The October 1, 2008 Issue of The Capitol

VOL. 1, NO. 10 OCTOBER 2008

Tom Golisanopreviews the futureof ResponsibleNew York.

Page 23

Shelly Silver defends Albany against charges of dysfunction.

Page 6

www.nycapitolnews.com

BENCH MARK

Will U.S. Attorney Michael Garcia be the new GOP sheriffin town for 2010?

Page 5

The legacy of Chief Judge Judith Kaye

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www.nycapitolnews.com2 OCTOBER 2008 THE CAPITOL

ISSUE FORUM: HOUSING AND CONSTRUCTION

Property Taxes Are Number-One Impediment to Home OwnershipBY STATE SEN. JOHN BONACIC

As Chairman of the New York State Senate Committee on Hous-

ing, Construction and Community Devel-opment, I hear the mantra, “we need more affordable housing.” There is no doubt that homeownership for many people in New York is not affordable.

However, the single largest impedi-ment to homeownership isn’t its scarcity, or inadequate funding in the State budget, but rather it is over-burdensome property taxes.

Whether you are a senior citizen on a fi xed income, a middle class family facing extraordinary gas and heating fuel costs, or a young couple trying to obtain their fi rst home to start a family—it is increas-ing property taxes that are forcing people

out of their homes and putting the Ameri-can dream of homeownership out of their reach.

Hundreds of dollars per month are tacked onto a mortgage payment for tax-es, the bulk of it being school property taxes regardless of one’s ability to pay.

Although escalating property taxes is a grave issue for many New Yorkers, one House of the State’s Legislature re-fuses to enact school funding policies that eliminate the burden. During my tenure as State Senator, the Senate has voted three times to phase out school property taxes. The Assembly has failed to act.

It is my belief that the burden of fund-ing our schools should be placed squarely on the state, not on the homeowner. The state’s constitution guarantees public

education for its children, yet state man-dates and school districts are placing the burden of that guarantee on property owners. It is simply bad public policy and too many New Yorkers are feeling the re-percussions.

From Long Island to the Hudson Val-ley/Catskill region to Buffalo to Lake Plac-id, New Yorkers need property tax relief. Without it, homeownership will remain a dream for many, more senior citizens will be forced to give up their lifelong invest-ment, and the need for more affordable housing will multiply.

John Bonacic is a Republican repre-

senting Delaware, Ulster and Sullivan

counties. He is the chair of the Senate

Committee on Housing, Construction

and Community Development.

Konst Says She Can Beat Volker, Even Without More Party SupportCounty legislator plays up independence in race against longtime senator

BY SAL GENTILE

As Democrats across the state scrape and claw to wrest control of

the Senate from Republicans, a number of competitive races have turned into long, hard slogs.

But for Kathy Konst and Dale Volker, the home stretch has proved particularly brutal.

Though the votes will not be cast for several weeks still, there has already been a series of court battles, allegations of harassment and character attacks—not to mention a bruising primary and major infl uxes of cash on both sides.

Volker, a Republican, has been a

member of the State Senate for 36 years, buoyed by a substantial enrollment edge in a district that slices along four predominantly conservative counties: Erie, Wyoming, Livingston and Ontario.

He has never faced as much of a challenge as he seems to be facing from Konst, an Erie County legislator who has fashioned herself a fi ercely independent—and, on fi scal matters, conservative—antidote to Albany’s dysfunction.

She has cast herself as so independent, in fact, that she declines to say whether she would support a Democrat or Republican for majority leader, and said she has not decided whether she will vote for John McCain or Barack Obama for president.

“I’m somebody who is very much an issue- and principle-oriented person,” she said. “I’m a Democrat, but I’m a fi scal conservative. I have voted against party line items because it didn’t make sense.”

She said this way of thinking fi ts the constituents she has represented in the Erie County legislature.

“Maybe that doesn’t fi t the profi le of what you consider to be a Democratic profi le, but I understand my constituency. I understand the community I represent,” she said.

Konst has already been struggling to connect with state Democrats as she looks to get her race on the radar at least among the second-tier pick-up chances. Though the Democratic effort in the State Senate is focused mostly at

this point on electing Joseph Addabbo in Queens, Brian Foley in Suffolk and Joseph Mesi in a neighboring district to Konst’s, Democrats say they are counting on Konst’s race to be competitive. If she wins, hers could be one of a handful that could put the party in the majority.

Now Konst is struggling to convince them to give her the resources she needs to get there.

“To a small extent, they’ve reached out to me and are supporting my candidacy,” Konst said.

Her election in 2005 to the Erie County legislature, she recalled by comparison, was at fi rst seen as a fl uke by those who doubted a Democrat could win the district—a feat

she hopes to reprise against Volker.But she must fi rst survive a knotty

legal challenge that may well cripple her attempts to attract what would likely be crucial Republican support.

In late September, an Erie judge issued subpoenas to more than 90 voters who signed Konst’s petitions to run on a new party line—the Integrity Party—in addition to her Democratic line. Konst said she needs the extra ballot line to get votes from Republicans who may be uncomfortable pulling the lever for her on the Democratic line.

The state board of elections upheld the petitions, but Volker’s campaign has fi led a legal challenge in state supreme court. He has also admitted to sending private investigators to the homes of people who signed the petitions, in order to determine whether the signatures are valid.

The senator called this a matter of principle more than a defense.

“Can I win if she gets this line? Of course I can. Do I need to do this? No,” Volker said. “Except this is something that should not be allowed to happen.”

Konst has accused Volker of voter intimidation and harassment.

Asked if he was afraid sending private investigators to people’s homes and forcing them to testify in court would leave voters resentful of his campaign, Volker said the situation was unavoidable, and that it was ultimately Konst’s fault.

“I am, it’s sad, and she’s playing politics with that,” he said. “But on the other hand, what are you going to do? Do you ignore fraud because it’s going to make some people angry?”

The legal battle may serve as a primer

Kathy Konst has asked for more support from Democrats in her race against Dale Volker. That she has not yet received it has left her question-ing where her allegiances may go if she wins in November.

Continued on page 18

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ISSUE FORUM:HOUSING AND CONSTRUCTIONNew York Needs To Increase Safe Stock of Affordable Housing and Rentals

BY DEBORAH VANAMERONGEN

There is a saying that “Timeis the enemy of any real estate deal.”

That is especially true when it comes to developing affordable housing residenc-es, which often rely on intricate fi nancing packages that include tax credits, bond offerings and grants and loans from a variety of sources, including government agencies, not-for-profi t groups, charitable organizations and banks.

These fi nancing packages can take many months to assemble, and the slight-est ripple in the housing market can sometimes cause them to crumble.

Imagine then the effect the national fi nancial crisis is having on the develop-ment of affordable housing—at the very time that we need to increase our stock of safe and affordable rental properties.

New York has always been, and con-tinues to be, a national leader in the de-velopment of affordable housing. Many states, however, are not weathering the storm as well and have seen their afford-able housing programs come to standstill. Projects that were already in the pipeline are being abandoned as funding sources are drying up.

The causes are easy enough to un-derstand. As in any downturn, investors

are reluctant to take risks, and many are standing on the sidelines, waiting for the housing market to stabilize.

Another problem is the reduced value of state and federal tax credits, which had been a very reliable source of equity for affordable-housing developers. State Housing agencies, such as the NYS Divi-sion of Housing and Community Renewal (DHCR), are allocated tax credits and award them to eligible developers of af-fordable housing. The developers in turn sell the credits to raise equity for their projects.

Financial institutions, which would buy the credits to reduce their tax obliga-tions, are no longer experiencing the high profi ts of years past. As such, their need for tax credits has diminished. As the need for tax credits drops, so too does their value. Credits which had been providing developers an equity return of 95 cents or more on the dollar dropped in value to 80 cents or less, stalling and threatening to kill projects across the country.

At DHCR, we acted quickly, working with developers who had done every-thing in their power to make up for the loss of equity, including seeking addi-tional fi nancing and reducing their own compensation.

We provided those developers with ad-

ditional tax credits, saving several threat-ened but meritorious projects. We were the fi rst state in the nation to address the problem, and many others have followed suit. The federal government also took action this past summer, enacting the Housing and Economic Recovery Act of 2008, which increased DHCR’s allotment of federal tax credits.

While the fi nancial crisis may devas-tate affordable housing programs in many other states, New York is in a unique po-

sition because we have the team and the tools to not only weather the storm, but to lead the way.

Our advantages include the leadership of Governor Paterson and the State Leg-islature, who understand that affordable housing is an investment in economic de-velopment, helping to attract businesses and jobs, stabilize property taxes and strengthen communities.

In addition to visionary leadership, we also have a reliable pool of accomplished housing developers who have consistent-ly demonstrated the ability to build safe and attractive affordable housing while also making a profi t for their investors.

This is extremely important because those investors are presently unwill-ing and unable to take risks and will only place their confi dence in (and their money with) established developers with proven track records.

New York has long been a national leader in the creation and preservation of affordable housing, and while we will face many challenges in the months ahead, we are well positioned to maintain and enhance this legacy.

Deborah VanAmerongen is the com-

missioner of the New York State Division

of Housing and Community Renewal.

The Publication for and about New York State Government


Housing Foreclosure Crisis and Need for Sustainable Homeownership CoalitionsBY ASSEMBLY MEMBER ANNETTE ROBINSON

There’s no easy way to say this: Foreclosures are destroying

our older, more stable Brooklyn neigh-borhoods. Beautiful homes that had very little debt, owned by families who pur-chased them early on, have been sold at infl ated prices often fi ve to six times their original cost. These homes are now either facing foreclosure, have been foreclosed, or have been abandoned by buyers who could not afford the exorbi-tant mortgages. They now sit like ghosts in once thriving neighborhoods, boarded up, often vandalized.

Multiply that by 20,000 homes in Brooklyn alone and the numbers have been going up, not down. Worse, many banks who have taken these homes back in foreclosure bulk sell them to outside foreign investors.

Recently, New York State allocated funds to help families facing foreclosure by providing fi nances to engage legal help to restructure or modify their mortgages.

In many instances, however, banks have been relatively uncooperative, stalling the buyer while the debt goes higher and higher, like some banal gotcha torture game.

There appeared to be no end in sight until the very in-stitutions that had been vic-timizing the little home own-er became the victim of his own greed. As the house of cards built on paper under-written by higher and higher debt to equity ratios began to crumble in thin air, the banks began to feel the pain they had been subjecting the little home owner to. So much so that when the fed-eral government proposed to do a bailout for Bear Stearns, etc., groups like NACA and Rainbow Push reacted immediately: MAIN STREET, NOT WALL STREET! Protests went out across the country.

What we have now emanating from the chaos of the greedy preying on the needy is that for once they have a dose of their

own medicine. That said, it’s not enough to point fi ngers of blame, it’s not time to make sure that appropriate restitution is made just for the families, so that they are made whole even while the $700 billion bailout makes Wall Street whole.

It’s not enough to say that the buyer knew he/she couldn’t afford the mortgage and, therefore, is at fault. Homebuyers by and large

are not fi nancial experts. They rely on a host of experts: real estate brokers, mort-gage lenders, bankers, appraisers, law-yers to do their jobs appropriately. In this manner they relied to their detriment on the experts who proceeded to do a job on them.

I am advocating assembling a Sustain-able Homeownership Coalition, under which the major Brooklyn CDCs get the right collectively to preview REO proper-ties before the banks bulk sell them out of

the community; and have the right to ac-quire these properties to be redeveloped, either through renovation or sweat equity for the families right here in Brooklyn, instead of becoming part of portfolio for some outside investor. Families can work together to acquire a foreclosed/abandoned property that needs moder-ate renovation and under the supervision of licensed contractors, rehabilitate the property for their own inhabitant. With a small loan from HUD/FHA for the mort-gage, the family’s sweat equity mitigates high down payment fees.

We must move decisively in making sure that our families, which are our most valued treasure, regain their stable com-munities, receiving training in fi nancial literacy and community building so this never happens again.

Annette Robinson is a Democrat rep-

resenting parts of Brooklyn in the As-

sembly. She is chair of the Subcommit-

tee on Retention of Homeownership and

Stabilization of Affordable Housing.

THE CAPITOL OCTOBER 2008 5www.nycapitolnews.com

BY ANDREW J. HAWKINS

Michael Garcia, the U.S. attorney for the southern dis-trict of New York, has certainly

had a busy year. He busted the prosti-tution ring that ensnared Eliot Spitzer (D), brought corruption charges against several state and local elected offi cials and their aides, and aided in the arrest of a United Nations employee for selling fraudulent visas.

