NYCOA: Vacancies and (no) Vouch-Ins

Come the new year, New York's highest court will be 2 Judges short. That is, in the absence of the Governor and the Senate near-miraculously completing their respective nominating and confirming duties, the Court of Appeals will begin 2015 with only 5 of its 7 seats filled.

As we've been discussing, Judge Victoria Graffeo's 14-year term expired in late November. Governor Andrew Cuomo disregarded the legal deadline. He took an extra 2 weeks to render his nomination decision. (I.e., deciding not to reappoint Graffeo and, instead, to nominate Appellate Division Justice Leslie Stein.) The Senate, apparently having as little regard for the law as the Governor did and, perhaps, even less, is now 4 weeks past its legal deadline. It has yet to hold or even schedule confirmation proceedings. (The Senate Judiciary Committee's website currently states: "This committee currently does not have any public events scheduled." So who knows?)

That's one of the vacancies. Then there's number two.

Judge Robert Smith turned 70 this year. Under New York's [yes, moronic] mandatory age-retirement law, he is automatically removed from the Court at midnight on December 31. The Commission on Judicial Nomination has already submitted its 7-name list of possible replacements to the Governor. (Oh, the Commission has actually been abiding by the Judiciary Law's deadline.) The Governor now is legally required to make his nomination pick from that list between the 1st and 15th of January. The Senate then has 30 days to confirm or reject the Governor's choice.

Soooo, again, short of a political and logistical miracle, New Year's day will arrive with a 5-member Court of Appeals. (See/listen, interview with Karen DeWitt: New York's Highest Court Begins New Year Down Two Judges, Dec. 2, 2015. Also see the correction at the end of this post.)

Now it is true, the Court can technically function with only 5 members. Under the state constitution, 5 Judges is a quorum, and a decision can be rendered as long as 4 Judges agree on a disposition.

But any such quorum and any such decisions are reached without the perspectives and insights that the 2 missing Judges would provide. Worse than that, any case resulting in a 3-2 split--i.e., any case with 2 Judges disagreeing with the majority--is a case without a decision.

Yes, the lack of a 4-Judge majority precludes a decision. And no, the Court may not vouch-in a judge or judges from another court to insure that some 4-Judge majority is reached.

The state constitution does authorize the Court to "designate" a judge from a lower court (i.e., state supreme [trial court] or the Appellate Division [intermediate appeals court]) under certain circumstances. But not  to remedy an actual vacancy on the Court. Not when a position on the Court is actually unfilled. Not, for example, when a Judge on the Court has retired, resigned, or died, or whose term has expired. No. No vouching-in, or designating, under those circumstances. (NY Const Art. VI, sec. 2 a.) Hence, no vouching-in or designating to temporarily remedy the 5-Judge Court.

The constitution does authorize the Court to vouch-in, or designate, but only when there is a "temporary absence" of a current member of the Court. For example, if one of the Court of Appeals Judges had to recuse herself from a case, or was too ill or otherwise unable to participate temporarily, then a judge from outside the Court could be "designated" to sit in that absent Judge's place. That is a very different scenario than what the Court of Appeals is now facing.

The long and the short of all this is that, come the new year, the Court will not be able to vouch-in, or "designate," some other judge or judges to temporarily compensate for the 1 or 2 existing vacancies. So until the Governor and the Senate fulfill their duties under the state constitution to complete the appointment of 2 new Judges to the Court of Appeals, New York's high court will be shorthanded.

Correction: To the extent I misspoke on air about the Court vouching-in a judge or judges to temporarily fill the vacancy or vacancies--i.e., saying that the Court could do so under these circumstances--I trust the foregoing clarifies the matter. 
I don't want to sound like a court that's trying to distance itself from--or overrule--its own prior decision without simply admitting that it was wrong. So, more plainly, I was mistaken--as in simply wrong--about the vouching-in ability of the Court and I stand corrected.
When I observed such vouching-in, or "designating," while clerking at the Court of Appeals, the circumstances apparently involved the "temporary absence" of one of the Judges--not an actual vacancy.

