New York Court of Appeals: The [NOT-SO-]Best of Judith Kaye (Part 2)

The last post listed the--well, my--"not-so-best" of Chief Judge Judith Kaye. (See New York Court of Appeals: The [NOT-SO-]Best of Judith Kaye (Part 1), Oct. 28, 2008.) Five majority opinions and three votes. Some of these are no doubt familiar to many COA watchers, but the reasons for including them on the list might not be. Others on the list may not be familiar at all. So here are a few words about each one of them. Hopefully this will make clear the essence the opinions, which are either authored or joined by Kaye, as well as why they each belong on the list.

Again, the list:
Majority opinions
Lauer v. City of New York (2000)
People v. Tortorici (1999)
Johnson v. Pataki (1997)
People v. Page (1996)
People v. Wesley (1989)
Votes
Catholic Charities v. Serio (2006)
Horn v. New York Times (2003)
In Re Holtzman (1991)

New York Court of Appeals: The [NOT-SO-]Best of Judith Kaye (Part 1)

Two previous posts looked at the top ten opinions of Chief Judge Kaye--my own selections, not hers or anyone else's. (See New York Court of Appeals: The Best of Judith Kaye (Part 2), Oct. 2, 2008; (Part 1), Sept. 26, 2008.) Appointed to the Court of Appeals in 1983 and elevated to the center seat 10 years later, Kaye will be ending her tenure on the court at the end of this year. That's mandated by New York's moronic law that requires Court of Appeals judges to retire at the age of 70. It forces some of the court's best judges to retire while they're in their prime as jurists.

In any event, every "top ten" has a flip side "bottom ten." I came up with a "bottom eight"--actually, 5 opinions and 3 votes. If the top ten were the "Best of Kaye," let's just call these the "Not-So-Best" of Kaye. I know there's lots of adoring Kaye fans out there. I love her too. But, hey, even Holmes had a few dreadful opinions. Just remember his: "Three generations of imbeciles are enough," so go right ahead and sterilize them. (Buck v. Bell [1927].)

Now I don't think Kaye authored anything as awful as Buck v. Bell. But if some of what she's done is her best, some of what she's done is at least her "not-so-best." Without any further description or commentary at this time, here are my picks:

Majority opinions:
Lauer v. City of New York (2000)
People v. Tortorici (1999)
Johnson v. Pataki (1997)
People v. Page (1996)
People v. Wesley (1989)

Votes:
Catholic Charities v. Serio (2006)
Horn v. New York Times (2003)
In Re Holtzman (1991)

Any/many of these ring a bell? The next post will elaborate on each of these selections.

Another GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order)

Here's a sweet graph--actually two. "Sweet" because they say so much so quickly. One graph depicts the cumulative voting records of the justices and the decisional record of the Court in the three categories of "defining decisions" discussed thus far in previous posts on the New York Court Watcher. These are decisions from selected cases dealing with discrimination, hot-button cultural issues, and criminal justice. In short, this graph combines the voting and decisional data from those three sets of cases. (See Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!]), Oct. 14, 2008; GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues), September 24, 2008; Part 2: Cultural Issues, September 20, 2008; Part 1: Discrimination, September 16, 2008.)

The other graph is simply a rearranging of the Law & Order graph posted a few days ago so that, like all the other graphs, the listing of the justices from left to right conforms to most liberal to most conservative voting records. Here's that one first. (As always, click to enlarge.)

GRAPH 1: Law & Order Decisions

Now like I said, we've seen that one before. Just ordered in reverse. But just take another look. From left to right. From Ginsburg and Souter to Thomas and Alito. How many paragraphs or pages is that worth? Well that's the spectrum in criminal cases. (And what about blue for the libs and red for the conservatives? I hope someone enjoys this as much as I do. It does seem particularly fitting at this time with all the maps of blue states and red states that fill the election news on CNN & MSNBC & FOX--yeah, I'm a junkie for that stuff too.)

