Saturday, February 21, 2015

NY's Chief Judge Lippman on Exonerations

Guest Post
By Catherine L. Bonventre
Ms. Bonventre, a graduate of Albany Law School, is a Ph.D. candidate in the School of Criminal Justice at the University at Albany.  She is co-editor of EXAMINING WRONGFUL CONVICTIONS: STEPPING BACK, MOVING FORWARD (with Allison Redlich, James Acker, and Robert Norris, Carolina Academic Press, 2014).

Last Tuesday, New York's Chief Judge Jonathan Lippman delivered his final State of the Judiciary address – Access to Justice: Making the Ideal a Reality.  I say final because, as many of you are aware, the Chief Judge is (unfortunately) facing mandatory age-retirement at the end of this year.

But what a way to go out. Watch the webcast of the address. It was truly inspiring. So, let’s take a look at one of the many important issues the Chief discussed—wrongful convictions.

The National Registry of Exonerations, which catalogs information about known exonerations, currently (as of 2/21/15) lists 1,552 exonerations since 1989.  That’s 1,552 people who were wrongly convicted of crimes and “later cleared of all charges based on new evidence of innocence.” In the section of the State of the Judiciary entitled, “Continued Legislative Priorities,” Chief Judge Lippman noted that “there is no greater failure in the criminal justice system than to unjustly deprive an innocent person of her or his liberty.”

Back in 2009, when Lippman was appointed Chief Judge, he created the New York State Justice Task Force.  In this week’s address, the Chief announced that the Task Force’s recommendations concerning post-conviction DNA testing and expansion of the State DNA Databank had been enacted. But, as the Chief noted, three of the Task Force’s other recommendations have yet to be passed: state-wide video-recording of custodial interrogations by the police; improved practices for police administration of identification procedures; and the reform of criminal discovery laws.

Much can be said about the importance of all of these reforms. But I will focus on just one—video-recording of custodial interrogations.

However counter-intuitive it may seem that innocent defendants would falsely confess to crimes they did not commit, they do. Thirteen percent of the cases collected by the National Registry of Exonerations (NRE) involved a false confession. Moreover, false confessions were involved in 25% of the convictions which later were the subject of DNA exonerations.
(See National Registry of Exonerations, n.d. The NRE notes that this difference is likely due to the fact that false confessions are difficult to overcome and that DNA evidence is more likely to help in that regard than other evidence of innocence.)

Yet, the benefits of video-recording custodial interrogations don’t just accrue to falsely accused defendants. As attorney Thomas Sullivan notes, it’s a win for everyone. As he explained:
For suspects, recordings expose abusive tactics and falsehoods about confessions. For law enforcement officials, recordings spare them from defending unfair charges of using heavy-handed methods or misstating what occurred. Furthermore, prosecutors and defense lawyers no longer engage in courtroom disputes as to what took place: the interviews may contain exculpatory statements favorable to the defense, or admissions which strengthen the prosecution's case, but in either event, the record is clear and conclusive. Trial judges and reviewing courts no longer have to evaluate conflicting versions of what happened. Unlike the customary interview during which the police make handwritten notes and later prepare a typewritten report, electronic recordings contain a permanent record of the event, leaving no room for dispute as to what officers and suspects said and did. (Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 3 J. Crim. L. & Criminology 1127-28 [2005].) 
Indeed, criminal justice reforms aimed at reducing wrongful convictions aren't simply about improving the justice process for defendants. Make no mistake, preventing wrongful convictions is a public safety issue.

James Acker, Distinguished Teaching Professor in the University at Albany School of Criminal Justice (and my mentor, I’m lucky to say) argues that it’s counterproductive to infuse the discussion of criminal justice reform with adversarial, ideologically-oriented notions of “us-against-them.” As Acker eloquently puts it:
Wrongful convictions entail profound social costs in addition to the hardships borne by the unfortunate individuals who are erroneously adjudged guilty. When innocents are convicted, the guilty go free. Offenders thus remain capable of committing new crimes and exposing untold numbers of additional citizens to continuing risk of victimization. Public confidence in the administration of the criminal law suffers when justice miscarries.  At some point, as cases mount and the attendant glare of publicity intensifies, the perceived legitimacy of the justice system and the involved actors is jeopardized. Associated monetary costs, paid from public coffers, represent yet another tangible social consequence of wrongful convictions. (James R. Acker, The Flipside Injustice of Wrongful Convictions: When the Guilty Go Free, 76 Alb. L. Rev. 1629, 1630-31 [emphasis added].)
It’s time for the legislature to make Chief Judge Lippman’s ideals a reality.