Part 3 [The Seasoned, Admired Judge Graffeo ] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo

As most readers know, Gov. Andrew Cuomo disregarded the Judiciary Law's nomination deadline, and now the Senate has disregarded the deadline for confirmation.

There's no issue here as there is regarding the President's executive order power. No. Both the Governor and the Senate have unambiguously and unashamedly violated the law. (Interview with Karen Dewitt, Senate To Miss Deadline to Approve Court Pick .)

But now, Judge Graffeo.

Victoria A. Graffeo's 14-year term on the Court of Appeals, New York's highest tribunal, comes to an end this week. A highly regarded and well-loved jurist, she was widely supported for reappointment by members of the bench and bar, regardless of party affiliation or political ideology.

The Governor chose otherwise. He chose to follow the example of former Governor George Pataki, rather than that of his father and, indeed, of every other Governor--as well as of both major political parties, throughout the last century, during which selection and re-selection was by election. (See Part 2 [Renominations Historically]) Presuming that the Senate will eventually convene and confirm Cuomo's pick--the well-qualified Appellate Division Justice Leslie Stein--the Graffeo seat on the Court will be filled and she will have been replaced.

Well, actually, it will take some time before Judge Graffeo can be "replaced" in any sense of experience, wisdom, and well-earned esteem. She has evolved over the course of her 14 years on New York's highest Court to rank among the most admired Judges of the modern era. Those seasoned jurists who understand the judicial role; exercise it with insight, independence, impartiality, and exquisite judgment; and, as a result, render decisions and author opinions that reflect those qualities, uphold the most cherished principles, and are recognizable as precedents that will stand the test of time.

Yes, that has been Judge Graffeo and her work on the Court of Appeals.

Let's take a look at just a few of her opinions over this last year of her term. It will more than demonstrate my point:

People v. Marquan M.--The local cyberbullying law at issue, intended to protect minors, was constitutionally invalid because it was overbroad.

"[T]he text of the statute...'create[d] a criminal prohibition of alarming breadth.' The language of the local law embraces a wide array of applications that prohibit types of protected speech far beyond the cyberbullying of children."

Wallach v. Town of Dryden--Local zoning ordinances prohibiting hydrofracking in their municipalities are not preempted by state oil and gas law.

"These appeals are not about whether hydrofracking is beneficial or detrimental [but] whether the state legislature eliminated the home rule capacity of municipalities...to preserve the existing character of their communities."

People v. Rivera--A trial judge's instruction, outside the presence of the defendant, to a deliberating juror who requested clarification requires reversal of the conviction.

"A defendant's fundamental constitutional right to be present at all material stages of a trial encompasses a right to be present during the court's charge, admonishments and instructions to the jury."

People v. Washington--A driver who consents to a breathalyzer still has a right to consult with counsel before he performs that test.

"The fact that the defendant consented...is not dispositive since the defendant, after consulting with counsel, could have revoked her consent...The police must therefore advise the accused that a lawyer has made contact." 

People v. Tyrell--Where the trial record does not show that the defendant understood the rights he was waiving by pleading guilty, the conviction must be reversed.

"[T]o constitute a knowing, voluntary and intelligent [guilty] plea, there must be 'an affirmative showing on the record' that the defendant waived his constitutional rights."

Holmes v. Winter--A New York journalist will not be ordered to comply with an out-of-state subpoena to appear in a proceeding and reveal confidential sources.

"There is no principle more fundamental or well-established [in New York] than the right of a reporter to refuse to divulge a confidential source...[A]n order from a New York court directing a reporter to appear...would offend our strong public policy--a common law, statutory and constitutional tradition." (See NY Court of Appeals: Freedom of the Press Taken Seriously.)

People v. Wells--The guilty plea based solely on the trial judge's erroneous denial of a suppression motion should be vacated.

