Tone-Deaf Mayor Picks Wrong Battle

Everyone had a heart attack when Police Commissioner Howard Safir did his red-carpet roll at the Academy Awards. Everybody, that is, except the Rev. Al Sharpton, who, it seems, had a good giggle. Asked what flashed through his mind at news clips of the black-tied commissioner, the reverend replied: “God does give gifts, doesn’t He?”

But when a mischievous piece of legislation showed up in the Republican-controlled State Senate at the behest of the city’s Law Department, no one seemed to notice. As it happens, though, the two developments have some key points in common. As matters of substance, neither counts for much-the Commissioner’s big night out, no matter how ill advised, is no more relevant to the real lives of New Yorkers than is a piece of legislation that has, by most accounts, no chance of passing.

But as the aftermath of the Amadou Diallo killing sends Mayor Rudolph Giuliani’s approval rating southward, both make one wonder when the political-judgment fairy is going to quit sprinkling funny dust in the Cheerios at City Hall.

In the unlikely event that it does become law, Senate Bill No. 3429 would change the venue for cases brought against the city from State Supreme Court to the Court of Claims. Supreme Court cases are heard by juries, but cases in the Court of Claims are decided by judges appointed by the Governor. Proponents argue that people who trip over potholes would not be able to tie up the courts in their quest for millions of taxpayer dollars. Or, as its opponents would put it, people (often uninsured, nonwhite people) who fall down elevator shafts in city projects, or whose surgeries are botched in city hospitals, or who suffer some level of police misconduct, would be denied their opportunity to have damages assessed by a jury of their peers.

Guess whose argument gives off more sparks right now.

“Certainly it is noticeable that at a time when you have such high-profile race cases pending, the Giuliani administration is championing this cause,” said Mr. Sharpton, who may be the most incendiary Democrat happy to make hay of this, but not the only one. “This is a masterpiece of bad timing on the part of the Mayor,” said State Senator Eric Schneiderman, a Democrat of the Upper West Side. “This legislation would amend the New York State constitution to deny plaintiffs the right to a trial by jury and put them in front of the Court of Claims, which is not exactly reflective of the diversity of the community.” And even if, as could well happen if the bill becomes law, the 22-judge Court of Claims were to expand and diversify in terms of race, “you’re still removing the citizenry from the process,” said trial attorney Daniel O’Donnell. “You’re still going in front of judges, not juries.”

All the same, whatever the merits of its substance or its timing, the legislation in question is nothing new.

“This has been on a city wish list for a long, long time,” said David Gruenberg, counsel to the State Senate Judiciary Committee. He’s right: In seeking to avoid making fat payouts from the till of torts-the city paid out roughly $347 million in 1998, up from $149 million in 1989-Mr. Giuliani is only following in the footsteps of his predecessors, including former Mayor David Dinkins. Nor is he unique among his fellow mayors, whatever their political stripes: “I think if you talked to the mayor of Syracuse or Buffalo, they would say, ‘Yeah, we’re getting banged on this, too,'” said Anthony Piscitelli, director of the Mayor’s Office of State Legislative Affairs in Albany.

Indeed, under ordinary circumstances, the bill would assume its customary place in a dark, dusty corner of the greater American debate over tort reform. Those in favor (and their business backers) would decry the clogging of the courts and the picking of deep pockets by frivolous case-makers in our litigation-loving society. Those opposed (and their backers in the trial bar) would protest that the average Joe’s sacred right to a trial by jury extends very much to a civil trial by jury. Under ordinary circumstances, it would die a quiet death.

But, as those of you who have lately strolled past 1 Police Plaza may have noted, today’s are not ordinary circumstances.

“I intend to make it very public,” said Mr. Sharpton of the issue. “I’m just waiting to see if it gathers steam.”

“Tort reform is very important to the city because judgments are skyrocketing,” said Lawrence Kahn, chief litigating assistant to the Corporation Counsel. “This legislation is structural reform that mayors as far back as Mayor Koch have considered extremely important to rein in excessive verdicts that have subjected the taxpayer to a real financial burden.”

That is an argument worth making. But given the fact that the legislation has far less chance of passing than it has of enhancing his reputation as racially insensitive and-lately, at least-politically tone-deaf, one can’t help but ask: Why would this Mayor want to make it now?

Terry Golway will return next week.