Monday, February 9, 2015

Part 5 [Judge Fahey's 'Tendencies']--NYCOA: Cuomo's Latest Two Nominees

Eugene Fahey, who has served on the Appellate Division, 4th Department for nine years (the state's intermediate appeals court that sits in Rochester), was nominated by Governor Cuomo in January to sit on New York's highest court. The Senate Judiciary Committee is scheduled to hold hearings on his nomination on Monday.

As with Leslie Stein, whose nomination will be considered the same day, Fahey seems assured to get the committee's approval and then confirmation by the full Senate. He has considerable judicial experience, he has a reputation for collegiality and cordiality, he's been placed on the recommended list for the last four Court vacancies by the Commission on Judicial Nomination, and he has been uniformly rated very highly by bar associations across the state. It would be most surprising if he were not warmly and overwhelmingly received and confirmed.

But who exactly is Judge Fahey? Not what's in his formal biography which is available from several sources with a quick Google search. But who is he jurisprudentially? What does his judicial record--opinions, majorities and dissents--reveal about him? Yes, that "stream of tendencies" we've been discussing in the last couple of  posts on Judge Stein. Yes, what are Fahey's "tendencies," leanings, strongly held perspectives? The common threads in his judicial work.

Well, a review of his Appellate Division opinions--with special focus on the most revealing ones, i.e., the dissenting opinions and majority opinions responding to a dissent--suggests that there are certainly a few dots that can be connected. So let's connect the dots. At least a few of them.

Dissenting opinions
Lots of them! His record evinces no reluctance to disagree with a majority of his colleagues. There is never anything biting or otherwise disagreeable in his dissents. But he apparently feels no overriding need to just go along with his colleagues when he thinks they are mistaken.

For example, over the same period of time in which Judge Stein issued 13 dissenting opinions as an Appellate Division Justice (i.e., since 2008), Judge Fahey has issued over 50.

In addition to being many, Fahey's dissents cover a wide range of issues, civil and criminal, substantive and procedural. And there are some pretty clearly patterns. Let's take a look.

Review by the Court of Appeals
Vindications? Yes. Several of Fahey's dissenting opinions--i.e., his disagreements with the majority of his colleagues--received the imprimatur of the Court of Appeals. But even more notable than that is the breadth of approval his positions have garnered at the high court.

Whether criminal or civil, pro-plaintiff or pro-defendant, Fahey's vindicated dissents received a unanimous or near-unanimous vote. It was not just the more-liberal Court of Appeals Judges who approved his dissenting positions, or just the more-conservative ones. But all the Judges, or all but one of them in one case.

Here are the cases:
People v Buchanan (2008) [Dissenting opinion arguing that it was reversible error to require the defendant to wear a visible stun belt during the jury trial (The COA, 6-1, agreed and reversed)]; Shosek v Amherst Paving (2008) [Dissenting opinion arguing that the municipality's paving contractor owed a duty of care to motorists, including the mother and son who were killed in a crash caused by the contractor's negligence (The COA, 7-0, agreed and reversed)]; Smith v Sherwood (2009) [Dissenting opinion arguing that the regional transportation authority could not be liable for injuries sustained by a private school student who was struck by a vehicle after being dropped off safely at the curb by the city bus driver (The COA, 7-0, agreed and reversed)]; Dzielski v Essex Ins. (2011) [Dissenting opinion arguing that the insurance company was not obligated under the policy to indemnify the owner of a night club for certain injuries sustained on his property (The COA, 7-0, agreed and reversed)]; Davis v Boeheim (2013) [Dissenting opinion arguing that the defendant-basketball coach's statements were actionable in defamation because they necessarily implied a basis in facts (The COA, 6-0, agreed and reversed)].

Positions in criminal cases
A review of Judge Fahey's dissenting opinions in criminal cases reveals a clear willingness to disagree with his colleagues to argue in favor of the defendant. Indeed, overall, these opinions manifest a strong determination to enforce the due process/rights-of-the-accused side of the criminal justice system. There are cases where Fahey does adopt a crime control/law-and-order posture. But those seem to be exceptions to the rule, and they represent certain distinct categories of crimes and circumstances.

