Until they are unlucky enough to get caught parking their cars illegally, setting up their pushcarts too close to curbs, or insufficiently ventilating their dry-cleaning businesses, most New Yorkers do not give much thought to administrative law tribunals.
This November, however, the mayor’s city charter revision commission is asking voters to turn their attention towards these quasi-judicial tribunals. Despite their low profile, these tribunals have a wide reach into the lives of New Yorkers. A total of 500 administrative judges and hearing officers hold hearings on minor violations to ease congestion on regular courts. The network of tribunals collects over $600 million in fines, fees and taxes annually, according to the city bar association, yet their judges are not bound by a common code of ethics.
Ballot Proposition Three (in .pdf format) asks New Yorkers to amend the city’s charter to require that the mayor create a code of ethics for administrative law judges and hearing officers. It says nothing about the actual content of the code itself.
There is not much debate over whether to have an ethics code; everyone seems to agree it is a good idea. The disagreement is whether the City Charter is the proper place to address the issue.
Supporters of the proposal say that an ethics code is important, though they acknowledge that Mayor Bloomberg already has the power to create one. All it would take is an executive order. But some believe a charter revision would be preferable to mayoral action because a charter revision carries more weight than an executive order.
Others, including the New York City Bar Association and Citizens Union, whose sister organization publishes Gotham Gazette, have concerns about using the charter for such an action, but believe the need for an ethics code is important enough to outweigh these concerns.
Critics of Proposal Three disagree and say the mayor is using a charter revision to weaken the power of his political rivals. State law says that in years when the mayor puts a proposed charter revision on the ballot other groups cannot do so. Assembly member Richard Gottfried criticizes both of the mayor’s ballot proposals this year because they block a petition for a referendum on class size in public schools. City Council Speaker Gifford Miller, a key supporter of the class size referendum, has argued that actual crises in the charter are the only reason to alter it – and that the ethics code is not a crisis.
As it stands, the city council could pass a law creating an ethics code, which would hold the same weight as the proposed charter revision. So by creating an ethics code through a charter revision, critics say, the mayor is stripping the city council of its power to pass future laws on administrative tribunals.
Neither the mayor nor the council has shown much interest in using their existing powers to create an ethics code. Bloomberg’s charter revision commission put a similar measure on the ballot in 2003, but when it was defeated the mayor didn’t issue an executive order to create an ethics code. He didn’t urge the council to pass legislation to put a code into place, and the council didn’t pick up the issue of its own initiative, either.
Nor has either side in the lackluster debate over this year’s ballot initiative taken pains to forward their side of the argument. Mayor Bloomberg issued a statement in favor of the proposal for the Campaign Finance Board’s voter guide, but neglected to give a reason why people should vote for it. Even this, though, was more of an effort than that put forth by the public officials who oppose it. The board didn’t receive a single statement in opposition. Â
When Mayor Mike Bloomberg approved the Local Civil Rights Restoration Acton October 3 despite some unspecified concerns, he signed into law the most extensive strengthening of the city’s human rights law since 1991.
I wrote extensively about this bill and its provisions in June 2005. Last month, the measure -- Intro 22-A-- passed the City Council by a vote of 42-3 with one abstention. Councilmember Gale Brewer, a West Side Democrat, said that the “farthest-reaching” provision of the law is that it must “be interpreted independently of its federal and state counterparts.” This means that New York City cannot enact protections weaker than those in federal and state law -- but it can institute stronger rights measures.
The bill was backed by a coalition of 40 groups, but Bloomberg singled out the support of District Council 37, the municipal employees’ union, as important and stood with its president, Lillian Roberts, at the bill signing. Leonard Polletta, assistant general counsel of District Council 37, many of whose members are people of color, said, “We have hundreds of thousands of members daily affected by civil rights laws. Those laws have to be broadly interpreted.”