Garcia’s prosecutorial zeal is earning him rave reviews far beyond the court room. With the end of the Bush adminis-tration approaching, Garcia will be look-ing for a new job in 2009. And some are hoping that he might consider running for governor as a Republican.

A Sept. 12 editorial in the now defunct New York Sun noted that Garcia has been eyeing downtown fi rms to join, just as former U.S. attorney Rudy Giuliani (R) did before running for mayor. The edi-torial goes on to say Garcia would be “a great governor,” citing his record clean-ing up the State Legislature and the City Council.

While some prominent Republicans around the city say they have not heard any chatter about a Garcia campaign yet, they were all quick to lavish him with praise.

Former Sen. Alfonse D’Amato (R) said Garcia has brought renewed pride to the U.S. attorney’s offi ce by eschewing easy headlines, unlike his predecessor Giu-liani, who had a famously adversarial re-lationship with D’Amato.

Garcia could do just about anything he wanted after leaving the Justice Depart-ment, D’Amato added, including a run for governor or Congress.

“He’s been nothing short of spectacu-lar,” D’Amato said.

Running for attorney general might be another option, especially with the bench of Republican candidates so thin for 2010.

A spokesperson for the U.S. Attorney’s offi ce declined to comment on Garcia’s plans for next year.

Garcia had a quick stint as a journal-ist and a publisher before plunging into the legal arena, getting his start as a pros-ecutor focused on terrorism and national security cases. His fi rst big case was pros-ecuting the terrorists involved in the 1993 World Trade Center bombing.

President George W. Bush appointed him to lead the Immigrations and Cus-toms Enforcement division of the De-

partment of Homeland Security before moving him to the U.S. attorney’s offi ce in 2003.

Over the past fi ve years, Garcia has racked up an impressive list of pros-ecutions. In addition to hastening the resignation of Spitzer, Garcia brought charges against former Assembly member Brian McLaughlin (D), State Sen. Efrain Gonzalez (D), former Po-lice Commissioner Bernard Kerik, two staffers of Council Member Ken-dall Stewart (D-Brooklyn) and, most recently, Assembly Member Anthony Seminerio (D-Queens).

Some Republicans said that while he is clearly qualifi ed to run for offi ce, talk about future races was too early, especially with some still waiting to see whether Giuliani will make a bid for gov-ernor. But Garcia’s record, as well as his Latino heritage, is already causing some chin-stroking among Republicans.

But running for offi ce as a U.S. at-torney can be a fraught path.

Across the Hudson River, another U.S. attorney, Christopher Christie, has run headlong into those diffi culties.

Though he has been mum on an actual run, Christie is reported to be eyeing a race against New Jersey Gov. John Corzine (D) in 2009, which has made him the target of some bloggers and others who say such posturing un-necessarily politicizes the U.S. Attor-ney’s offi ce.

Ken Frydman, who was Giuliani’s press secretary during his 1993 run for mayor, said that to avoid the pitfalls that have plagued Christie, Garcia would have to resign or wait until his term ended be-fore seriously discussing a potential run for elected offi ce. The actual campaign, however, may prove to be the most dif-fi cult part.

“Running as a U.S. attorney or pros-ecutor is not that easy of a trick,” Fryd-man said, “because invariably you have prosecuted controversial cases and the outcomes affect the likelihood of gaining

support in the business community.”There are other ways to lay the foun-

dation for a campaign that would avoid comprising the offi ce of U.S. attorney, said Tom Doherty, a Republican politi-cal consultant and a former aide to Gov. George Pataki (R).

Garcia could nurture the buzz that is already surrounding his name by increas-ing his visibility and doing more press events, Doherty said. But even then, the path is precipitous.

“The U.S. attorney’s position is one that deals with many sensitive issues,” Doherty said. “There is an expectation that you’re not in the political arena and you’re not basing your judgments based on politics.”

But with the economy and Wall Street replacing crime and quality of life as the prevailing concerns of the day, some Republicans were skeptical that voters

would still respond to a prosecutor the way they did to Giuliani.

Guy Molinari, the former borough president of Staten Island and GOP elder, was one of the fi rst to approach Giuliani to run for mayor. Then still in the U.S. attorney’s offi ce, Giuliani refused to talk politics. But the day after Giuliani left for private practice, Molinari said, the two sat down to discuss a possible campaign.

“At that time crime was rampant throughout the city,” Molinari said. But the city and state are different places to-day, he noted. “I don’t think Giuliani could be elected mayor today.”

Besides, the state has been trending Democrat for a number of years now, Mo-linari said, making it diffi cult for someone like Garcia to get elected.

“It’s a long shot,” Molinari said. “He’s not known well in political circles.”

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Michael Garcia—GOP Candidate for Governor, Attorney General, Congress?To some state Republicans, success as U.S. Attorney makes the case for 2010 run

With the end of the Bush administration approaching, U.S. Attorney Michael Garcia may look to become the new GOP sheriff in town.

“He’s been nothing short

of spectacular,” former Sen.Al D’Amato

said of Garcia.


The Speaker Speaks, on Dysfunction and Senate DemocratsAssembly Speaker Sheldon Silver was the featured

guest at the On the Record-Off the Record Breakfast held by The Capitol and City Hall and co-sponsored by the New York State United Teachers (NYSUT) and the New York Affordable Reliable Energy Alliance (NY AREA).

Among other things, Silver discussed what he thinks of people who call state government dysfunc-tional, what little he thinks the Senate Democrats can actually do to change Albany and responds to a question on Michael Bloomberg’s fi tness for the job of governor.

What follows are selections from the on-the-record portion of the event.

Q: What do you think the lasting effects will be of all that has happened in Albany this year, from the change in governors to the change in Senate major-ity leaders to the current budget problems? A: Well, Governor Paterson has crossed six months now as governor. He’s done a terrifi c job, I might add, un-der very trying circumstances. Now, he started the job as governor a couple of weeks before the budget was due. He brought in the budget relatively on time. He brought in a new approach to government, which was an approach to dealing with the Legislature as partners, co-equal branches of government that were elected by districts around the state to serve with the governor in formulating the policies of the state of New York. I think he’s worked it well. He’s been less antagonistic to the Legislature, he’s brought the Legislature in as a partner and I think it bodes well, especially at these times of cri-sis.

If you come back to July, four months into his term as governor, the governor called the Legislature back and said, “we have a problem to deal with. An econom-ic downturn.” And, surprisingly to some extent, in the middle of the summer, the state Legislature got together and made what amounted to a billion dollars in cuts—to a budget that will impact, by over a billion dollars, over this fi scal year and the next. That’s something new as far as legislative action is concerned, especially in the mid-dle of the year. In the current economic climate that kind of action may have to take place as we go forward…I think it bodes well for the ability of the Legislature and the governor to work together through these rather dif-fi cult economic times. Obviously, the remainder of the year, we’ll be watching, we will be alerted to the reve-nues that upstate has, and we’ll have to deal with it ac-cordingly.

Q: Originally, you resisted referring to the situa-tion which led to the governor calling the Legisla-ture back in session over the summer for the budget slashing special session in the kind of dire terms he was using. Do the problems on Wall Street of late change your view on things?A: What happens on Wall Street has a very obvious seri-ous impact on what happens to the New York economy. After Sept. 11, 2001, we did a study and found that 14 percent of economic activity in New York State occurs below 14th Street in Manhattan. To those of you from Manhattan, that’s not that surprising. For those of you in the city, that’s not surprising. But to the people outside the city it is a rather surprising number.

The reality is, what comes out of Washington during this crisis is going to be critical. What comes out of the various mergers and reincarnations of existing banks is going to be critical. Is the Merrill Lynch merger going to

mean less jobs in New York? Is it going to mean more jobs? I don’t think Merrill Lynch knows the answer to that, much less the state of New York. Revenues are not down to this point signifi cantly, to the level of crisis that has been predicted. We will probably have all the returns within the next few weeks on the fi rst six months of the state fi scal year, and I think, based on that, watching the returns as we go forward, that’s how we should act.

With next year’s budget, which begins next April 1, it’s the governor’s obligation to present the budget in Janu-

ary. The governor should probably try to incorporate ac-tion in that budget with action that fi xes, if necessary, the fi nal quarter of this year, and do that in what I believe would be in an educated fashion, knowing more about how New York will be impacted by the current economic decline.

Q: That there has not been more done on many is-sues in state government often gets chalked up to what most Albany observers describe as its dys-

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In recent months New York State has felt a sharpereconomic pinch from the financial downturn. Tens-of-thousands of workers have already lost their jobs withan even larger number of working families facing theeconomic uncertainty plaguing our nation.

What does this mean for the economy and job creationfor New York State? Given the financial conditionsand expected contractions in tax revenue, our govern-mental leaders in New York must employ a laser-likefocus towards safeguarding the interests of workingfamilies throughout the Empire State. With the na-tional debate focused on the troubles of Wall Street, itis more critical than ever that our leaders in New Yorkcontinue to listen and attend to the interests of MainStreet.

Protecting and ensuring an ample supply of affordable,reliable electricity is one such step towards protectingNew York’s hard-working middle class.

New York’s Article X power plant siting law expiredDecember 31, 2002. This law streamlined the processfor new power plants, and includes a provision for re-quiring critical community feedback. As a result of theexpiration of Article X, we have seen a lack of invest-ment in power-generating facilities throughout ourgreat state.

Reauthorization of Article X would enable the cre-ation of new sources of clean, reliable electricity topower our homes and business, spur investment, andcreate thousands of good-paying jobs for New York’sworking families. We need to change this situation,and I hope that our lawmakers come together in thecoming months to address this critical situation.

According to Mayor Bloomberg’s PlaNYC initiative,New York City will surpass 50 million tourists a yearby 2010, and will have one million more citizens by2030. This means we will need many more hotelrooms to house our visitors, and more housing,schools and new office facilities for our new residents.

It is clear to most, including Mayor Bloomberg’s 2030commission that we do not have enough electricitysupply to continue plugging in new stadiums and com-mercial and residential buildings into the grid, withoutcreating new sources to manufacture clean, affordablepower. It’s much like a homeowner loading up an elec-trical socket beyond its capacity. Sooner or later, it’slikely to blow.

The question of electricity cost and supply is also notjust about the future of the construction economy, but

an issue for all union workers,from those in our hospitals,schools, to government offices. To grow as an econ-omy we will need to have a first class power genera-tion and supply system.

As President of the New York State AFL-CIO, I amsaddened to watch working families pay for skyrocket-ing utility rates and face continued economic uncer-tainty. Reauthorization of Article X is a critical steptowards ensuring a brighter future for New York’shard-working middle class – one filled with continuedenergy supply, more investment and more jobs.

Denis M. Hughes is president of the 2.5 millionmember New York State AFL-CIO and a member ofthe New York Affordable Reliable ElectricityAlliance Advisory Board.

Why New York Needs More Power NowBy Denis M. Hughes

Electricity Use Grows in 2008in New York, with Few SupplySolutions on HorizonBy Arthur (Jerry) Kremer

With the passing of another summer we were againmade painfully aware of escalating demand for onelectricity in and around New York State. In Juneand September, ConEd announced that New Yorkershad once again set a new record for peak electricityuse; the June statistics recorded the delivery of12,987 megawatts to customers over two consecutivedays. Meanwhile in July, Con Ed’s 3.2 million cus-tomers consumed more electricity than Vermont orAlaska use in an entire year.

On August 15 we celebrated the unfortunate anniver-sary of the 2003 Blackout which left 40 million in theNortheast without electricity for up to 40 hours, cost-ing the New York region more than $1 billion in eco-nomic losses.

The bottom line of New York AREA’s message is thatthe need for additional supply has never been greaterand we can no longer wait for a magic solution to ap-pear.

New York families and businesses are under intensepressure to make ends meet in light of growing lay-offs, a staggering economy and soaring energy andelectricity costs.

It is no secret that New York needs additional elec-tricity generation. According to the New York Inde-pendent System Operator (NYISO), New York Statewill need an additional 2,750 megawatts by 2017.The critical first step is the reauthorization of the Ar-ticle X power plant siting law which streamlines thesiting process so new power facilities can be built.Perhaps with the 2008 general election behind us, wewill be able to get a new siting law passed.

