Handicapping the Court

If we were doing a Linda Greenhouse-style analysis of today’s court hearing on the Atlantic Yards case, we’d have to hand the Empire State Development Corporation at least two of the appellate panel’s five votes. The other three are harder to read.

There was Associate Justice David Saxe, a Pataki-appointee who seemed offended by the very notion that lawyers could have a conflict of interest, the way that Atlantic Yards opponents say that David Paget does. (Paget used to work for the developer Bruce Ratner and until this morning advised the E.S.D.C. on whether to approve the project or not.) “What is at issue here is the notion that lawyers are for sale. Isn’t that the underlying notion?” Saxe asked—not to the opponents to challenge their case, but to the E.S.D.C. lawyer, Douglas Kraus, who couldn’t have agreed more.

Likewise Associate Justice Joseph Sullivan, who has served in the appellate division since the Carey era, seemed about ready to jump out of his robe when he disapproved of the way that conflicts of interest were requiring so many recusals of attorneys: “It’s being used as saw too many times, not as a shield.”

The presiding judge, Richard Andrias, another Pataki appointee and the Governor’s former law school classmate, was quieter, but certainly took time to tease Kraus about whether it would be a conflict of interest for a lawyer to represent, at the exact same time, both the developer that wanted to do a project and the state agency that was to regulate it.

Also leaning towards the opponents, Develop—Don’t Destroy Brooklyn, was Milton Williams, the only black person on the bench, who charged out of the gate by pressing Kraus how a lawyer could represent both a public agency and private developer.

Then there was Associate Justice James McGuire, whom we might suspect would vote with the E.S.D.C. merely because he used to be Governor Pataki’s counsel and relied on Pataki heavily to get appointed. But then again, we’d only think that if judges were for sale also. He actually grilled the E.S.D.C. attorney quite thoroughly—but then seemed exasperated that opponents had caused the state agency to replace its lawyer this morning: “They certainly did not get the lawyer of their choice,” he barked at the lawyer for project opponents, Jeff Baker. “He had been representing them for 30 years. He only briefly represented the Ratner organization.”

But was Paget E.S.D.C.’s choice or was he Ratner’s choice?

At one point, Kraus, the E.S.D.C. lawyer, said that both the state agency and the developer knew Paget was going to advise the state when it came time for environmental review. So did Ratner hire Paget because he knew what the E.S.D.C. would approve, or is Paget, now working for Ratner, favoring the developer because he wants to get more business in the future? We don’t know. But we mentioned before that in a February 18, 2004, letter, Ratner asked the E.S.D.C. to hire Paget. Perhaps that was just to remind them whom they had intended to hire all along.

Matthew Schuerman

Handicapping the Court