Public Defender Loses Compensation Claim

     (CN) – A New York public defender lost his lawsuit accusing New York City, judges and staff attorneys of violating his due-process rights by slashing his pay for serving as court-appointed counsel.

     From 2000 to 2005, David Bliven served on a court-appointed panel, principally in the New York Family Court in Queens County. He was paid $75 an hour for offenses above misdemeanors, capped at $4,400 plus “reasonable” out-of-court hours and expenses. A trial judge fixed his compensation and reimbursement in a given case, and an administrative judge could review that decision for abuse of discretion.
     In 2005, Bliven filed suit against Judges Barbara Salinitro, John Hunt, Guy DePhillips and Joseph Lauria, and staff attorneys Douglas Foreman, Julie Stanton and Cheryl Joseph-Cherry.
     He said they conspired to reduce his requested pay in retaliation for his having made unpopular motions in about 15 child protective and foster care cases in 2001.
     Between March and September 2002, he said, “nearly every voucher [he] submitted for public defender compensation … to Judges Hunt or Salinitro were (sic) reduced by $50 – $150, all with no oral or written explanation as to why the voucher was reduced.”
     U.S. District Judge Saundra Feuerstein dismissed his claims against the individual defendants on the basis of judicial immunity. She also rejected his case against the city for failure to state a claim on which relief could be granted.
     On appeal, Bliven argued that judicial immunity doesn’t apply, because the individual defendants had been acting in their administrative, not judicial, capacities. He also claimed that the city is liable, because the judges and staff attorneys had acted as “municipal policymakers” when they set his compensation.
     The 2nd Circuit called these arguments “meritless.”
     The task of setting reasonable fees under federal statutes is a judicial act, based on policy established by law, the court ruled.
     “Judges, in determining whether the attorney’s expenditure of the claimed out-of-court hours in a particular case was in fact reasonable, merely apply the policy; they do not make it,” Judge Kearse wrote.

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