Now for the graph that puts it all together. Well, all except the "political process" decisions which will be the subject of the next post in this series. So this graph is an update of the last "GRAPH-ic Recap" (September 24, 2008). It adds the newly discussed criminal cases--the "Law & Order" category of defining decisions--to that previous recap. Here it is:

GRAPH 2: Discrimination + Cultural Issues + Law & Order Decisions
(click to enlarge)

Again, how many paragraphs or pages is that worth? Notice the spectrum here. Still Ginsburg and Souter on the left end. But on the right it's now Thomas and Scalia. Not Alito. Although his record in the defining criminal cases put him to the far right because his voting is among the most pro-prosecution within the Court, his overall voting record is less conservative. This is largely because of his record in the discrimination cases which, as we have previously seen, placed him with the Court's liberals. So when all these defining decisions are taken together, Thomas and Scalia--as Court watchers would expect--are at the far right end of the Court's spectrum. Alito, like Roberts, has a conservative voting record. But it is not as ideologically lopsided, absolute, rigid, consistent, reliable, faithful--or whatever characterization one might prefer, depending on whatever sort of ideological judging one might prefer.

Anyhow, more on the voting records and the Court's spectrum in the next post in this series. It will take a look at selected "defining" cases in which aspects of the political process were challenged. And, of course, the cases are ideologically charged.

New York Court of Appeals: Article on Kaye's Legacy

The October issue of THE CAPITOL, a Manhattan Media publication covering New York State government, includes an article, "Bench Mark:The Legacy of Chief Judge Kaye" by Edward-Isaac Dovere. It provides an excellent personal and professional portrait of Kaye. It can be found at:

http://www.nycapitolnews.com/news/125/ARTICLE/1351/2008-10-10.html

Supreme Court's 2007-08 Term: The Defining Decisions (Part 3: Law & Order [nifty graph included!])

Well, the 1st Monday in October has come. The Court is back. The new term has begun. And what can we expect?

That question is exactly why we are looking at last term. What the Court decided and how the individual justices voted. It's the best way to get some ideas about how the Court and how the justices will behave this term.

This is the 3d post --4th if the "graph-ic recap" post is counted--in a series on New York Court Watcher looking at decisions that define the Court's '07 - '08 term. (See GRAPH-ic Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Parts 1 & 2 Recap in Graphs: Discrimination & Cultural Issues), September 24, 2008; Part 2: Cultural Issues, September 20, 2008; Part 1: Discrimination, September 16, 2008.) This installment looks at "law and order." The decisions and individual votes in criminal cases--again, especially the difficult, controversial, big-issue cases--tell us a great deal about how the Court and each of its justices balance crime control against due process (and sometimes against other critical interests as well). Three cases we have not yet discussed in previous posts seem particularly telling. These, when viewed together with 3 other criminal cases already considered under "cultural issues," provide decisional and voting patterns that afford insight into the ideological leanings of the Court, collectively and individually, in criminal justice matters.

Here's how the Court's decisions and the Justices' votes in these law and order cases look in graphic form. (Again, click to enlarge.)

GRAPH 1: Law & Order Decisions

OK, looks nice, and hmmm, interesting. But let's talk about the cases the graph reflects.

The 3 criminal cases we have not yet discussed are:
United States v. Williams (2008) - the federal statute criminalizing pandering and soliciting child pornography is constitutional: it is not "overbroad" (i.e., it is not so broad that it incidentally criminalizes too much constitutionally protected expressive activity), nor is it "void for vagueness" (i.e., it satisfies the constitutional due process requirement that laws be clear enough to know what is prohibited).
Votes (7-2): Roberts, Stevens [wrote concurring opinion], Scalia [wrote Court's opinion], Kennedy, Thomas, Breyer, and Alito versus Souter [wrote dissent] and Ginsburg.

Virginia v. Moore (2008) - an arrest and search that are illegal under the law of the state where made are not "unreasonable" under the constitution and, thus, do not violate the constitutional right against unreasonable searches and seizures.
[The Court reversed the decision of the Virginia Supreme Court--that wild bastion of liberalism--which had held that the illegal arrest and search were constitutionally unreasonable.]
Votes (9-0): Roberts, Stevens, Scalia [wrote Court's opinion], Kennedy, Souter, Thomas, Ginsburg [wrote separate opinion], Breyer, and Alito.

Kimbrough v. United States (2007) - the federal sentencing guidelines are advisory only and, thus, a trial judge may choose to impose a lesser sentence for a crack cocaine crime than the guidelines prescribe--which is 100 times more harsh than for a powder cocaine crime.
Votes (7-2): Roberts, Stevens, Scalia [wrote concurring opinion], Kennedy, Souter, Ginsburg [wrote Court's opinion], and Breyer versus Thomas [wrote dissent] and Alito [also wrote a dissent].

