Tuesday, December 16, 2014

NYCOA: Vacancies and (no) Vouch-Ins

Come the new year, New York's highest court will be 2 Judges short. That is, in the absence of the Governor and the Senate near-miraculously completing their respective nominating and confirming duties, the Court of Appeals will begin 2015 with only 5 of its 7 seats filled.

As we've been discussing, Judge Victoria Graffeo's 14-year term expired in late November. Governor Andrew Cuomo disregarded the legal deadline. He took an extra 2 weeks to render his nomination decision. (I.e., deciding not to reappoint Graffeo and, instead, to nominate Appellate Division Justice Leslie Stein.) The Senate, apparently having as little regard for the law as the Governor did and, perhaps, even less, is now 4 weeks past its legal deadline. It has yet to hold or even schedule confirmation proceedings. (The Senate Judiciary Committee's website currently states: "This committee currently does not have any public events scheduled." So who knows?)

That's one of the vacancies. Then there's number two.

Judge Robert Smith turned 70 this year. Under New York's [yes, moronic] mandatory age-retirement law, he is automatically removed from the Court at midnight on December 31. The Commission on Judicial Nomination has already submitted its 7-name list of possible replacements to the Governor. (Oh, the Commission has actually been abiding by the Judiciary Law's deadline.) The Governor now is legally required to make his nomination pick from that list between the 1st and 15th of January. The Senate then has 30 days to confirm or reject the Governor's choice.

Soooo, again, short of a political and logistical miracle, New Year's day will arrive with a 5-member Court of Appeals. (See/listen, interview with Karen DeWitt: New York's Highest Court Begins New Year Down Two Judges, Dec. 2, 2015. Also see the correction at the end of this post.)

Now it is true, the Court can technically function with only 5 members. Under the state constitution, 5 Judges is a quorum, and a decision can be rendered as long as 4 Judges agree on a disposition.

But any such quorum and any such decisions are reached without the perspectives and insights that the 2 missing Judges would provide. Worse than that, any case resulting in a 3-2 split--i.e., any case with 2 Judges disagreeing with the majority--is a case without a decision.

Yes, the lack of a 4-Judge majority precludes a decision. And no, the Court may not vouch-in a judge or judges from another court to insure that some 4-Judge majority is reached.

The state constitution does authorize the Court to "designate" a judge from a lower court (i.e., state supreme [trial court] or the Appellate Division [intermediate appeals court]) under certain circumstances. But not  to remedy an actual vacancy on the Court. Not when a position on the Court is actually unfilled. Not, for example, when a Judge on the Court has retired, resigned, or died, or whose term has expired. No. No vouching-in, or designating, under those circumstances. (NY Const Art. VI, sec. 2 a.) Hence, no vouching-in or designating to temporarily remedy the 5-Judge Court.

The constitution does authorize the Court to vouch-in, or designate, but only when there is a "temporary absence" of a current member of the Court. For example, if one of the Court of Appeals Judges had to recuse herself from a case, or was too ill or otherwise unable to participate temporarily, then a judge from outside the Court could be "designated" to sit in that absent Judge's place. That is a very different scenario than what the Court of Appeals is now facing.

The long and the short of all this is that, come the new year, the Court will not be able to vouch-in, or "designate," some other judge or judges to temporarily compensate for the 1 or 2 existing vacancies. So until the Governor and the Senate fulfill their duties under the state constitution to complete the appointment of 2 new Judges to the Court of Appeals, New York's high court will be shorthanded.

Correction: To the extent I misspoke on air about the Court vouching-in a judge or judges to temporarily fill the vacancy or vacancies--i.e., saying that the Court could do so under these circumstances--I trust the foregoing clarifies the matter. 
I don't want to sound like a court that's trying to distance itself from--or overrule--its own prior decision without simply admitting that it was wrong. So, more plainly, I was mistaken--as in simply wrong--about the vouching-in ability of the Court and I stand corrected.
When I observed such vouching-in, or "designating," while clerking at the Court of Appeals, the circumstances apparently involved the "temporary absence" of one of the Judges--not an actual vacancy.

