Barrett puts a damper on praise for retiring Chief Judge Lippman; I suggest eminent domain case also should provoke skepticism

In City & State NY, SECRETS OF THE SILVER TRIAL: A MYSTERY POWERBROKER AND THE CHIEF JUDGE, veteran muckraker Wayne Barrett offers an acidly revisionist view of the mostly praised reign of Court of Appeals Chief Judge Jonathan Lippman, who recently retired.

Lippman's path to the Court of Appeals, as Barrett famously wrote in a 2/10/09 Village Voice article, was steered by his childhood friend, longtime Assembly Speaker Sheldon Silver, whose career recently ended in disgrace and criminal conviction.

Thanks to information that recently surfaced in Silver's case, Lippman, Barrett now writes, was the key vote in a dubious decision--involving a Silver crony, Daniel Chill, "an obscure embodiment of the permanent government." That decision overturned a unanimous Appellate Division that found a very high law firm fee "both procedurally and substantially unconscionable.”

Barrett writes:

Lippman wanted all of the upside of his familial relationship with Silver over the years, but now, none of the downside. His liberal record drew favorable farewells recently, omitting decisions like the one in the reapportionment case defended by Chill and Silver that led to an extra seat in the Senate and contrived continuance of Republican rule.

Indeed, a 12/29/15 article in the New York Times, New York’s Chief Judge Leaving a Legacy of Reforms Inspired by Social Justice, cited "what some say may be his most notable legacy: his campaign to provide lawyers and other legal help to thousands of impoverished New Yorkers who face serious proceedings — such as eviction, foreclosure and the loss of child custody — with no representation."

That led City & State to count Lippman among the five Winners of the week in its first weekly assessment of 2016.

The Atlantic Yards angle

There's another reason to look skeptically at Lippman's record. Neither the Times's encomium nor the Barrett slam mentioned a November 2009 decision in which Lippman maintained the status quo, albeit on an ever-thinner reed of logic, upholding the use of eminent domain in the Atlantic Yards case.

And that of course reaffirmed a project that his buddy Silver long supported. (And Forest City had given $58,420, in January 2008, to a "housekeeping account" Silver controlled, which Common Cause Executive Director Susan Lerner called "a political slush fund controlled by the speaker."

Remember, Lippman wrote, in Goldstein, et al., v. New York State Urban Development Corporation, d/b/a Empire State Development Corporation:

It may be that the bar has now been set too low -- that what will now pass as "blight," as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.

As I wrote in April 2011, Appellate Division Justice James Catterson took aim at another line in Lippman's opinion:

It is only where there is no room for reasonable difference of opinion as to whether an area is blighted, that judges may substitute their views as to the adequacy with which the public purpose of blight removal has been made out for those of the legislatively designated agencies.

"Leaving aside the redundancy and the double negative, I still don't know what it means," Catterson declared.

Indeed, as libertarian law professor Ilya Somin wrote in November 2009:

With respect to any neighborhood, there is nearly always “room for reasonable difference of opinion” as to whether the area is “underdeveloped” relative to some possible alternative uses of the land in question. Defining blight this broadly and then deferring to the government’s determination of whether such “blight” actually exists effectively reads the public use restriction out of the state constitution.

He followed up at a conference, as I wrote in April 2011. Given that there's always room for some reasonable disagreement, "this is a virtually limitless definition of blight, which goes against the text, what it originally meant," Somin said.