for simultaneously stonewalling court orders to produce documents while, at the same time, closing the hearing record. This prevented the opposition from including contrary facts in the administrative record.

The court's opinion on the importance of the public hearing brought back a personal memory for me. In the early 1980s I was asked to be the hearing officer for an Urban Development Corporation project located on Roosevelt Island. The project was limited and seemed worthy. On the night of the hearing, however, a large turnout of persons consistently spoke against the project. The hearing took place in a church basement and I sat in the front at a desk as the hearing officer. At the conclusion of each speaker's statement I thanked the speaker and said, “Your views will be taken into consideration.” I thought such a neutral statement was both courteous and appropriate.

After I had said the “your views will be taken into consideration” a number of times, the UDC lawyer watching over the hearing, came up behind me and whispered. “Please do not say ‘your views will be taken into consideration.' You are going beyond your authority.”

I don't have a personal view of the Columbia plan, but it is certainly a nice feeling to have a court stand up and say that the public hearings really do mean that “your views will be taken into consideration.”

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Franz Leichter

Condolences to former N.Y.S. Senator Franz Leichter whose wife Melody Anderson died last month. Cards may be sent to 216 East 47th Str. - 4th Fl., New York City 10017.

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Alfred Charles

Deceased, attorney Alfred "Fred" Charles, on 20 February 2010. Fred Charles was very active in the Reform Democratic movement on the Upper West Side. A member of the powerful Riverside Democrats, home club of the late Congressman William Fitts Ryan, he was unafraid to take the contrary point of view and was the conservative voice of reason among the club's ultra-liberals. Subsequently he belonged to the Three Parks Democrats. He served as a member on the Community School Board, and was a two-term president of the N.Y.P.D. 24th Precinct Community Council.

He is survived by his wife Judith, president of Charles & Assoc., a public relations firm, and their son Frederic, who is with the F.B.I. in Washington, D.C. Condolences may be sent to the family at 425 Central Park West - Apt. #2A, New York City 10025. A memorial service will be held on Saturday, 13th March, 2010, 4 o'clock P.M., at the Salmagundi Club, 47 Fifth Ave., City.

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Joseph Crater

On Monday, Feb. 22nd, '10, your correspondent dropped in on the New York County Lawyers' Assn. reception for newly elected, appointed, re-elected, and re-appointed State and Federal judges, and was amazed to see on the printed program one Joseph Force Crater among the names of the dozen-plus members of the sponsoring committee which planned that evening's event. Obviously a practical joke.

Joseph Force Crater was admitted to the N.Y. bar in 1925. He was a Tammany Supreme Court Justice appointed in 1930 by then Gov. F.D.R. Reputedly associated with organized crime and involved in shady financial dealings, Crater vanished later that year.

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Judges Line Up Campaign Managers

Three N.Y.C. Civil Court Judges have chosen campaign managers for their run for the State Supreme Court trial bench in the 1st Judicial District (Manhattan) .

Cynthia Kern hired Joanna Saccone; Ellen Gesmer, Arthur Greig; and Saliann Scarpulla, Paul Greenfield.

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Court of Appeals Supports Judges' Pay Increases

The Court of Appeals issued its ruling today [23 Feb. 10] in the three judicial compensation cases (consolidated on appeal). The "5-1-1" ruling [Opinion by Pigott with Ciparick, Jones, Graffeo, & Read concurring; Smith dissenting; and Lippman taking no part] held, under the 600-yr. old "Rule of Necessity," that the State legislature violated the separation of powers doctrine and failed to address independently on the merits the judicial compensation question by having "tied" judicial pay increases to raising the legislators' own salaries. The Court distinguished that its decision and order was not an affirmance, but a modification of the cases below.

The Court re-stated democracy's structural safeguard that the judiciary is independent and co-equal and is to be treated as such. The judges did not tell the legislators how and when to raise judicial pay, but made clear that they are to do so independently of any other issue, adding that the Court can continue "to scrutinize" the situation citing Marbury vs. Madison. [Chief Judge Lippman in a separate statement said that he "will not hesitate to act" in accord with the court's decision.]

Read the complete Court of Appeals decision and dissenting opinion by linking to:

http://www.nycourts.gov/ctapps/decisions/2010/feb10/16-18opn10.pdf