Before we look at the exceptions, let's look at some of the more typical cases in which he takes a more-liberal, pro-defendants' rights position.

ineffective counsel:
People v Mays (2011) [Dissenting opinion arguing that defense counsel was ineffective for failing to object to the trail judge's error in allowing the prosecutor to communicate with the jurors during deliberations]; People v Wright (2014) [Dissenting opinion arguing that defense counsel was ineffective for failing to object to prosecutorial misconduct in mischaracterizing DNA evidence]; People v Parson (2014) [Dissenting opinion arguing that defense counsel was ineffective for failing to present evidence showing that the police officer's testimony at the suppression hearing was dishonest]; People v Carver (2015) [Dissenting opinion arguing that defense counsel was ineffective in failing to challenge the questionable traffic stop and frisk at the suppression hearing].

insufficient evidence:
People v Reed (2012) [Dissenting opinion arguing insufficient evidence where none of the eyewitnesses saw the robbery and felony murder defendant participating in the shooting or taking any property from the victim]; People v Lamont (2014) [Dissenting opinion arguing insufficient evidence for attempted robbery based solely on defendant's possession of a gun but no evidence of intent to steal ]; People v Heatley (2014) [Dissenting opinion arguing that the indictment should be dismissed, and no lesser included conviction ordered, where the weight of the evidence did not support the intentional murder conviction]; People v Woolson (2014) [Dissenting opinion arguing that the sex offense verdict was against the weight of the evidence where the alleged victim, whose testimony was the basis of the prosecution's case, had a history of mental illness and had made a remarkably similar false accusation in another case].

harsh/unfair sentence
People v Maliszewski (2009) [Dissenting opinion arguing that it was error for the county court, on remittal, to enhance the sentence of incarceration based on the defendant's failure to pay restitution on previous convictions]; People v Rivera (2010) [Dissenting opinion arguing that it was error for the county court to exceed the statutory limit for restitution without conducting a hearing]; People v Johnson (2012) [Dissenting opinion arguing that it was error for the county court to resentence the defendant to impose post-release supervision, even after the prosecutor had stipulated that such was unnecessary]; People v Prial (2014) [Dissenting opinion arguing that the sentence of 5 years incarceration for the sale of 5 morphine pills was unduly harsh and should be reduced in the interest of justice].

Official misconduct
Among the most conspicuous exceptions to Judge Fahey's general tendency to side with the accused in close cases, where rights or fair treatment have arguably been violated, are those where public officials are the ones guilty of criminal wrongdoing. But his tough-on-official-misconduct predilection is no less evident in cases where the official wrongdoing was engaged in on behalf of law enforcement.

Here are some examples:
People v Zona (2009) [Dissenting opinion arguing that a deputy sheriff's conviction for grand larceny should be affirmed, where there was no basis for him to believe that he was entitled to take property from a county warehouse for personal use]; People v Backus (2011) [Dissenting opinion arguing that the sentence imposed on an off-duty police officer, for vehicular assault and driving while intoxicated, was not unduly harsh and should not be reduced].
But also:
People v Schrock (2013) [Dissenting opinion arguing that the sheriff's usurpation of the county court's authority by forcing the defendant to wear a stun belt during trial, and to do so without the court's knowledge, is a "mode of proceedings" error requiring a reversal of the convictions and a new trial]; People v Parson (2014) [Dissenting opinion arguing that evidence showing that the police officer was dishonest at the suppression hearing should have been presented and, therefore, the conviction should be reversed and a new hearing ordered].

Children and other vulnerables
Whether the case is a criminal one or civil, if a child or other vulnerable person has been victimized, Judge Fahey has typically adopted positions of being tough on the wrongdoer--especially if particularly cruel or barbaric--and sympathetic and protective toward the victim. Indeed, these tendencies of his often trump the others.

