I don’t know what to say to my clients about Justice Joseph Makowski’s efforts “to fix a case.”

I have practiced law in Western New York for 33 years. For most of that time, I have assisted “the little guy” fighting to make local and State officials comply with the law. The Attica inmates I represented in the 1970s had little faith in our judicial system. Young and idealistic, I frequently found myself assuring potential clients that the judges that we would be presenting our legal arguments to would respect the law and honestly attempt to apply it.

My practice has focused on zoning and environmental matters for the past two decades. The cases I bring to State Supreme Court often challenge large projects and conflict with the wishes of politicians and wealthy, politically-connected developers. The middle-class residents that I represent frequently have had little or no prior interaction with our judicial system. They are turning, timidly, to the courts in search of “justice.” I have found it increasingly difficult to assure these concerned citizens that the judicial system will objectively and fairly apply the law to the facts of their case. Joseph Makowski’s actions have not made my task any easier.

Tradition dictates that a lawyer refer to a Judge as “Your Honor” while in his or her courtroom. Most jurists clearly deserve this sign of respect. Justice Makowski, however, made a mockery of that title in the one case I argued before him.

Residents of Buffalo’s Old First Ward hired me to challenge the city’s approval of an ethanol plant. The developer proposed using existing grain elevators to store corn, but needed variances from the Zoning Board of Appeals so that it could construct three new, 750,000-gallon tanks to hold the highly flammable ethanol it wished to manufacture. Following the ZBA’s approval of the variance application, our court papers argued that ZBA did not understand the proposal under consideration. We pointed to the zoning board’s April 2007 letter to the applicant referring to its approval of a “petition for a variance to convert and use existing grain silos for the storage of flammable liquids.”

Justice Makowski issued a decision dismissing my clients’ lawsuit. Incredibly, he referred to the April 2007 letter as proof that the ZBA understood “what it was being asked to authorize.” This sleight of hand was accomplished by the court deleting the phrase “to convert and use existing grain silos” from the quotation, and replacing the crucial words with three dots.

Joseph Makowski’s lack of candor angered and disillusioned my clients, and it shook to the core my confidence in the judicial system. I prepared papers requesting that Justice Makowski reconsider his decision. A “motion to reargue” was filed with the court contending that the omission of the seven words “to convert and use existing grain silos” from the decision was a significant error, whether the phrase was inadvertently overlooked or intentionally deleted.

Our motion was promptly scheduled for oral argument, as is the normal course. A day or two later, however, I received notice that the court would not hear oral argument, but would simply render a ruling based on the attorneys’ papers. My clients and I found it hard not to conclude that “His Honor” must have read the motion papers, and decided that he did not want the “deletion issue” discussed in open court. When the order denying our motion was issued, Justice Makowski never bothered to explain the deleted phrase, but merely stated, “After a thorough review of the submissions in this action, the Court denies Petitioners’ Motion to Reargue in its entirety.”

“Trying to fix a case” appears to have come naturally to Joseph Makowski. It is unclear whether any particular method for selecting judges would have identified this personality flaw. What is clear, however, is that explaining such judicial arrogance and dishonesty to my clients, and the public, is no simple task.

Arthur J. Giacalone

East Aurora

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