Craig Gurian, executive director of the Anti-Discrimination Center of Metro New York, who was instrumental in the drafting of this bill and the 1991 reforms, said this measure "gets our Human Rights Law out from under the shadow of its federal and state counterparts.” He said that many areas of the law that have been restrictive will now have to be reexamined by judges, including "the doctrine that throws a woman out of court whenever a judge decides she hasn't been harassed enough." The city Human Rights Law may also help some persons with disabilities seeking to rent or buy an apartment, Gurian said. Some federal courts have resisted letting disabled persons use cosigners to guarantee their rent or mortgage. The new act, according to Gurian, will fill that gap.
“New York City has now done all in its power to provide the entire bundle of rights that are protected in housing, employment and public accommodations to domestic partners,” Gurian said.
Some legal experts see this new law as a powerful tool to compel private employers to provide domestic partner benefits. While other experts think federal insurance laws under the Employee Retirement Income Security Act -- or ERISA -- may prevent that, many .private insurance plans have nothing to do with ERISA and, under the new city law, employers would be hard-pressed to deny domestic partner benefits if they provide spousal benefits. (For more on the law’s effect on domestic partner benefits, see my article in Gay City News.)
Irum Taqi, legislative director of the New York Civil Liberties Union, said that for years the city’s human rights law has been “compromised” by federal and state court rulings. “Intro 22-A sends a strong message that New York City--a city that prides itself on its diversity and openness--aims to preserve the strength of its local civil rights laws.”
Civil rights and liberties battles continue in New York over everything from riding bicycles en masse to the right of same-sex couples to marry(see Links in the News). But over the last several months, five of the most eminent leaders of the civil rights movement who lived here or made some of their most important contributions here have passed away.
Constance Baker Motley, 84, civil rights lawyer: Constance Baker Motley made history in 1964 as the first African American to hold a New York State Senate seat in 1964, in 1965 as the first to be Manhattan borough president , and again in 1966 when President Lyndon Johnson made her the first black woman to be appointed a federal judge. She died in Manhattan of heart failure on September 28.
Motley was part of a small corps of lawyers at the NAACP Legal Defense and Education Fund led by Thurgood Marshall. In the 1950s, they put their lives on the line to end racial segregation, mostly in the American South. She was known, according to the New York Times, for her “quieter, painstaking preparation and presentation of lawsuits,” her elegant dress, lilting voice, and brilliant courtroom tactics. “She argued 10 cases before the United States Supreme Court and won nine of them,” the paper said.
Marshall, who later served as a justice of the United States Supreme Court, was said to believe that, despite death threats and the physical perils of their work in the South, she was safer as a woman. Two of her major cases in the early 1960s involved getting James Meredith, a black man, admitted to the University of Mississippi and Charlayne Hunter-Gault into the University of Georgia in the early 1960s.
Donald S. Harrington, 91, minister and party leader: The Rev. Donald Szantho Harringtonwas best known as a state chairman of the New York Liberal Party and the pastor of the Community Church of New York in Manhattan, a Unitarian congregation. He died on September 16.
His involvement in city politics grew out of his commitment to social justice. In 1938, he founded the magazine of the International Association for Religious Freedom. In 1952, he and A. Philip Randolph created the American Committee for Africa, an early anti-apartheid group. His church hosted a memorable debate between Malcolm X and Bayard Rustin in 1962, contrasting the different strains in the African American community striving for racial justice. In 1968, he helped found Black and White Action to step up racial integration. He was also an active participant in the movement against the United States war in Vietnam.
The New York Timesreferred to him as a “liberal crusader,” in both upper and lower cases. He chaired the state Liberal Party for 16 years, but was, according to the paper, a “figurehead for Alex Rose,” the party’s founder. Harrington was ousted as leader by Ray Harding in 1986. Harding moved the party to the right to endorse Rudy Giuliani for mayor in 1989 and eventually it lost its ballot status in the state.
Rabbi Balfour Brickner, former city human rights commissioner, 78: One of the city’s leading social justice activists, Rabbi Balfour Brickner, died of lung cancer. He was the senior rabbi at the Stephen Wise Free Synagogue from 1980 to 1992 and worked for civil rights his entire life.