Several illustrations:
People v Bauman (2008) [Dissenting opinion arguing that a conviction for depraved indifference assault was not 'duplicitous,' and should be upheld, where the defendants' beat the multiple sclerosis afflicted victim with a bat and hammer, and burned him with a frying pan]; Shosek v Amherst Paving (2008) [Dissenting opinion arguing that a cause of action should be sustained against a municipality's paving contractor whose negligence caused an automobile accident that killed a mother and her son (The COA, 7-0, agreed and reversed)]; People v Groth (2010) [Dissenting opinion arguing that the evidence did prove beyond a reasonable doubt that the defendant was guilty of assault crimes, where the infant victim sustained rib fractures and cranial hemorrhaging]; People v Backus (2011) [Dissenting opinion arguing that the sentence imposed on an off-duty police officer should not be reduced where he was driving while intoxicated and seriously injured two 17 year olds when he collided with their vehicle]; People v Jerge (2011) [Dissenting opinion arguing that convictions for sexual abuse of a child should be upheld, despite the conduct of social service workers on the jury who gave advice based on their experience to other jurors during deliberation]; People v Diaz (2012) [Dissenting opinion arguing that the trial judge's upward departure from the presumptive risk assessment of the sex-offense defendant was justified based on prior sex offenses, serious mental disorder, and his penchant for "preying on women who are alone"].

To be sure, there's more to uncover in Judge Fahey's record at the Appellate Division than we've identified here. But what we've seen here does tell us quite a bit about Governor Cuomo's most recent nominee, and what we might expect of him once he's confirmed and takes his seat on New York's highest court. Yes, the foregoing should give us some sense of the kinds of choices he has made on the Appellate Division and, perhaps, the kinds of choices we should expect him to make on the Court of Appeals.

So...No hesitation to dissent. Oftentimes in sync with the high court even when a minority voice among his Appellate Division colleagues. A pretty insistent voice for taking the rights of the accused seriously--the right to effective counsel, the benefit of reasonable doubt, and fair sentencing. Little tolerance for official wrongdoing. Perhaps even less tolerance for doing harm to children and others who are vulnerable among us.

Well, those are among the most conspicuous "tendencies" reflected in Judge Fahey's record that we've seen from an examination of his opinions in divided decisions--especially in those cases where he has been willing to publicly express disagreement with a majority of his colleagues in a published dissent.

The Senate hearings on both Judge Stein and Judge Fahey will begin later this morning. (It's now early Monday morning as I'm concluding this.) Maybe--just maybe--we'll learn a bit more about each of them from their presentations to the Judiciary Committee and their answers to the Senators' questions. Good luck to them both.

Saturday, February 7, 2015

Part 4 [More of Judge Stein's 'Tendencies']--NYCOA: Cuomo's Latest Two Nominees

Let's consider a few additional common denominators--part of the "stream of tendencies"--running through Judge Leslie Stein's choices on the Appellate Division.

We've already seen that the more-liberal Judges on New York's high court are the ones who most regularly have agreed with her opinions on appeal. (See Part 3.) Let's see what else there is in her record.

Her positions on aggrieved women and their children
Another striking feature of Judge Stein's record is her strongly sympathetic inclinations toward women and children who have been injured or claim another's unfair treatment. Whether the case involved criminal conduct, possible negligence, or the need for assistance, Stein's opinions--in the majority or dissent--typically argued for their relief or redress.

Here are a few examples:
Kayser v Sattar (2008) [Majority opinion, over a 2-judge dissent, reversing a jury verdict for the medical malpractice defendants and ordering a new trial for the mother whose child was injured during birth]; Dowd v Dowd (2009) [Dissenting opinion arguing that the ex-wife needed and was entitled to higher maintenance than was awarded]; Davis-Taylor v Davis-Taylor (2010) [Dissenting opinion arguing that the father's failure to provide child support was willful and justified redress]; Ithaca Sch. Dist. v NYS DHR (2011) [Majority opinion, over 1 dissenter, holding that a school district could be liable for failing to protect a student from racial harassment (A divided COA, 4-3, disagreed and reversed.); Bukowski v Clarkson University (2011) [Joined a dissenting opinion arguing that the college should be liable for failing to exercise reasonable care to protect a freshman athlete from serious injury (A unanimous COA agreed with the majority.)]; Torres v Rich (2012) [Dissenting opinion arguing that a group home should be liable for failing to adequately supervise a juvenile in its care who was injured]; People v Lashway (2013) [Majority opinion, over 1 dissenter, denying a rape convict's petition to lower his sex offender classification].

