Monday, November 1, 2021

REPRISE: Religious Institutions Must Pay Abortion Coverage in NY

In a series of posts last year, I discussed the challenge to New York's abortion insurance mandate brought by religious objectors. Led by the Roman Catholic Diocese of Albany, the challengers sought an exemption on sincere religious grounds.
In a case involving the state's regulation requiring employers to provide abortion insurance coverage, New York's highest court wouldn't even hear an appeal. In Roman Catholic Diocese of Albany v. Vullo, religious objectors--to whom abortion is, for some, the equivalent of killing a human being and, for others, akin to it--were seeking an exemption on tha basis of religious liberty. But apparently, the Judges of New York's highest court didn't even think that the fundamental right of free exercise of religion is serious enough to deserve a hearing. 

         Here is the entirety of the Court of Appeals' ruling:

On the Court's own motion, appeal dismissed, 
without costs, upon the ground that no substantial
constitutional question is directly involved.
Motion for leave to appeal denied with one hundred
dollars costs and necessary reproduction 
Chief Judge DiFiore and Judges Rivera, Stein, 
Garcia, Wilson and Feinman concur.
Judge Fahey dissents and votes to retain the appeal.
(Mo. No. 2020-549, Nov. 24, 2020) [My emphasis added.

"No substantial constitutional question." And "On the Court's own motion." It is difficult to see anything but contempt on the part of the court for sincere, central religious beliefs and for genuine claims that constitutional religious liberty is being violated. Regardless of how the court would or should ultimately have ruled after an appeal, the refusal to even hear the appeal seems inexcusable.

So, in the New York State courts:
the trial judge denied the religious objection;
the Appellate Division (the state's intermediate court) affirmed that denial;
and the Court of Appeals (the state's highest court) deemed the case unworthy to hear.

Understanding full well that a serious question of religious free exercise was in fact at issue--despite the Court of Appeals dismissive contempt--the Albany Catholic Diocese petitioned the U.S. Supreme Court for certiorari (i.e., to review the case). Moreover, numerous scholars and various religious and religious liberty organizations submitted briefs to the Court in support of the Albany Diocese's constitutional argument which New York's highest court didn't consider worthy of an appeal.

The Supreme Court today granted the Albany Diocese's petition for certiorari, summarily vacated the decision of the New York courts, and sent the case back to New York's Appellate Division for reconsideration. Here's the order:
The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the Appellate
Division, Supreme Court of New York, Third Judicial Department
for further consideration in light of Fulton v. Philadelphia,
593 U. S. ___ (2021). Justice Thomas, Justice Alito, and
Justice Gorsuch would grant the petition for a writ of
The Supreme Court unanimously--that includes all three liberal justices: Breyer, Sotomayor, and Kagan--vacated the rulings of the New York courts which had denied the religious exemption to the state's abortion insurance mandate. A six-justice majority voted to summarily remand the case back to the New York courts for reconsideration. And three justices, Thomas, Alito, and Gorsuch--who have previously made clear that (Employment Division...of) Oregon v. Smith has to go--wanted the Supreme Court to proceed with a full appeal, presumably to overrule that precedent.

[N.B., Oregon v. Smith is the Supreme Court decision which, in Justice Scalia's dreadful and dishonest majority opinion--no, I'm not pulling any punches, any more than did Justice O'Connor--ruled against the religious liberty claim of The Native American Church on the truly incredible ground that any "otherwise valid law" defeats constitutional free exercise of religion. Yep, legislation defeats a fundamental constitutional right!
I've written and spoken at length about the Smith decision and its impact on religious liberty. See e.g., Justice Scalia's Record (Part 1), 2/18/16; Religious Liberty--commentary, interview, video, presentation [updated 5/15/13]Religious Liberty: Fundamental Right or Nuisance, 14 U. St. Thomas L.J. 650 (2018)The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007). Ironically, but not surprisingly, conservatives today are much more supportive of free exercise of religion than previously, and liberals much less so, because recent cases have involved majority and fundamental religions objecting to abortion rights, LGBTQ rights, and other rights favored by political liberals.]

The question is, what will the New York courts do with the case in light of the Supreme Court's summary vacatur? It's doubtful that the Appellate Division this time around will be so dismissive of the Albany Diocese's religious liberty claim for an exemption. It's also doubtful that the Court of Appeals this time around--however the Appellate Division rules--will treat this fundamental constitutional claim so contemptuously.