Monday, December 1, 2014

NYCOA: The List for the Smith Vacancy (Part 1)

Well, at least the Commission abides by the law's deadline!
[See Senate To Miss Deadline to Approve Court Pick  and Part 4 [The Guv's Delay]--NY Court of Appeals: The List for the Graffeo Seat]

Earlier today, the Commission on Judicial Nomination released its list of 7. That is, candidates for the Court of Appeals--possible gubernatorial nominees--to fill the vacancy that will arise at the very end of this year, as a result of New York's (moronic) mandatory 70-age retirement for the high court's Judges. Once again, it is a very strong list.
[Available at http://nysegov.com/cjn/assets/documents/press/12-1-14_CJN_press_release.pdf]

Yes, what must be said must be said. Although some lists under New York's so-called "merit appointment system" (adopted in the late 1970's to replace the election system) have been pretty mediocre, the lists have consistently been very strong since former Chief Judge Judith Kaye became Chair of the Commission.

Those lists should be very strong. Not only because we are talking about filling positions on one of the nation's great courts, but also because we are talking about replacing some very strong Judges.

So, for example, it was about replacing Judge Victoria Graffeo the last time.
[See Part 3 [The Seasoned, Admired Judge Graffeo ] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo]

This time, it's about replacing Judge Robert Smith--a brilliant Gov. Pataki appointee who has helped invigorate the decision-making at the Court by, among other things, his rigorous questioning at oral arguments and his enthusiasm for penning insightful (but never disagreeable) dissenting opinions. It's good that there's such a strong list of candidates to fill his vacancy.

We'll discuss more about the list in future posts.
[I mean, come on, the Senate has not even held hearings yet on Governor Andrew Cuomo's nominee to replace Judge Graffeo, despite the legal deadline 2 weeks ago.]

But for now, a few observations on the list as a whole:
1st, as already noted, the list was delivered to the Governor on time--December 1, as required by statute (Judiciary law sec. 68).
2nd, again as already noted, a very strong list.
3rd, not only very strong, but also quite diverse--even 2 Republicans.
4th, here's a demographic breakdown (as best as I can determine at this point):

  • 1 Asian
  • 1 Latino
  • 1 African-American
  • 3 Women, 4 Men
  • 2 Republicans (about time!), 5 Dems
  • 2 Judges, 5 Private Practitioners
  • 5 litigators, 1 former Prosecutor
  • 2 former Appellate Law Clerks (1 federal, 1 on the NYCOA itself)
  • 3 Repeat Names, 4 New Ones
  • 2 Upstaters, 5 from the City
  • Law Schools: Albany, Buffalo (2), Columbia, Harvard, Penn, St. John’s
Well, that is quite a group.

In a future post we'll look at each of the 7 individuals.

Monday, November 24, 2014

Part 3 [The Seasoned, Admired Judge Graffeo ] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo

As most readers know, Gov. Andrew Cuomo disregarded the Judiciary Law's nomination deadline, and now the Senate has disregarded the deadline for confirmation.
There's no issue here as there is regarding the President's executive order power. No. Both the Governor and the Senate have unambiguously and unashamedly violated the law. (Interview with Karen Dewitt, Senate To Miss Deadline to Approve Court Pick .)
But now, Judge Graffeo.

Victoria A. Graffeo's 14-year term on the Court of Appeals, New York's highest tribunal, comes to an end this week. A highly regarded and well-loved jurist, she was widely supported for reappointment by members of the bench and bar, regardless of party affiliation or political ideology.

The Governor chose otherwise. He chose to follow the example of former Governor George Pataki, rather than that of his father and, indeed, of every other Governor--as well as of both major political parties, throughout the last century, during which selection and re-selection was by election. (See Part 2 [Renominations Historically]) Presuming that the Senate will eventually convene and confirm Cuomo's pick--the well-qualified Appellate Division Justice Leslie Stein--the Graffeo seat on the Court will be filled and she will have been replaced.

