Friday, January 15, 2016

Chief Judge Kaye (Part 2: The Judicial Role in Her Own Words)

Chief Judge Judith S. Kaye
photo WNYC.ORG
It is a daunting task to choose among the hundreds of opinions Judith S. Kaye authored as a Judge on New York's highest court, the Court of Appeals. Daunting still to cull from them a few lines that do justice to the elegance of her writing, the cogency of her argument, or the profound depth and breadth of her jurisprudence.

Much has already been written about her tenure on the high court. Much more is undoubtedly yet to come. Only a considerable investment of time and effort and insight and pages might be adequate to the task.

For this installment, here are a few passages from some of Chief Judge Kaye's judicial writings. They are not intended to represent what might be her most important or influential opinions. Rather, they are offered as the merest sampling of lines that, in my view, do reflect some of the most salient hallmarks of her judicial philosophy, her deepest concerns as a judge, her understanding of high court decision-making, and generally her views on the judicial role.

On a personal note, I do have favorite Kaye opinions. Her dissent in Hernandez v. Robles (2006), in which she argued that the majority should have recognized the constitutional right of same-sex couples to marry, is a classic. So too is her concurring opinion in People v. Scott (1992), in which she provides a veritable lesson on the reality, as opposed to the common fiction, of the work of judging. Passages from both of these opinions are included below, as are others I've selected for this humble tribute to a beloved, magnificent judge and person.

The Reality of Judging
People v. Scott (1992 [concurring opinion, supporting the majority's decision to provide greater search and seizure protection for private land under New York law than the Supreme Court requires under the federal constitution.])
[H]owever much we might consider ourselves dispensing justice strictly according to formula, at some point the decisions we make must come down to judgments...In that no two cases are identical, it is in the nature of our process that in the end a judgment must be made as to the application of existing precedents to new facts....
In those instances where we have gone beyond Supreme Court interpretations of federal constitutional requirements, our objective has been the protection of fundamental rights, consistent with our constitutions, our precedents and own best human judgments in applying them.
The Necessity of Line-Drawing and Policy-Making
McNulty v. City of New York (2003 [concurring opinion, agreeing with the Court's decision to limit medical malpractice liability under particular circumstances.])
This sort of line-drawing -- a policy-laden determination reflecting a balance of competing concerns -- is invariably difficult not only because it looks in part to an unknowable future but also because it is in a sense arbitrary, hard to explain to the person just on the other side of the line, especially when grievous injury is alleged. Human compassion and rigorous logic resist the exercise. If this person can recover, why not the next? Yet line-drawing is necessary because...common law courts also must look beyond the immediate facts and take into account the larger principles at stake.
The Constitutional Responsibility of Courts
Hernandez v. Robles (2006 [dissenting opinion, disagreeing with the majority's refusal to recognize the right of same-sex couples to marry and, instead, to leave the issue to the legislature.)
The Court['s majority] ultimately concludes that the issue of same- sex marriage should be addressed by the Legislature...But this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic....
It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the []Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.
Similarly Distinguishing the Judicial and Legislative Roles
Campaign for Fiscal Equity, Inc.v. State of New York (2003 [majority opinion, ordering the legislature to fulfill the state constitutional guarantee of a basic public school education.])
We are, of course, mindful...of the responsibility, underscored by the State, to defer to the Legislature in matters of policymaking...We have neither the authority, nor the ability, nor the will, to micromanage...By the same is the province of the Judicial branch to define, and safeguard, rights provided by the New York State Constitution, and order redress for violation of them. Surely there is a remedy more promising, and ultimately less entangling for the courts, than simply directing the parties to eliminate deficiencies....
Courts are, of course, well suited to adjudicate civil and criminal cases and extrapolate legislative intent. They are, however, also well suited to interpret and safeguard constitutional rights and review challenged acts of our co-equal branches of government.
The Responsibility of a State High Court in the Federal System
Immuno, A.G. v. Jan Moor-Jankowski (1991 [majority opinion, adopting a different, more protective standard for freedom of the press than the Supreme Court.])
[W]e are mindful not only of our role in the Federal system but also of our responsibility to settle the law of this State...If we...assume the identity of State and Federal law...we perpetuate the uncertainty in our State law. Moreover, we are concerned that...insufficient protection may be accorded to central values protected by the law of this State.[T]he Supreme Court under the Federal Constitution fix[es] only the minimum standards applicable throughout the Nation, and the state courts supplement[] those standards to meet local needs and expectations.
The Independence of State Constitutional Law
O'Neill v. Oakgrove Construction (1988 [concurring opinion, agreeing with the decision to provide greater protection for freedom of the press than the Supreme Court, but disagreeing with the unnecessary mingling of questionable Supreme Court precedent in the determination of independent state law.])
The fact that Federal law remains unsettled leads me particularly to question why we would deliberately choose to surround our [ruling] with any of the uncertainty that presently accompanies the Federal law, when we could very respectably resolve the issue with clarity and finality for the citizens of this State under the State Constitution....
[I]n resolving the question solely as a matter of State law, we still might look to Federal precedents as well as those of other States, and by our decision help to expound Federal law and furnish guidance for sister States. We thereby do fulfill our proper role in the Federal system, which is first and foremost to settle issues as definitively as possible for the people of this State.
Considering the Consequences, Especially to Families and Children
In re Jacob (1995 [majority opinion--prior to the recognition of same-sex marriage--holding that an unmarried gay partner who has been raising a child together with the biological mother may become the second parent through adoption.])
[T]he child's best interest...would certainly be allowing the two adults who actually function as a child's parents to become the child's legal parents. The advantages which would result from such an adoption include social security and life insurance benefits in the event of a parent's death or disability, the right to sue for the wrongful death of a parent, the right to inherit under rules of intestacy and eligibility for coverage under both parents' health insurance policies. In addition, granting a second-parent adoption further ensures that two adults are legally entitled to make medical decisions for the child in case of emergency and are under a legal obligation for the child's economic support.
Even more important, however, is the emotional security of knowing that in the event of the biological parent's death or disability, the other parent will have presumptive custody, and the children's relationship with their parents, siblings and other relatives will continue should the co-parents separate. Indeed, viewed from the children's perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures.
This is perhaps an ideal place to conclude.

That final passage from her Jacob opinion epitomizes Chief Judge Kaye's belief that courts should promote what is best about the law and advance the highest principles. Not in a manner contrary to the law itself but, in resolving ambiguities and filling gaps, to affirm the most salutary purposes and highest aspirations and ideals that underlie it.