As for the 3 criminal cases discussed previously under "cultural issues" (See Supreme Court's 2007-08 Term: The Defining Decisions (Part 2: Cultural Issues), September 20, 2008), they are:
Kennedy v. Louisiana (2008) - capital punishment is an unconstitutional penalty for non-homicidal child rape.
Votes (5-4): Stevens, Kennedy [wrote Court's opinion], Souter, Ginsburg, and Breyer versus Roberts, Scalia, Thomas, and Alito [wrote dissent].

Baze v. Rees (2008) - the lethal injection used in Kentucky and other states is constitutionally permissible.
Votes (7-2): Roberts [wrote Court's opinion], Stevens [wrote separate opinion], Scalia [wrote separate opinion], Kennedy, Thomas [wrote separate opinion], Breyer [wrote separate opinion], Alito [wrote concurring opinion] versus Souter and Ginsburg [wrote dissent].

Medellin v. Texas (2008) - American courts are not bound by a ruling of the International Court of Justice enforcing the rights of the accused guaranteed by an international treaty ratified by the United States, despite the President's declaration that the ruling and the treaty are binding international law.
Votes (6-3): Roberts [wrote Court's opinion], Stevens [wrote concurring opinion], Scalia, Kennedy, Thomas, and Alito versus Souter, Breyer [wrote dissent], and Ginsburg.

So, in terms of law and order:
In Williams it was crime control (child pornography) versus the First Amendment. [Crime control/the prosecution won.]

In Moore it was crime control (police latitude to arrest and search) versus the restrictions imposed by state law. It was also the Supreme Court's sole power to decide what the constitution allows, requires and prohibits versus the power of a state to affect that determination. [Crime control/the prosecution won.] Note the analogous conflict in Medellin. That case pit the same sole power of the Supreme Court to decide what the constitution allows, requires and prohibits versus, in Medellin, the power of another institution--whether the International Court of Justice, the President, or the international legal obligation of treaties--to affect that determination. [Crime control/the prosecution won.]

In Kimbrough it was crime control through harsh punishment versus equitable treatment of similar offenders. It was also the power of judges to determine an appropriate sentence versus the power of the legislature to limit judges' discretion. [Due process/the accused won.]

In Kennedy it was crime control through the ultimate penalty versus proportionality in punishment. [Due process/the accused won.]

In Baze it was crime control through the ultimate penalty versus avoidance of needless cruelty. [Crime control/the prosecution won.]

Now, let's look at that graph again. (Once more, click to enlarge.)

GRAPH 1: Law & Order Decisions

[One explanatory note about the graph. Although the votes in each case are generally counted as either simply pro-prosecution or pro-accused, in some cases some votes were deemed half and half. So in Moore, although Ginsburg voted with the rest of the Court to uphold the conviction, her separate concurring opinion made clear that she took a less rigid pro-prosecution position than her colleagues. So her vote was deemed half pro-prosecution and half-pro-accused. Similarly, in Baze, as discussed in the previous post on cultural issues, the plurality opinion of Roberts was ideologically midway between the separate concurring opinion of Thomas (joined by Scalia) which saw no possible problem with lethal injection and the dissent of Ginsburg (joined by Souter) which argued that there were fatal constitutional problems. So the votes of Roberts and those who joined him and his reasoning were deemed half and half.]

Not surprisingly, Thomas, Alito, Scalia, and Roberts have the most pro-prosecution (most conservative) voting records in these cases--and in that order in these cases. Ginsburg and Souter have the most pro-accused (most liberal). Stevens and Breyer, whose voting records are generally ideologically comparable to those of Ginsburg and Souter, are somewhat more conservative in these cases. Breyer, whose record in these 6 cases is still more liberal than that of the Court as a whole, voted with the conservatives to uphold the child pornography law in Williams, to uphold lethal injection in Baze, and to protect the Court's sole power to interpret the Constitution against competing state judgements in Moore. In addition to those pro-prosecution votes, Stevens voted with the conservatives in Medellin to protect the Court's sole interpretive power against international judgements as well. Kennedy, the swing vote, voted the same as Stevens in each case. That again placed him in the ideological center of the Court--as it also placed Stevens in these cases.

Well how does all this add up so far?

The next post in this series--a brief one--will view all the cases discussed thus far collectively (anti-discrimination, cultural issues, and law and order) in a single graph accompanied by a few short notes. The following post will look at the "political process" cases--the last category. Finally, one last post in this series will view all 15 cases in a collective graph with a few concluding observations.