Her sympathies cum leanings seem pretty clear.

Her positions on the review of administrative agency determinations
Deference. In a word, that's the common thread in Judge Stein's record regarding appeals challenging administrative decisions. Unless really off-the-wall, the decisions of agencies that are vested with the responsibility and authority to resolve certain categories of controversies should not be disturbed by judges. That seems to be have been one of Judge Stein's firmest positions at the Appellate Division. It's manifest in a wide variety of administrative determinations.

Here are some illustrations:
Ithaca Sch. Dist. v NYS DHR (2011) [Majority opinion, over 1 dissenter, upholding the determination of the State Division of Human Rights that the school district was liable for failing to protect a student from racial harassment (A divided COA, 4-3, disagreed and reversed.)]; Consumer Directed Choices v NYS OMIG (2011) [Majority opinion, over 2 dissenters, upholding the determination of the Office of the Medicaid Inspector General to withhold medicaid payments pending a medicaid fraud investigation]; Utica v Daines (2012) [Dissenting opinion arguing that SEMSCO (State Emergency Medical Services Council) had considered all relevant legal and factual factors in denying the city's application for its municipal ambulance service (An appeal to the COA was dismissed as moot)];  Silverman v NYS WCB (2012) [Majority opinion, over a dissenter, upholding the determination of the Workers' Compensation Board determination not to renew the license of a nonattorney to represent workers before the board]; M/O Kent v Lefkowitz (2014) [Dissenting opinion arguing that PERB (the Public Employment Relations Board) properly dismissed an improper practice charge filed by PEF (Public Employees Federation, AFL-CIO)].

Her positions on the more-vulnerable party
Of course, this is closely related to Judge Stein's sympathetic positions on women and their children that we've already discussed. Perhaps it is just another way of viewing the same sort of inclinations.

Here are some examples:
Kayser v Sattar (2008) [Majority opinion siding with a medical malpractice mother & her injured child against a hospital and its medical staff]; Dowd v Dowd (2009) [Dissenting opinion siding with an ex-wife seeking higher maintenance]; M/O NYS OCFS v Lanterman (2009) [Dissenting opinion siding with a public school teacher seeking arbitration to challenge her termination (A 5-2 COA agreed with the majority)]; M/O NYS OASAS v Ortiz (2009) [Majority opinion siding with a state employee seeking arbitration to challenge his termination (A 5-2 COA reversed)]; Ithaca Sch. Dist. v NYS DHR (2011) [Majority opinion siding with a student who was subjected to racial harassment at school (A divided COA, 4-3, reversed.); Bukowski v Clarkson University (2011) [Joined a dissenting opinion siding with an injured first-year athlete against the university (A unanimous COA agreed with the majority.)]; Torres v Rich (2012) [Dissenting opinion siding with an injured juvenile against a group home for inadequate supervision].

Her positions on rights of the accused
In contrast to what we've seen regarding some other matters, there is no overwhelmingly clear pattern that emerges from Judge Stein's opinions in criminal cases. Her record doesn't place her among the ranks of crime control/"tough on crime" judges. But neither does it suggest that she falls within the due process/"coddling criminals" camp either.

Nevertheless, if we look solely at her dissenting opinions--that most personal and revealing category of judicial statements, where a Judge takes a public stand in opposition to her court, i.e., against a majority of her colleagues--we do see some hints of inclination. In some of these dissenting opinions, Judge Stein has taken stands that show her to have been more sensitive to intrusions on a criminal defendant's rights than her colleagues were.

Consider these examples:
People v Dolan (2008) [Lone dissenting opinion arguing that a conviction for attempted kidnapping should have been reversed because the jury was not told to consider whether the defendant had actually abandoned his criminal plan]; People v Weaver (2008) [Lone dissenting opinion arguing that the warrantless GPS surveillance violated the state constitutional protection of search and seizure rights (A 4-3 COA agreed with her and reversed)]; People v Harnett (2010) [Dissenting opinion arguing that fundamental fairness required the trial judge to inform the defendant that his guilty plea would subject him to post-release civil confinement, and that the failure to do so required the guilty plea to be vacated (A 5-2 COA agreed with the majority)].
But People v Coleman (2013) [Lone dissenting opinion arguing that the persistent felony offender was ineligible for ameliorative resentencing under the Drug Law Reform Act (A unanimous COA agreed with the majority)].