"Harmless error...can be 'difficult to apply to guilty pleas'--especially in cases involving 'an improper denial of a pretrial motion to supress'--since 'a defendant's decision to plead guilty may be based on any factor inside or outside of the record.' Consequently, convictions premised on invalid guilty pleas generally are not amenable to harmless error review."

Well, those are a few of the significant majority opinions authored by Judge Graffeo--just over the past 12 months.

Now is that the kind of record that demonstrates clearly that the authoring Judge deserved reappointment, and emphatically so?

A pretty strong consensus of the bench and bar certainly think so.

Now consider this: Is that the kind of record that suggests some overriding partisan--i.e., Republican--bent?

Is it the kind of record that evinces some strong ideological--i.e., conservative--leaning?

Is it the kind of record that demonstrates some pattern of hostility to positions generally favored by liberal Democrats?

Well of course not.

And yet, curiously--very curiously--in the 2 weeks following Governor Andrew Cuomo's decision to delay his selection for the Court of Appeals, public opposition to Graffeo's reappointment suddenly emerged, suggesting just that. Individuals and groups claiming that she was too conservative suddenly found their voices and aired their complaints. Those opposition voices, instigated into action or not, provided some political cover for the Governor who would surely be criticized for not reappointing Judge Graffeo--as he has been. And justifiably so. That 2 week ordeal not only violated the Judiciary Law deadline, but it was just plain unseemly.

More importantly, however, the ultimate result is that the Court of Appeals, and indeed New York State for which it decides the most fundamental issues, is now denied the judicial services of a truly fine Judge. An experienced and wise Judge. (Let alone a wonderful, committed, caring  human being--also pretty good qualities for a Judge.) A Judge who has served on New York's high court with exceptional distinction. Who brought great credit to the Court, enhanced its reputation, set an example of extraordinary dedication, and leaves a record that is worthy of this nation's best courts and best Judges.

Thank you Judge Victoria Graffeo for your great service.

Part 2 [Renominations Historically] NY Court of Appeals: Cuomo Chooses Stein Over Graffeo

We'll be taking a look at Judge Graffeo's record on the Court of Appeals, and we'll then be trying to get some sense of what Judge Stein's record at the Appellate Division portends. 
But first...

Let's look at the history of sitting Court of Appeals Judges who were up for renomination. Specifically, those Judges who had completed a 14-year term, but were eligible for retention because they had not yet reached the mandatory retirement age of 70. The history is interesting, and quite telling.

Reviewing the entire last century:

• Matthew Jasen--reappointed by Gov. Hugh Carey (1981)

[Previously, Court of Appeals Judges ran for election.]

• Adrian Burke--cross-endorsed by the Democratic and Republican Parties for reelection (1968)
• Stanley Fuld--cross-endorsed for reelection (1960)
• Marvin Dye--cross-endorsed for reelection (1958)
• Charles Desmond--cross-endorsed for reelection (1954)
• Albert Conway--cross-endorsed for reelection (1954)
• Irving Lehman--cross-endorsed for reelection (1937)
• Frederick Crane--cross-endorsed for elevation to Chief Judge (1934)
• Cuthbert Pound--cross-endorsed for reelection (1930)
• [Must note Benjamin Cardozo--cross-endorsed for elevation to Chief Judge prior to the completion of his 14-year term]
• Irving Vann--cross-endorsed for reelection (1910)
• Albert Haight--cross-endorsed for reelection
• Edward Bartlett--cross-endorsed for reelection (1907)
• Denis O'Brien--cross-endorsed for reelection (1903)
• John Gray--endorsed by the Democrats; challenged by the Republicans; reelected (1902)

In short, in the last century:

• Every single eligible Court of Appeals Judge was retained.
• Every single Court of Appeals Judge who ran for reelection was reelected.
• Every single Court of Appeals Judge who ran for reelection was cross-endorsed by both major political parties, except for one, at the very beginning of the century--i.e., John Gray, who was still reelected.
• The single Judge eligible under the then-new appointment system was reappointed.
• Stated otherwise, not a single Court of Appeals Judge was denied retention. 

