Note:  This article appears on page 9 of this morning's New York Sun.

Or to Assist Unions, Tort Bar?

By Henry J. Stern
June 30, 2006

In the last few years, the State Assembly speaker, Sheldon Silver, has emerged as the dominant political figure in New York State. With Governor Pataki an increasingly lame duck, and the majority leader, Joseph Bruno, struggling to preserve the Republicans’ slim State Senate majority, the speaker, who leads a 105-member Democratic conference in a 150-seat Assembly, is now the strongest of the “three men in a room,” the dissonant triumvirs who have presided over our dysfunctional state government for a dozen years.

First the positives: Mr. Silver works hard, takes heat for his Assembly followers, protects his Lower East Side district, and has picked some good judges.  Despite minor ethical squalls, he has never been indicted or accused of a crime.  He is good on Israel and concerned about poverty and social services. He can be persuaded to do the right thing, sometimes for the wrong reason.  Historically, he is not the worst of speakers, but neither is he first rate.

This year, Mr. Silver received enhanced attention on several controversial issues:

1.  By the last minute maneuver of appointing three new members to the Judiciary Committee, Mr. Silver prevented a bill, which would have prohibited double-dipping by public employees, from being considered by the Assembly.  Under current law, an injured city employee can, and many do, receive upwards of a million dollars in a tax-free disability pension.  They are also now permitted to sue the city and receive additional millions in jury awards.

The bill to end this practice was supported by cities and counties all over the state, by Mr. Pataki, Attorney General Spitzer, and every newspaper that commented on it.  However, it was opposed by two of Mr. Silver’s favorite funders: public employee unions and personal injury lawyers.  Mr. Silver’s own law firm is Weitz & Luxemberg, which represents plaintiffs in tort cases.  It pays him a vast sum each year, which he is not required to disclose.  Nor does he release his income tax returns.

2.  A bill to extend the state’s DNA data base to all convicted felons was held up for seven years by the Assembly, until a compromise was reached in the last days of the 2006 session.  DNA is extremely important evidence, particularly in rape cases.  Most rapists have committed several other crimes before they rape, but under current law their DNA was not required to have been collected.  The criminal defense bar vigorously opposes measures that would lead to the conviction of their crime-committing clients.

3.  A bill to abolish the five-year statute of limitations for rape is important because even where DNA evidence is available, it may not be tied to a suspect for many years.  This bill was passed by the Senate 60-1.  Mr. Silver would not allow the bill to be considered unless the statute of limitations for civil actions was extended.  In civil suits, the plaintiff’s lawyer goes after anyone with deep pockets who can possibly be blamed for conditions that may have led to the rape (the police, a hotel, a school).  Refusal to extend the criminal statute of limitations meant that rapists would go unpunished, even if their guilt could be proven by DNA, provided they escaped detection or DNA testing for five years.  The tort bar has an economic interest in finding more opportunities to file lawsuits, and rape victims were held hostage to their rapacity.  Fortunately, at session’s end, a compromise was reached and the bill allowed to pass.

4.  A bill supported by the governor, the mayor, and Schools Chancellor Klein to raise the cap on charter schools in New York State to 250 from 100 was not allowed to come to a vote in the Assembly.  The bill was opposed by the omnipotent United Federation of Teachers.

Incidents from prior years are also illuminating:

1.  “Vicarious liability” is a legal theory under which one person or company is held responsible for the wrongdoing of another.  It was applied in New York State so that if a driver of a rented or leased car had an accident, the other party could sue not only the other driver but the renting company as well.  The opposite rule was followed in 49 of the 50 states, and vicarious liability was often rejected by the State Senate.

The Assembly under Mr. Silver stood alone in the nation, the repealer never being allowed to come to a vote.  The practice was finally ended by the U.S. Congress, which wrote a provision into the Federal Transportation Act forbidding vicarious liability.

2.  On May 17, 1999, Mr. Silver pushed through the Assembly the repeal of the New York City commuter tax, a decision that has cost the city about $3 billion over the last six years.  He did this because he thought it might help the Democrats win a State Senate seat in a special election in Rockland County.  The ploy failed, the Democrat lost, but even if he had won the Republicans had a substantial Senate majority.  Others attributed the tax repeal to Mr. Silver’s distaste for Mayor Giuliani, which was reciprocated.

3.  In 2005, Mr. Silver and Mr. Bruno put a constitutional amendment on the ballot that would have enhanced their power and emasculated the governor’s role in determining the state budget.  Mr. Silver helped fund the television campaign, which featured bamboozled goo-goos, with a $500,000 contribution from the owner of Cablevision, Charles Dolan.

Mr. Silver had recently blocked the West Side Stadium, a project strongly opposed by Mr. Dolan, who feared competition with Madison Square Garden, which his company owns.  (Citizens Union and the Citizens Budget Commission were not among those deceived.)

The proposed constitutional amendment lost at the polls, 64% to 36%, with the state’s newspapers in overwhelming opposition to the power grab.  In June 2006, Mr. Silver and Mr. Bruno introduced and passed a massive bill, which allegedly recycled part of the defeated amendment.  The elephantine legislation does include some desirable provisions, but it requires close scrutiny before Mr. Pataki signs or vetoes it.  The Court of Appeals will later have its say if questions of constitutionality arise.

Sheldon Silver is a talented politician whose prolonged domination of the Assembly compares with Lyndon Johnson’s mastery of the Senate.  Unfortunately, his obeisance to public employee unions, his lucrative law firm connection, and his manifest devotion to personal injury and criminal defense lawyers impair his ability to render distinguished and disinterested public service.  Although both houses of the Legislature are financially reckless and profligate, Mr. Silver has a large enough majority to act responsibly.

New Yorkers will wait to see how he interacts with Eliot Spitzer, should he be elected.  Will the two men get along?  Hopefully. However, an ancient political maxim is stated in our Rule 14-F: “Follow the money.”  The speaker brings 30 years of Albany guile to the table.  Will Eliot turn out to be Sir Galahad, Don Quixote, or Spider-Man?