Saturday, July 1, 2023

(Part 5) NY Chief Judge Wilson's Majority Opinions in Divided Cases

It is vital that we restore the Court
to its position of national preeminence.
--Chief Judge Rowan D. Wilson, Opening Remarks
Senate Confirmation Hearing, April 17, 2023 
At Columbia Law School
In previous posts in this series, we reviewed Rowan Wilson's eventual selection to sit on New York's highest court in 2016 by then-Governor Andrew Cuomo, and his nomination to be Chief Judge this past April by Governor Kathy Hochul. We then looked at a few of his dissenting opinions to get a sense of the legal principles that presumably are important enough to him to disagree publically with his colleagues, first in criminal cases and then civil. In the last post, we focused on his dissent from a particularly disconcerting decision of his Court applying its so-called "special duty" rule to reject any legal responsibility of a municipality, despite the dreadful consequences suffered by a victim because of the repeated failures of the municipality's officers.

Although we have emphasized Wilson's dissenting opinions--they are typically the most revealing about a judge--he has actually authored his fair share of majority opinions. During his tenure on the Court, he has averaged nearly eight signed opinions for the majority annually. Except for Chief Judge DiFiore, who wrote more than the others, the rest of his colleagues had virtually the same average during that period--some slightly less, some slightly more. 

So let's take a look at a few of Wilson's majority opinions. And more specifically, let's look at a few of the more revealing ones, where the Court was divided and his dissenting colleagues raised competing arguments which he necessarily rejected in favor of his own. First, a couple of Wilson's majority opinions in criminal cases:

People v Regan, Slip Op 01353 (March 16, 2023)
This is the decision for which Wilson was most vigorously criticized by Republican senators during his confirmation proceedings and which has been condemned by some sexual-assault victim advocates.

Speaking through then-Judge Wilson's majority opinion, the Court of Appeals reversed a conviction for rape and burglary on the basis of a violation of the state constitutional right to a prompt prosecution. The defendant was accused of raping the complainant in August 2009, but the prosecution waited more than four years to seek an indictment. In fact, the prosecution did not even seek a warrant to obtain the defendant's DNA until more than three years after the rape complaint. Beyond that, the prosecution, when asked, could not offer any justification for most of the delay. 

Two Judges on the Court, Michael Garcia and Madeline Singas, would have upheld the conviction. As Judge Singas put it in her lone dissenting opinion:
The People lack a credible justification for the 31–month delay in seeking a search warrant for defendant's DNA. But there is no evidence that their actions, or lack thereof, were taken in bad faith toward defendant, with the aim of prejudicing his ability to defend himself....[D]ue process does not require the drastic remedy of dismissing this case. Where the crime is of the utmost severity, defendant was not incarcerated, there was no public accusation, and defendant has shown no actual prejudice from the delay, dismissal of the accusatory instrument is unwarranted. 
Judge Wilson, writing for himself and three of his colleagues, had a different take on the state's constitutional law:
Because of the substantial delay—as to most of which the People offer no explanation whatsoever—the constitutional right to prompt prosecution, embodied in the due process clause of our state constitution, was violated. We must reverse. [Emphasis added.]
Reviewing the Court's prior decisions, Wilson noted that "we have been much more solicitous of the People when they offer even a colorable explanation for their delay." But, as he repeated several times in his opinion, "the record and the briefing in this case are devoid of any explanation for the People's delay, although the People had multiple opportunities to provide one."

Concluding his opinion, Wilson weighed the costs and, in the Court's view, the overriding benefits of the state's constitutional prompt prosecution policy:
Vacating any conviction on prompt prosecution grounds runs a genuine risk that a guilty person will not be punished, or, as in this case, not finish out his full sentence. However, vital societal interests can overcome that cost. Our jurisprudence ensures that trials are fair and accurate; it also spurs prosecutors to take crime seriously and give all parties the prompt closure they need to move on with their lives. 
The constitutional guarantee of a prompt prosecution places a burden on the state, when prosecuting crimes, to do so with alacrity... Our constitution allows for modest unexcused delays; it allows for lengthy justifiable delays. But it does not allow for lengthy unexplained or, as here, inexplicable delays caused by lethargy or ignorance of basic prosecutorial procedures. The constitutional prompt prosecution guarantee benefits defendants, victims and society at large, and it is the role of the courts to protect it. In this case, the police and prosecutors did not take defendant's constitutional rights or the complainant's sexual assault seriously; they did not act expeditiously with regard to either. [Emphasis added.]
No question, that was a tough one. For the purposes here, there are at least two salient characteristics of Wilson's position. First, as we have seen previously in his dissents in criminal cases, he vigorously supports the rights of the accused. Crime control versus due process? It's pretty clear he sides with the latter when the balance is close. Second, he adheres to New York precedent and state constitutional law where federal precedent would be less protective.

The same two patterns are apparent in the next case we review.

People v. Gordon, 36 NY3d 420 (2021)
In this search and seizure case, the police had observed incriminating drug activity inside the defendant's home. They then obtained a warrant to search “the person of [the defendant] and the entire premises.” The question before the Court arose, not from the officers' search of the defendant and his residence, but of the two cars on the property--one in the driveway and one in the backyard. 

The evidence found in the vehicles was suppressed by the trial judge. The affidavit for the warrant had made no mention of the vehicles or given any reason to believe that they were involved in criminal activity. The Appellate Division affirmed the trial court's decision.

At the Court of Appeals, the prosecution urged the Court to adopt the rule adopted in other courts, federal and state, that authority to search the premises reasonably includes searching vehicles on that property. In a 4-3 decision, the Court in Gordon rejected that rationale. The 3 dissenting Judges argued that the Supreme Court would allow a search of the vehicles and that the Court of Appeals had not previously adopted a more protective rule. 