I guess we shall see.

[Disclosure: I have been assisting counsel for the Albany Diocese in this case, just as I did in Catholic Charities v. Serio (2006), involving New York's contraceptive insurance mandate.
Regardless of my strong support for the right to use contraceptives and for the right to choose, I believe that the free exercise of religion, like other fundamental constitutional rights, must not be lightly disregarded and, rather, should be limited only when actually necessary to protect important health, safety, national security, and other critical concerns. And that's hardly a unique or radical position. In fact, it is the most basic principle of constitutional law.]

Thursday, October 21, 2021

Capitol Pressroom Interview on the new Court of Appeals List

Here's a follow-up to the immediately preceding post on New York Court Watcher (The New List for the Court of Appeals--Seven names for the Governor to make her 1st pick for New York's High Court):

An interview with Capitol Pressroom host Dave Lombardo:

October 21, 2021 – Before the year is over, Gov. Kathy Hochul will get a chance to leave her mark on the state’s top court, filling an upcoming vacancy with one of seven potential candidates identified by a judicial nominating commission. Vin Bonventre, a distinguished law professor with Albany Law and author of the New York Court Watcher blog, assesses the list of contenders and predicts who will join the state Court of Appeals


Monday, October 18, 2021

The New List for the Court of Appeals

Seven names for the Governor to make her 1st pick for New York's High Court

Judge Eugene Fahey is retiring from the Court of Appeals. Not because he chooses to. But because of the state's infuriatingly moronic mandatory age retirement. Fahey turned 70 this September, so he must go at year's end. A truly fine judge. Extremely thoughtful, caring, judicious, and not captive of any ideological, partisan, or interpretive rigidities. But come December 31 of this year, the Court and the state's citizens will lose this exceptionally fine judge because of an exceptionally idiotic law.

So under New York's selection system for the Court of Appeals, the Commission on Judicial Nomination received applications, conducted interviews, and chose seven candidates for the Governor to consider to fill Fahey's coming vacancy. All the Judges currently sitting on the Court of Appeals were selected by former Governor Andrew Cuomo. This will be Governor Kathy Hochul's first opportunity to put her imprint on the state's highest tribunal.

Particularly notable about the selection Hochul will make is the loss that Fahey's retirement represents for the Court. Besides losing such a distinguished jurist, the Court will be losing its only member with prior appellate judicial experience, as well as the only member from western New York--in fact, the only member from anywhere upstate. Appointed in 2006 by Republican Governor George Pataki to the Appellate Division, 4th Department (which sits in Rochester and hears appeals from the western part of the state), he served there until Democratic Andrew Cuomo elevated him in 2015 to the high court. No other member of the current Court of Appeals had such an appellate background, nor are any from Fahey's hometown of Buffalo--or, again, from western New York or anywhere upstate.

These facts clearly weighed heavily in the Commission's deliberations. Of the seven candidates on its list, five are currently serving as appellate judges, and five are from upstate--with four of these upstaters from western New York.
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These are the 5 appellate judges on the list:
Erin Peradotto, who resides in Buffalo, has served on the Appellate Division, 4th Department, since she was first appointed in 2006. Especially noteworthy is the fact that this is the 6th time in which she has been chosen by the Commission as a candidate for the Court of Appeals. Regardless of the year or the vacancy or the composition of the Commission, she has been repeatedly recognized as deserving elevation to New York's highest court. If this selection system actually assured merit appointments, she would already be a Court of Appeals Judge.

Shirley Troutman, also of Buffalo and the Appellate Division, 4th Department to which she was appointed in 2016, is on the Commission's list for the second time. Among the many factors of her background that commend her, she is an alum of Albany Law School! (Okay, being a bit tribal there.)

Joanne Winslow, from the Rochester area, has sat on the Appellate Division, 4th Department, since 2017. Like Troutman, she is also an alum of Albany Law. (Yes, we're proud at the school.) And--one of these days, hopefully soon, it will not be notable to indicate--she is gay.