As a key member of the Regional Greenhouse GasInitiative (RGGI) and with the current air qualitychallenges New York faces, it is unlikely that newcoal power plants could meet public and legislativeapproval. While clean coal technology may holdpromise it is years away from being a reality.

New natural gas plants still carry air quality and envi-ronmental concerns, compounded by the skyrocket-ing of natural gas prices; Hydro power is a clean andreliable source, but in New York no new sources areavailable.

There is discussion of a new nuclear power plant inOswego County, which would be a good addition toour state’s current nuclear capacity which provides 29percent of the state’s total supply. More wind tur-bines can provide some relief, but have frequently runinto NIMBY community opposition upstate, on LongIsland and even on Staten Island. Wind and solarenergy are a plus, but they only supply intermittentpower and take up large tracts of land while provid-ing only minimal megawatts.

Moving forward, we would be wise to continue totake stock of our energy alternatives and identify themost viable short- and long-term energy initiatives tomeet our growing needs. New York AREA continuesto work with New York leaders to build consensus fornew sources.

The New York Affordable Reliable Electricity Al-liance (New York AREA) was formed immediatelyfollowing the 2003 blackout by a group of concernedNew York business, labor, environmental and com-munity leaders who joined together to address thestate’s energy challenges. Today New York AREA’sgrowing membership includes over 125 individualsand organizations representing hundreds of thousandsof union workers, business owners and leaders of theenvironmental community, working to ensure that wehave an ample supply of electricity for years to come.

Arthur (Jerry) Kremer is Chairman of the New YorkAffordable Reliable Electricity Alliance and aco-author of the Article X Power Plant Siting Law.He served in the State Legislature for 23 years, 12as Assembly Ways and Means Chair.


Continued from page 6functional nature. Andrew Cuomo of-ten says that dysfunction isn’t a strong enough word to describe things. What is your diagnosis?A: I don’t believe Albany is dysfunctional. I have never believed Albany was dys-functional. What the people of this state have determined is that central power should be in different political parties. And so, for twelve years, the policies of the far right, as represented by George Bush and George Pataki, were rejected by the Democratic conference in the New York State Assembly. That doesn’t make it dysfunctional.

And you know, there’s the argument, for example, if you don’t adopt a budget on time you’re not doing your job and you shouldn’t get paid. So, if 76 members of the New York State Assembly said, “Gov-ernor, the budget you presented doesn’t provide money for health care, doesn’t provide money for education, doesn’t pro-vide enough for capital money to invest in infrastructure for the State of New York,” to say that on behalf of my constituents, if 75 people agree with me, or 74 agree with me, and 76 adopt that budget, well, then I am doing my job, that’s okay, I should get paid—but if 76 people agree with me in the Assembly that it’s an inadequate bud-get and shouldn’t be adopted, well, then those people who talk about dysfunction said I’m not doing my job.

How many people agree with me? That’s the case. That’s what dysfunction is: Rejecting the stop-gap in terms of the failed policy that may emanate out of Washington. The policies that are defi ned to benefi t the most wealthy 2 percent of the people of the state as opposed to alternatives that are presented to help working men and women of this state. That doesn’t make for dysfunction. That makes for different philosophies.

Q: The Senate Democrats have por-trayed themselves as the remedy to what ails Albany. Do you think having a Democratic Majority Leader would signifi cantly alter how the state gov-ernment does business? A: I think it remains to be seen exactly how people will function. You have two-party control of the House and Senate in Washington.

Q: Will things be radically different in Albany if the Democrats take the Sen-ate?A: The last time it happened was in 1964. There was a Republican governor. My un-derstanding was it took about two months to elect a leader. That was dysfunction.I will reserve judgment until it happens.

Q: One of the things Senate Democrats are promising to do if they win is put in place some structural reforms. Are

there more that you would look to put in place, to lead the charge on? A: We have adopted them. The speaker of the Assembly does not have the right to start a bill, for example, or just take it off the fl oor. It is restricted in rules com-mittee where bills go from substantive committee, to the fl oor and over to the Senate. We have what we call Form-99, which means any sponsor, Democrat or Republican, fi les the request for their bill to be considered and it must be consid-ered under the rules of the Assembly in the two-year legislative cycle. Not rules of the Senate. The chairs can consider fi ve bills, 10 bills, 20 bills—even if there are 300 bills. Every bill must be considered and placed on the agenda. Much of what would be the reforms that the Senate is talking about they got from the rules the Assembly has put in place over the past 10 years.

Q: What are your main priorities in other policy areas?A: I think the economic climate in New York in terms of the jobs picture gener-ally is something that we must address. We must address it on a long-term basis and we must address it on a short-term basis. The long-term basis is, I believe, an investment in the greatest infrastructure that we have, our education system, from pre-K through BA—we must invest in our education system.

Seriously, one of the things that we offer are great minds in New York and great uni-versities that are able to carry on research. One of the investments that I feel privileged to have made in Albany, New York, which has benefi ts throughout the state is the school of nanotechnology at the University of Albany. New York has become the leader in the world for nanotechnology. Multi-bil-lion dollars have been invested by private companies from the downstate region and upstate region because they want to be as-sociated with the work taking place at the school of nanotechnology. Companies like IBM, Microsoft, Tokyo Electron. All have invested millions of dollars. We have to continue that. We have to get each region’s advantages and provide that as a job-pro-ducing engine in this state

Q: You have had your dust-ups with Mayor Michael Bloomberg over the years. Leaving aside what you think of the talk of him running for governor, from the way you’ve seen him maneuver and negotiate in getting things passed or trying to get things passed in Albany, do you think he would be able to do the job of governor well? Do you think he has the skill set to be a good governor? A: The mayor’s history is such that he pays a lot of money for political advice. I believe that for nothing, you get noth-ing. I’m getting nothing. I don’t want to engage in this.

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In Western New York, Talking Points Are About Bailout and Race Is About Jobs, Jobs, JobsUnexpected Democratic nominee Kryzan debates economy with GOP’s Lee

BY SAL GENTILE

In Western New York, lawn signsapparently do not move votes.That is one of the many takeaways

from Alice Kryzan’s surprise victory in the Democratic primary for the congressional seat anchored by Rochester and Buffalo. She defeated two better-known candidates—one with an extensive ground operation, the other with a lot of money—and upended one of the most hotly contested congressional races in the state.

And she did it with the fewest lawn signs.Independent observers and aides to

Kryzan’s campaign, as well as that of her Republican opponent, attribute the feat largely to an attention-grabbing ad she aired in the closing days of the campaign, which showed actors playing her opponents—Jon Powers, an Iraq War veteran backed by the party, and wealthy businessman Jack Davis—bickering with each other and ignoring her. The ad was effective, they said, in crystallizing the impression many voters had of Powers and Davis as excessively negative and out of touch. Kryzan also benefi ted from a built-in demographic advantage—a high proportion of Democratic primary votes in the district were older white women.

Meanwhile, Republicans have coalesced, after some early wrangling, behind a candidate they believe represents their best chance to retain Rep. Thomas Reynolds’ congressional seat. The seat has been controlled by the party for 20 years, dating back to the days of Bill Paxon and Jack Kemp, and the GOP thinks Chris Lee can be the next one to carry the torch.

Lee, an Erie County manufacturing executive, is running primarily on his business experience and outside-the-beltway image, promoting his background as the collapse in the housing market continues to topple investment banks and manufacturing jobs begin to disappear.

“We need to continue to promote manufacturing in this country. It’s the cornerstone of this country,” he said. “We need to ensure that we still produce things in this country, and both Albany and Washington make it harder.”

Kryzan, an environmental lawyer, has framed her own campaign against the backdrop of shuttered manufacturing plants across the region.

“Jobs are the big and important issue in my district,” she said. “And I think we can create jobs here by putting

the 26th district squarely in the 21st century.”Worries over job creation and the collapse in the

housing market have driven the political discourse throughout Western New York, much as they have dominated the presidential campaign. That fact is not lost on Kryzan, who has tried consistently to tie Lee to the policies of President George W. Bush and Republican presidential candidate Sen. John McCain.

“We’ve had several decades of deregulation, and it has brought us to this very sorry path,” she said. “I think the idea that people can be trusted to do what’s right in the so-called ‘free market’ has been demonstrated not to be true.”

She has said that she would have voted for the initial $700 billion bailout plan defeated in the House of Representatives in September—a bill that has invited the ire of constituents who saw it as a rescue for wealthy Wall Street executives—and that eventually passed in a revised form on Oct. 3. (Reynolds voted in favor of both versions.)

“Bad things that are happening at the top in Wall Street are fl owing downhill, and people at the bottom are the ones that are going to be hurt the most,” she said. “So, sometimes you just have to swallow hard and do what you have to do to get out of a bad situation that, quite frankly, is another failed legacy of the Bush administration.”

Lee, for his part, was just as willing to take swipes at Congress and the Republicans, both of whom remain deeply unpopular in New York.

“I ran because I was frustrated with politics in general, Republican and Democrat,” he said. “I’m a businessman who’s a fi scal conservative, who’s frustrated with what’s going on in Washington. My views and policies are based on trying to put people back to work, be it Republican or Democrat.”

Until recently, he has been more hesitant than Kryzan to say how he would have voted on the initial rescue plan, which has opened a fresh line of attack for his opponent.

“My position has been that we need to bring stability and liquidity to the market,” he said. “I’m always careful, because there are always things in bills where they can come back and have a ‘gotcha.’”

Neither Kryzan nor Lee would say in interviews on the day the House approved the second version of the bill whether it was better than the fi rst. But Lee did say that he thought the crisis would draw attention to his résumé.

“I think the collapse of Wall Street actually helps my case, because I’m someone who actually comes from a fi nancial background, a business background,” he said. “My opponent has not. She hasn’t had to create jobs; she hasn’t had to deal with regulation.”

In response, Kryzan claimed her experience as an environmental lawyer would enable her to help create alternative-energy jobs, an industry which experts say has unrealized potential in the region, with its vast swaths of farmland and research universities.

“We are uniquely positioned here,” she said. “My learning curve is not going to be very steep when I get to Congress.”

[email protected]

The seat has been controlled by the

party for 20 years, dating back to the days of Bill Paxon

and Jack Kemp.

Alice Kryzan (above) won a surprise victory in the Dem-ocratic primary in September, earning the chance to face Republican Chris Lee for a seat the GOP has held for 20 years.


For Senate Democrats Thinking of Switching Parties, Cautionary Tales Abound BY ANDREW J. HAWKINS

With both parties waitingbreathlessly to see who will con-

trol the State Senate after the November election, particular attention is being paid to three Democrats—Pedro Espada and Ruben Diaz, Sr. of the Bronx and Carl Kruger of Brooklyn—to see where their loyalties will fall.

History offers them some warnings. Over the past decade, the three Democrat-ic State Senators and one Assembly mem-ber who have switched parties or publicly sided with the Republicans were all sub-sequently defeated at the ballot box.

Nancy Larraine Hoffmann was fi rst elected to the Senate to represent the Syra-cuse region in 1984. She served for 15 years before switching to the Republican Party.

Looking back, Hoffmann said her deci-sion came after her efforts to reform the legislative process were stymied.

“I was very much a maverick within the Democratic Party,” Hoffmann re-called, “and, obviously, then within the Republican Party.”

In 2004, she overcame a challenge by a conservative activist in the primary for her adopted party line, only to lose to Democrat David Valesky by less than 1,000 votes.

Sometimes Democrats seek out the GOP, as Hoffmann did. Sometimes the GOP fi nds them. Stephen Kaufman, a Bronx Assembly member, ran for the State Senate seat left vacant by Republican Guy Velella in 2004. But because he received public support from Republican offi cials and fi nancial support from Republican donors while serving in the Assembly, the Democratic Party endorsed Assembly Member Jeffrey Klein, who won the seat.

Kaufman, who tacked right while in the Assembly, ran on the Conservative and Independence party lines, but never dropped his Democratic registration.

“People paid the price when they switched parties,” said Kaufman, now practicing as a personal injury lawyer.

Perhaps the most notable example of voters revolting against a legislator who switches parties was Olga Mendez in 2004.

After a quarter of a decade representing parts of East Harlem, Mendez changed her status to Republican. She explained her move by saying Democrats had done little to help her district. But in the general elec-tion, José Serrano defeated her by a wide margin in the heavily Democratic district.

This year, Republicans, desperate to keep control of the majority, have been reaching out to senators whose allegiances are in question. The night he defeated Sen. Efrain Gonzalez (D-Bronx) in the September primary, Pedro Espada received phone calls of congratulations from both Senate Majority Leader Dean Skelos (R-Nassau) and Minority Leader Malcolm Smith (D-Queens). In a later television interview, Espada would not say who he would vote for in the leadership vote.