In the 1960s, he worked for voting rights in the American South and was jailed for his activities. He was a leader in the movement for a woman’s right to choose an abortion, founding Religious Leaders for Choice. A Zionist since his adolescence, he also advocated for the rights of Palestinians and worked for an end to apartheid in South Africa.
In the early 1980s, Rabbi Brickner was one of the few religious voices for lesbian and gay rights at a time when the city’s Catholic and Orthodox Jewish blocked passage of a city bill to ban discrimination on the basis of sexual orientation. He testified for the bill in 1986 when it passed after a 15-year campaign.
In 1990, Mayor David N. Dinkins appointed Rabbi Brickner to serve as a commissioner for human rights. In that capacity, he was active on a wide range of issues, including the improvement of police-community relations.
Jack Nichols, early gay activist, 67: Jack Nichols came out as gay as a teenager in the 1950s, and in 1961, at the age of 23, joined forces with Frank Kameny to form the Washington chapter of the Mattachine Society, a pre-Stonewall gay rights group. He organized the first gay protest at a federal building--the White House in 1965--and conceived the idea of challenging the American Psychiatric Association’s classification as homosexuality as a mental illness, a campaign that came to fruition in 1973.
Nichols moved to New York with his partner, Lige Clark, in the late 1960s; and the two became gay columnists for Al Goldstein’s “Screw” magazine, soon spinning off “GAY,” one of the first gay publications sold on newsstands in the United States. They were active participants in the Stonewall Riots of June 1969 that led to the formation of the modern, militant gay and lesbian rights movement.
Nichols never abandoned gay activism, writing several books on the subject and editing the Gay Today Web site in recent years. He died in May at age 67 in Cocoa Beach, Florida. He was remembered at a memorial serviceat New York’s Lesbian, Gay, Bisexual and Transgender Community Center in late September as the indispensable activist that he was.
Sandra Feldman, labor leader with roots in the civil rights movement, 65: Sandy Feldman was known primarily as the president of the United Federation of Teachers from 1986 to 1997 and the leader of the national American Federation of Teachersfrom 1997 to 2004, but her activism grew out of her involvement in the civil rights movement of the 1960s when she worked to “integrate Howard Johnson restaurants along route 40 in Maryland,” according to the New York Times.
Freedom House issued a statement at her death mourning her “as a champion of freedom, human rights, and racial equality,” including “support for freedom struggles in the Soviet Union, China, and other countries under despotic rule.” She worked closely with the late civil rights leader Bayard Rustin.
Her first big involvement in the teachers union was as an aide to union president Albert Shanker during the racially divisive teachers’ strike of 1968 that was followed by legislation giving local communities a higher degree of control over the schools.
The Brooklyn-born Sandra Abramowitz was a graduate of James Madison High School and Brooklyn College. She died of breast cancer on September 18.
Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM. Â
When Governor George Pataki capitalized on widespread public fear of violent crime in his successful campaign against Mario Cuomo in 1994 by pledging to bring back the death penalty in New York, his tactic was far from unique. Many candidates for public office have used their opponents' opposition to capital punishment to suggest that they are "soft on crime".
The use of the death penalty as a campaign issue resurfaced in the 2005 Democratic primary for Manhattan district attorney, but this time with a different twist.
Facing his first real election challenge in decades, District Attorney Robert Morgenthau attacked his opponent, former judge and prosecutor Leslie Crocker Snyder, for her support for capital punishment. In a television ad, Morgenthau's campaign highlighted a passage from Snyder's autobiography where she said that she would have been willing to give one defendant a lethal injection herself. The ad declared that Snyder was "wrong on the death penalty, wrong for Manhattan."
