Wednesday, September 21, 2011

Lippman's Goat--What Gets It? (Part 3: Civil Cases)

We previously looked at Jonathan Lippman's dissents in criminal cases. Let's now take a look at the ones he wrote in civil cases.

In the last post, we saw that the Chief Judge of New York authored dissenting opinions in 10 criminal cases during the Court of Appeals' 2010-11 term. In each dissent, he sided with the accused. In each, he disagreed with the majority for not protecting the rights of the accused to the extent that, in his view, was required either specifically by the law or by fundamental fairness. Taken together--i.e., connecting the dots--his dissents in those cases make at least one thing clear. What gets Chief Judge Lippman's goat in criminal cases is government violating the accused's rights or engaging in basic unfairness, and then his court excusing such conduct--misconduct or error, in his view. (See Lippman's Goat--What Gets It? (Part 2: Criminal Cases), Sept. 19, 2011.)

Lippman's dissents in civil cases similarly manifest a clear pattern. The Chief Judge authored 5 such dissenting opinions. Here they are.

Shiamali v. Real Estate Corp. Lippman argued that the website operators should be liable to the plaintiff for the defamation that they allowed to be posted on their website. The majority held that there was no liability because the comments were posted on the website by others.

Groninger v. Village of Mamaroneck. Lippman argued that the village should be liable to the plaintiff who slipped and fell on the village parking lot because of the village's negligence. The majority held that the parking lot is a "highway" and, thus, there could be no liability under the law in this case.

Ridge Road Fire Dept. v. Schiano. Lippman argued that the firefighters were entitled to benefits for their injuries on the job, just as the hearing officer had determined. The majority denied the benefits because they believed the injuries were pre-existing, despite the hearing officer's findings to the contrary.

Matter of Nat'l. Fuel Gas Distrib. Corp v. Public Svc. Comm'n. Lippman argued that the utility should not be able to raise its rates on consumers to pay for of its environmental cleanup, because, as the state commission had determined, the utility's use of its insurance proceeds was "imprudent," "unjust and unreasonable." The majority disagreed with the commission's findings and allowed the rate hikes.

Matter of New York Charter School Ass'n. v. Smith. Lippman argued that workers engaged in the construction, repair, and maintenance of charter schools are entitled to prevailing wages, just as are other workers on public projects, because charter schools are "in essence, public schools performing a vital public service." The majority held that the workers were not so entitled because--contrary to the decision of the state Department of Labor and Lippman's dissent--charter schools are not public entities for this purpose within the meaning of the law.

Well, there are the Chief Judge's 5 dissents in civil cases. Again, need I say? Connect the dots!

Lippman sided with workers seeking prevailing wages; firefighters seeking injury-on-the-job benefits; consumers against a utility's rate hikes; someone injured because of a municipal government's negligence; and another plaintiff defamed on a competitor's website. Whenever there was a legal basis, he sided with the more vulnerable and innocent. So, in every dissent, he sided with those who were injured through another's carelessness or misconduct, or with those who he believed were being cheated or otherwise being treated unfairly.

And, in other words, it got his goat when the majority of his court didn't do the same.
In forthcoming posts, we'll look at the entire New York Court of Appeals--the votes and opinions of  the Judges, the decisional highlights of the Court itself, and the patterns that emerged over the 2010-11 term. We'll do the same for the Supreme Court and its Justices. Indeed, we'll take a look at Chief Justice Robert's "goat" and what gets it. We'll even contrast the goats of the two Chiefs: Lippman and Roberts. It should all be both fun and instructive.