But then, in this century, there was Governor George Pataki. He was deplorably hyper-partisan and hyper-ideological about criticizing the Court and in making appointments. He also broke the century-plus bi-partisan tradition of retention by refusing to reappoint Judge George Bundy Smith--a Gov. Mario Cuomo appointee, who was the only African-American on the Court.

[N.B., 6 Pataki appointees, but not a single minority. Not a single Democrat either. Apparently, unlike his predecessor, Mario Cuomo, neither racial nor ethnic nor political diversity was a particular concern.]

So here's what this century looked like prior to the Judge Graffeo vacancy:

• George Bundy Smith--denied reappointment by Gov. George Pataki (2006)
• Carmen Beauchamp Ciparick--reappointed by Gov. Eliot Spitzer (2007)
• Judith Kaye--reappointed by Gov. Eliot Spitzer (2007)

And now, Gov. Andrew Cuomo--following in the steps of George Pataki, rather than the other Governors and both the Democratic and Republican parties over the course of more than a century--has denied reappointment to Judge Victoria Graffeo.

Indeed, Andrew Cuomo's break with the long bi-partisan tradition is arguably far worse than Pataki's.

At least in Pataki's case, it could be argued that the Judge he chose not to reappoint had only a year of eligibility left on the Court before retirement age and, moreover, that this was Pataki's last chance to put his imprint on the Court before the end of his tenure as Governor.

In Andrew Cuomo's case, Judge Graffeo was eligible for 8 more years and, moreover, Andrew Cuomo has several appointment opportunities to come. He will, in fact, be making another appointment very shortly. He will be filling a vacancy that arises because Judge Robert Smith faces mandatory retirement age (70) this year. He will then be filling a vacancy in each of the next 3 years when--in this order--Chief Judge Jonathan Lippman, Judge Eugene Pigott, and Judge Susan Read must retire.

So there it is. Going back at least as far as the beginning of the last century, every single Court of Appeals Judge eligible for retention has been retained, regardless of party affiliation, and virtually always with bi-partisan support.

The sole exceptions: Judge George Bundy Smith denied reappointment by Pataki, and now, Judge Victoria Graffeo denied reappointment by Andrew Cuomo.

Anyone who cares about having a strong Court of Appeals, anyone who would hate to see the New York Court devolve into the polarized partisan disaster that is the current U.S. Supreme Court, should be extremely concerned. What George Pataki began, what Andrew Cuomo has now followed, is more than a break with a long bi-partisan tradition. What they have done mirrors the hyper-partisan, hyper-ideological pattern of Presidential appointments over the last several decades that has severely damaged the quality, integrity, and reputation of the Nation's high court.

The New York Court of Appeals has historically been a great court. In large part, that is because strong Judges have historically been retained without regard to party affiliation and without regard to the ideological bent of the renominating or reappointing authorities. Let's hope that Gov. Pataki's approach to the Court and, now, Gov. Andrew Cuomo's, remain aberrations.

[Lest there be any confusion, my criticism of Gov. Pataki's public bashing of the Court of Appeals and his approach to appointments is not a reflection on his appointees themselves. Indeed, Judge Pigott, who Pataki appointed instead of reappointing Judge G.B. Smith, and Judge Graffeo, who Pataki appointed but Andrew Cuomo has declined to reappoint, have both served on the Court with considerable distinction. To be fair to Pataki, he has placed some exceptional Judges on the Court.]

NY Court of Appeals: Cuomo Chooses Stein Over Graffeo (Part 1)

(Link to today's interview on Fred Dicker: Live at the State Capitol below)

Last Friday, Governor Andrew Cuomo made his selection for the Court of Appeals, New York's highest court.
He appointed a very fine judge, Leslie Stein, instead of re-appointing the very fine incumbent, Victoria Graffeo.

A Few things.

