The System Is the Crime
By Jesse Sunenblick
Litigators sure seem to think the world of Judge Judith Gische — even those whom she's ruled against. The problem is that New York state's wretched judicial election system can make even a luminary of the bench appear to be conflicted.
Even if a judge is putatively brilliant, the particulars of his or her excellence can be overshadowed by surrounding failures that are essentially systemic. Witness Judith Gische, the Manhattan judge known for presiding over Rudolph Giuliani’s divorce case.By various accounts Gische, 50, is “just plain smart,” “understanding of the issues,” “rational,” “caring of her job,” and “engaged and prepared and very thoughtful.” “Practically every member of the matrimonial bar has appeared before Judith Gische,” said Raoul Lionel Felder, the divorce attorney for Giuliani. The former mayor was ordered in 2002 by Gische to pay his ex-wife, Donna Hanover, more than $6 million (plus yield their upper East Side apartment.) The settlement came after 18 months of courtroom acrimony.Yet notwithstanding that outcome, Felder, now the chair of the state Commission on Judicial Conduct, contributed $3,000 to Gische’s uncontested run for Civil Court in 2003, according to state Board of Elections records. The donation equaled the biggest among the more than $61,000 in contributions that Gische raised. According to binding rules set by the Office of Court Administration’s Judicial Campaign Ethics Center, judges should not learn who their donors are. But judges are also prohibited from taking contributions from parties who “may reasonably be expected to come before the candidate if elected” or parties who “have come before the candidate so recently that it manifests an appearance of impropriety.”Which raises a tidy little question: How are judges supposed to prevent courtroom appearances by donors whose identities they’re not supposed to know in the first place?“I would say that there is no statute or promulgated rule that prohibits a judge or a judicial candidate from knowing his or her contributors,” said Robert Tembeckjian, administrator and counsel for the judicial conduct commission. “This is a practice based on an advisory opinion from the state bar association from the 1970’s.”In reality, said Hofstra University School of Law ethics professor Monroe Freedman, “whoever is close enough to the judge to be handling the campaign and the financing is very likely to let the judge know. And the lawyers are likely to let the judge know, more or less subtly, that they have helped out. I don’t trust this kind of system. Some people might say I’m a cynic, some might say I’m a realist.”Referring to Felder’s contribution, Gische’s treasurer, attorney David B. Karel, said, “Judges don’t know who’s contributing to their campaigns. I never told her who contributed how much money. I think there are some attorneys who have such a belief in the judicial system that they feel the money is well spent. It’s commendable that somebody would make a large contribution to a candidate, despite the fact that the candidate will not know who contributed to their campaign.”When asked if she knew the identities of any of her donors — many of them matrimonial attorneys — Gische was emphatic. “I can’t, I wouldn’t, and I don’t. I’ve raised money, and I have an independent treasurer. But it’s a blind process. I’m not supposed to know, and I don’t know.”In fact, at least three of Gische's donors with contributions listed at the board of elections litigated before her shortly before or after she won reelection. The appearance by Allen Mayefsky (who gave $250) was confirmed by a staff member at his office. The appearances by the other two, Bernard E. Clair ($500) and Joel B. Mayer ($150), are on record at the New York County Supreme Court’s Trial Support Office.But is this an impropriety, or an absurd contradiction within the system?“If not lawyers, then who would contribute to campaigns?” said Gische. “I don’t think the general voting public would be making contributions to judicial elections.”In terms of jurisprudence, Gische garnered a reputation for independent-minded diligence in the Matrimonial Part, where she sat from 1997 until 2005.A cauldron of emotions — and, in Manhattan, media attention — the Matrimonial Part often produces decisions in heavily contested custody cases that revolve around “expert” reports on the parties and the children prepared by forensic psychiatrists.