New York Court of Appeals: Connecticut Supreme Court's Same-Sex Marriage Decision Adds to the Embarrassment

Last week's decision by the Connecticut Supreme Court should be welcome by all who take constitutional equality and fairness seriously. The state's highest court ruled in Kerrigan v. Commissioner of Public Health that same-sex couples are entitled to the same right to marry as are enjoyed by opposite-sex couples. Denying that same right to marry, the 4-3 court held, violates the guarantees of equal protection and due process in the Connecticut Constitution (and this should also be true for the federal constitution). The Connecticut court now joins a very few state high courts that have ruled similarly. But it also joins an historic march against irrational and hateful discrimination--a march which will certainly be vindicated in the not-too-distant future.

The Connecticut Supreme Court's rationale was plain. It was similar to that traditionally used by courts to invalidate discriminatory laws against minority or otherwise vulnerable groups. It went like this: Gays and lesbians have been the victims of vicious discrimination and hate and violence for a long time. So any laws which treat them differently should be closely scrutinized to determine whether there really is some legitimate reason for the differentiation--as opposed to pure discrimination. If there is no legitimate reason--and, thus, the only real basis for the different treatment is bigotry, prejudice, hate, ignorance, etc.--then the law is invalid. It violates constitutional guarantees of equal protection [which prohibits invidious discrimination] and due process [which requires some legitimate basis for a law].

The Connecticut Court subjected the state's opposite-sex-only marriage law to close scrutiny. It examined all the reasons offered to justify the different treatment of same-sex couples. It found all of them lacking in any real justification and, thus, concluded that the differentiation was simply discriminatory. As such, the court ruled that the differentiation was invalid because it violated the Connecticut constitution's promises of equal protection and due process.

Now just contrast that with the ruling of the New York Court of Appeals in Hernandez v. Robles two years ago. The majority of that court did acknowledge that gays and lesbians have suffered discrimination. BUT that discrimination, according to the majority, does not rise (or sink) to the level that would require close scrutiny of laws which treat gays and lesbians differently than others. [Whatever else one might think of the Court of Appeals' ultimate decision in this case, to suggest that discrimination against gays and lesbians has not been bad enough to justify close examination of different-treating laws is nothing short of preposterous.]

Then, the New York court's majority considered any possible legislative justifications for limiting marriage to opposite-sex couples. Two loomed large. Maybe the legislature disallowed same-sex marriages because it believed children were better off with opposite-sex parents. The problem, of course, is that the issue is same-sex marriage, not same-sex parenting. (Also, same-sex parenting is entirely permissible in New York and, moreover, the majority of the court acknowledged it had no support whatsoever for the proposition disfavoring same-sex parenting.)

So on to the second justification. After wading through the court's opinion, this seems to be the one on which the majority actually rested its decision: Same-sex couples cannot accidentally become parents, and the marriage laws are a way of providing family stability for accidental children. Ok, is there any sentient human being who honestly believes that the legislature--in New York or elsewhere, now or in the past--ever dreamed of this as a reason for excluding same-sex couples from marriage? Is there any sentient human being who honestly believes that this is the reason for the opposition to same-sex marriages? Well of course not. [Again, whatever else one might think about the Court of Appeals' ultimate decision in this case, to suggest that the disparate treatment of gays and lesbians in marriage laws is justified by any such hypothetical and highly imaginative legislative purpose is nothing short of preposterous.]

Such justification(s) for prohibiting same-sex marriages cannot be taken seriously. Perhaps there are some legitimate reasons offered by someone somewhere. Some reasons not ultimately grounded in bigotry, prejudice, hate, fear or some other quality which certainly ought not to be given a constitutional imprimatur. Not finding any such legitimate reason, the Connecticut court did what a court should and called the opposite-sex-only marriage law what is was: pure and simple discrimination. By contrast, the New York Court of Appeals desparately stretched to find something on which to cling to save New York's law. And the result is a decision which no serious reader can find even mildly persuasive.

The Connecticut court and the New York court. Is there the slightest doubt which one history will view favorably? Any doubt which one history will view with shame? Which one history will view as part of historical progress of reducing discrimination? Which one history will view as getting in the way?

Connecticut now joins California, Massachusetts, Vermont, and New Jersey as states whose high courts have held that same-sex couples are entitled to equal treatment--requiring the law to recognize either same-sex marriage or civil union. (Marriage in California, Massachusetts and Connecticut; civil union in Vermont and New Jersey.) Then there's New York and its Court of Appeals. Requiring neither. Seeing no discrimination. Another sad indication of what has happened to what was for a long long time among the very strongest, most influential, most progressive courts in the country. Note well, it was the dissent of Chief Judge Judith Kaye that was cited so frequently and approvingly in the Connecticut decision. And it was the New York majority that was derided and dismissed.