Neither Espada nor Kruger, who last year accepted a committee chairmanship

from the Republicans, returned requests for interviews on this topic.

Ironically, Espada was defeated by Diaz in 2002, in part because he began conferencing with Republicans. But this year, both Espada and Diaz are refusing to commit to vote for Smith. Diaz is on both the Democratic and Republican lines for the November elections, but was adamant about the future of his party affi liation.

“I would never switch parties,” Diaz said. “I will always be a Democrat.”

Diaz, like Kruger, is socially conserva-

tive, which has often put him at odds with the Democratic conference. He insisted he would not vote for anyone who let gay marriage go through the Senate.

With his son, Assembly Member Ruben Diaz, Jr., planning on running for Bronx borough president if New York City’s cur-rent term limits law stays in place—and possibly if it does not—Diaz might be compelled to stay loyal to Democrats for the sake of his son’s election.

But the lure of the majority party can be strong—especially when that majority

party might be willing to hand out favors as it fi ghts to stay in control.

State Sen. Joseph Robach (R-Monroe), who switched parties in 2002, has been tar-geted this year by the Senate Democratic Campaign Committee. Former State Sen. Richard Dollinger (D) said one element of his campaign strategy is educating voters about Robach’s party switch.

“He jumped from the party of Franklin Roosevelt and John Kennedy into the par-ty of George Bush,” Dollinger said. “I’ve never understood it.”

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Back in the early 1800s, the chief judge of New York really got to call the shots.

As a member of the Council of Revision, he—and until 1993, the chief was always a

he—along with the governor, chancellor and one other judge had the power to preemptively veto any legislation which they deemed unconstitutional. Instead of wending through the judicial system, laws could be stopped dead in their tracks before ever going out to the public.

Instead of three men in a room, there were four. Any bill that did not fi t with how they wanted the state to move, they tossed aside.

Then in 1821, state leaders rethought this system. The new constitution, and the three since then, strengthened the separation between judges and politics.

Judith Kaye, the retiring chief judge of New York, has enjoyed a different kind of power: the power of longevity, and what she has been able to accomplish with that. Always a distinctive presence, she tends to make an impression. Even her writing sticks in people’s minds.

Just ask one of Kaye’s former law clerks, who recited the fi rst sentence of her very fi rst decision on the court, Humphrey vs. State, from 1983.

“The decedent died instantly in an unwitnessed one-vehicle accident on a dead-end segment of Old Route 7 in Broome County just after midnight,” the clerk said when he saw Kaye at a lecture given in honor of her late husband in September.

The former clerk is not the only one full of memories. After Kaye’s 25 years on the Court of Appeals and the last 15 as its chief judge, there are a lot to go around. But there is more to her legacy than memories: over the course of that longevity, she put a lasting stamp on both the laws and legal system in New York.

Kaye was born to immigrant parents and raised on a farm in Monticello, New York. She graduated high school two years early and went to Barnard

both to be in New York City and close to the Columbia Journalism School, an important landmark for a young woman who at the time dreamed of becoming a political reporter. Just 15 years old at the beginning of her freshman year, she arrived at a time when posture tests and Rorschach ink blot personality analyses still were part of the requirements for life at the women’s college.

She still carries the posture lessons with her, sitting straight up and focusing her whole body as she listens to questions, barely even moving her head until she begins her answers. Those Rorschach tests have stayed with her as well, as she told a group of women who came to hear a retrospective speech on her life and career back at her alma mater in late September. Presented with one of the fi rst slides, Kaye recalled, she was mortifi ed to see the girl next to her write “Dante’s Inferno.”

“I thought for sure that I would be on the next Short Line bus back to Monticello,” she said. “But I kept my answer: ‘Rooster.’”

More than 50 years later, Kaye speaks with that same cheery worldview, informed by an enthusiasm that is so sincere to almost seem absurd. Perhaps because she is not in elected offi ce herself, there are few people who seem to have an ax to grind when her name is mentioned. Even those who reject the logic behind her decisions and deplore some of what she has done on the court generally agree that she is the rare genuinely nice person in government. In someone without such extensive experience as a leader of the state and such a well-regarded record as a judge, the wonderment and enthusiasm that tend to be loaded into just about everything she says might come across as naïveté. But for Kaye, it seems to be the product of being consumed by her judicial requirements—she sometimes refers to herself as a “judge-person” as she fl oats ethereally above the fray, any fray.

Even recounting starting her legal career after battling disappointment in sexism, this approach to life is clear.

Shortly after graduating, she got a newspaper job for the Hudson Dispatch in Union City, New Jersey. The year was 1958 and she was a woman, so naturally, the newspaper assigned her to the society page to report on church luncheons, women’s club meetings and other light fare.

Chafi ng at the assignment, she enrolled in law school originally only because she fi gured no editor would dare keep her on that beat if she got a few semesters of part-time classes under her belt.

“But for that fortuity, today I could be getting laid off at a newspaper,” Kaye joked.

Instead, half a century later, she is being forced off her job as chief judge of the Court of Appeals. After a lifetime of being notable for being young—at Barnard,

at New York University Law School, at the fi rms where she practiced as a commercial litigator, as Gov. Mario Cuomo’s (D) fi rst appointment to the state’s top court and then as his choice for chief judge to replace disgraced Chief Judge Sol Wachtler—Kaye is now being old, or old enough to hit the mandatory retirement requirement which kicked in when she turned 70 on August 4.

This did not have to be the end of Kaye’s time on the bench. In 1993, just four days after she took the oath as chief, Supreme Court Justice Byron White announced his retirement. Less than a year before, when she was still an associate judge, she passed on an offer from President Bill Clinton to become his attorney general, saying she preferred to remain on the bench. Clinton

Bench MarkThe legacy ofChief Judge Judith Kaye

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then approached her about White’s seat. The Court of Appeals and the rest of state government was still reeling from the Wachtler story. Wachtler, the chief judge, a man many presumed might one day be governor, fell in a cartoonish scandal which had him typing up delusional extortion letters on drugs sent to a former lover and ending with his arrest on the side of the road by a van-ful of FBI agents.

Shaken herself by what had happened, Kaye said at the time and maintains today that she turned Clinton down out of a simple feeling of moral obligation to right the ship of the judiciary. In her position as both the chief judge of the Court of Appeals and her executive role over the judiciary system as chief judge of the state,

Kaye seems to have found it unthinkable to leave the Court at that moment. As unbelievable as it seems, she decided to put her natural ambition aside, even knowing that the opportunity to join the nation’s highest bench might never come again.

But, she insists, she never looks back. Her dream is her current job, she says now, and she is not interested in serving as a judge in any other capacity.

White’s seat went to Ruth Bader Ginsburg. Kaye’s name was fl oated again the following year for retiring Justice Harry Blackmun’s spot. Stephen Breyer ultimately got that nomination.

Had Kaye gone to the Supreme Court, instead of being forced into mandatory retirement this year, she would

currently be tied for fi fth-youngest Justice with Breyer. And given how long Supreme Court Justices tend to serve—the men she might have replaced, White and Blackmun, retired at 84 and 85 respectively, and Justice John Paul Stevens is still going at 88—Kaye could still have had years ahead of her shaping the nation’s interpretation of the Constitution.

But in many respects, by keeping herself and her focus in New York, Kaye has been able to be involved more directly in people’s lives. Much of this has been through the power being chief judge gives her as the state judicial system’s chief executive offi cer. Using this administrative role to affect change, she has done overwhelmingly more to shape how justice works than she might have ever been able to do even as a strong-willed member of the Supreme Court.

Jury reform, her fi rst and perhaps best-known major administrative change, was a product of this kind of thinking. She still knows the lines from the argument she made against the existing system, rattling off “fi refi ghter, police offi cer, clergy, wear a prosthetic device, make a prosthetic device, Christian scientist, nurse, on and on,” some of the 23 categories of automatic exemption which fostered “privileged classes” who essentially never had to report for jury duty. Those not on the list tended to be called once every two years.

The need for the change was practically self-evident, Kaye said.

“For most people in this state, their only fi rsthand experience with the justice system is as jurors. So why not make it better? Why not, if just to show them that the courts are working well? Why not?” she said. “It just made such good sense to me.”

As soon as the system was changed in late 1995, more than one million people were added to the prospective juror rolls, including Kaye herself, who has been called for jury duty but never actually placed on a jury. Elected offi cials can be called, and many have been, as have a wide range of celebrities and others who might have found some way to escape the responsibility.

“Isn’t that a great message?” Kaye said. “Everyone must come, and everybody stands equal.”

And Kaye was just getting started. Jury reform changed how average New Yorkers

experienced the system. Meanwhile, she undertook to change how offenders experienced it, and the results that tended to be generated from trials. So also in 1993, disturbed by what seemed like a revolving-door process of trying minor offense that left the neighborhood in constant trouble, she launched the Midtown Community Court in Manhattan, the fi rst of what would come to be known as the problem solving courts. Tasked with handling local quality-of-life offenses including vandalism, shoplifting and illegal vending, the Midtown Community Court was empowered to sentence people to community service and connect them with social

“This isn’t a person who says ‘Okay, were going to

let the courts operate until there’s a crisis and then

we’re going to deal with that crisis,’” said her former deputy, Jonathan Lippman. “It’s a much more proactive

involvement in what the role of the judiciary should

be in this state.”


services, from drug treatment to job training. Across the state, there are now 171 drug treatment

courts and 109 community and problem-solving courts specifi cally tailored toward the umbrella issues of domestic violence, mental health, youthful offenses and sex offenses. More are coming, some of them likely modeled on the mortgage foreclosure court pilot program which began in Queens this past summer.

All problem-solving courts follow the general model of the original Midtown Community Court, led by judges who can specialize in handling certain kinds of offenders and develop deep familiarities with the related laws and services which might help them avoid future arrests. The goal is keeping the people who come to them from having to come back, rather than focusing on imposing sentences to boot the convicted to jail for the maximum

time possible.“This isn’t a person who says ‘Okay, were going

to let the courts operate until there’s a crisis and then we’re going to deal with that crisis,’” explained Jonathan Lippman, who in his 11 years as Kaye’s chief administrative judge was responsible for seeing through the implementation of these and other reforms. “It’s a much more proactive involvement in what the role of the judiciary should be in this state.”

Kaye put it more matter-of-factly. “What I am supposed to do,” she said, “is study the

court system and assure that it is working effectively for the people. And if there are things that could be working better, it is my job to do that.”

To some critics, however, the addition of all these new courts both bloats the budget and has judges exceeding their proper bounds. They charge that the courts are supposed to settle disputes and deliver sentences, not be social service agencies, and that Kaye has misdirected the system to a role meant for the other two branches of government.

Lippman disputed this. On the contrary, he argued, the state court system under Kaye’s conception saved the state money in the long run by reducing the number of repeat offenders and used social services not as a replacement for sentencing, but as another tool in the arsenal that can sometimes be more effective.

“It’s not just some touchy-feely, social service-oriented, namby-pamby way of treating defendants in the justice system,” he said Lippman. “I think there’s a recognition from every philosophical view that it works, that it saves lives, that it saves resources and that it’s very much within what the court should do.”

When these reforms have required legislative action or when she has needed more money to pay for them or the new and renovated court facilities she has overseen (the judiciary system is now two and a half times what it was in her fi rst year as chief, $990 million in 1993 to $2.43 billion in 2008), Kaye has succeeded through what State Senate Judiciary Committee Chair John DeFrancisco (R-Onondaga) called her unmatched ability to move state government.

Judgement PayJudith Kaye has long wished that she could get more attention for the work of state judges. But nothing

seems to depress her more than the way she has finally gotten it—through the extraordinary move of suing the state as the chief judge, on behalf of all the other judges.

“It just breaks my heart,” she said. “It would at any point in my career, but to end on this note—I can’t think of any word other than heartbreaking.”

Kaye acknowledges how difficult a case there is to be made that anyone in the government should get a raise in the current economic climate. But if the governor and legislators really got people to think about what is at stake, she said, she believes the idea would gain traction. And if they cannot make the case for giving themselves raises, Kaye said they need to bite the bullet and just approve them for the judges.