“In the past, judges have rubber-stamped these reports too much,” said Donald Frank, a matrimonial lawyer at Blank Rome with more than 35 years of experience. “It used to be that whatever the forensic said, a judge did. I think Gische understood that whatever is said is not empirical or scientific. I think she did a good job making up her own mind, not abdicating her ultimate role by what the experts say.” In the cases Frank tried before Gische, he said, “she had keen insight into the parties, and what the dynamics were in the marriage. Let’s face it: The Matrimonial Part is not the easiest court to sit in day after day, year after year. . . but lawyers have always enjoyed appearing before her. They always felt they were being accorded respect and listened to.”Raised in Bayside, Queens, Gische grew up in a “pretty working class” neighborhood. “My parents had middle class values,” she said. “They were very pro-education.” Her father worked as a cutter and factory foreman in the garment business, and at one point had his own custom blinds business, while Gische’s mother was a bookkeeper. Gische received her undergraduate degree and law degree from the State University of New York at Buffalo. She then spent two years as a clerk at the Appellate Division, Third Department, and eight years after that at Richenthal, Abrams & Moss, a firm that specialized in real estate and commercial matters. In 1990, Gische responded to an advertisement in the New York Law Journal seeking nominees for Housing Court judgeships. She submitted an application and ultimately was appointed, after successfully navigating bar association and various screening panels and getting the nod from Deputy Supervising Judge Fern Fisher. “Doesn’t every lawyer want to be a judge?” Gische said, with the kind of humility admirers often point out. “I thought it was a good career move, but I was very uncertain my application would go anywhere.”In 1993, Gische was elected to Civil Court in Manhattan, but four years later Administrative Judge Jacqueline Silbermann offered a promotion, asking Gische to help organize the Bronx Civil Term’s Matrimonial Part, which was lagging administratively. Thus began an eight-year tenure as an Acting Supreme Court Justice handling matrimonial cases.After she learned she would face no opponent in 2003, Gische filed papers to campaign for the Supreme Court. She became eligible after being approved twice within four years by the Democratic Party’s screening panel.But she withdrew her name from consideration shortly before the party’s convention when it became clear, according to her consultant, Jerry Skurnik, that among district leaders “she was nobody’s first choice” for the two vacancies in Manhattan.If politics prevented an excellent judge from moving up the career ladder, in many ways Gische’s move to the General IAS Part is a return to what she knows best. Asked if the move required any brushing up on procedure, Gische said, “Everything. I’m always learning. A lot of labor law accident cases, I’ve had to learn that. And insurance cases. I’m always looking at the law.”As for pet peeves, Gische described herself as a time freak. “I like timeliness. It shows consideration for other people who are part of the trial process. Particularly when you have a jury.”Since her move to IAS, Gische has garnered praise for her handling of other cases. In Gherghinoiu v. ATCO Properties and Management Inc., which revolved around an issue of “special employment” in a worker’s compensation case, Gische denied defendant’s attorney Gail Ritzert’s motion to dismiss.
Yet Ritzert offered praise: “She was prepared. Every time we went before her — motions or conferences — she was familiar with the case and background. She did her homework.”In a recent civil rights case in which an Orthodox Jew sued California photographer Philip Lorca diCorcia for taking his picture without permission and then hanging it in a gallery, Gische impressed diCorcia’s attorney, Los Angeles corporate litigator Lawrence Barth. “It was a motion for summary judgment, and she gave us about an hour to argue, which I thought was generous. She was interested and engaged, and had obviously read the briefs thoroughly.”“It was a fascinating case,” said Gische. “The balancing of what constitutes privacy, which is important in our society, and the First Amendment rights of artists is a delicate balance. You don’t often have cases that bring issues like that together that frame the fabric of our society, define who we are as a society. I think the proof of this was, there wasn’t a lot of case law out there for me to depend upon and reach a conclusion in this issue.”On a more controversial note, in 2003, the New York Daily News and New York Law Journal reported on Gische’s role in overseeing the initial guardianship hearing that ultimately led to a scandal involving Brooklyn Supreme Court Justice Michael Garson. (His brother Gerald, who faces bribery charges in an unrelated case, said this week that he would not take a plea deal.) Currently suspended with pay, Michael Garson stands accused of using his power-of-attorney on behalf of his elderly aunt, Sarah Gershenoff, to steal hundreds of thousands of dollars from her. Gische presided over one part of the dispute and approved a settlement that the Law Journal described as “apparently favorable to the Garson wing.”Equally at issue, however, was Gische’s decisions to seal the court record and refrain from reporting Garson’s alleged wrongdoing to the judicial conduct commission.