Chief Judge Judith S. Kaye's quarter century on New York's highest court comes to an end in 3 months. The idiotic state requirement that Court of Appeals judges retire at the age of 70 has forced the retirement of great judges. Indeed, it has forced their retirement, and thus robbed the state of their experience and wisdom, just as many of them were reaching their zenith as jurists.
In recent years, Albert Rosenblatt, Howard Levine, Richard Simons, and Stewart Hancock all had to retire at their peak. When they were their wisest and most seasoned--and still ascending. And now that is happening to Judith Kaye. The mandatory age retirement--at least at the age of 70--has got to go!
Now that I've gotten that off my chest, let's get back to the purpose here.
What were the high points of Kaye's tenure on the court? Specifically, the best of her decisions and opinions. (I.e., so not including administrative achievements or judiciary-related service or extra-judicial scholarship.) Out of 25 years of judicial writings, what were the highlights? If, say, a top ten had to be selected, what would be on that list? Well, as Kaye's tenure is coming to a close--and as I have been thinking about it and am being asked to comment on it--it seems that coming up with a list of her best would not be a bad a way to recap. It might help get a handle on the rather enormous body of majority, concurring, and dissenting opinions that she has authored as an Associate Judge and then Chief Judge. And, in any event, top ten lists are usually fun.
So, I put together a list. It's mostly a quick, off-the-top-of-my-head list. That makes it somewhat tentative and subject to modification. There's probably at least one overlooked opinion that's even better than one that's on the list. But I think it's a pretty good top ten, and I'll defend it.
Let's start with the first half of the list and leave the others for next time--just to keep this post from getting too long. Here, then, are the first five--in no particular order:
1) In Re Jacob (1995) - majority opinion holding that being gay or lesbian is not a disqualification for becoming an adoptive parent in New York.
2) Immuno AG. v. Moor-Jankowski (1991) - majority opinion holding that freedom of the press is greater in New York than the minimal protections required by the Supreme Court's interpretation of the First Amendment; specifically, in this case, Kaye's opinion adopted the rule that the publication of an opinion is not subject to a defamation lawsuit, even if some part of that opinion can be viewed as a statement of fact.
3) Campaign for Fiscal Equity v. State (2003) - majority opinion holding that, in accord with the state constitution's guarantee of a public education, the state must insure that all public school districts--rich and poor, and that's the point--get the funding and facilities necessary to offer their students at least the basics of an education.
4) People v. Bing (1990) - dissenting opinion arguing that the court should reaffirm its precedent which gave criminal defendants a very protective right to counsel, namely that a defendant who was being represented by a lawyer in one criminal matter could not be questioned by the police on any, even unrelated criminal matters without the lawyer being present.
[I personally agree with the majority, which did overrule that former right to counsel rule. The point here, however, is that Kaye's dissent was a very thoughtful and strong argument in favor of that rule and against overruling precedent simply because it was disfavored by a changed membership of the court. Additionally, Bing is one of those cases in which the majority opinion (by Cuomo-appointee, conservative-Republican Richard Simons) and Kaye's dissenting opinion were both superbly reasoned and articulated arguments for their respective positions. It is, in my view, a prime example of the workings of the best courts and of the finest judges.]
5) Hernandez v. Robles (2006) - dissenting opinion arguing that same-sex couples should enjoy the same right to marry as opposite-sex couples; the denial of that right, for which there is no rational or legitimate justification, is a violation of constitutional equal protection and due process.
[Is there any real question that Kaye's dissent will ultimately be vindicated ? or that the majority's decision and arguments will ultimately be deemed atavistic and clouded by bigotry? Inter-racial marriage, racial integration, gender equality, etc., etc., etc.--even the emancipation of slaves--all were originally rejected by legislatures and courts whose decisions, based on tradition, moral, religious, and pseudo-scientific justifications, are now viewed with regret, shame and disgrace. The only question regarding same-sex marriage (especially in New York and other more "enlightened" states that have not yet approved same-sex marriages or unions) is: this generation or the next?]
So there's the first five (again in no particular order) of my Kaye top ten. The next five in the next post.