In Part 1, we looked at the list of seven candidates for Chief Judge recommended to Governor Kathy Hochul by the Commission on Judicial Nomination. We discussed the strong inclusions, the shameful exclusions, and the need for a strong Chief Judge to help restore the New York Court of Appeals to its traditional preeminence.
Let's now take a look at Judge Hector D. LaSalle's record. Ever since he was selected from the list by Governor Hochul as her nominee to preside over the state's high court, he has faced strong opposition. Some Democratic senators, progressive organizations, and law professors have openly protested Hochul's pick as being too conservative. In their view--as well as that of most close observers of the court--the Court of Appeals has recently become much less protective of workers' rights, women's equality, the rights of the accused, and other hallmarks of its historic role in state governance and as a national leader. They argue that the court needs a progressive chief judge who can turn the court around, but that LaSalle is the very opposite of that.
So, in this post, let's look at the bases for their opposition. Next, in Part 3, we'll look at revealing parts of his actual record which have largely been overlooked.
LaSalle's opposition complains about a few cases in which he participated at the Appellate Division--i.e., New York's intermediate court on which he sits and over which he is now the Presiding Justice of its Second Department (which covers 10 downstate counties, with its courthouse in Brooklyn). But a careful and somewhat closer look at those cases does not actually show LaSalle to be the ideological conservative that his opponents claim.
Here they are:
Evergreen Ass'n, Inc. v. Schneiderman (2017).
Some opponents have claimed that "The decision is shocking...This opinion suggests to us that Justice LaSalle does not understand the severity of the threat to women’s rights posed by anti-abortion activists and their funders."
The case involved an investigation of a not-for-profit corporation that offers information about alternatives to abortion to pregnant women. The issue concerned the breadth of the state Attorney General's subpoena which demanded a wide range of documents about, among other things, the corporate structure and facilities, the names, education, and credentials of all of its staff members, the materials it provides to clients, its medical services, equipment, and supplies, and the source of its funding.
The Appellate Division, in a unanimous opinion which Judge LaSalle joined, ruled that the 1st Amendment prohibits subpoenas "used to intimidate or harass" those with unpopular views. Therefore, the subpoenas were only valid to the extent that they sought information necessary for the government's legitimate investigatory purposes.
As the court put it:
[W]e limit in scope the demands set forth in the subpoena to require the disclosure of only those documents that are substantially related to the Attorney General's legitimate need to gather evidence to determine whether [the not-for-profit corporation] has engaged in the unauthorized practice of medicine and which do not unnecessarily intrude on [the corporation's members] First Amendment right to freedom of association.
Hardly a "shocking" threat to women's rights.
Cablevision Sys. Corp. v. Commc'ns Workers of Am. Dist. 1 (2015)
In this case, in which Judge LaSalle voted with the majority, supposedly "the decision is puzzling [and] suggests an unexpected hostility to labor."
The case involved a company's lawsuit against a union and its representatives for allegedly defamatory criticisms. The Appellate Division held that the suit against the union itself and against the individuals acting as officers of the union had to be dismissed under the law governing labor-management relations. But the court ruled that the lawsuit could proceed against those individuals who allegedly defamed the company while acting on their own, having nothing to do with their roles in the union.
Indeed, the court--with LaSalle's vote--was applying, as it must, the precedent set by the Court of Appeals in its 1951 decision in Martin v. Curran. As the Appellate Division explained:
[N]either the Martin rule nor any other authority precludes causes of action from being asserted against individual members of the union defendants in their individual capacities (see Martin v. Curran, 303 N.Y. at 279). In Martin, only the claims asserted against union members in their representative capacities as officers of the union were dismissed. Notably, the Court of Appeals specifically allowed the libel claims in that action to proceed against the same defendant union members, in their individual capacities (see Martin v. Curran, 303 N.Y. at 279), which is determinative here. [Emphasis added.]
Really anti-union or worker?
People v. Corbin (2014)
In this case, the claim is that "LaSalle rode roughshod over due process [and] was so extreme, it was repudiated by the conservative Court of Appeals five years later."