Well, there it is.

Further examination and additional analysis would likely uncover more of the "stream of tendencies" flowing through Judge Leslie Stein's judicial work at the Appellate Division. As we have seen, however, we can still at this point say a few things with some confidence about her record.

She does seem more aligned philosophically and jurisprudentially with the more ideologically liberal Judges of the Court of Appeals than with the more ideologically conservative ones. She does seem to have very strong leanings toward the protection of injured or disadvantaged women and children--as well as related sympathies for the vulnerable.

She seems to be quite deferential to administrative agencies in their areas of expertise and responsibility. And she has shown herself willing to take a stand on behalf of the criminally accused whose rights might have been compromised.

Finally, the Senate Judiciary Committee's confirmation hearings are scheduled for this coming Monday, February 9. There appears to be nothing in her record on the Appellate Division that might stir opposition--from Republicans or Democrats--to her appointment to the Court of Appeals.

In the next post or two, we'll take a look at Judge Eugene Fahey's record.

Thursday, February 5, 2015

Part 3 [Judge Stein's 'Tendencies']--NYCOA: Cuomo's Latest Two Nominees

Back to New York's highest court and Governor Cuomo's 2 yet-to-be-confirmed nominees. (Senate hearings will apparently be conducted early next week.)

There is a "stream of tendencies" in each of us, judges no less than the rest.

In a seminal insight into judicial decision-making, Benjamin Cardozo--the revered American jurist, who led New York's high court before reluctantly accepting an appointment to the Supreme Court--discussed the typically unexpressed and unconscious forces that underlie the choices a judge makes. Culture, customs, deeply held beliefs, a view of life and the world, all influence a judge's decisions. They form common threads that eventually reveal themselves upon analysis of a judge's body of work.

To put it in more colloquial terms than did Cardozo--who, together with Robert Jackson, may have penned the most elegant opinions in our legal history--we can "connect the dots" if we examine decisions rendered, votes cast, and opinions written. Indeed, we all kind of know this. Even as we speak in broad terms of "liberal" and "conservative" judges. Even as many judges bristle at the notion that they are anything less than perfectly neutral, ideologically-pure intellects.

No. One need not be a Cardozo--or an Oliver Wendell Holmes, or one of the eminent scholars who have explored much the same field of judicial studies over the past several generations. A bit of effort and time and willingness in examining a judge's record is usually all it takes to yield revelations. No special genius or magic needed.

So, with little more than some effort, time, and willingness on my part, here are a few revelations that seem to emerge from an examination of Judge Leslie Stein's record at the Appellate Division, New York's intermediate appeals court, where she has served for the past seven years.

More specifically, the focus is on her dissenting opinions (which are always the most personal and deeply felt writings of a judge, who is taking a stand against the majority of her colleagues), and on her opinions for a majority of a divided court (where she necessarily has disagreed with a dissenting colleague and has had to defend her position against his).

Her positions on review by the Court of Appeals
Perhaps the most salient aspect of Judge Stein's record is what happened to the positions she took when cases in which she wrote an opinion were reviewed on appeal by the Court of Appeals. Not simply whether the high court as a whole happened to adopt or reject her position. But which Court of Appeals Judges typically agreed with her.

Well, those Judges who agreed with her most regularly have been Chief Judge Jonathan Lippman, former Judge Carmen Ciparick, and the late Judge Theodore Jones. The common denominator there? These Judges have been part of the ideologically more-liberal wing of the high court. Yes, on issues involving the rights of the accused, of workers, of injured plaintiffs, etc., these Judges all have records that are more sympathetic on these matters than other members of the Court. And they are the ones who often sided with Judge Stein's opinion below.
[Notably, recently appointed Judge Jenny Rivera--another member of the Court's more-liberal wing--was not involved in any of the cases in this pool.]