It is a testament both to Morgenthau's position as a long-time, well-respected incumbent and to the liberalism of Manhattan voters that such a tactic could be successful. But if we are to believe Snyder's protestations, her support for the death penalty was less than unequivocal. During the campaign she repeatedly said that she would seek the death penalty only for the most heinous crimes, and only then where there is strong corroborating evidence such as DNA.
The prominence of the death penalty debate in the Manhattan district attorney race is even stranger because New York state does not currently have a functioning death penalty, although the law allowing prosecutors to seek death sentences is still on the books.
In 2004 the Court of Appeals, New York's highest court, declared the state's death penalty statute unconstitutional in the case of People v. LaValle.(in pdf format). The law required the jury in a capital case to choose either a sentence of death or of life without the possibility of parole. Either choice had to be unanimous. The law also required the judge to instruct the jury that if it could not agree on either choice, the judge would sentence the defendant to life with parole eligibility after twenty to twenty-five years. This "deadlock instruction," said the court, violates the state constitution. Citing studies showing that a crucial consideration for juries in a capital case is whether the defendant will eventually be released from prison, the court concluded that the instruction created "the unacceptable risk that it may result in a coercive, and thus arbitrary and unreliable, sentence."
The court left it to the legislature to enact a new "deadlock instruction." The State Senate passed a new version of the law in March, 2005. After holding extensive hearings (in pdf format) , however, the State Assembly failed to vote the new law out of committee. While some supporters of capital punishment suggest that the legislature is likely to revisit the issue in 2006, an election year, for now New York's capital punishment law is itself effectively dead.
It is still possible, of course, for the legislature to reinstate the death penalty in 2006. However, it is unlikely that there will be a massive groundswell of the kind that propelled Governor Pataki to victory more than ten years ago. Though a majority of voters in New York State continue to support the death penalty in principle, when given a choice between the death penalty and life without parole, those same voters prefer life without parole by a margin of 53 - 38 percent. In New York City, the City Council passed a resolution in 2002 calling for a moratorium on executions in the state.
The decline in support for the death penalty can be attributed in part to the increasing number of death row prisoners across the country that have been exonerated and released, as well as misgivings about racial and class disparities in the application of the death penalty. But another reason for the decline in support is surely the precipitous drop in violent crime that occurred throughout the 1990s and continues today. The number of murders in New York City peaked in 1990, when 2,245 murders were reported. The decline in the years since has been dramatic. In 2004, just 572 murders were committed citywide, a drop 75 percent from 1990, and a drop of 63 percent from 1994, the year Governor Pataki rode a wave of fear into the governor's office. Thus far in 2005, the incidence of murder in New York City has declined an additional six percent. Occasionally, an individual crime still results in calls for the death penalty, such as the case of Ronell Wilson, who is accused of killing two undercover NYPD detectives in Staten Island in 2003 and is currently facing trial in federal court, where the death penalty is still available. But violent crime is no longer at the forefront of voters' minds.
Moreover, in the ten years between the revival of the death penalty and the LaValle decision, prosecutors rarely sought death sentences. In that period there were 864 cases statewide where the death penalty was available, and only 19 times did prosecutors go to trial seeking the death penalty. Only seven of those trials resulted in death sentences, and just two men remain on death row. None have been executed, and the possibility of an execution in the near future is slim.
The decision to seek the death penalty has been even rarer in New York City. Only two of the seven death sentences handed down since the reinstatement of capital punishment in 1995 came out of the five boroughs. Darrell Harris was convicted of killing three people in a Brooklyn social club in 1996. John Taylor was convicted for his part in the infamous "Wendy's massacre" in Queens in 2000.
Bronx district attorney Robert Johnson has refused to seek the death penalty for any case. Morgenthau has been outspoken in his opposition to capital punishment, and went so far as to testify in front of the state Assembly in December, 2004 that the legislature should not revive the state's death penalty law.
Whatever the cause, it seems clear that Morgenthau was able to tap into a strong sentiment among New Yorkers who believe it is possible, and even preferable, to control crime and keep the city safe without capital punishment.
David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator.Â