Echoing the prosecution's reliance on the Supreme Court's decision in United States v. Ross (1982), the dissenters insisted that:
Where a search warrant authorizes the search of premises, a separate showing of probable cause is not required to search containers found on the designated premises, if the object of the search could be found therein...The [Supreme] Court broadly stated that a “lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search [and] this rule applies equally to all containers” [quoting Ross, again]...There is no “constitutional distinction between ‘worthy’ and ‘unworthy’ containers...the central purpose of the Fourth Amendment forecloses such a distinction” [Ross again].
In sharp contrast, the majority opinion authored by Wilson relied on the Court of Appeals' own precedents. [I have omitted the citations in these excerpts.] As those numerous prior decisions cited throughout Wilson's opinion make clear:
The requirement that warrants must describe with particularity the places, vehicles, and persons to be searched is vital to judicial supervision of the warrant process. Warrants “interpose the detached and independent judgment of a neutral Magistrate between the interested viewpoint of those engaged in ferreting out crime and potential encroachments on the sanctity and privacy of the individual.” 

To further that role, our constitution assigns to the magistrate the tasks of evaluating whether probable cause exists to initiate a search and defining the subjects to be searched....The particularity requirement protects the magistrate's determination regarding the permissible scope of the search. Thus, to be valid, a search warrant must be “specific enough to leave no discretion to the executing officer.” So important is the role of the neutral and detached magistrate that we have in the past parted ways from federal constitutional jurisprudence when we believed that an emerging rule of federal constitutional law “dilute[s] ... the requirements of judicial supervision in the warrant process." [Emphasis added.] 
Among the Court of Appeals' precedents Wilson relied on were:
People v. Keta [1992] [declining to incorporate a federal rule permitting warrantless searches of business establishments in light of the paramount importance of “advance judicial oversight” under Article 1, Section 12 of the State Constitution]; P.J. Video [1986] [distinguishing federal constitutional law in part of the grounds that New York imposes a “rigorous, fact-specific standard of review ... upon the magistrate determining probable cause”].
Wilson added that, even in the absence of all those independent state precedents, the majority would still not adopt the less-protective Supreme Court jurisprudence embraced by the dissenters:
Even were we writing on a blank slate, we would not adopt the rule advocated by the People. The touchstone of the [New York] constitutional protection for privacy, under Article 1, Section 12 of the State Constitution, is whether a person has a reasonable expectation of privacy. Those expectations must at times give way to “compelling police interest[s].” Even then, the permissible “scope of a search has been carefully limited” by the requirement for probable cause and a particular description of the subjects to be searched. Those limits have not been honored in this case. [Emphasis added.]
Finally, directly addressing the dissenting opinion with Court of Appeals' precedents that stand for the opposite of what the dissenters argued, Wilson wrote:
[T]he dissent never addresses the fundamental tenets of our search warrant jurisprudence: it is the magistrate, and not the police officer, who determines the scope of the search conducted pursuant to a warrant...That determination must be based upon the factual allegations presented in the warrant application. To satisfy the constitutional requirement for particularity, the description setting forth the search must “leave no discretion to the executing officer[s].” If, as the dissent says, trafficking in drugs provides probable cause to search vehicles, the officers can set forth the results of their investigation...and make their case to the magistrate. If that proof is insufficient to convince the magistrate to authorize a search of the vehicles, allowing a search because the vehicles are located on a premises would constitute an unconstitutional bootstrapping. [Emphasis added.]
As we have seen in Wilson's other criminal law opinions, whether a dissent or a majority, he takes the rights of the accused seriously. Some, such as those Judges in the majority when he was in dissent, and vice-versa, believe he gives too little weight to the interests of law enforcement. In most criminal cases, the question is always about balancing. It has been in the criminal cases we have discussed here and previously. And these cases have shown that Wilson is less willing than others to compromise the rights of the accused in order to facilitate the interests of crime control.

Moreover, we have seen that he makes no apology for deciding constitutional issues in New York cases based on New York law and on New York Court of Appeals precedents. That may seem such an obvious role and responsibility of a state high court. But there are still those, in New York and in other states, among the judges as well as the lawyers who argue before them, that relying on independent state constitutional law should be the exception, and that applying less-protective Supreme Court case law is the default.

Of course, that unfortunately common notion is directly contrary to an axiom of our federal system of government in which states are sovereign to have their own laws and make their own decisions. The limitation--again, of course--is that they must not violate federal law. In the criminal cases we have been discussing, that simply means that a state court decision must not violate a federal constitutional right by affording less protection to the accused than the Supreme Court requires. But there is certainly no requirement whatsoever that a state court adopt a less-protective federal Supreme Court standard. 

I have spoken and written a great deal about the axiomatic right and responsibility of state courts in our federal system to engage in independent state-based decision-making. (See e.g., Supreme State Courts: Protecting Rights and Liberties Despite the Supreme Court, 85 Albany Law Review (2022).) More importantly, many years ago, the Court of Appeals itself made the point unqualifiedly clear. In People v. Barber [289 N.Y. 378 (N.Y. 1943)], rejecting the argument that it should follow a recent decision of the Supreme Court, the Court of Appeals protected religious liberty more than Supreme Court precedent required. Speaking through Chief Judge Irving Lehman, the Court of Appeals reminded advocates:
Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. [Emphasis added.]
It certainly seems from these majority opinions of now-Chief Judge Wilson, as well as in his criminal law dissents that we reviewed previously, that he understands the Court of Appeals' right and responsibility "to exercise independent judgment."

In the next post, we'll look at a couple of Wilson's majority opinions in civil cases.