Stan Pritzker has served on the Appellate Division, 3rd Department (in Albany) since 2017. He had previously served simultaneously on several trial courts where he lives in Washington County. (For you downstaters, that's east of Saratoga and Lake George, on the Vermont border, north of Albany--yes, a vast portion of the state extends even north of Albany!)

Francesca Connolly, of Westchester County, has served on the Appellate Division, 2nd Department (in Brooklyn) since 2016. She also served on the Appellate Term--a lower level appellate court--for two years before that.

The 2 remaining candidates on the list are:
Timothy Murphy, from Niagara County and now working in Buffalo, has a great deal of experience as an appellate lawyer--for the past couple of years in the Federal Public Defender's Office for Western New York and, before that, for 15 or so years with the Legal Aid Bureau of Buffalo.

Corey Stoughton, currently the Attorney-in-Charge of Special Litigation at the Legal Aid Society in Brooklyn, has an extraordinary resume. Among other highlights of her career since her graduation from Harvard Law School, she clerked at the 6th Circuit federal appeals court for Judge Cornelia Kennedy; she then served as the senior supervising attorney for the NYCLU for 10 years; then for 2 years as senior counsel in the Civil Rights Division of the U.S. Department of Justice; and, since 2020, in her current position with Legal Aid in Brooklyn--throughout her career working on a broad range of constitutional and human rights issues.

Well, that's a brief sketch of the 7 candidates for the Court of Appeals.

Here are some notable stats about the list that might help to place it in various perspectives:
  • Again, 5 on the list are Appellate Division Justices--Connolly, Peradotto, Pritzker, Troutman, and Winslow.
  • 4 were appointed by Governor Andrew Cuomo--Connolly, Pritzker, Troutman, and Winslow.
  • 1 was appointed by Governor George Pataki--Peradotto.
  • 2 have extensive practice experience in criminal defense and constitutional rights--Murphy and Stoughton.
  • 5 are from Upstate--Murphy, Peradotto, Pritzker, Troutman, and Winslow.
  • 4 are from Western New York--Murphy, Peradotto. Troutman, and Winslow.
  • 2 are from downstate--Connolly and Stoughton.
  • 5 are women--Connolly, Peradotto, Stoughton, Troutman, and Winslow.
  • 2 are men--Murphy and Pritzker.
  • 1 is African-American--Troutman.
  • 1 is gay--Winslow.
  • 1 is a Republican--Pritzker. (Peradotto was, but her Erie County registration now indicates Democratic Party.)
  • 5 are sexagenarians (noteworthy only because they will reach that moronic mandatory retirement age before the end of the 14 year Court of Appeals term)--Connolly, Peradotto, Pritzker, Troutman, and Winslow.
  • 6 different law schools--Pace, Dayton, Buffalo, St. John's, Harvard, and Albany (2!)
As previously noted, with Judge Fahey's departure, none of the current members of the Court of Appeals will have had prior Appellate Division experience. This is a major concern of many who follow the Court and who practice before it. Two of the Judges did have previous judicial experience at the trial level--Chief Judge Janet DiFiore and Judge Anthony Cannataro. 

Another major concern is that none of the current members of the Court had much if any experience in criminal defense. On the other hand, 3 of the current Judges were prosecutors--the Chief Judge as District Attorney of Westchester County, Judge Michael Garcia as the U.S. Attorney for the Southern District of New York, and Judge Madeline Singas as DA for Nassau County.

As for the yet-unmentioned current members of the Court, Judge Jenny Rivera came from academia (CUNY law school) and Judge Rowan Wilson from private practice with a major law firm (Cravath, Swaine & Moore).

Under the law, Governor Hochul is required to make her choice for the Court of Appeals to fill the Fahey vacancy between November 15 and December 1. 

Monday, May 3, 2021

The New York Court of Appeals Latest List

For the second time in one month, the State Commission on Judicial Nomination released a list of nominees for New York's highest court. Earlier last month, on April 8th, the Commission gave Governor Andrew Cuomo a list from which to replace Judge Leslie Stein who will be leaving the Court in June. (See The NY Court of Appeals List, April 12, 2021.) Late last week, on April 29th, the Commission reported another list from which to fill the vacancy created by Judge Paul Feinman's sudden resignation and death.

This second list, like the earlier one, has seven nominees. It was chosen from an applicant pool of 75. That pool included all the 45 applicants for the Judge Stein seat and an additional 30 who newly applied for the Judge Feinman vacancy. It is a strong list. And it is as curious as it is strong.

