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Q&A: John Dunne
New York Law Journal
In the corridors of the New York state Capitol, John Dunne is recalled with a respect bordering on reverence, and often viewed as a rare statesman in a Legislature that has become synonymous with acrimony, dysfunction and corruption.
Dunne spent 24 years as a Republican member of the Senate. Ironically, Dunne, now senior counsel to the Albany firm of Whiteman Osterman & Hanna, devoted much of his post-political career to reigning in the controversial Rockefeller Drug Lawswhich he had helped usher through the upper chamber.
Dunne, 83, represented Long Island in the Legislature from 1966 to 1989, simultaneously practicing law as a partner at the firm then known as Rivkin, Radler, Dunne & Bayh. In the Senate, he held a variety of leadership posts, including chairman of the Judiciary, Environmental Protection, Insurance and Prisons committees and serving as deputy majority leader.
After leaving his elected post, Dunne was appointed assistant attorney general for civil rights at the U.S. Department of Justice, a position he held from 1990 to 1993. A 1951 graduate of Georgetown University and 1954 graduate of Yale Law School, Dunne, a father of four and grandfather of eight, now lives with his wife in Columbia County.
Q: How did you end up at Whiteman Osterman & Hanna, and what sort of work are you doing? Are you lobbying? For who or what?
A: I came to Whiteman Osterman & Hanna in 1994 after leaving the Justice Department following President [George H.W.] Bush's defeat. My wife and I wanted to settle somewhere we would want to spend the rest of our lives. I had worked with both [principals] Michael Whiteman and John Hanna when I was in the Senate and they arranged for me to join the firm as counsel, an arrangement which has been very pleasurable and fulfilling for almost two decades.
Now I am doing pretty much pro bono work in a variety of fields, principally the judiciary and criminal justice, e.g., the Fund for Modern Courts and a number of commissions appointed by the chief judge, Prisoners' Legal Services, Office of Indigent Legal Services, Rockefeller drug law reform and numerous state bar committees and activities. The only lobbying I have done is on behalf of drug law change, court simplification and legal aid, all on a pro bono basis.
As one who started his career as a litigator, courts have always been very close to my heart. I have been a longtime advocate of merger and simplification of the court system. Back in 1973, Franz Leichter, then an assemblyman, and I had the so-called 'Dunne-Leichter Bill,' which called for the simplification and merger of the Family Court, Surrogate's Court, Court of Claims, Supreme Court and County Court into one court. And I have been a long advocate for the appointment of judges.
Q: You mention court merger and court simplification. That would require a constitutional amendment. To the surprise of many, the Legislature gave the measure first passage in 1986, but it never got second passage. What happened?
A: Very simple. The leaders got together on the closing days of the Legislature in 1986 and looked around and said, 'Hmm, we have to stand for reelection this year. What have we done?' The courts said, 'Well, what about us? What about the [merger] proposal?' Literally, in the dark of night, it was the last bill passed in the 1986 session. But there was no momentum, no real driving force behind it.
Q: In recent years, you have remained active in public affairs, serving as a member of the Indigent Services Board, advising another group that recommended increasing the age of criminal responsibility and recently being appointed to cochair a state bar special committee looking to increase voter participation. Is there a dominant theme to your extracurricular activities?
A: Since age 7 or 8, I never wanted to be anything other than a lawyer and I guess my dominant interest has been to make the law serve and be responsible to the changing needs of society and its government, through law making, advocacy and action on behalf of causes. I was very inspired by Tom Dewey's run for governor, and I was always interested in the operation of government and always wanted to run for elective office. At that tender age I thought you had to be a lawyer to be in government and elective office, and I never looked back.
Q: Where do your civic mindedness and values come from?
A: My civic mindedness and values came principally from my family upbringing, communities I have lived in, my education [at a Jesuit college] my [Roman Catholic] religious faith, and my supportive family. I grew up in a family where service was a part of your life. I have always believed in Christ's message to work for the poor and underprivilegedwhen did you dress me, when did you feed me, when did you visit me in prison? That was very much part of the Jesuit approach at Georgetown. I came face-to-face with the realities of those principles at Yale [Law School], where the common good was a principal goal of being a lawyer.
Q: You were elected as a Republican but have taken a number of 'liberal' positionsincluding drug law reformand served on the transition committees of Attorney General Eric Schneiderman and Albany County District Attorney David Soares, both Democrats. Where do you stand politically?
A: While it is a lonely role, I consider myself a 'Rockefeller Republican.' I reject the Ronald Reagan idea that government is the problem, but rather I see that government can be an instrument to improve the lives of the citizens through what I characterize as a user-friendly government, which responds to carefully identified needs for change. Another is to apply the [St. Ignatius Loyola] principle of respect for the sincerity and goodwill of your critics and adversaries. Their views are to be respected, and you learn from them through discussion and debate. In the end, you have to be willing to risk political capital to achieve that goal, and I think that singles out Rocky as much as anything. He was the leading exemplar of those principles in the late 20th century.