Among those cases are People v Weaver (2009) [Lippman, Ciparick, and Jones--with Pigott--sided with Stein's dissenting opinion that search and seizure rights were violated by the warrantless GPS surveillance]; M/O NYS OCFS v Lanterman (2010) [ Lippman and Ciparick, in dissent, sided with Stein's dissenting opinion favoring a terminated teacher's right to arbitration]; M/O NYS OASAS v Ortiz (2010) [Lippman and Ciparick, in dissent, agreed with Stein's majority opinion that a terminated state employee was entitled to arbitration]; People v Harnett (2011) [Ciparick and Jones, in dissent, agreed with Stein's dissent that a sex-offender defendant must be advised of the possibility of post-release civil confinement prior to a guilty plea]; and M/O Ithaca Sch. Dist. v NYS DHR (2012) [Lippman, Ciparick, and Jones, in dissent, agreed with Stein's majority opinion that a school district could be liable for failing to protect a student from racial harassment].

Yes, positions taken by Judge Stein, whether in a dissenting or majority opinions, were agreed with by the more ideologically liberal Judges on the Court of Appeals. Why? Pretty obvious. Her positions were the more ideologically liberal ones taken at the Appellate Division.

Now none of this suggests that Judge Stein has been a lopsided or one-sided liberal ideologue at the Appellate Division. Not at all. The issues involved in these cases were close. They divided the Appellate Division and they divided the Court of Appeals.

What these cases do suggest, however, is that in these very close cases where the issues have been ideologically tinged, her leanings--that "stream of tendencies"--have been more ideologically liberal than not.

We'll continue with other noticeable aspects of Judge Stein's record in the next post.

Wednesday, January 28, 2015

Supreme Court: Justices' Voting in Gay Rights Cases (Part 2)

So what can be gleaned from the list of gay rights decisions and the Justices' votes which we laid out in the last post? A few interesting facts emerge.

Of the 7 cases--from Bowers v Hardwick in 1986 to U.S. v Windsor in 2013--all but one resulted in a deeply divided Court. In that one exception, Hurley v Irish American Gay, Lesbian, and Bisexual Group (1995), the unanimous Court sided with the organizers of Boston's St. Patrick's Day Parade who, contrary to Massachusetts' anti-discrimination law, refused to permit openly gay and lesbian marchers.

In Hurley, Republican and Democratic Justices, conservatives and liberals, joined together to favor the expressive rights of parade organizers over the equal rights of gays and lesbians.

But that unanimity was an outlier. Typically--meaning, in all the other cases--there has been division, strongly worded dissents, bitterness separating the Justices.

There have been Justices who adamantly and consistently have opposed gay rights. Justices seemingly opposed to recognizing any gay rights or protections whatsoever. Not just when gay rights are in competition with the [apparently sacrosanct] rights of parade organizers.

So, Justices Scalia and Thomas--as well as Rehnquist while he was on the Court--have always voted against gay rights. They favored parades-as-free-speech over equal protection for gays and lesbians, just as the other Justices did, in Hurley. But they also sided with a state law that denied gays and lesbians the right to sue for discrimination (Romer v Evans). Sided with the Boy Scouts' claimed right of association to exclude gay troop leaders (Boy Scouts of America v Dale). Sided with state laws that made gay and lesbian intimacy a crime (Lawrence v Texas). Sided with a student religious group that refused to admit gay and lesbian members (Christian Legal Society [CLS] v Martinez). And sided with a federal law (i.e., the so-called Defense of Marriage Act [DOMA]) that denied any recognition and all marriage benefits to legally married same-sex couples (U.S. v Windsor).

In short, Scalia and Thomas--and Rehnquist while he was on the Court--have sided with whatever interest might have competed with or conflicted with the rights of gays and lesbians.

Among the more recently appointed Justices, Roberts and Alito have voted in 2 of the cases. In both, they opposed the assertion of gay rights. In CLS, they voted to support a student group's entitlement to state college benefits, despite the group's membership policy to exclude gays and lesbians. In Windsor, they approved DOMA's denial of federal recognition and benefits to state married same-sex couples.

Notably, all 5 of the aforementioned anti-gay rights voting Justices--Rehnquist, Scalia, Thomas, Roberts, and Alito--are Republicans, were appointed by Republican Presidents, and had worked in Republican administrations, Notably also, all of them have voting records that, as a whole, are strongly politically conservative.