Judges in the state have gone too long without a pay raise, she argues, noting the major increases in costs of living over their last decade without one, and the more than competitive salaries available in private practice. As chief, her salary is $156,000 a year, well ahead of many other judges in the system. By comparison, starting salaries for first-year associates right out of law school at most Manhattan firms are currently at $160,000, before bonuses.

“To freeze the judges for 10 years because you can’t get an across-the-board legislative-judicial pay increase, it’s just so wrong and so unfair and redounds to the detriment of the public, because good judges can’t afford to stay on the bench, and we don’t continue to attract top talent.”

Gov. David Paterson (D) while in favor of increasing salaries, has been critical of trying to achieve them through the lawsuit.

“The governor is supportive of a judicial pay raise and continues to believe that this issue should be addressed through the legislative process, not in the courts,” said Paterson press secretary Errol Cockfield.

Though the idea that the state will willingly increase salaries in the midst of its worst budget problems in decades may seem far-fetched, Kaye is holding out hope that something might happen before the case heard by the first department of the Appellate Court in November. There may be a better chance of action once the elections are over on Nov. 4, she said, but no matter what happens, she will not back down, no matter how far up the judicial ladder the case may have to go and how uncomfortable she is pressing a case against the state in the last few months before she is forced off the bench.

“I will remain hopeful that we can achieve a result other than through the courts,” she said, “but otherwise, we will just pursue litigation all the way.”

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Judith Kaye has pushed her colleagues on the court toward more unanimous decisions, a move she believes important but chagrins some court watchers who say this weakens the Court of Appeals.


Those Who Would Succeed Kaye Quietly Make Their Cases

Those who want to succeed Judith Kaye as chief judge already submitted applications to the Commission on Judicial Nominations in

early September. The 12-member panel will do inter-views with the applicants in November and deliver a list of seven finalists to Gov. David Paterson to choose from by December.

The governor will have between 15 and 30 days to make his decision. Though he will have to pick from one of the commission’s finalists, Paterson could follow the example of Gov. Mario Cuomo (D), who in 1983 made clear he wanted to name a woman for what ultimately became Kaye’s spot, after promis-ing to do so on the campaign trail. Kaye was the first woman to be named to the court.

So far, however, Paterson and the commission have remained quiet about this complicated and mostly secretive process.

Court of Appeals Judges Carmen Beauchamp Ciparick and Theodore Jones, two potential firsts, are among the candidates expected to be widely dis-cussed as the deliberations about the next chief truly begin. Both have submitted applications and set up interviews for November.

Ciparick, the second-longest serving judge on the Court of Appeals and the only other remaining Cuomo nominee, was the first Latina on the Court and would be the first to serve as chief. Her 15 years on the bench and long judicial record could be an advantage.

Jones, who was appointed to the court by Eliot Spitzer (D) in one of the former governor’s first major acts in office, would be the first African-American chief judge. He is well-liked by his colleagues at the Court, which some believe would help him be an effective leader on the bench.

There are other options as well. George Carpinello, an attorney in private prac-

tice specializing in civil litigation, has twice been nominated for the Court of Appeals, and was among the finalists presented by the panel to Spitzer when faced with the choice of reappointing Kaye in 2007. Carpinello would be the first Italian-American chief judge—perhaps something that might appear less historic in nature, but a first nonetheless.

Steven Krane, a former president of the state bar association who has been nominated by a past commission, has been discussed, as has Jonathan Lippman, the presiding judge of the state appellate court in Manhattan.

According to Kaye, Paterson has not asked for her advice on the decision, and her careful approach to making definitive statements may keep her from offer-ing too much of an opinion on the matter. Kaye said the commission and the governor should avoid set pre-conditions, such as whether the next chief should have prior judicial experience or fill out a specific demo-graphic category.

Kaye herself practiced privately in commercial litigation and never served as a judge before being appointed to the Court of Appeals. She spent 10 years as an associate judge before being appointed chief.

So far, though, much of the speculation has centered on Ciparick, Jones and Lippman, all of whom con-firmed they have put in applications for the post.

The candidates’ records as lawyers and jurists will all be open to examination, but other factors may help guide the process. Kaye has done more as the admin-istrator of the court system than her predecessors. This may make consideration of administrative experience and abilities more of a factor in picking the next chief than in the past. If this happens, Lippman, who as Kaye’s deputy helped institute many of the reforms, might have the edge.

Lippman said he had “strong views” on how the judicial system should proceed, but said he believed it premature to elaborate on them at this point.

As Jones sees things, the question is whether the Commission and Paterson want to see the judicial sys-tem keep moving in the direction Kaye has taken it.

“I don’t know who is advising the governor,” Jones said. “Is he being advised by people who were Judith Kaye fans or people who were lukewarm on her reforms?”

Impending mandatory retirement at age 70 could prove another major factor: Ciparick will be 70 in 2012, Jones in 2014 and Lippman in 2016.

Vincent Bonventre, an Albany Law professor and expert on the courts, said this factor may be appropri-ate to consider, especially given how much Kaye has achieved during her 15 years as chief.

“I don’t think there’s any question of that, because of her longevity as chief, she knows the ins and outs of the way the court works, the ins and outs of the way the state government works,” Bonventre said. “It’s allowed for a certain stability at the court, and predictability at the court. It’s disruptive to have leadership change too frequently.”

According to a spokesperson, Paterson has not yet focused on any potential successors or made any plans

to indicate to the Commission a preference for the kind or kinds of candidates he would like to be pre-sented with as options.

Paterson’s pick will have to go before the State Senate for confirmation, but these hearings have traditionally been mostly a formality, even when the governor and Senate majority were not of the same political party.

John DeFranciso (R-Onondaga), chair of the Senate Judiciary Committee, said his concern is less about the nominee’s background than about his or her commitment to restraint, both in terms of judicial decisions and the size of the judicial system.

For all those eyeing Kaye’s center seat on the bench, the next few months will involve a lot of waiting.

“I think there’s a certain amount of fatalism involved in it,” Jones said. “It’s either there or it’s not.”

In thinking about her successor, Kaye also resisted stating any of the qualities she thinks should be in the mix as the decision is made.

“I think you just have to find a top-notch person,” she said. “I don’t think there’s any mold to fill or mold to break.”

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“I’ve always said half-kiddingly that she’s probably the best politician in Albany,” DeFrancisco said.

Much of this, he said, has been achieved through her insight into how to get the Legislature and governor to do what she wants through a public relations approach that can leave opponents feeling outmaneuvered.

“The fact of the matter is, in preparation for these debates, she’d always make certain that you’d see a series of editorials supporting her positions,” he said. “Any issue that she was pursuing, it wasn’t a matter of just sending us proposed legislation. It was a matter of trying to garner support from the media ahead of time. And I’m not saying that as a criticism.”

Whatever people think of the changes Kaye has wrought, they should come to terms with them, said Oscar Chase, a professor at New York University Law School who teaches about civil litigation and legal procedure and practice in New York, because the changes are here to stay. Despite failing to achieve a simplifi ed state court

system incorporating town and village courts along with all the others into one streamlined system, future judges, and especially chief judges, will essentially be working within what could be renamed the Kaye judicial system, given how deeply she has refashioned nearly every aspect of its administration.

“She will certainly be remembered as one of the great chief justices of our state if for no other reason than her successes in shaping the system,” Chase said. “Her successors are going to enjoy the powers that she created, because now we’ve gotten used to them.”

As a jurist, her record is somewhat more complicated. Kaye was one of those who helped strike down the death penalty in 2004, and one

of just two dissenting votes in the 2006 decision which did not allow gay marriage in New York.

But pinning her to a single judicial philosophy is essentially impossible, given the thousands of cases she

has reviewed during her 25 years on the bench and the broad purview of the Court. Unlike the Supreme Court, the Court of Appeals takes up cases dealing with every aspect of the law, from property disputes to criminal procedure to torts to family law, in addition to settling constitutional questions and refereeing disputes between the legislative and executive branches. Within a single day, the court might hear a murder case, a teacher tenure case, a case about a merger gone bad and a case resulting from a slip and fall lawsuit. There is no real contextualist or doctrinalist or constructionist way of understanding most of these, and Kaye holds fi rm that she does not try to make any overarching set of principles fi t.

“I can’t think I have a judicial philosophy,” she said.She has been a traditional liberal in upholding

the rights of the accused in criminal cases, but a conservative in resisting torts cases. The key to this apparent discrepancy and understanding her overall judicial approach, according to many who have observed

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www.nycapitolnews.com16 OCTOBER 2008 THE CAPITOLher record on the bench, is how her sensibilities as a jurist have been shaped by her experience administering the court system.

Kaye herself believes she separates the roles in her mind, helped by geography, which lets her keep mainly focused on administration when in her home chambers in Manhattan and mainly focused on the cases when in Albany for court sessions. Others are not so sure.

Though Kaye always took a progressive approach to upholding the rights of the accused, spending 15 years creating and enforcing procedures for an entire branch of government seems to have reinforced her insistence that everyone follow details. Just as she gets sessions at the Court of Appeals started on time—usually down to the second—she expects that police offi cers and court offi cials must be attentive to deadlines and technicalities.

That has resulted in convictions being overturned for criminals. Sometime even those were clearly guilty by other measures have been able to walk free because of Kaye’s insistence on procedure.

Her way of looking at things “cuts against the grain of modern procedural thought, which tends to emphasize more fl exibility than procedural niceties,” said Chase, the NYU law professor.

Similarly, having to administer a court system that can sometimes be overwhelmed by the number of cases in the pipeline seems to have helped push Kaye toward a very cautious approach to the kind of cases she thinks should be in front of the court. As an administrator, she has authorized the use of monetary sanctions to punish attorneys and litigants who bring frivolous lawsuits. On the bench, she also seems to be of the opinion that there are too many lawsuits, and has consistently proven a very hard vote to get in favor of lawsuits, especially those dealing with personal injury. That has left many upset, arguing that Kaye sets the bar unreasonably high in a society where things often go wrong.

“Does she seem sometimes to be wearing her administrative hat in some of these decisions that involve procedure?” said Associate Judge Theodore Jones. “Probably. She has a vested interest in making sure the courts run smoothly.”

According to Vincent Bonventre, an Albany Law professor and expert on the Court of Appeals, the overriding characteristic of Kaye’s decisions is concern with how people are being treated by the system.

“She looks at these cases, and if she thinks somebody is being treated badly, she believes that the law is there to correct that, to help them out. Especially in family cases, you can see the judicial philosophy that she just wants to make sure that families are being taken care of, that children are being taken care of.”

Kaye’s greatest judicial legacy will be the space she found between the rights guaranteed by the United States Constitution and those guaranteed by the New York Constitution. The Supreme Court has of late looked at the federal Constitution more as guaranteeing the minimum of rights. In response, several state courts have moved to use their own laws to expand rights, though the wording is often very similar to the Constitution.

Kaye has been a national leader in this, applying state constitutional law to fi nd greater protections for citizens in cases involving search and seizure, privacy, equal protection and freedom of the press, as well as taking a broader view of attorney misconduct as a factor in criminal appeals. This was also the basis for her joining a majority of the Court in ruling in favor of the

Campaign for Fiscal Equity lawsuit in 2003, deciding that the New York Constitution’s guarantee of a sound basic education was a guarantee that extended through high school, beyond where the Supreme Court has ruled that the federal Constitution sets the minimum.

These decisions have been Kaye’s most controversial, with those more aligned with the more conservative Supreme Court approach tagging her as an activist judge.

Kaye shrugged off this criticism. “I have come to realize that an ‘activist judge’ is

anyone with whom you disagree. That is the easiest criticism you can make of a judge,” she said. “It’s just when you want to call someone something bad.”

Much of what she has been able to achieve on all these fronts has been through how she has led the Court. The rules of the Court dictate that as chief, Kaye gives her opinion last among the seven judges in the conferences following arguments before the court, an opportunity she tends to use to listen for points of potential compromise among her colleagues, then tailor her comments toward trying to achieve a unanimous decision whenever possible.

“She’s good at anticipating what people are going to say, and how people are going to feel about certain issues, and what they’re going to want. And she tries to

fashion something that will appeal to as many people as possible,” said Associate Judge Carmen Beauchamp Ciparick, who has served with Kaye for 14 years.

Through the strong relationships she has built with the other judges and her ability to carefully craft legal language, she is often able to succeed.

Bonventre argued that adhering to the dogma of unanimity has led to ambiguities which have rendered the decisions of little use to lawyers looking to them for guidance, and have a lot to do with why New York’s top court has dropped in prominence, with fewer other state courts than ever referencing decisions out of Albany in their own deliberations.