Part 4 [The Guv's Delay]--NY Court of Appeals: The List for the Graffeo Seat

As all Court watchers and political junkies in New York know, Governor Andrew Cuomo deliberately chose not to make his pick for the Court of Appeals by the deadline. Instead, on that day, Friday, October 3--the end of the 30-day period in which he was required to do so under the law--he announced on Susan Arbetter's Capitol Pressroom that he wouldn't. He would wait another 14 days.

The Guv said he was doing so to reduce the politics in the appointment process.

Part 3--NY Court of Appeals: The List for the Graffeo Seat

In the last post we looked at the 3 sitting judges on the nomination list for the Court of Appeals, New York's highest court. Let's now look at the non-judges--the remaining 4 names on the list.
(Again, I just feel like avoiding alphabetical order, so we'll look at them by descending age.)

Part 2--NY Court of Appeals: The List for the Graffeo Seat

Governor Andrew Cuomo has 30 days from September 3--the date the Commission on Judicial Nomination presented him with its list of 7 names--to nominate one of them for New York's highest court, the Court of Appeals. So this coming Friday, October 3, is the deadline.

Let's take a quick look at the 7 candidates. We'll start with the judges on the list. (There had to be some order, and I just didn't feel like alphabetical.) 

NY Court of Appeals: The List for the Graffeo Seat (Part 1)

Saratoga's done. Summer break's over. The new semester's started.

Time to get back to reality--and the New York Court Watcher.

New York's Commission on Judicial Nomination has just submitted its list of seven recommended names to Governor Andrew Cuomo. He now has 30 days to choose someone from that list to fill a vacancy on the Court of Appeals, the state's highest court.

The vacancy on the high court will arise at the end of November. That's when Judge Victoria Graffeo's 14 year term on the Court expires. Interestingly, and perhaps most importantly for this entire process, Judge Graffeo is eligible to fill that vacancy herself. She has many years before reaching New York's [moronic] mandatory retirement age of 70. So the Governor can choose her.

(Part 3) NY Court of Appeals: Criminal Leaves Still Up & Still Uneven

[Dateline: Back home.

But now I'm beset with some dreadful winter illness. I suppose it's payback for 2 weeks in the glorious Sonoran Desert sun of Arizona. Nevertheless, onward with the final installment on this CLA series.]

As many readers are aware, the decision for New York's highest court to hear an appeal in a criminal case is made by a single Judge. Criminal Leave Applications (CLA's) are assigned randomly and equally among the Judges. The decision to grant or deny each application rests solely with the Judge to whom it has thus been assigned.

With that in mind, take a look:

(click graphs to enlarge)

GRAPH 1

Yes, those are the average number of CLA grants by Judges Robert Smith and Susan Read, respectively, over the last 2 years. The highest and lowest granters on the Court today.

So, does it make a difference? Specifically, a difference which Judge is assigned a particular CLA? Is there a greater chance that an application will be granted if it is assigned to some Judges rather than to others?

To put it bluntly, is the success of a CLA as much about the luck of the draw as it is about intrinsic merit? Is it simply much luckier to have a CLA assigned to some Judges and not others? Does the fate of a criminal case depend upon which Judge is assigned the application?

Well, for years there's been as much grumbling about that as about the dwindling number of CLA's being granted. As we have seen in previous posts, however, CLA grants have increased dramatically under Chief Judge Jonathan Lippman.

And yet, there remains the question--no, let's not mince words--the real problem about the luck of the draw. That is, the difference among the Judges in granting CLA's. The difference in their willingness to grant applications assigned to them.

Let's take another look at some of the numbers we've been dealing with in this series.

NY Court of Appeals: Freedom of the Press Taken Seriously

[Back to Criminal Leaves in the next post. For now, Tuesday's decision in Holmes v. Winter.]

New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press.

New York public policy of protection for those who gather and report the news has been recognized as the strongest in the nation.

Protection of the anonymity of confidential sources is a core—if not the central—concern underlying New York’s journalist privilege, with roots that can be traced back to the inception of the press in New York.

Victoria A. Graffeo
Court of Appeals collection

That's not me speaking. That's the Court of Appeals, New York's highest court, through the pen of Judge Victoria Graffeo.

