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In an extraordinary opinion exploring its dual role as a court of last resort and the administrator of the judicial branch of government, the New York Court of Appeals ruled Thursday that it can and will sit in judgment of a dispute arising from the rates it approved for attorneys handling death penalty cases. The court, in a rare written opinion on a motion, confronted a problem that has been addressed by at least seven other state high courts and came to precisely the same conclusion as all of those other tribunals: a top court’s parallel responsibilities judicial and administrative do not, absent a showing of personal bias or conflict, mandate recusal when the panel is asked to evaluate its bureaucratic decisions. Its per curiam opinion came in response to a motion for disqualification submitted by the New York State Association of Criminal Defense Lawyers and four individual attorneys. What the ruling means is that the judges of the Court of Appeals will decide if the organized defense bar has standing to challenge a Court of Appeals order that reduced fees for attorneys on death penalty cases by up to 50 percent. The challengers allege that the Court exceeded its authority in slashing rates. Ultimately, many of the very same judges who set those rates could determine if they had any right to do so. The Court cited “institutional reasons” for its decision and noted that under the State Constitution the Court of Appeals “decides the scope of its own power and authority.” It also expressed concern that granting a motion to disqualify would render the tribunal vulnerable to manipulation by litigants and attorneys who would rather take their chances with vouched-in replacement jurists than the judges of the Court of Appeals. “The constitutional provision for the designation of substitute judges is not to be used as a vehicle to force removal of the constitutionally appointed members of this Court by naming them as parties when challenging administrative actions of this Court,” the Court said. RATES CUT Matter of New York State Association of Criminal Defense Lawyers v. Judith S. Kaye, Mo. No. 1226, stems from the capital rate-setting process articulated in Judiciary Law Section 35-b(5)(a) and the Court of Appeals’ decision to cut rates after its initial fee schedule was criticized as “disgraceful” and “exorbitant” by Governor George Pataki. Judiciary Law �35-b, enacted in 1995 when the Legislature reinstated the death penalty, provides a framework for the representation of indigent capital defendants. Under the statute, a screening panel in each department, in consultation with the Administrative Board of the Courts, promulgates a fee schedule for assigned capital counsel. In November 1996, the Court of Appeals approved the hourly fee schedule submitted by each of the four Judicial Departments: $175 for lead counsel, $150 for associate counsel, $40 for legal assistants; and $25 for paralegals. After Governor Pataki denounced those rates, the Court of Appeals ordered the screening panels to reconsider the fee schedules. The Administrative Board, which includes the four Appellate Division presiding justices and Chief Judge Judith S. Kaye, proposed cutting the lead counsel rate to $100 for work done before a death penalty notice is filed and $125 for postnotice representation. It also recommended slashing the associate rate to $75 prenotice and $100 postnotice. Screening panels in the 2nd, 3rd and 4th Departments adopted the recommendation; the 1st Department panel split 2-2. On Sept. 16, 1998, the Court of Appeals approved the reductions and made the new rates effective in all four departments. The defense bar challenged the new rates, arguing that the Court of Appeals lacked authority to revise fees in the 1st Department. Additionally, it claimed that the new fees were too low to ensure an adequate pool of qualified capital defenders. After Acting Supreme Court Justice Dan Lamont of Cobleskill held that the Court of Appeals did have the power to impose a rate schedule on the 1st Department, the 3rd Department found last June that the Association of Criminal Defense Lawyers and four individual attorneys certified to accept capital cases lack standing because they failed to demonstrate an injury. The defenders then filed two motions with the Court of Appeals, one seeking leave to appeal and another demanding disqualification of the judges who were involved in setting the rates. APPEAL GRANTED Thursday, the Court granted leave, but denied the disqualification motion. Chief Judge Kaye, who presides over the Administrative Board of the Courts as well as the Court of Appeals, has recused herself from the case. That leaves Judges George Bundy Smith, Howard A. Levine, Carmen Beauchamp Ciparick and Richard C. Wesley, all of whom were involved in the rate-setting, and Judges Albert M. Rosenblatt and Victoria A. Graffeo. Rosenblatt and Graffeo did not play a role in setting the rates. However, Graffeo, who was recently promoted from the 3rd Department Appellate Division, was on the panel that decided the case in June. In its motion, the defense attorneys argued that disqualification is mandated by �14 of the Judiciary Law as well as a parallel provision in the Code of Judicial Conduct, both of which require a judge to disqualify himself or herself from any matter where he or she is a party. They contended that the Rule of Necessity is inapplicable because the Constitution provides for the substitution of Court of Appeals judges who are disqualified. NO CONFLICT FOUND The Court rejected those arguments. It observed that the judges named in the lawsuit were sued solely in their administrative capacity and the litigation seeks only to invalidate an order of the Court. “The respondent judges have no pecuniary or personal interest in this matter and petitioners allege none,” the court said. “Nor do petitioners allege personal bias or prejudice. No traditionally recognized basis for conflict exists here.” It also said the Rule of Necessity compels participation by the judges. “If disqualification were required whenever the judges were sued as individuals upon a challenge to an act of the [c]ourt, the result could be substitution of the entire constitutionally appointed court, leaving ‘the most fundamental questions about the Court and its powers to persons whose selection and retention are not tested by constitutional processes,’” the court said, citing Matter of Vermont Supreme Court Admin. Directive No. 17 v. Vermont Supreme Court, 576 A2d 127 (Vt, 1990). Appearing on the motion were Julia L. Tarver of Paul, Weiss, Rifkind, Wharton & Garrison for the defense attorneys and Assistant Attorney General Alicia R. Ouellette for the Court of Appeals. 18-B ‘RIPPLE EFFECT’ Kathryn M. Kase, president of the New York State Association of Criminal Defense Lawyers, said she is pleased that the Court has agreed to hear the appeal, and said the Court’s decision will have a “ripple effect.” There is a motion pending in Manhattan where assigned counsel seek standing to challenge rates paid under Section 18-b of the County Law. The assigned counsel rates, which have not been increased since 1986, have become so problematic that many attorneys are flatly refusing to take indigent cases. “Just as one rock can trigger a landslide, the lowering of fees for capital defense can trigger the flight of experienced counsel from these panels,” Kase said. “If we have any doubt in this state about whether the level of compensation is linked to the presence of lawyers on assigned counsel panels, we need only to look at what has happened to non-capital indigent cases in this state.”

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