“The problem with striving to unanimity is the Court necessarily needs to fudge over the differences, so you don’t get very clear decisions,” Bonventre said. “You mask the differences that probably ought to see the light of day so that people who need the guidance of the

courts know where the Court is actually divided and where it actually is unanimous.”

More troublesome, Bonventre said, is that Kaye’s interest in unanimity has often led her to vote in ways she might not have otherwise.

“I think oftentimes Kaye and her court needed to compromise to get unanimity,” Bonventre said, adding that on multiple occasions, “I am absolutely positive the Court did not go in the direction Kaye would have preferred.”

Ciparick seemed to disagree. She and Kaye are the only Cuomo judges left on a Court which currently has a majority of four judges appointed by Gov. George Pataki. The seventh, Jones, was appointed by Gov. Eliot Spitzer (D) last year.

In response to this reality, Ciparick said, Kaye has necessarily had to move the Court slowly in the direction that she wanted, but has moved it nonetheless, overseeing a steep decline in the years since the Pataki appointees moved into the majority.

“She tries to fashion something that will appeal to as many people as possible,” Ciparick said. “As a result of that, we take the sort of incremental baby steps as the law progresses.”

O nly two judges have served longer than Kaye on the Court of Appeals. (“If I knew that, I would have been scared,” Kaye said,

reflecting back on when she accepted Cuomo’s appointment to the top spot.) But when her term expired in 2007, Kaye decided to seek reappointment by Gov. Eliot Spitzer (D) last March, though she would only be able to fill out a year and a half of a new term before mandatory retirement. Spitzer agreed, and she glided through a Senate reconfirmation with 60 of 62 votes.

The speculation at the time was that she did not want to give the new governor the diffi cult task of appointing a new chief so early into his term. Kaye disputed this.

“When we came right down to the moment, the idea of leaving this post one instant before I was compelled to do it was just unthinkable,” she said. “For me to leave before I absolutely have to get carted off, I don’t think so.”

For a woman who has spent 25 years on the state’s top court and the past 15 as its leader, life off the bench is somewhat hard to contemplate.

Walking gleefully around her offi ce, she shows off the mugs, all the little high-heeled shoes, the wall of

photos, the framed shots of her and her old law fi rm partners and her various colleagues on the Court, the stacks of papers and snow globes on her desk.

Proudly, she pointed out that she hung up all the frames herself, just as she did in her own home. In a few

months, she will have to start packing them up, as she starts to think past Dec. 31 and the open question of what comes next.

Now less than 100 days from when she must turn in her robe and gavel, she is keeping a busy schedule, between writing her last opinions and taking advantage of these last months when she can have an idea about an administrative reform and start the process of making it happen. Though she says she does not dare let anyone see her datebook because of how crammed it is, she happily shows off just about everything else in the offi ce which stands as something of an archive of her life on the bench, including a wall-size blow-up of the jury duty commemorative stamp she got the Postal Service to introduce last September.

“Isn’t that something?” she said enthusiastically. “Isn’t it great? Isn’t it just great to be chief judge?”

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“I’ve always said half-kiddingly thatshe’s probably the best politician in Albany,”

said State Sen. John DeFrancisco.

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BY DAVID GIAMBUSSO

Joseph Bruno left some bigshoes to fi ll, and Republican Assembly

Member Roy McDonald and Democrat Michael Russo are competing to see who gets the chance to try. In one of the lower-profi le contested State Senate races this year, the two are vying for the seat Bruno occupied for 32 years before resigning in July.

Fighting the Bruno legacy in a solidly Republican district is daunting for Russo, but an economic downturn, plummeting Republican support nationally and Albany fatigue have given him hope. Russo said he believes this will help him win in the district, which covers Rensselaer and Saratoga counties in the area surrounding Albany—especially with voter trends working in his favor.

“The district has been trending very Democratic and also independent,” Russo said.

According to the State Board of Elections, as of March, the district had

Russo Aims for Surprise in Battle with McDonald for Bruno’s Old SeatDemocrat hopes economic turmoil will mitigate GOP enrollment advantage

BY SUSAN CAMPRIELLO

Roy Simon says that beatingSenate Majority Leader Dean Skelos

(R-Nassau) will be like David defeating Goliath.

When Simon introduced himself at a Democratic club meeting in Rockville Centre in September as the man challenging Skelos, audience members gasped and then chuckled.

Simon was not fazed by the reaction. “We can beat Dean Skelos, we can win

this thing, and we can surprise a lot of people,” he told the crowd gathered to hear Simon and candidates for Assembly and local judicial posts, as well as a representative from Sen. Barack Obama’s presidential campaign.

Although Simon lacks his opponent’s name recognition and campaign funds, he believes that he appeals to newly registered voters, who tend to be Democrats, and to voters who support Sen. Obama.

That in mind, he focuses his talking points on his confi dence that Democrats will win the majority of the Senate seats on Nov. 4. If that happens, Simon notes, even if Skelos remains the Republican leader, he will receive less funding for member items and have less say in legislation than a junior senator in the majority party. Simon likened the

resulting new Republican minority party to a minor league baseball team, with the new Democratic majority party as the major league team.

“No matter how great he would be in the minor leagues, he’s not going to help

anyone win in Shea Stadium or Yankee Stadium,” Simon said of Skelos, should he win re-election and the Democrats take the majority. “He’s going to be powerless and penniless.”

Though Simon comfortably promotes himself as a Democratic alternative to Skelos, who has been in the Senate for 24 years, he does have some ideas for raising money for education and preventing job loss. A small rise in state taxes for individuals who earn greater than $500,000 could fund public education, he said. Employees of state-run prisons, if those institutions close, could run education programs designed to help inmates succeed once they are released. He also supports developing and using solar energy and lessening the country’s dependence on foreign oil.

Two hours before the candidate event, Simon was driven from Hofstra University, where he is a law and ethics professor, to a meeting with the Long Island Gas Retailers Association in Fairview, Long Island.

There, Simon and the Association members present discussed the future of energy technology and the gasoline price signage issue recently publicized by Attorney General Andrew Cuomo (D).

Simon cites his experience as a professor as preparation for campaigning

Simon Says Democratic Majority Is Coming and Is Reason for Nassau to Boot SkelosWhile majority leader campaigns to keep edge, long-shot candidate battles him at home

Roy Simon likes to point out that if the Democrats take the majority, Dean Skelos will receive less fund-ing for member items and have less say in legislation than a junior senator in the majority party.

70,494 registered Republicans, 51,590 Democrats and 10,068 independents.

Nonetheless, Russo is trying to separate himself from any partisan connection.

“I have a long history of not waving red and blue fl ags,” he said, arguing that he counts conservatives and liberals alike inside his volunteer operation and base of voter support. And he claims his history as the former district director for Rep. Kirsten Gillibrand (D-Rensselaer/Saratoga/Columbia) has already given him signifi cant name recognition in the area to help power him through.

But Bruno’s shadow still looms large in the district. While he is not actively campaigning for McDonald, Bruno has endorsed him and expressed his desire to see a Republican fi ll the seat, according to the McDonald campaign.

“He’s been supportive of the campaign,” said McDonald campaign manager, Kris Thompson. “This is a seat that he wants held.”

Thompson’s presence in the campaign is a tacit indication of Bruno’s support—

he was Bruno’s press secretary for two years until the Senate majority leader stepped down.

But while he is looking to draw the connection between Bruno and McDonald, he resisted calling his candidate Bruno’s heir.

“Joe Bruno is a great man. Joe Bruno is the greatest,” said Thompson, “We hear that along all party lines.” But he adds, “Based on my contact and my experience with him, Roy McDonald is his own man.”

Russo, too, is receiving support from Albany insiders. His campaign manager, Marc Gronich, is an aide to Senator Minority Leader Malcolm Smith and a former executive director of the Albany County Republican Party.

McDonald’s platform involves cutting property taxes and cutting spending in Albany. When asked how he would afford to do both, Thompson said only, “Albany needs to spend what it can afford to spend—what it needs to spend, and nothing more.”

Russo, who called himself more centrist than downstate Democrats, is also advocating for a property tax cut. However, he stressed that this should only be done in coordination with fi nding alternative funding for public services such as education.

“We are continuing to pit schoolchildren against homeowners,” he said, voicing his criticism of the current approach.

While both candidates are eager to defi ne their differences, the number of debates they will hold remains uncertain. So far, Russo and McDonald have agreed to one on Oct. 14, sponsored by the League of Women Voters.

Russo had originally proposed a series of town hall-style meetings throughout the district.

“I actually made an offer to my opponent to go to each town and talk about the issues. I even offered to drive,” said Russo. “He turned that offer down.”

Thompson responded saying, “Our opponent is more than welcome to travel the district as he sees fi t. We’re out campaigning every day.”

Both candidates are putting a premium on individual voter contact, pursuing aggressive grassroots campaigns, going door-to-door, sponsoring community events, phone-banking and attending barbecues.

As the Assembly member for a district encompassed by the Senate district, McDonald has been trying to pick up the slack that Bruno’s absence has left, handling an increase in constituent calls in the area and helping bolster his incumbent credentials.

But expressing confi dence that the Democrats will take the majority in November, Russo has sought to portray McDonald’s history in Albany, party affi liation and connections to the current power structure a weakness.

Speaking for McDonald, Thompson insisted that the Senate would go Republican and that his candidate’s history would therefore be an asset.

But Russo pressed the point.“I know Roy McDonald personally

and I like him, but he’s part of the Albany machine,” he said. “I don’t see any way that he can be effective with the changing dynamics of the state.”

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Bruno’s shadow still looms large

in the district.

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for what has already become one of the testiest races in the state. Swirling character attacks and a tortuous history of personal entanglements have only complicated matters. (Konst has been endorsed by Rochester billionaire Tom Golisano, who fi rst lured her into running against Volker instead of jumping in at the last minute to the contentious House primary won by Alice Kryzan.)

Volker is fresh off a primary win against former East Aurora Mayor David

DiPietro, who ran calling himself the “true conservative” in the race.

Though DiPietro has conceded the race, he has not conceded that Volker should return to Albany.

“It wouldn’t break my heart to see Dale leave after 36 years. I don’t care who runs against him,” he said.

DiPietro has not openly endorsed Konst.

The scrap bloodied Volker, who spent close to half a million dollars to win 58 percent of the vote.

DiPietro’s strong challenge revealed a political liability for Volker: Erie County, a conservative enclave which he lost to DiPietro. That fact has especially

encouraged Democratic operatives, who believe Konst’s conservative values and name recognition in the county will help her upset Volker.

“The fact that DiPietro won Erie County is telling,” Konst said, “and that’s going to be where my biggest base is going to come from.”

Volker, for his part, has questioned the motives of Democrats and accused them of targeting him in support of a downstate agenda.

“The Senate minority sees an opportunity here to come after me big time,” he said. “It’s not just that my defeat would help them take over the Senate, it would be a huge help to them in helping

New York City.”He added: “There’s no question I have

been a huge thorn in the side of New York City for a long time.”

That may be only one of many points of contention between him and Konst, who has herself—after speaking with Senate Minority Leader Malcolm Smith—questioned the Democrats’ commitment to her race.

“What I’ve heard from Malcolm Smith is good. I don’t know if he’s going to be challenged, either,” she said. “Do I play a swing vote in this? I don’t know—it’ll be very interesting.”

She added: “Maybe they should court me better, do you think?”

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for and serving in the State Senate. A good professor does perform his duties in order to get money or votes, he said, just like a good state senator should not pander only to constituents he believes will thank him with re-election contributions. And an offi cial and his constituents must be able to effectively communicate just like a lawyer and his client, Simon said.

But running for offi ce, he said, has been like being a student in a political science course.

Simon said the way he reads

newspapers has changed since announcing his candidacy. Instead of grumbling over issues, he feels he must fi nd their solutions.

Simon, who has lived with his wife and their four children in West Hempstead for nearly two decades, has attended campaign events with Senate Minority Leader Malcolm Smith (D-Queens) and Nassau County offi cials. He is supported by Nassau County Executive Tom Suozzi (D), the Working Families Party and the Nassau County Gay Democrats.

Staff of the Progressive Strategies Group, Simon’s campaign consultants, have charged that Skelos spends little time in his home district and has lost focus in helping his constituents.

Skelos’ staff counter that the majority leader is frequently in Nassau County to greet voters at train stations and to meet with various citizen and business groups.