It is a veritable paean to freedom of the press. To the protection of a free press as essential to democratic governance. To the state's commitment to robust, unimpeded news-gathering and reporting.

Graffeo's opinion for the Court of Appeals in Matter of Holmes v. Winter builds upon New York's history, constitution, legislation, and judicial decisions. Her opinion reaffirms and reinforces the Court's leading precedents in the area. It establishes another milestone that is sure to be cited along with the Court's other leading free press landmarks.

Roberts, Scalia & Kennedy - Lippman, Graffeo & Read (Part 3 of Supremes vs NY Court of Appeals: Judicial Output [with Charts!])

In the last 2 posts, we compared the judicial opinion outputs of Chief Justice Roberts and New York's Chief Judge Lippman, and then of Justices Scalia & Kennedy and Judges Graffeo & Read. Now let's combine those in a few charts just to make it easy to see where we are thus far in this series.
[In the next post we'll get to some additional Justices and Judges.]

First, let's look at total opinions--i.e., the sum of majority + concurring + dissenting opinions authored by each Justice and Judge. And specifically, for this series, we're looking at the immediately preceding year at the Supreme Court and the New York Court of Appeals, from summer break 2012 to summer break 2013.

CHART 1

(click to enlarge)

As is clear from Chart 1, and has been clear from the charts in the previous posts, the total judicial output of the New York Judges is significantly greater than that of the Supreme Court Justices. Justice Scalia's output is an exception to the general pattern. The total number of opinions he authored is considerably greater than that of his two colleagues included here, and greater than that of New York's Judge Read.

Let's look inside these figures. Let's start with the number of majority opinions within these totals.

CHART 2

Again, the output of the Court of Appeals Judges is much greater than that of the Justices. Indeed, each of the three New York Judges considered thus far authored at least twice as many majority opinions--i.e., controlling opinions for the Court as a whole--than did any of the three Justices. Judge Graffeo, for the starkest example, wrote nearly 3 times as many majority opinions as did Chief Justice Roberts or Justices Scalia or Kennedy.

Scalia & Kennedy - Graffeo & Read (Part 2 of Supremes vs NY Court of Appeals: Judicial Output [with Charts!])

In the last post, we compared the judicial output of Chief Justice Roberts with that of New York's Chief Judge Lippman. We saw that Lippman authored nearly twice as many judicial opinions as Roberts did last year (Aug. 2012 thru July 2013). That included more than twice as many majority opinions, and more than twice as many dissents as well.

Let's now take a look at the judicial output of the next two most senior members of each court. On the U.S. Supreme Court, that would be Justices Antonin Scala and Anthony Kennedy. On the New York Court of Appeals, that would be Judges Victoria Graffeo and Susan Read.

Let's first look at the total opinions written by each of them last year.

CHART 1

(click to enlarge)

The picture is a bit less straightforward than it was when we juxtaposed Roberts' and Lippman's records. The total number of judicial opinions by New York Judges Graffeo and Read, combined, is significantly higher than that of the Justices Scalia and Kennedy combined--48 as compared to 39.

But while New York's Judge Graffeo authored the most opinions of the four, Justice Scalia came next. He wrote more total opinions than did Judge Read, as well as more than his colleague Justice Kennedy. The latter wrote the fewest of all. He authored significantly fewer opinions than did either Scalia or Read, and only half as many as Graffeo.

Let's look inside these total opinion numbers. What about looking just at opinions written for the majority. [Actually, opinions written for the Court, including the unanimous ones.]

CHART 2

As the chart shows, when considering only those opinions that garnered the support of the majority of the Court--from a bare majority to unanimous--the picture is clearer. The two New York Court of Appeals Judges each authored many more majority opinions than either of the two Justices. Judge Graffeo wrote nearly three times as many majorities as did Scalia or Kennedy. Judge Read wrote twice as many as they did.