Well, actually, it will take some time before Judge Graffeo can be "replaced" in any sense of experience, wisdom, and well-earned esteem. She has evolved over the course of her 14 years on New York's highest Court to rank among the most admired Judges of the modern era. Those seasoned jurists who understand the judicial role; exercise it with insight, independence, impartiality, and exquisite judgment; and, as a result, render decisions and author opinions that reflect those qualities, uphold the most cherished principles, and are recognizable as precedents that will stand the test of time.

Yes, that has been Judge Graffeo and her work on the Court of Appeals.

Let's take a look at just a few of her opinions over this last year of her term. It will more than demonstrate my point:

People v. Marquan M.--The local cyberbullying law at issue, intended to protect minors, was constitutionally invalid because it was overbroad.
"[T]he text of the statute...'create[d] a criminal prohibition of alarming breadth.' The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children."
Wallach v. Town of Dryden--Local zoning ordinances prohibiting hydrofracking in their municipalities are not preempted by state oil and gas law.
"These appeals are not about whether hydrofracking is beneficial or detrimental [but] whether the state legislature eliminated the home rule capacity of municipalities...to preserve the existing character of their communities."
People v. Rivera--A trial judge's instruction, outside the presence of the defendant, to a deliberating juror who requested clarification requires reversal of the conviction.
"A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury."
People v. Washington--A driver who consents to a breathalyzer still has a right to consult with counsel before he performs that test.
"The fact that the defendant consented...is not dispositive since the defendant, after consulting with counsel, could have revoked her consent...The police must therefore advise the accused that a lawyer has made contact." 
People v. Tyrell--Where the trial record does not show that the defendant understood the rights he was waiving by pleading guilty, the conviction must be reversed.
"[T]o constitute a knowing, voluntary and intelligent [guilty] plea, there must be 'an affirmative showing on the record' that the defendant waived his constitutional rights."
Holmes v. Winter--A New York journalist will not be ordered to comply with an out-of-state subpoena to appear in a proceeding and reveal confidential sources.
"There is no principle more fundamental or well-established [in New York] than the right of a reporter to refuse to divulge a confidential source...[A]n order from a New York court directing a reporter to appear...would offend our strong public policy--a common law, statutory and constitutional tradition." (See NY Court of Appeals: Freedom of the Press Taken Seriously.)
People v. Wells--The guilty plea based solely on the trial judge's erroneous denial of a suppression motion should be vacated.
"Harmless error...can be 'difficult to apply to guilty pleas'--especially in cases involving 'an improper denial of a pretrial motion to supress'--since 'a defendant's decision to plead guilty may be based on any factor inside or outside of the record.' Consequently, convictions premised on invalid guilty pleas generally are not amenable to harmless error review."

Well, those are a few of the significant majority opinions authored by Judge Graffeo--just over the past 12 months.
Now is that the kind of record that demonstrates clearly that the authoring Judge deserved reappointment, and emphatically so?
A pretty strong consensus of the bench and bar certainly think so.

Now consider this: Is that the kind of record that suggests some overriding partisan--i.e., Republican--bent?
Is it the kind of record that evinces some strong ideological--i.e., conservative--leaning?
Is it the kind of record that demonstrates some pattern of hostility to positions generally favored by liberal Democrats?
Well of course not.

And yet, curiously--very curiously--in the 2 weeks following Governor Andrew Cuomo's decision to delay his selection for the Court of Appeals, public opposition to Graffeo's reappointment suddenly emerged, suggesting just that. Individuals and groups claiming that she was too conservative suddenly found their voices and aired their complaints. Those opposition voices, instigated into action or not, provided some political cover for the Governor who would surely be criticized for not reappointing Judge Graffeo--as he has been. And justifiably so. That 2 week ordeal not only violated the Judiciary Law deadline, but it was just plain unseemly.