Skelos is running on his accomplishments, such as obtaining aid for Long Island schools, passing the Long Island Workforce Housing Act and authoring Megan’s Law, said Skelos’ spokesperson Scott Reif.

Skelos himself did not respond to request for comment about his race.

So far, the candidates have met only once, while participating in an endorsement interview. They will meet again for a debate on Oct. 17, which will be aired in the district at a later date.

Waiting until later in the year to

campaign was a deliberate strategy for Simon, who did not start handing out literature or putting up lawn signs until late September. He believed this would enable him to make a bigger splash, and therefore become a more viable alternative, as voters naturally became more interested in the election closer to November.

The majority leader is underestimating the potential of his approach, Simon said.

“Dean Skelos is vulnerable,” Simon said. “Much more vulnerable than he thinks he is.”

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SimonContinued from page 17

KonstContinued from page 2

Your Honor, Please Excuse My DeathThreats Against YouIn re BascianoDecided by: Second Circuit Court of Appeals, Sept. 17

The Bonanno crime family has a rocky relationship with United States District Judge Nicholas Garaufi s. Judge Garaufi s, who sits in Brooklyn, sentenced former Bonanno boss Joseph Massino to life imprisonment in 2005. The judge is now preparing to hear the capital murder case of Vincent Basciano, the Bonanno boss since 2004. Basciano has already been sentenced to life imprisonment for a 2001 murder.

In 2006, the government says Basciano composed a “hit list” to murder three witnesses, the prosecutor and Judge Garaufi s. According to a jailhouse informant, Basciano would place the list in his shoe every day and stamp his foot fi ve times. When the list was made public by the government, Basciano’s lawyers petitioned Judge Garaufi s to recuse himself from the case. Given these threats against the Judge, Basciano’s lawyers claimed that Garaufi s could not reasonably conduct Bosciano’s trial as the impartial arbiter the Constitution demands.

Judge Garaufi s, upon hearing this motion, felt he could keep his wits about him and denied Basciano’s “apparent attempt to forum-shop.” On appeal, the Second Circuit wondered if Judge Garaufi s had abused his discretion in making this

ruling. Concluding he had not, the appeals court distinguished Basciano’s case from several prior instances where a judge’s refusal to remove himself was held to error. The appeals court said there is a tradition of preventing judge-shopping by making threats. The court noted that Judge Garaufi s “came to his decision meticulously” and evidenced no partiality against Basciano.

The decision is not a total loss for Basciano: the Second Circuit refused to decide if Garaufi s’ recusal would be necessary if the list was actually used at trial. If the list is introduced, look for Basciano to be in Second Circuit next year, perhaps to a different result.

The Right to Have Popped CornKaplan v. AMC Theatres Decided by: New York City Civil Court, Sept. 19

What do you reasonably expect from a kernel of popcorn? Steve Kaplan probably has a different answer than most, given his recent experience at the movies. On Sept. 17,

2007, Kaplan saw the movie “Superbad” at the AMC Lincoln Square in Manhattan. About 30 minutes into the movie, Kaplan bit into a hard object, later identifi ed as an unpopped corn kernel. This kernel fractured Kaplan’s tooth, causing great pain and a $1,250 dental bill. He returned to the theater and “demanded compensation” from AMC.

When the theater scoffed at his request, he fi led suit to recover his damages. At trial, the AMC manager testifi ed about the protective devices

employed by the theater, including a special scoop designed to eliminate unpopped kernels. The manager estimated that it was “impossible to serve a bag of freshly popped popcorn where all the kernels were fully popped.”

Upon this evidence, the trial judge ruled for AMC, employing New York’s “reasonable expectation” doctrine. If the object is one a consumer would not reasonably anticipate in his food, he may recover. The judge ruled, “Until such time as the same bio-engineers who brought us seedless watermelon are able to develop a new strain of popping corn where every kernel is guaranteed to pop, we will just have to accept partially popped popcorn as part and parcel of the popcorn popping process.”

I Think I Might BeSick Next Friday In re Britter (v. Commissioner of Labor)Decided by: Appellate Division, Third Department, Aug. 7

A “successful” sick day results from the clandestine manipulation of your employer. When Deidre Britter of Wyandanch, Long Island made the beginner’s mistake of giving advanced notice of her ailment, she paid with her job. Britter asked for three days off from her part-time job at a home improvement store to study for fi nal exams. Her supervisor directed her to the human resources manager, but Britter decided to take a short cut and simply call in sick.

Noticing a similarity between the dates, the supervisor fi red Britter, who then fi led for unemployment benefi ts. Britter claimed that she did not speak to the human resources manager because she considered him “unapproachable.” The Unemployment Insurance Appeal Board denied her claim, citing Britter’s own misconduct as the reason for her termination. New York law strictly limits unemployment benefi ts to those “who become unemployed through no fault of their own.”

Britter appealed to the New York court system, which turned an equally unsympathetic ear to her claims. The appeals court found that an unauthorized work absence is suffi cient to disqualify a claimant from insurance benefi ts.

New York Courts tend to summarily dismiss these claims, applying a strict interpretation of unemployment law, even going so far as to deny a claim from an employee who was terminated for leaving work a couple hours early on Memorial Day weekend.

—James McDonald

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POLITICS • POLICY • PERSONALITIES


The Way to Reach Elected Officials

Look who’s readingThe Capitol...

There is no question that theLegislature should become full-time, meeting from January through

December to do a better job tackling themany, many problems that the state hasfor too long ignored its responsibility tofix. The bloated budget, the lapsed ArticleX siting law, the ridiculous system of over-lapping governments, the property taxclimb, the faltering health care system, theabsurdly lackadaisical campaign financelaws—there is quite a bit to do. Everymoment that passes makes the problemsworse, and their solutions more difficult toachieve. Even without the econom-ic crisis that threatens to sink thestate, there would be more thanenough to do.

The members of the Assemblyand State Senate should be back inAlbany now, this week, this month,debating and passing bills on anyof these issues—or on home heat-ing oil pricing, a debate that is entitled toat least as much attention as the gas taxholiday ploy received at the beginning ofthe summer. They have until Nov. 4 tomake their cases to their constituents,acting or not acting, passing or not pass-ing new laws, achieving or not achievingresults. Until Nov. 4. Then that is it. Theyshould not be back there Nov. 18, or anytime after Election Day until Jan. 1.

With the seats of Mary Lou Rath,Joseph Bruno, John Sabini, MartinConnor and Efrain Gonzalez undoubted-

ly going to new senators on Election Day,a lame duck session is inappropriate,even if all the remaining incumbents ofboth parties manage to get re-elected—which probably will not happen anyway.Five out of 62 is already a remarkablyhigh turnover for the chamber. If partycontrol of any seat switches in the cur-rent 32-30 split, the impact would behuge.

In a chamber that is so closely divid-ed, every shift in party control of a seatand every infusion of a new personalitywill have deep reverberations in the

dynamics of any potential legislativecompromise. To act as if this is not truewould undercut the arguments they haveall been making out on the campaigntrail. So while they are surely within theirtechnical rights to return to Albany afterthe elections, for the senators to do so isa finger in the eye of the voters and theirjudgment about how things should pro-ceed forward from November.

Skipping the lame duck session willmake the burden even greater for thosewho do arrive in January, and the sena-

tors, both incumbents and newcomers,should start preparing for the task. Afterthis massive, epic fight for majority con-trol of the State Senate in a year whenpromises of revolutionary change havecome to define both major party presi-dential nominees, expectations will, withgood reason, be very high, whether theRepublicans keep their edge or theDemocrats manage to pull it away.Beginning right on Jan. 1, the first sixmonths of 2009 should be a blizzard ofactivity in Albany, of pulling back thebudget equitably and making progress on

all the extremely pressing problemswhich have so long plagued New Yorkand contributed to its—unfortunately—downward trend. The last six months of2009 should be as well. But while novotes or final decisions should be madeuntil Jan. 1, the state government shouldbe active until then, preparing the billsand other measures to help get New Yorkthe progress it needs. First among them:a law ensuring that 2008 will be the lastfall ever without the Legislature in ses-sion, before or after November.

EDITORIALThe Lame Idea of a Lame Duck Sessionwww.nycapitolnews.com

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A lame duck session is inappropriate,even if all the remaining incumbents ofboth parties manage to get re-elected—

which probably will not happen anyway.

20 OCTOBER 2008 THE CAPITOLwww.nycapitolnews.com

Provide a PermanentFunding Stream forLong Island BusDear Editor,

While more Long Islanders ride onbuses than ever before, the system is indanger of drastic cutbacks. Without ade-quate funding, many of the 54 routes thatcrisscross Long Island could be eliminat-ed. The bus line is financed by theMetropolitan Transportation Authority,Nassau County and the state. Without adedicated stream, these groups will con-tinue to quibble and disagree about theirresponsibility to fund Long Island Bus.

State legislation adopted in 1973 creat-ed Long Island Bus as a public authorityunder the umbrella of the MetropolitanTransportation Authority. Although theMTA is required to provide routes, setfares and develop services, this agency isnot totally responsible for funding. Eventhough bus ridership on Long Island con-tinues to increase each year, funding is

woefully inadequate. While additionalfinancing is needed now to prevent dras-tic cutbacks in bus service, planning forthe future will require a permanent fund-ing stream that will allow for the expan-sion of mass transit on Long Island.

Long Island Bus operates the largestall-natural gas-fueled bus fleet in thecountry and participates in the Clean-Fueled Bus Program administered by theNew York State Energy Research andDevelopment Authority (NYSERDA).The buses replace diesel fuel with natu-ral gas. Utilization of these vehicles willsignificantly reduce harmful emissionsinto the air. This will be a welcomebyproduct to an extensive rapid transitsystem serving Long Island residents.

This regional transportation network,besides providing widespread servicethroughout both counties, links with 47Long Island Rail Road locations and fiveNew York City subway stations. In anaverage day, 108,380 Long Islanders trav-

el around Nassau and Suffolk and manycontinue their commute into New YorkCity. The bus system serves seven majorshopping malls as well as Long Island’scolleges, hospitals, museums, industrialcenters, recreational parks, governmentagencies, and even brings riders to JonesBeach during summer months. In addi-tion, it operates an outstanding transitservice for those with disabilities.

Buses provide a critical service to res-idents, and both Nassau and SuffolkCounties must work with the state andthe MTA to ensure dedicated funding forthis essential transportation network.Without a permanent budgetary solution,Long Island Bus, one of the largest subur-ban transit systems in the country, willcontinue to struggle each year for itsexistence.

JOHN R. DURSO

PRESIDENT OF THE LONG ISLAND

FEDERATION OF LABOR AND LOCAL 338RWDSU/UFCW

LETTERS

More on the web atwww.nycapitolnews.com


BY BRIAN PALLASCH

This election year there is much talkabout change and reforms in gov-ernment. But is it fair that the

majority of the blame for what ails ournation be pinned on just a single group?That seems to be what both theDemocratic and Republican presidentialcampaigns are trying to do.

Senator Barack Obama has pro-claimed that lobbyists “drown out thevoices of the middle class and undermineour common interest as Americans,”while Senator John McCain says hisnational energy policy won’t be a “full-employment act for lobbyists.” They areunfairly casting lobbyists as the scape-goats for everything the public thinks iswrong with our political system.

What you fail to hear is that lobbyistsdo play an important and necessary role,whether it is in Albany or in Washington.Congress, the New York Senate,Assembly and city, county and towncouncils throughout the Empire State

and nationwide must deal with thou-sands of proposed pieces of legislation inevery session. Lobbyists provide animportant resource of detailed informa-tion and connect our legislators to thepeople who will be impacted by theirvotes. On controversial legislative pro-

posals, there will be lobbyists on bothsides. This is the only way that legislatorsare exposed to all facets and implicationsof the legislation.

In New York, we have seen a numberof important policy issues discussed anddebated during 2008, including proposedhospital closures, Mayor Bloomberg’scongestion pricing plan, and a dialogueon a state energy policy and the now

long-expired Article X power plant sitinglaw, seen as so critical to labor and busi-ness across the Empire State.

In this election cycle, we needanswers and leadership, not just fingerpointing and playing the blame game.The U.S. Constitution grants Americans

the right to petition their government.Few working class men and women,whether they be blue collar or white col-lar, have the luxury of spending a fewweeks or months in Washington, D.C.,Albany or even simply downtown at CityHall to lobby for an important piece oflegislation that might effect their profes-sion, sources of energy, the make-up oftheir neighborhood or revitalization of

the city. That is why they have lobbyistsadvocating their point of view.