Of the seven applicants who made the earlier list—all of whom were again considered for this second list—five are now missing. Ellen Nachtigall Biben, Administrative Judge for Criminal Matters in the First Judicial District in Manhattan, is not on this new list. Kathy Hirata Chin, a partner in the Manhattan office of the Crowell & Moring law firm, is now absent. Valerie Brathwaite Nelson, a Justice on the Appellate Division, Second Department in Brooklyn, is not included on this list. Madeline Singas, the Nassau County District Attorney, did not make this list. And Shirley Troutman, a Justice on the Appellate Division, Fourth Department in Western New York, is not on the list either.

Without being privy to the Commission's deliberations, one can only speculate why those five, having been deemed worthy of a seat on the Court of Appeals in early April, were somehow viewed as less so later in the same month. Perhaps, the five new nominees on the list were viewed as even more highly qualified. That would seem to be what the Commission is officially indicating with this new list. (A different possibility, of course, is that the previous five were excluded for reasons unrelated to merit. Who knows?)

But let me offer some realistic possibilities—which, nevertheless, may well be off the mark. Ms. Chin, who was deemed well qualified by the Commission on three previous occasions, is in her late sixties and would only be able to serve on the Court for a couple of years because of the state's (moronic) mandatory retirement age of 70. Justice Nelson, who has plenty of judicial experience, including at the appellate level since 2016, is also in her late sixties and would likewise be forced to retire before long.

Judge Biben and District Attorney Singas, on the other hand, are considerably younger and would be able to serve on the Court for many years. But those two received lower ratings from the State Bar Association than any others on that first list—a bare "Qualified" rather than the "Well Qualified" received by all the others. Similarly, the Albany County Bar Association gave each of them a bare "Qualified" rating. The State Women's Bar Association "Approved" them while rating the others "Highly Qualified. And the State Criminal Defense Lawyers gave them its lowest rating: "Not Recommended." Whatever the merits of these ratings, it is hard to imagine that they did not cause the Commission some embarrassment and did not give the commissioners serious pause.

The fifth exclusion from this new list is the most curious—indeed, downright mystifying. Justice Troutman, in her early sixties, is as young as many other recent appointees to the Court, and she received the highest ratings from the various bar associations. So that can't be it.

To make that exclusion even more curious is the inclusion, this time, of Troy Karen Webber. Like Troutman, Webber is a Justice on the Appellate Division (the First Department in Manhattan) and is African-American. Also like Troutman, Webber was an applicant for both lists. Somehow, Troutman made only the first list; Webber made only the second. Moreover, with Justices Troutman and Nelson missing, Webber is the sole African-American on the list. 

Speaking of identity politics, with the departures of Judges Leslie Stein and Paul Feinman, there will be no Jewish or openly gay Judges on the Court. As for replacing Feinman, it is certainly no surprise that the Commission would try to include openly gay nominees on the list. And, in fact, there are two. 

One, Michael S. Bosworth, has a truly extraordinary resume: Princeton undergrad, Yale for law, prestigious federal clerkships including one with Supreme Court Justice Stephen Breyer, experience as an assistant U.S. Attorney, Special Counsel to the FBI, Deputy Counsel to President Obama, and a partnership at Latham & Watkins in Manhattan. Although his career seems more fitting for a federal judgeship, there is no quibbling about its impressive quality and, if Governor Cuomo focuses on identity, Bosworth would fill both the Jewish and openly gay gaps.

The other openly gay nominee on this new list is Anthony Cannataro, the Citywide Administrative Judge of New York City Civil Court. A graduate of Columbia University and New York Law School, he began his career in Corporation Counsel's Office in New York City and then clerked at the Court of Appeals for Judge Carmen Ciparick. Having served as a judge on several different courts in the state, in addition to serving as a clerk on New York's highest court, he has a breadth of experience and knowledge of the state judiciary.

Another name on the new list is Judith J. Gische, a Justice on the Appellate Division, First Department in Manhattan. Gische is no stranger to Court of Appeals lists. This is her fourth time. A graduate of SUNY Buffalo for both undergrad and law, she has been a permanent, well-regarded fixture in the state judiciary for over 30 years. Unfortunately, because of the (again, moronic) mandatory 70-age retirement, she would only be able to serve on the Court for a few years.

