December 14th, 2016

Fmr. NYS Chief Judge Jonathan Lippman Environmental Advocates of New York Executive Director Peter Iwanowicz Newburgh City Manager Michael Ciaravino

Guests: Former New York State Chief Judge Jonathan Lippman, Environmental Advocates of New York Executive Director Peter Iwanowicz, Hoosick Falls activist and mom Michele Baker, and Newburgh City Manager Michael Ciaravino

This month’s episode of Effective Radio’s 12-part series about the People’s Convention focused on the environment, particularly whether New Yorkers should have a Constitutional right to fresh air, clean drinking water and a healthful environment.

Listen to show hour 1 (Lippman starts at 18:49)

Judge Lippman on whether New Yorkers should vote in favor of a Constitutional Convention:

JL: My basic view of it is that we should. I think that with everyone complaining about government and all the things we’d like to achieve, I think that it’s a good time—every twenty years is a pretty long period to wait—to vote on it, and I think it’s an opportunity not to be missed to look at whether fundamental reform of our constitution is necessary, whether it be in the judiciary article or other articles of the constitution.

Lippman cites early voting, redistricting, school funding, voting rights, and the judiciary as areas worth reexamining in the NYS Constitution:

JL: You can look at elections in general. … For instance, we don’t have early voting in New York.  There are questions about redistricting in the Legislature that one might want to look at. There are questions as to contribution limits to political campaigns, which are rather low in New York.  There are issues of the public funding of campaigns. There are education issues.  We had some big cases up in the Court of Appeals relating to school funding and what was required under the Constitution. There are issues of peoples’ voting rights. There are lots of areas, and obviously in particular I could think of at least ten different things one might look at in terms of the judiciary.

But I don’t think that we are unique. I think the general argument against this Constitutional Convention has always been that you open the door and never know what comes out of it. But I don’t think that makes any sense to me. I think again, everyone complains, rightly or wrongly, about how our government functions, and why shouldn’t we have a group of concerned citizens take a look at things that have been in the Constitution forever that may or may not be up to date and need to be modernized?

Lippman says he doesn’t want the Convention to be politicized or its delegates to constitute “the Legislature by another name” and names some of the reforms to the judiciary he believes could “realistically … only be determined by a Constitutional Convention”:

JL: I would hope that it wouldn’t just be the Legislature by another name. … You don’t want it to be just a political issue between Ds and Rs and that kind of thing.  You want it to be citizens looking for what’s best for our state and where do we go from here.

And I look at the judiciary article and there are so many issues certainly during my tenure in leadership positions in the courts that have been so upfront, and realistically, can only be determined by a Constitutional Convention, whether it be the way we choose judges, the structural organization of the courts, should they be merged and restructured, the age of retirement, which I’m very familiar with… That was set at a time when life expectancy was 40 in our state.

The town and village courts, what should we do with them? Whether the appellate divisions of our courts should be opened up to non-elected judges? Would you change the appellate division department of New York state, where there’s been talk about a fifth department forever?

Lippman and Samuels agree on the need for there to a Constitutional right to “effective” counsel:

JL: I think the most important issue to me, that I have been so active in over the years, is should there be a right to counsel?

Bill Samuels:  How’s about effective counsel?

JL: Yes! Particularly in civil matters, for at least in criminal matters, you have a constitutional floor, meaning that if your liberty is at stake, you have a right to counsel, by virtue of the seminal case of Gideon v. Wainwright.  You remember the drifter, Gideon, who did a hand-written petition to the United States Supreme Court saying that his constitutional rights were violated without a lawyer? And to me, the issues in civil matters, such as the roof over your head, your personal safety, the wellbeing of your family, your livelihood, the consequences can be just as severe in civil cases without a lawyer. And you have people fighting for the necessities of life who literally threaten to fall off a cliff because they can’t afford legal representation.  To me, that’s the kind of issue, in exactly your words, “effective legal assistance.” Why isn’t that one of the rights under our state Constitution that everybody’s entitled to?

Lippman on the mandatory retirement age for judges:

JL: That restriction was placed in the state Constitution in like 1836 or something.  And at age 70, I am fortunate, as a former Chief Judge, I am of counsel to a very prominent law firm, Latham & Watkins, and I am very happy and practicing law. To me it is absurd that judges—and we have different age limits in different courts—but that judges at the age of 70—we have candidates running for the President of the United States, and our new President-Elect is age 70—that is bizarre that you would have the wisdom of a sitting judge gained from so much experience taken off the bench at age 70 from being a trial judge or judge in a high court when you can be the President of the United States at age 70.

So what I’m saying is that I’m in a position to be able to make this transition to private practice, and it was seamless, but not every judge has that opportunity. So I think that to me that’s a no-brainer, and it makes little sense. And I don’t believe in any age limits. If you’re fit to serve, you should continue to serve. But 70, to me, defies common sense.

Lippman on the need to Constitutionally consolidate the court system:

Since I was the Chief Judge, [I] have basically looked to a system that had one trial court. That you could have different divisions within that trial court, but you wouldn’t have a Court of Claims, a Supreme Court, a Family Court, all of the above.  That you would have one Court. It would be the most efficient kind of system, where you can put judges where they are needed. It doesn’t mean particular judges wouldn’t have particular expertise and sit in particular kinds of cases. But you can use judges where they’re most effective.

So to me, that’s something that we ought to be looking at, and believe me, I dealt with it for a lifetime. There are internal issues within the judiciary about all of that.  But this is the very kind of issue we should be talking about by a non-partisan body of individuals who are looking at these things from a policy perspective, not necessarily a political perspective. Not that we don’t want to hear the political viewpoint.

It makes total sense, in the year 2017, where we have again [a] once [in] a 20-year opportunity to take up these kinds of issues. And with the judicial retirement issue, we were able to get it through two Legislatures, but then the people—and of course we bow to the will of the people—voted against extending it, but I don’t think it had the full kind of discussion and airing that you would get if you talk about these kinds of issues in a Constitutional Convention.

Lippman says he is “open” to running to be Convention delegate and even the Chair/President of the Convention:

JL:  I’ve been involved with a group that is headed by Evan Davis. … Evan is a former counsel to Governor Cuomo Senior. … Evan has talked to me about running as a delegate and being the Chair of the Convention. … I think we’re all open to doing whatever is necessary to make sure that these kinds of issues, whether it be clean air, or the education amendment, or the judiciary article, whatever it might be, they have to be aired.

And again, I think people can legitimately have different viewpoints, but to me [the Convention] makes total sense. Let’s put it on the table. Let’s take this once in two-decade opportunity to really make fundamental reform that works for the people.  And this is something that to me again, is not a difficult question as to what to do.  Once you get into the convention, there are lots of very difficult questions. …

Yes, I am open to running [as a delegate]. I will commit that much. And I’ve told that to Evan and the other people that have asked me about it, because I think it’s important that we all participate and this is something that I care deeply about.

Listen to show hour 2


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