The case involved a plea of guilty to a weapons offense in which the defendant, as part of the arrangement with the prosecutor and upon the advice of his attorney, waived his right to appeal. Nevertheless, the defendant did seek to appeal, arguing that the police search which uncovered the incriminating evidence against him was illegal.
The majority at the Appellate Division, which LaSalle joined, held that the defendant had clearly, voluntarily, and knowingly waived his right to appeal after being advised by his attorney, and that the trial judge insured that the defendant understood what he was doing. Under Court of Appeals precedent, a few constitutional issues, such as the right to counsel, do survive a waiver of appeal, all others--such as whether evidence should have been suppressed--do not. As the Appellate Division explained its decision:
[T]he record demonstrates that the waiver of appeal was valid and entitled to enforcement, since it establishes that the defendant appreciated the consequences of the waiver and knowingly and voluntarily accepted them. [Citing to Court of Appeals precedent.]When the [trial judge] correctly advised the defendant that some constitutional issues would survive his waiver, the defendant indicated that he understood the meaning of this information. He did not express any confusion or question the court or his attorney (with whom he had an adequate opportunity to discuss the matter) regarding the waiver, nor did he inquire as to whether any particular issue would survive the waiver.
What was the supposed "repudiation" of that Appellate Division decision by the Court of Appeals that LaSalle's opponents pointed to? People v. Thomas (2019). But here's what the Court of Appeals actually addressed in that very different case:
We reiterate that, when a trial court has utterly "mischaracterized the nature of the right a defendant was being asked to cede," an appellate "court cannot be certain that the defendant comprehended the nature of the waiver of appellate rights. [Emphasis added.]
There was nothing in the Appellate Division's Corbin case suggesting that the trial judge "mischaracterized" what the defendant was waiving. What has been mischaracterized is the Court of Appeals Thomas decision as having supposedly "repudiated" Judge LaSalle's vote in Corbin.
People v. Delvillartron (2014)
This additional case identified by some opponents, supposedly proves that Judge LaSalle has "a clear pro-prosecution bias, voting to affirm convictions even when injustice has clearly occurred."
The question, in this case, was whether the police had probable cause justifying their arrest of the defendant. Not whether the police had reason to believe the defendant was guilty beyond a reasonable doubt or even by a preponderance of the evidence. But whether there were reasonable grounds to believe that the defendant was probably guilty.
The facts were that the police were chasing the two suspects who had just been identified by the victims of an armed home robbery. When the police caught the suspects, they were closing the rear door of a vehicle they had just entered. The defendant was in the driver's seat trying to start the car.
The majority of the Appellate Division held that the police should not have arrested the defendant, because it was just as likely that he was entirely innocent as opposed to being the driver of the getaway car. LaSalle dissented. As he saw it:
[The chased suspects] entered the rear of a nearby vehicle, and [the police] observed the defendant fumbling with the keys, attempting to put them in the ignition.Contrary to the conclusion of the majority, in evaluating the totality of the circumstances, I do not believe the defendant's behavior can be viewed as “innocuous.” Indeed, in my view, the totality of the facts and circumstances would lead a reasonable person possessing the same expertise as the arresting officer to conclude that the defendant was acting in concert with [the chased suspects], in attempting to assist them to flee the scene of the home invasion.
Does LaSalle's analysis really demonstrate a "clear bias" or that "injustice has clearly occurred" under these facts? Or was his view of the existence of probable cause an entirely reasonable one? [In fact, as a self-acknowledged liberal, I would have agreed with LaSalle in this admittedly close case.]
So there it is. Those are the cases and the votes and dissenting opinion of LaSalle that apparently disqualify him from being Chief Judge. His opponents claim that these prove him to be some ultra-conservative whose appointment as Chief Judge would have "severe implications for New Yorkers’
rights and our democratic institutions."
Again, in Part 3, we'll look at important aspects of his decisional record which his opponents have overlooked.