Similarly, Denise A. Hartman, a graduate of Cornell undergrad and Syracuse law, enjoys a strong reputation as a judge in the state judiciary. She litigated as an Assistant State Solicitor General for three decades and, since 2015, has served on the state trial bench as a Court of Claims Judge and Acting Supreme Court Justice. Unfortunately, because of the (once more, moronic) mandatory 70-age retirement, she too would only be able to serve on the Court for a few years.

That leaves two nominees on this new last. They were both on the previous list as well. In fact, both Caitlin J. Halligan and Erin M. Peradotto have been on Court of Appeals lists four times before. Regardless of the year, the vacancy, the membership or leadership of the Commission on Judicial Nomination, these two have consistently been viewed as worthy of appointment to New York's highest Court. The various statewide and local bar associations have agreed. The State Bar Association, the Albany County Bar Association, and others have given both Halligan and Peridotto their highest ratings. To be blunt, it would have been a travesty if either of these two did not make both the previous list and this one.

Halligan, a partner at Selendy & Gay in Manhattan, is a graduate of Princeton and Georgetown Law. She clerked for Judge Patricia Wald of the D.C Circuit and for Supreme Court Justice Stephen Breyer. She litigated many years in both state and federal courts in the State Attorney General's Office and, ultimately, as the Solicitor General of New York. She has a reputation for brilliance and exceptional skill in the courtroom.

Peradotto, a graduate of SUNY Buffalo for undergrad and law, worked in private practice as a trial attorney and later in the State Attorney General's Office. She was elected to State Supreme Court in 2004 and, shortly thereafter, was elevated to the Appellate Division, Fourth Department (Western New York). She enjoys the very highest reputation as an appellate judge among other judges and court watchers —regardless of party or ideology.

As I previously mentioned, it would have been a travesty if Halligan and Peradotto did not make both lists. To some, myself included, it would also belie the notion that this appointment system is about merit if neither of these two was appointed to fill either of the two vacancies.

A final comment on the composition of this newest list. Once again the Commission has offered up a very diverse one. Six different law schools are represented: Yale, New York Law, SUNY Buffalo (twice), Georgetown, Syracuse, and NYU—alas, no Albany Law this time. There are federal and state, trial and appellate clerkships among the resumes. There is private practice and government litigation. Trial and appellate judgeships. And multi-cultural? There's Black and White; Gay and Straight; Catholic, Protestant, Jewish, African-American, and (at least based on surnames) Irish-American, Italian-American, and German-American.

The Governor is required by law to select from the list no later than 30 days from April 29 when the list was reported to him. Let's hope he makes his selection—from this list, as well as from the previous one—based on what is best for the Court and the people of the State.

Saturday, May 1, 2021

Supreme Shift (Part 4): Final on Barrett's Past Record

As Nick raised his glass, Father Keller said out loud, "Finally."
—from WHERE HAVE YOU GONE WITHOUT ME, by Peter Bonventre

Yes, "Finally," Part 4.

Chip Somodevilla/Getty Images
Late last year, in the previous installments in this series, we saw a pretty clear pattern. We were looking at now-Justice Amy Coney Barrett's record while a judge on the 7th Circuit Court of Appeals. Specifically, we were reviewing the disagreements she had with her colleagues, in cases she felt so strongly about that she chose to go public, and to expend the time and effort to write a dissenting opinion.

In the dissenting opinions that we have reviewed, she argued against the majority's protection of inmates, in support of drastic restrictions on immigration, in favor of gun rights for convicted felons, and to overlook a prosecutor's constitutional violation, (See Part 2 and Part 3 in this series.) 

As noted previously, these are the positions to be expected of an immigration resistant, law & order, pro-gun rights, conservative politician or voter. Good or bad, that is what it is. Now let's finish with her other, revealing dissents.

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In U.S. v. Uriarte (2020), the defendant claimed that, under the so-called First Step Act (2018), the trial judge was wrong to impose an enhanced recidivist sentence. A majority of the 7th Circuit panel agreed because the defendant's previous sentence, which the trial judge considered as the predicate for determining recidivism, was illegal and had already been vacated. Judge Barrett, on the other hand, argued in dissent that the previous illegal sentence should still count and that the enhanced sentence in question should be upheld.

