The American Lawyer

June 2000

 

Hack Justice:
One Lawyer-Journalist's Cab Ride Through a Land the Law Forgot

By DAN ACKMAN

As an associate for a major Wall Street law firm, I had deposed Donald Trump. I had also litigated in landlord-tenant court. So I thought I knew something about blowhards and a little about due process. But I knew nothing, nothing until I encountered the New York City Taxi and Limousine Commission.

In a career shift, I was attending the Columbia University Graduate School of Journalism and was spending a lot of time in taxi garages, asking immigrant cabbies about their lives in America and behind the wheel. Some drivers would talk; others walked away. But when the conversation turned to the TLC, I got an earful every time. At turns, the cabbies described the TLC and its court as Kafkaesque, Stalinist, kangaroo. That's what you should be writing about, they said.

I decided to take them up on it. So in early January, I called Allan Fromberg, the TLC public relations chief. Fromberg told me he thought the agency's administrative hearings were closed. Why don't you interview a lawyer instead, he suggested.

Closed? This was odd. Weren't judicial proceedings in America supposed to be open?

I went next to Rector Street in downtown Manhattan where certain hearings are held. I asked to see a judge for permission to sit in. The receptionist asked if I had spoken to Fromberg. I admitted I had. "What did Mr. Fromberg say?" she asked. I told her I was confident that if it was OK with the judge it was OK with Fromberg.

Instead of a judge I got Fromberg again. Arriving red-faced from his office three floors below, Fromberg dictated that the judge had no say. He, Fromberg, set the policy for the TLC, and his policy was that the TLC hearings are closed.

"But why are the courts closed?" I asked.

"Because it's agency policy," Fromberg said.

"Is this policy in writing?"

"Yes."

"Can I see it?"

"Yes. But not now."

"What's the reason for it?"

"Because it's agency policy."

"But why is it agency policy?"

"Because the courts are closed."

I was getting nowhere.

My next step was to go to the agency's facility in the Long Island City section of Queens, where most of the hearings are held. There I met Assistant Chief Administrative Law Judge Joe Eckstein. Eckstein reiterated that actually seeing a hearing was out of the question. But he did invite me to interview him or any of the drivers lawyers waiting for their cases to be called.

I was doing that when Eckstein reappeared an hour later. This time he had his boss with him, TLC director of adjudications Joe McKay. New hour, new rule: McKay said the waiting area was, like the hearing rooms, off limits to people like me "not conducting business before the commission."

"But I do have business. I'm talking to these drivers."

"Look, unless you're a lawyer you're really not supposed to be here," McKay said. So I told him I was a lawyer and that I thought he was crazy. I also told him that, short of being arrested, I was staying.

When I arrived home that night, I learned from the dean of the journalism school that Fromberg had called not once, but several times, to complain about me, charging me with a variety of offenses.

I told the dean that in my view, as a journalist and as a lawyer, I had done nothing wrong and much right. I also said that the TLC's policy regarding the courts was probably illegal.

The TLC, as I would learn, conducts more than 100,000 hearings against taxi drivers annually. More than 95 percent of the cases are based on charges by TLC inspectors or the NYPD taxi squad, and are decided by administrative law judges working for the agency on a per diem. The hearings had been open until 1994. Since that time, the New York Times, Newsday, and the NYCLU had all been turned away.

On my next visit to Rector Street I tried to interview lawyers outside the hearing rooms. This time, Fromberg and TLC chief-of-staff David Hind not only barred me from the courts, but had security bar me from the waiting area. When I asked for the names of the judges-- the names of the judges!-- Fromberg told me to file a Freedom of Information request.

I told Hind that I had checked the law and found, that their entire policy was illegal, and I'd sue if I had to. "That may be, but until that suit is heard and decided," Hind said, all information would flow through Fromberg.

In other words, sue me. So I did.

I filed an action in New York State Supreme Court seeking an order requiring that the TLC hearings be open to the public. I relied not U.S. Supreme Court cases relating to press access to criminal trials, but on New York common law relating directly to administrative tribunals. The agency's defense was, in essence, that allowing the public access would impede its swift administration of justice.

Two weeks after papers were submitted, Justice Stanley Parness, ruled that the agency had no shown no reason why it should be exempt from the state's "strong public policy" that administrative trials must be open.

The problem was they were still closed. Even after the judge ruled, the TLC continued to bar the public, including a reporter from The New York Times, from its tribunals on the ground that the court's decision was "not final" and that they "might appeal."

Finally, a month later, armed with a judgment implementing the earlier decision, I got in, along with a legal affairs reporter from the BBC in London. Our view of several hearings confirmed the drivers' view: kangaroos jumping all over the place. Just how high is a story for another day. 

 

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