On the other end of the spectrum, there's Justices Ginsburg and Breyer--as well as Stevens and Souter while they were on the Court. Other than in the unanimous Hurley (St. Patrick's Day parade) decision, these Justices voted to protect gay rights in every case in which they participated. So whether it was the state law denying gays and lesbians the right to sue (Romer), the Boy Scouts excluding gays as troop leaders (BSA v Dale), state laws criminalizing same-sex intimacy (Lawrence), the college group denying membership to gays and lesbians (CLS), or the federal law disqualifying legal same-sex marriages from federal recognition and benefits (Windsor), these Justices always supported equal protection and due process rights for gays and lesbians over the asserted opposing interests.

The most recently appointed members of the Court, Sotomayor and Kagan, have cast a total of only 3 votes between them in these cases. Sotomayor in CLS, and both Sotomayor and Kagan in Windsor. All 3 of those votes were cast in support of gay rights.

Justices Ginsburg, Breyer, Sotomayor, and Kagan are all Democrats, appointed by Democratic Presidents, and have voting records that overall are politically liberal--from moderately to strongly so.

As for Stevens and Souter, however, they are each Republicans who were appointed by Republican Presidents. But both of them compiled voting records that turned sharply politically liberal over the course of their tenures on the Court. They were reliable pro-gay rights votes.

Then there is Justice Kennedy. Other than in the Boy Scouts case, in which he voted with the Republican Justices to uphold the claimed associational right to exclude gay troop leaders, Kennedy has been with the liberal Justices in each case. So he supported gay rights against the state law denying gays and lesbians the right to sue for discrimination (Romer), against state laws criminalizing homosexual intimacy (Lawrence), against the student group that excluded gays and lesbians (CLS), and against the federal law denying recognition and benefits to same-sex marrieds (Windsor).

Ironically, Kennedy is not only a Republican whose overall record is at least moderately conservative, but he was appointed by Ronald Reagan, perhaps the most politically conservative Republican President in modern history. Beyond that, Kennedy has not only been a, if not the, deciding vote in cases supporting gay rights, but as Supreme Court watchers know, he has authored many of the majority opinions. And he has done so in grand, lofty language that certainly suggests that his support for gay rights is not tepid, but rather that he places gay rights alongside the nations' other great civil rights struggles.

To sum this all up, as it now stands the Court has 4 virtually certain votes to support a constitutional right to marry for same-sex couples. Yes, Ginsburg, Breyer, Sotomayor, and Kagan. To be sure, it would be a shock if any of them voted otherwise.

It also seems pretty reasonable to expect that Justice Kennedy will vote the same and, thus, assure a pro same-sex marriage majority. A contrary vote by Kennedy would not be as much of a shocker as would be such a vote by one of the 4 liberal Democratic Justices. Nevertheless, it is hard to imagine that Kennedy will suddenly halt the direction in which he has been a leader in taking the Court.

On the far opposite side of the Court's ideological spectrum, it is equally hard to imagine that Scalia or Thomas would suddenly switch course and support same-sex marriage. They have been utterly and vehemently unsympathetic to every claim of right by gays and lesbians. As already noted, those 2 have opposed gay rights in every case in which they've voted. They have, instead, found every and any asserted competing interest to be superior to equal protection and due process for gays and lesbians.

Similarly, if not identically, Roberts and Alito have thus far displayed little sympathy for gay rights. They have, however, participated in only the 2 most recent cases, CLS and Windsor. Of those two Justices, Alito's record seems the more conservative and traditional, and he will likely vote to uphold the right of states to ban same-sex marriage.

But, who knows. Alito's dissenting opinion in Windsor (the DOMA case) was more about whether the Court should go so far so soon while, in his view, the jury was still out about the societal ramifications of same-sex marriage. His argument might not have been terribly sympathetic to gay rights. But neither was it the sort of hateful, disingenuous anti-gay nonsense we've come to expect from others. So Alito's vote is likely a no on same-sex marriage, but a yes would not seem entirely out of the question.

As for Roberts, again, he has shown little sympathy for gay rights. But--and this is the critical but--does he want to go down in history as being on its wrong side? Does he want to go down in history as the Chief Justice who opposed what surely represents the inevitable progress of enlightened, free societies throughout the civilized world to recognize equal rights for gays and lesbians? Does he want to go down in history as the Chief Justice who opposed his own Court's march in that direction?

Roberts' political background, his clear ideological leanings, his voting record all say one thing: no to same-sex marriage. But his leadership, his reputation, his legacy--what history will say about "The Roberts Court"--suggest his support. We shall see.