The 2013 Chief Judge Lawrence H. Cooke Symposium

NY COURT OF APPEALS

THE UNTOLD SECRETS OF EAGLE STREET

Thursday, March 21, 2013, 5-7pm

Albany Law School

Media Release

Court of Appeals Judges to Convene at Albany Law

Chief Judge Lawrence H. Cooke State Constitutional Commentary Symposium to Provide Insight into NY Court of Appeals

The Judges of the New York State Court of Appeals will convene to discuss the court's procedure and inner workings for the Albany Law Review's Seventh Annual Chief Judge Lawrence H. Cooke State Constitutional Commentary Symposium on March 21, 2013.

Participating Judges for the event, titled "The New York Court of Appeals: The Untold Secrets of Eagle Street," will include:

• Chief Judge Jonathan Lippman
• Judge Victoria Graffeo '77
• Judge Susan Read
• Judge Robert Smith
• Judge Eugene Pigott, Jr.
• Judge Jenny Rivera

"The New York Court of Appeals: The Untold Secrets of Eagle Street," free and open to the public, will be held in Albany Law School's Dean Alexander Moot Courtroom on Thursday, March 21, from 5:00 p.m. to 7:00 p.m. For more information, contact Michelle Mallette, Albany Law Review editor for state constitutional commentary, at mmallette@albanylaw.edu or Professor Vincent Bonventre at vbonv@albanylaw.edu or 518-472-5856.

The Albany Law Review started its annual tradition of honoring former New York Court of Appeals Chief Judge Lawrence H. Cooke '38 in 2007 by holding the first State Constitutional Commentary Symposium in his name. The symposium provides a forum to explore issues and developments in state courts, state public law and state-federal relations.

Complete transcript available HERE.

[Last year's symposium: 

THE STATE OF STATE COURTS--The Chief Judge Lawrence H. Cooke Symposium, Albany Law School, March 8, 2012.]

New York City's Stop & Frisks (Part 1)

New York State's mid-level appeals court in Manhattan recently invalidated 2 stop and frisks of teenagers in high crime neighborhoods in the Bronx. The court--the Appellate Division, First Department--made clear that it would not tolerate the City's increasingly aggressive crime control efforts at the expense of basic civil liberties.

There is no need to repeat what I or others have commented elsewhere. (NY Times story available at http://www.nytimes.com/2012/07/11/nyregion/courts-putting-stop-and-frisk-policy-on-trial.html?partner=rss&emc=rss.) The purpose here is to address what seems to be missing from all the reports and commentary. It's an aspect of those 2 court rulings that is critical to the ultimate disposition of these and similar cases, as well as to the City's stop and frisk program itself.

The 2 rulings were based on New York State case law. Not on U.S. Supreme Court precedents. But on decisional law of New York's highest court, the Court of Appeals.

The mid-level appeals court invalidated the stop and frisks in the 2 cases based on New York State's own landmark search and seizure ruling. A ruling that is much more protective against arbitrary searches and seizures than Supreme Court rulings.

That ruling? People v. DeBour. An essential element of New York State's search and seizure jurisprudence for 36 years.

Sol Wachtler

Since it was decided in 1976 by the Court of Appeals, in an opinion by then-Judge Sol Wachtler, DeBour has been applied countless times by New York appellate courts, and many more times than that at the trial level. Indeed, in 1992, the Court of Appeals left no doubt about DeBour. It unanimously and emphatically reaffirmed it in People v. Hollman, in another opinion by then-Chief Judge Wachtler.

So what is DeBour?

In short, as New York criminal lawyers know well, DeBour requires some legal justification for the police to confront someone. More specifically, for example, DeBour requires some legitimate suspicion before police may approach someone and ask incriminating questions or ask for consent to search.

By sharp contrast, Supreme Court precedents require no such thing. No justification. No legitimate suspicion. Nothing. No, nothing whatsoever is needed for the police to approach and ask incriminating questions or ask to search. According to the current Supreme Court, the federal Constitution's search and seizure protections are just not implicated by such confrontations.
[Hey, as I've said before, I didn't appoint the Justices who've been voting that way.]