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In another case, United States v. Rutherford (2019). Judge Barrett similarly dissented to argue against reviewing a sentence. In that case, the defendant had asked the trial judge to reconsider his sentence. When the trial judge declined, the defendant appealed. The majority of Barrett's colleagues, applying the traditional rule that motions to reconsider extend the time to appeal, permitted the defendant to seek their review. But Barrett dissented, arguing that the traditional rule was no longer valid (under the Federal Rules of Criminal Procedure) and that any opportunity the defendant had to appeal had expired.

Right to Counsel
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Judge Barrett dissented in one other criminal case we have not yet discussed. Same result: against the defendant. In this case, Schmidt v. Foster (2018), the trial judge called the defendant and his attorney into chambers. The judge then proceeded to question the defendant about his defense, while not permitting the attorney to advise his client or to participate in the question and answer in any way. The majority of the appellate panel ruled that the judge had violated the defendant's right to counsel. But Barrett dissented, arguing that there was no right to counsel during the judge's questioning because it took place without the prosecutor and, therefore, it was not a "critical stage" of the criminal proceeding.
(Subsequently, the entire 7th Circuit [en banc] reconsidered the ruling and, in a deeply divided decision, held that the right to counsel might have been violated, but the violation was not so clear as to require reversing the trial judge.) 

Judge Barrett dissented two more times while on the 7th Circuit. In each of these cases, she cast her vote to join a dissenting opinion written by one of her colleagues. Each of these two cases involved abortion. After what we've already reviewed about her record, is there any doubt which side she took on abortion rights?

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In Planned Parenthood of Indiana & Kentucky v. Commissioner of Indiana State Dept. of Health (2018), a panel of the 7th Circuit invalidated a state law that restricted the reasons for which the right to choose might be exercised. Because the law applied to early, as well as later-term abortions, the panel held that the law violated Supreme Court precedents that established a clear right to choose prior to viability. When the 7th Circuit as a whole (en banc) declined to reconsider that decision, Barrett dissented. She cast her vote with the dissenting opinion which urged a narrower view of pre-viability abortion rights.

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Similarly, the following year, in Planned Parenthood of Indiana & Kentucky v. Box (2019), a panel had invalidated a state law that required an ultrasound at least 18 hours prior to any abortion. The panel held that this 18-hour waiting period, together with the two trips to the facility that it would require, was an unjustified burden ("undue burden") on a woman's right to choose. The 7th Circuit declined to reconsider that ruling en banc, just as it had declined with regard to the ruling the year before. Barrett again joined the dissenting opinion, this time arguing that the state's law should be allowed to take effect because the issue was not clear.

We have now reviewed all of the dissents--opinions and votes--of Amy Coney Barrett while an appellate judge on the 7th Circuit Court of Appeals, just prior to her appointment to the Supreme Court. Remember, the purpose here is not to label her decisions and arguments right or wrong, wise or foolish, etc. But it is to connect the dots and discern any patterns. 

And one pattern could not be more clear: she took positions one would expect of a social and political conservative. Remember also, she took those positions when she felt so strongly that she was willing to disagree with the majority of her colleagues publicly, openly proclaim that they were wrong, expend collegial capital by risking offense and, when writing the dissenting opinion, expend the time and effort and resources of her chambers to do so.

Just consider a public official who took the opposite positions of then-Judge Barrett in all those cases. Consider a public official who sided with injured inmates against correctional officials, with an accused against a prosecutor who failed to disclose helpful evidence, with an accused against a judge who questioned him without the advice of counsel, with defendants who challenged harsh sentences, with restricting gun rights, but against restrictions on immigration, and against limitations on abortion rights. Clearly a social and political liberal.

There would be little hesitancy in so-labeling a politician who took those positions. And there is little reason for hesitancy in characterizing now-Justice Barrett's record as an appellate judge: it's just like that of a socially and politically conservative politician. 

It is of course possible that she will undergo some dramatic transformation--she would not be the first--or that there is some other reason to suspect that her past record is not necessarily prologue. Otherwise, the strong probability at this point is that Amy Coney Barrett will significantly increase the ideologically conservative direction of the Supreme Court.