While professional lobbyists may be aconvenient election-year punching bagfor the presidential campaigns, the rolethey play in representing constituenciesin shaping legislation and educatingelected officials to the pros and cons ofa bill improves our government process.While most average Americans may notrealize it, they have lobbyists represent-ing their varied interests. These rangefrom the AARP, whose lobbyists advo-cate for our aging population, to zoolog-ical organizations who are concerned

with protecting animals. It would benearly impossible to identify a NewYorker, or even an American for that mat-ter, who doesn’t have a lobbyist repre-senting their special interest in somecapacity.

Lobbying isn’t perfect and, like anyprofession, we have witnessed embar-rassing instances of behavior that reflectpoorly on us all. However, the vast major-ity of our profession provides a beneficialservice while upholding high moral andethical standards. Groups like theAmerican League of Lobbyists, workingmuch like the Good Housekeeping Sealof Approval, have sought to set standardsfor the profession for the last 25 years,seeking to enhance competency and fos-ter the highest ethical compliance. This isabsolutely necessary in order for our sys-tem to work.

So instead of continuing to blame thelobbyists, voters need to demand candi-dates support legislation not only on thefederal, but local level to require trans-parency in all lobbying efforts, withoutspecial loopholes or double standards foranyone.

The American League of Lobbyists hasalways supported transparency andmeaningful registration for lobbyists—reporting on lobbying activities so thatthe American public understands exactlywho’s working on a given issue. Havinglobbyists’ records completely open andaccessible to the public is much moreimportant than limiting the voice of thepeople.

Brian T. Pallasch is President of the

American League of Lobbyists.

BY SUSAN PEDO

The Bush Administration is movingforward with a proposed newMedicaid rule that would decimate

health care for many New Yorkers. Thefederal cutbacks come at the very timewhen, due to the economic downturn,many families stand to lose health insur-ance and access to vital health services.

The federal rule would impact hun-dreds of health centers by lowering reim-

bursement rates from existing Medicaidlevels to Medicare rates. If the Centersfor Medicare and Medicaid Services(CMS) implements this rule, New Yorkhealth care providers would lose morethan $450 million in Medicaid reimburse-ments—a monumental hit.

Planned Parenthoods and family plan-ning centers alone would lose $22 mil-lion, irreparably damaging their ability toserve a population that is already drasti-cally underserved: low-income women.

Many of these women will lose accessto gynecological exams, prenatal andpostpartum care, health education, can-cer screening, vaccinations, treatmentfor sexually transmitted infections andbirth control. Without contraceptiveservices provided by publicly funded

health centers, there would be an esti-mated 1.4 million—or 46 percent—moreunintended pregnancies annually in theUnited States.

Enhancing—not decreasing—familyplanning services is a smart public healthstrategy, especially in times of fiscalinstability. Reproductive health care is anessential part of primary health care anda critical component of efforts toimprove public health and reduce infantmortality. Pregnancy planning and spac-

ing leads to healthier birth outcomes.But it’s not just family planning servic-

es that would be affected. The rule wouldalso devastate adult day care centers,dialysis clinics, substance abuse counsel-ing, mental health care and developmen-tal disability services. Many providerswho serve Medicaid patients alreadystruggle to make ends meet. This rulewill put many of those providers out ofbusiness. Others would be forced toslash services and most certainly reducestaff to balance their budgets.

That is why 150 leaders from healthcare organizations across the state haveappealed to the Bush Administration tohalt this misguided rule and maintainvital Medicaid funding. They workedwith New York’s Congressional delega-

tion to block the proposed reductions tooutpatient and clinic services, pointingout that these are “precisely the servicesneeded most during challenging econom-ic times.”

New York has worked hard toincrease access to primary care andreduce the dependency on expensiveemergency room treatment. This policywould reverse that work, forcing morepeople to delay treatment until they endup in the hospital or the emergency

room. New York has beensuccessful in creating amore patient-centeredhealth care system. Theproposed Medicaid rulewould seriously impedethose efforts and invest-ments—and threaten the

health and lives of women and families inNew York State.

Susan Pedo is the acting president

and CEO of Family Planning Advocates

of New York State.

OP-EDRather Than Attacking Lobbyists or Restricting Them, Press for More Transparency

welcomes submissions to the op-ed page. A piece shouldbe maximum 650 words long, accompanied by the nameand address of the author, and submitted via email [email protected] to be considered.

New Medicaid Rule is a Prescription for Disaster in New York

Enhancing—not decreasing—family planningservices is a smart public health strategy,

especially in times of fiscal instability.

In this election cycle, we need answersand leadership, not just finger pointing

and playing the blame game.


19

26

3512

TOTAL TURNOUT

REPUBLICAN TURNOUT

DEMOCRATIC TURNOUT

87%

77%

87%

20

27

34

11

TOTAL TURNOUT

REPUBLICAN TURNOUT

DEMOCRATIC TURNOUT

63%

57%

77%

1912

24

37

25

37

TOTAL TURNOUT

REPUBLICAN TURNOUT

DEMOCRATIC TURNOUT

65%

71%

75%

21

8

TOTAL TURNOUT

REPUBLICAN TURNOUT

DEMOCRATIC TURNOUT

62%

87%

75%

1996

2000

2004

Rolling with EnrollmentOver the past four presidential elections, overall voter turnout in New York has steadily dropped, culminating in one of the low-est turnouts in 2004 of any state in the nation. A closer look at fi gures from the New York State Board of Election reveals how the balance of power in the state’s congressional delegation and in the State Senate relate to voter turnout during presidential elections—and raises some questions about how things might go this presidential election year.


Tom Golisano once again sent shockwaves through the political world this year by creating Responsi-

ble New York, an organization which has put millions toward the primary and general election campaigns of candidates—money which could prove decisive in determining the party control of the State Senate. Tak-ing a break from the proceedings of the September an-nual meeting of the Clinton Global Initiative, of which he is a major underwriter, Golisano spoke about how he sees Responsible New York as an outgrowth of his gubernatorial runs, the plans for the group for after Election Day and how he feels about getting involved in a potential Senate Democratic leadership fi ght.

What follows is an edited transcript.

The Capitol: How do you see Responsible New York as an extension or a continuation of what you were trying to do in your runs for governor?Tom Golisano: I believe sincerely that the problems that exist today existed 12 and eight years ago when I ran for governor. Our state is one of only two states in the country that are not growing in population. The age gap is getting larger, the population in New York State is getting older. There’s a signifi cant brain drain going on where young people are moving to other pastures for better economic opportunities. These things all existed 10, 12 years ago, and continued to actually get worse. I think I’m a little be-yond the point of running for governor. I did retire as CEO of Paychex, and that means I’m in a certain age range, and my desire to have a full-time job isn’t as strong as it used to be. But I still feel very strongly about what’s going on in New York. So we see Responsible New York as an oppor-tunity to have a positive impact on our state government without me actually running for offi ce or getting elected.

TC: Does this refl ect a change in your understand-ing of how you can shake up the state?TG: I used to think the governor was the highest offi ce in the state. Now I’m beginning to believe the legislative leaders are the highest offi ce in the state, because they can have a tremendous amount of control, but they don’t have to have the media pressure. The governor gets it all. If you don’t have a budget on time, or the budget’s too big or too small, the governor gets all the heat. But the leaders re-ally control what happens in the state. They control the special interest money fl ow to the candidates, they control the agenda, they control the committee assignments, they control the staffs. Because they do that, they get this real or perceived loyalty from each of the legislators, they’re really running the show.

TC: Do you think being known in the political world through your gubernatorial runs has helped you gain more attention for Responsible New York?TG: I think so. Each time we ran, we certainly got a high-er and higher percentage of the vote, and I hope people are convinced that my intentions are fairly pure. I don’t represent a union, a public employee group, a group of trial lawyers or bankers—I’m just one person that lives in this state that would like to see our plight improved. So whenever I get accused of trying to be my own spe-cial interest, I kind of laugh of that, and think, “What are they talking about?”

TC: What is the specifi c agenda, beyond “new ideas,” you would like to see the candidates you are supporting carry out if and when they get to Albany next session?TG: There’d be eight or ten items. I would start by limiting

the growth of the budget to the rate of infl ation. Our state population is stagnant; there’s no reason for it to grow two to three times the rate of infl ation for the last 18 years. We need some form of campaign fi nance reform. The amount of money that’s being spent on behalf of the special inter-ests is ridiculous. Three, real estate taxes are killing our communities. They’re driving people out of their homes—it’s like you don’t even own your home anymore, you lease it from the government, because if you don’t pay your taxes from the government, which are exorbitant, they take your home. I can go on and on. There’s a lot of things. Education, you look at the amount of money we’re spending and the result we’re getting? And we keep doing the same things, year in and year out. And we make the budgets higher, we make the compensation plans higher. Nothing changes.

TC: Why not give the money directly to the candi-dates you are supporting, so they have more control over how the money you are putting in their direction would be spent? TG: We do have campaign fi nance laws that restrict the amount that you can do it. And the amount of monies that are allowable are not enough to have a signifi cant impact. Particularly when there are incumbents, or when their competition has taken special interest money.

TC: You are an Obama supporter. You are support-ing enough Democrats in the State Senate races to potentially fl ip the majority control of the chamber. Your inclinations before were more Republican. Have you shifted in your political ideology?TG: No. In fact, if I had my way, we’d do away with politi-cal parties. I just don’t see that they have a useful function anymore. I’ve said that if I could do it, I’d fi ll up the aisle with concrete and everyone would sit in alphabetical or-der, because to have all the decisions made in caucuses and not out on the fl oor, debated, is, to me, absolutely wrong. It’s like we don’t have a democracy anymore.

TC: You have found a way to affect the political process with your money. Have others with major wealth and political interests approached you for guidance on how they might be able to have a simi-lar effect?TG: They haven’t—yet. But I have the feeling that if we’re successful in this fi rst round, it will grow a level of momentum. What has happened is a lot of individuals not representing large organizations and not represent-ing signifi cant wealth have been sending us checks, en-couraging us.

TC: You are supporting a lot of candidates up for election on Nov. 4. What happens after that?TG: It’s just the beginning. First of all, we have to make

sure that we continue to support the candidates who we think are going in the right direction. Then we also have to make sure that we are keeping their commitments. Because if we just dis-appear until two years from Novem-ber, we’re not going to have much of an impact. We’ve got to stay right there, we’ve got to be very visible in Albany, and we’re planning to do that—an of-

fi ce in Albany, people that are going to have day-to-day conversations with legislators and leaders, probably even the governor. My commitment to this thing fi nan-cially is going to probably grow well beyond the initial amount, because I expect it to be an ongoing process. If everybody thought this was going to be a one-time deal, everybody would ignore it.

TC: So in 2010, if you are dissatisfi ed where things have gotten to by that point, would you consider get-ting back into another campaign for governor? TG: As a candidate? No. Every day that goes by, I get further away from it. I think about it every day, but I get further away from it.

TC: Would you get involved in telling candidates whom you’ve backed to go one way or the other if there is a fi ght for the Democratic leadership? TG: That’s presumptuous. I have no comment on that question.

—Edward-Isaac Dovere

[email protected]

: Responsible Responses

“My commitment to this thing financially is going to probably

grow well beyond the initial amount, because I expect it to

be an ongoing process.”

AN

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J. H

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KIN

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esponsible New York is organized around a core set ofvalues, beliefs and principles that are essential to guiding true political reform in the State of New York. Our quest

is to create a political movement to return Albany to its rightful owners. Our pledge is help create an organization with no personal agendas, other than to give a voice to all New Yorkers – Democrats, Republicans, Conservatives and Independents from cities, suburbs and rural areas both upstate and downstate.

We invite you to join Responsible New York.

Please go to our website at www.responsiblenewyork.com

and join the conversation.

We invite candidates to participate in our process. Please go to

www.responsiblenewyork.com/questionnaire.

Our objectives are not to help the few,

but to help the many. –Tom Golisano

Responsible New York is an advocate for:� Responsible State Budgeting� Real Estate Tax Reform� Election and Campaign Finance Reform (including redistricting )� True Government Transparency� An End to Unfunded Mandates� Equitable Distribution of Economic Development Resources� Government Employee Compensation & Pensions Consistent with Private Sector� An End to Back-Door Borrowing /Reining in Out of Control Authorities

Documents

The October 1, 2008 Issue of The Capitol