More importantly, however, the ultimate result is that the Court of Appeals, and indeed New York State for which it decides the most fundamental issues, is now denied the judicial services of a truly fine Judge. An experienced and wise Judge. (Let alone a wonderful, committed, caring  human being--also pretty good qualities for a Judge.) A Judge who has served on New York's high court with exceptional distinction. Who brought great credit to the Court, enhanced its reputation, set an example of extraordinary dedication, and leaves a record that is worthy of this nation's best courts and best Judges.

Thank you Judge Victoria Graffeo for your great service.

Monday, November 17, 2014

Tribute to Judge Stewart F. Hancock, JR., 1923–2014, in the Albany Law Review

(photo by F. Ordonez, The Post-Standard)
The recently published issue of the Albany Law Review  opens with a dedication to Stewart F. Hancock, Jr., who served on the New York Court of Appeals, the state's highest court, and passed away earlier this year.

The dedication to Judge Hancock includes a tribute by Judge Richard D. Simons, his dear friend and colleague on both the Court of Appeals and, previously, on the New York's Appellate Division, 4th Department. It is the eulogy Judge Simons delivered at the Memorial Service for Judge Hancock, on March 7, 2014, at the Park Central Presbyterian Church in Syracuse.
TRIBUTE TO JUDGE STEWART F. HANCOCK, JR., by Richard D. Simons, HERE or HERE.

The dedication also includes some reflections by John O‟Brien, a reporter with the Syracuse Post-Standard, who has covered the Court of Appeals and wrote about Judge Hancock for many years.
THOUGHTS ON JUDGE HANCOCK, by John O’Brien, HERE or HERE.

Finally, the dedication includes my own few words about the Judge.
I was the beneficiary of several extraordinary years serving as the law clerk for this extraordinary man, and of many more years thereafter as his friend.
FOREWORD: STEWART F. HANCOCK, JR., 1923–2014, by Vincent Martin Bonventre. HERE or HERE.

[See also John O'Brien's report in Judge Hancock's hometown newspaper, the Syracuse Post-Standard, Stewart Hancock, former judge on state's highest court, dies at home in Cazenovia, HERE.
The obituary in the Post-Standard is accessible HERE.]

Thursday, November 6, 2014

Part 2 [Renominations Historically] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo

We'll be taking a look at Judge Graffeo's record on the Court of Appeals, and we'll then be trying to get some sense of what Judge Stein's record at the Appellate Division portends. 
But first...

Let's look at the history of sitting Court of Appeals Judges who were up for renomination. Specifically, those Judges who had completed a 14-year term, but were eligible for retention because they had not yet reached the mandatory retirement age of 70. The history is interesting, and quite telling.

Reviewing the entire last century:
  • Matthew Jasen--reappointed by Gov. Hugh Carey (1981)
[Previously, Court of Appeals Judges ran for election.]
  • Adrian Burke--cross-endorsed by the Democratic and Republican Parties for reelection (1968)
  • Stanley Fuld--cross-endorsed for reelection (1960)
  • Marvin Dye--cross-endorsed for reelection (1958)
  • Charles Desmond--cross-endorsed for reelection (1954)
  • Albert Conway--cross-endorsed for reelection (1954)
  • Irving Lehman--cross-endorsed for reelection (1937)
  • Frederick Crane--cross-endorsed for elevation to Chief Judge (1934)
  • Cuthbert Pound--cross-endorsed for reelection (1930)
  • [Must note Benjamin Cardozo--cross-endorsed for elevation to Chief Judge prior to the completion of his 14-year term]
  • Irving Vann--cross-endorsed for reelection (1910)
  • Albert Haight--cross-endorsed for reelection
  • Edward Bartlett--cross-endorsed for reelection (1907)
  • Denis O'Brien--cross-endorsed for reelection (1903)
  • John Gray--endorsed by the Democrats; challenged by the Republicans; reelected (1902)
In short, in the last century:
  • Every single eligible Court of Appeals Judge was retained.
  • Every single Court of Appeals Judge who ran for reelection was reelected.
  • Every single Court of Appeals Judge who ran for reelection was cross-endorsed by both major political parties, except for one, at the very beginning of the century--i.e., John Gray, who was still reelected.
  • The single Judge eligible under the then-new appointment system was reappointed.
  • Stated otherwise, not a single Court of Appeals Judge was denied retention. 
But then, in this century, there was Governor George Pataki. He was deplorably hyper-partisan and hyper-ideological about criticizing the Court and in making appointments. He also broke the century-plus bi-partisan tradition of retention by refusing to reappoint Judge George Bundy Smith--a Gov. Mario Cuomo appointee, who was the only African-American on the Court.
[N.B., 6 Pataki appointees, but not a single minority. Not a single Democrat either. Apparently, unlike his predecessor, Mario Cuomo, neither racial nor ethnic nor political diversity was a particular concern.]