In any event, hooray for the Connecticut court and for the others who are leading the way. And here's hoping that better days are coming for the New York Court of Appeals. Days when, among other things, Chief Judge Kaye's dissent is vindicated.

New York Court of Appeals: The Best of Judith Kaye (Part 2)

The first part of this discussion on the New York Court Watcher began with a brief consideration of Chief Judge Kaye's mandatory age-retirement at the end of this calendar year. It then proceeded to a recap of her tenure on the Court of Appeals via a selection (a highly subjective one to be sure) of her best opinions over that 25 year period. That selection, which was reduced to a "Top Ten" (only because top tens are usually fun and challenging, not because there were some predetermined opinions that numbered 10), was introduced by identifying the first 5. ( See New York Court of Appeals: The Best of Judith Kaye (Part 1), September 26, 2008.) Here's the second half of that top ten--as with the entire list, in no particular order:

6) People v. Scott (1992) - concurring opinion--specifically addressing an ill-tempered and ill-informed (and we'll leave it at that) dissent--in which Kaye presented a veritable lecture on the independent decisionmaking role of state courts in our federal system; she also wrote candidly about how the exercise of personal judgment is an inevitable and necessary ingredient in judging.

7) People v. Class (1984 [1986, on remand from the Supreme Court]) - majority opinion holding that a police officer must have some legal justification for reaching into an automobile, without the driver's consent, and moving papers and other possessions on the dashboard; as a matter of independent state search and seizure law, Kaye's opinion adopted a different rule than that of the Supreme Court, a majority of which took the position that police need no probable cause, nor reasonable suspicion, nor any justification at all for reaching into an automobile and clearing the dashboard because [sic] there is no privacy in a vehicle identification number.

8) People v. Hernandez (1990) - dissenting opinion concluding that the prosecutor's removal of prospective Latino jurors at trial was unconstitutionally discriminatory; Kaye argued that the elimination of an ethnic or racial group from a jury is inherently suspect and, accordingly, a prosecutor's "neutral" explanation should be subjected to enhanced scrutiny.

9) Ware v. Valley Stream High School District (1989) - majority opinion holding that the state's interest in AIDS education, though compelling, cannot be enforced against religious objectors if they can be accommodated without compromising the state's purpose.
[Contrast this opinion with that of the Supreme Court the following year in Oregon v. Smith (any otherwise valid "neutral" law trumps free exercise of religion) and the Court of Appeals' own Catholic Charities v. Serio (2007) (any law, unless shown to be unreasonable, trumps state constitutional free exercise)]

10) People v. Ryan (1993) - majority opinion applying the core principle of criminal law that culpability generally requires awareness of one's guilty conduct; here, Kaye applied that principle to an aggravated drug crime by requiring proof that the accused had some idea of the amount of drugs involved, the aggravating element that triggered a substantially increased sentence.
[Not surprisingly, Kaye's mens rea requirement was harshly criticized by politicians who quickly proposed various "corrective" legislation of questionable constitutional validity.]

So that's my "Kaye's Top Ten:"
Jacob
Immuno
CFE
Bing [dissent]
Hernandez v. Robles [dissent]
Scott [concurring]
Class
People v. Hernandez [dissent]
Ware
Ryan

A couple of honorable mentions must be acknowledged:
Tebbut v. Virostek (1985) - dissenting opinion, in one incisive paragraph, rejecting the majority's holding that a woman has no cause of action against a physician who negligently kills her unborn child because [sic] the woman herself has suffered no physical injury.
[I should disclose that this addition was suggested by my co-clerk at the Court of Appeals who assisted our judge, Matthew J. Jasen, pen his own lengthier dissent, unmercifully excoriating the court for its decision. Jasen and Kaye were ultimately vindicated when the court overruled itself in Broadnax v. Gonzalez (2004).]

Pataki v. State Assembly (2004) - dissenting opinion rejecting the court's ruling that any measure the governor may insert into his budget, regardless of how substantive or legislative-like, is covered by the governor's plenary executive budget power which is virtually immune from legislative action.

Yes, there are certainly others. Some that probably belong in the top ten; many more that deserve at least honorable mention. Indeed, I have several in mind right now. But this is not a doctoral dissertation. So let's end here.

Next up in this series of posts--so I'm not accused of simply fawning over the Chief Judge--a quick look my "not-so-best" of Kaye.