“If she’s a judge, she’s an officer of the law,” said Freedman, the Hofstra ethics professor. “She became aware in the course of a proceeding that there was at the very least a strong appearance of felonious conduct, certainly unethical conduct, and . . . at the very least she should not have covered it up by sealing the record and not having it investigated by a prosecutor or a judicial ethics body.”“That’s an opinion I’d expect from a professor,” said attorney Robert Kruger, whom Gische appointed to the role of financial guardian in the case. “In the practical world, people’s behavior can depart from the norm or a professor’s notion of what the norm should be. A professor is in a cocoon. I think their opinions are worthless.”In fact, Gische said, her main responsibility was to decide whether Ms. Gershenoff needed a guardian and then to appoint an independent party to serve that role, whose responsibility it was to investigate any claims Ms. Gershenoff might have had against anybody.“I had had a bunch of squabbling family members who were raising extravagant allegations back and forth,” Gische said. “I hadn’t made any findings, all I had were the allegations. There was nothing at that point that would have risen to the level that would have required me to report something to the Commission on Judicial Conduct.” “If every time somebody raises an allegation I have to send it to some grievance committee, then I would have been sending out all my cases. I think it has to rise to a level of substantial evidence, and we never got that far. I think what I did — I facilitated an investigation of the allegations by somebody independent. Just because I didn’t send it to the [judicial conduct] commission doesn’t mean I didn’t deal with it in a serious way, including not taking no for an answer of Garson’s claim that he couldn’t get the documents.”As for sealing the file, Gische noted that she did do so “by consent of all of the parties, adversarial parties, I might add.” She continued, alluding to the state mental hygiene law that deals with the appointment of guardians for incapacitated people. “In part — and this issue comes to light all the time, in the Brooke Astor case, for example — when you have these Article 81s that involve very sensitive information regarding elderly people with certain medical information, you don’t want to thrust it into the public.” In terms of statistical performance evaluation, Gische can definitely point to good numbers. According to the Office of Court Administration, in 2005 Gische’s backlog stood at 13.6 months — five months under the Manhattan Civil Terms’s average for that time period. Between 2000 and 2005, appellate courts reversed or modified Gische 16 times. Her reversal rate was 26.7 percent, compared to an average of 36.7 for her colleagues in the Manhattan Civil Term.“Honestly, Judith Gische is one of the most extraordinary people I’ve ever known,” said longtime matrimonial attorney Norman Sheresky, a $250 donor to Gische’s 2003 Civil Court campaign whose colleague at Sheresky Aronson & Mayefsky, Allen Mayefsky, was among the donors who appeared before Gische near the time of his own contribution. (Five of the firm’s 11 lawyers donated to Gische’s campaign.)
“I think she cares, really cares, about what’s in front of her,” continued Sheresky. “In fact, she might be the least pre-judgmental judge I’ve ever appeared before. You find good judges everywhere, but the percentage of highly knowledgeable judges is probably less in matrimonial. Everything’s an emergency that has to be handled: The light’s been turned out; the husband took the kids away; I’m about to be evicted . . . there’s one emergency after another.” In the weird interplay between a widely respected judge and the shabby election system that surrounds her, handicapping Sheresky’s sincerity is not easy. But he provided at least one anecdote that transcended the obsequious. “I’ll never forget,” he said. “I had a trial in front of her. Just before lunch, I objected to some testimony — I said it was confidential communications between husband and wife, under the New York statute, one of the finer points of matrimonial law. I don’t think she’d been in the part more than a couple of weeks. And she said, ‘Oh, let me look at that over lunch.’ She came back and she said, ‘You know, Mr. Sharesky, that was really interesting. Your motion is denied.’ She knew the statute perfectly by the end of lunch.”