So here's what this century looked like prior to the Judge Graffeo vacancy:
  • George Bundy Smith--denied reappointment by Gov. George Pataki (2006)
  • Carmen Beauchamp Ciparick--reappointed by Gov. Eliot Spitzer (2007)
  • Judith Kaye--reappointed by Gov. Eliot Spitzer (2007)
And now, Gov. Andrew Cuomo--following in the steps of George Pataki, rather than the other Governors and both the Democratic and Republican parties over the course of more than a century--has denied reappointment to Judge Victoria Graffeo.

Indeed, Andrew Cuomo's break with the long bi-partisan tradition is arguably far worse than Pataki's.

At least in Pataki's case, it could be argued that the Judge he chose not to reappoint had only a year of eligibility left on the Court before retirement age and, moreover, that this was Pataki's last chance to put his imprint on the Court before the end of his tenure as Governor.

In Andrew Cuomo's case, Judge Graffeo was eligible for 8 more years and, moreover, Andrew Cuomo has several appointment opportunities to come. He will, in fact, be making another appointment very shortly. He will be filling a vacancy that arises because Judge Robert Smith faces mandatory retirement age (70) this year. He will then be filling a vacancy in each of the next 3 years when--in this order--Chief Judge Jonathan Lippman, Judge Eugene Pigott, and Judge Susan Read must retire.

So there it is. Going back at least as far as the beginning of the last century, every single Court of Appeals Judge eligible for retention has been retained, regardless of party affiliation, and virtually always with bi-partisan support.
The sole exceptions: Judge George Bundy Smith denied reappointment by Pataki, and now, Judge Victoria Graffeo denied reappointment by Andrew Cuomo.

Anyone who cares about having a strong Court of Appeals, anyone who would hate to see the New York Court devolve into the polarized partisan disaster that is the current U.S. Supreme Court, should be extremely concerned. What George Pataki began, what Andrew Cuomo has now followed, is more than a break with a long bi-partisan tradition. What they have done mirrors the hyper-partisan, hyper-ideological pattern of Presidential appointments over the last several decades that has severely damaged the quality, integrity, and reputation of the Nation's high court.

The New York Court of Appeals has historically been a great court. In large part, that is because strong Judges have historically been retained without regard to party affiliation and without regard to the ideological bent of the renominating or reappointing authorities. Let's hope that Gov. Pataki's approach to the Court and, now, Gov. Andrew Cuomo's, remain aberrations.

[Lest there be any confusion, my criticism of Gov. Pataki's public bashing of the Court of Appeals and his approach to appointments is not a reflection on his appointees themselves. Indeed, Judge Pigott, who Pataki appointed instead of reappointing Judge G.B. Smith, and Judge Graffeo, who Pataki appointed but Andrew Cuomo has declined to reappoint, have both served on the Court with considerable distinction. To be fair to Pataki, he has placed some exceptional Judges on the Court.]