Q: With the Court of Appeals' opinions in 'New York State Bankers Association v. Wetzler,' 81 NY2d 98 (1993), and in 'Pataki v. Silver,' 4 NY3d 75 (2004), both of which recognized extraordinarily broad executive budget powers, how did the dynamics change vis-à-vis the relationship and respective powers of the political branches?
A: The Court of Appeals' decisions in Wetzler and Silver completely changed the dynamics of lawmaking in Albany and I believe contributed to the breakdown of the quest for the common good, replaced by a sense of 'getting even' on non-budgetary issues, which, in turn, has led to the obscene amount of money being spent to retain the power of the members of the Legislature. It terribly upset the balance of powers. Perhaps the greatest example is what has come to be referred to as the 'nuclear option,' when Governor David Paterson sent up extender bills when the Legislature had not yet agreed upon a final budget. He put language in those bills [that effected major policy changes] and the Legislature had very little choiceeither vote for it or shut down the government. As a result, I think there has been more of an adversarial relationship.
Q: How did you come to be appointed head of the civil rights bureau in the U.S. Department of Justice in the early 1990s?
A: I was supported by President Bush to be the assistant attorney general in charge of the Civil Rights Division of the U.S. Department of Justice on the recommendation of Attorney General Dick Thornburgh. Dick and I met when we were members of a delegation of state officials to Japan hosted by the Japanese government in 1972. We had kept in close touch over the years and when the president's first candidate for the job was rejected by the Senate, in desperation, he turned to me!
Q: What does the bureau do?
A: The Civil Rights Division is responsible for the enforcement of all federal civil rights laws, made achievable by a highly devoted team of attorneys and support staff.
I argued a number of appeals around the country at the Circuit Courts of Appeals and one case in the U.S. Supreme Court which involved a referral from the Equal Employment Opportunity Commission, where an employee claimed that his discharge violated the Age Discrimination in Employment Act. Life doesn't get any better for a lawyer than to argue a case with all engaged in questioning!
Q: How has civil rights law changed in the decades since you became active in public service?
A: I became active in public service in the mid-1950s, before the federal Civil Rights Act of 1964 and the Voting Rights Act of 1965, and New York state had been one of the early leaders in civil rights laws. Since that time, lawmakers and the courts have been increasingly responsive to correcting past hostility and have reduced the burden of proof required to enable claims of discrimination.
In addition, a broader recognition and undertaking of theretofore unrecognized civil rights, e.g., age and disability, developed into legislation (Americans with Disability Act and Age Discrimination in Employment Act). In recent years, U.S. Supreme Court decisions have limited some of those trends and have made it more difficult to overcome discrimination.
Q: After ushering the Rockefeller Drug Laws through the Legislature, you spent years fighting to repeal what became known as the harshest drug statutes in the country. Why did you support them in the first place? Did Governor Rockefeller ask for your help in getting them through the Senate?
A: By the early 1970s, New York state's ambitious and forward-looking attempts to address drug abuse and the crime it generated had failed.
The largest methadone maintenance treatment program in the nation had failed and the extremely expensive drug treatment program, which involved experimental rehab programs and compulsory institutionalization, was an acknowledged failure, and the public sensed that the courts were letting too many offenders back on the street. The result was a return to the traditional criminal law penalties of punishment and deterrence and restricting court discretion.
While the governor did not personally lobby me to support his proposals, I shared my Senate colleagues' view that this final, desperate plan might work, although I did not know what it would achieve other than to fill our prisons. The little-recognized corollary to the drug laws was passage of the second felony offender statute, which Rockefeller endorsed and contributed equally to the prison crisis.
Q: How long was it before you realized that it was not working? What were the major flaws?
A: I developed an awareness of its impact when I was at justice and became aware of the national phenomenon of prison over-crowding due to tough drug laws. Under the Civil Rights of Institutionalized Persons Act, I had oversight of civil rights violations of prisoners in both state and federal institutions.
I believe that one of the Rockefeller Laws' major flaws was the sharp limits on a judge's discretion to impose a sentence other than a long prison term. I believe that aspect encouraged my later reform efforts.
Q: For at least the last several years of the battle, there was widespread support for drug law reform. Chief judges, governors, ranking lawmakers, advocates and others were all pushing for reform for several years. Why did it take so long?
A: Reform took a long time because there was little interest, on either side of the political aisle, to bring about change. Building and maintaining new prisons became a new and politically powerful industry.
Q: After changing position and becoming a leading critic of the drug laws, did you weather a lot of criticism?
A: Oh my gosh, I certainly did. The judges were not particularly in favor of [reform]. My principal incentive was to restore to the court discretion, and frankly they weren't particularly supportive [at first]. Of course the D.A.s were opposed. Pataki was absolutely, totally opposed. And I didn't get the support I had hoped for from the communities because many of the communities didn't want these folks back in their community, back in their neighborhood. But frankly, as a former legislator, I am not afraid to say, 'Wait a minute, what I did doesn't make sense. I made a mistake.' The Legislature has the ability to correct past errors.
Q: What in your mind is the capstone of your career, to date?
A: After more than 50 years of community and professional involvement, I would say that my service at the Department of Justice, although too brief [about three years], was the capstone for a very lucky lawyer's career.
@|John Caher can be contacted at email@example.com.