New York’s next chief justice faces a divided high court


ALBANY — Chief Justice Janet DiFiore’s successor will inherit a state appeals court narrowly divided between conservative and liberal voices as she prepares to rule on the potential state-level fallout from recent US Supreme Court decisions on abortion and gun control.

Compared to the tenure of his more liberal predecessor, Chief Justice Jonathan Lippman, the court under DiFiore has heard far fewer cases and issued more conservative decisions, legal observers say. His next chapter will largely hinge on gubernatorial nominee Kathy Hochul to succeed DiFiore, 66, who will retire at the end of August after 6½ years as chief justice.

On Friday, the state Judicial Nominating Commission officially announced that it was seeking recommendations and nominations for DiFiore’s successor to be submitted by Aug. 29. The commission will provide the governor with a list of seven finalists within four months; Hochul will select its nominee from this list within 30 days of receiving it, and the State Senate must confirm its choice.

In addition to leading the seven-member Court of Appeals, the New York Chief Justice sets policy and sets the tone for the state’s unified court system.

One area that will be quickly monitored under the next chief justice is caseload. The Court of Appeals, which averaged about 250 cases a year under Lippman, heard 108 in 2019, the last year before the pandemic disrupted the court system. That number fell to 81 in 2021, according to statistics compiled by Albany Law School professor Vincent Bonventre, a court expert who operates the website.

Fewer cases mean fewer opportunities for lawyers to have their clients’ arguments heard in the highest court.

“The big picture is that the New York Court of Appeals is generally more protective of the rights of the accused, more protective of workers’ rights, LGBTQ rights…than the Supreme Court of the United States,” said Bonventre. “We have to wait and see what this Court of Appeals will do in the future on these kinds of issues.”

Bonventre said that with an increasingly conservative U.S. Supreme Court, the New York Court of Appeals and the highest courts in other states have the latitude to issue rulings that provide greater protection for citizens’ rights.

The Supreme Court‘s June 24 reversal of Roe v. Wade in a 5-4 decision (Hochul called it a “gross injustice”) is unlikely to impact abortion rights in New York. But one case that could go to the Court of Appeal involves the Roman Catholic Diocese of Albany’s challenge to a state Department of Financial Services mandate requiring employers to offer abortion services under health insurance benefits. In November, the United States Supreme Court reversed a decision of the Third Department Appeals Division of the State Supreme Court and sent it back to that panel for reconsideration.

The Federal High Court also struck down New York’s policy that required licensed gun owners to show “good cause” to possess concealed handguns outside their homes. residence. Hochul then signed into law a bill banning “concealed carry” in many places, including schools, parks, theaters, government buildings, healthcare facilities, places of worship, and any business or workplace. private, unless owners post signs affirmatively stating that weapons are welcome.

The new law will also require applicants for a handgun license to provide a list of their social media accounts so they can be inspected and verified for “character and conduct.” Republicans have pledged to fight the law in court.

The new swing vote

Bonventre is among those who say the New York Court of Appeals has moved to the right, but not as far as the highest court in the land.

In more than 60 Court of Appeals decisions this year, DiFiore, a former Westchester County district attorney, sided with majority opinions with Associate Justices Michael Garcia, Madeline Singas and Anthony Cannataro. None of the four found themselves on the dissenting side of a single case. Garcia is a former American attorney in Manhattan; Singas served as the Nassau County District Attorney; Cannataro was an administrative judge for the civil courts of New York. All are Democrats except Garcia, who is Republican.

About half of these cases were unanimous decisions.

A clearer division emerged when considering the dissenting opinions of Associate Justices Jenny Rivera and Rowan Wilson, who are seen as more liberal. Rivera and Wilson have each dissented five times. They dissented together 14 other times. On five other occasions, Rivera and Wilson dissented alongside new court member Associate Justice Shirley Troutman, who was selected to the court by Hochul three months after her predecessor, Andrew M. Cuomo, resigned. These five cases included their opposition to a ruling that interactive fantasy sports betting in New York was constitutional.

Judge Shirley Troutman thanks colleagues, friends and family after being sworn in at the state Court of Appeals in April. During his first year on the court, Troutman served as a swing vote on many occasions.

Will Waldron/Times Union

On 16 other occasions, Troutman sided with the majority when Wilson or Rivera dissented. Those cases included Troutman voting with the majority to deny a writ of habeas corpus for Happy, an elephant at the Bronx Zoo, in a case brought by the Nonhuman Rights Project.

Notably, Troutman dissented on April’s blockbuster redistricting decision that removed the legislative boundaries drawn by Democrats for the state Senate and US Congress.

Ultimately, according to Bonventre, Troutman “seems like the closest thing on the ground right now to a swing vote.”

She is also a potential choice as the next Chief Justice. Bonventre noted that in addition to being the only person appointed by Hochul to a tribunal otherwise made up of judges chosen by Cuomo, Troutman is from Buffalo, the governor’s hometown, and if selected and confirmed, he would be the first black person and third woman to serve as Chief Justice. .

A former federal prosecutor and appellate judge, “Troutman is highly respected,” Bonventre said. “She doesn’t come across as someone who is extremely conservative or extremely liberal, so she would probably be a pretty comfortable choice” for the next court leader.

Potentially making Troutman’s choice even more attractive to Hochul, if the governor promotes within the Court of Appeals, it would also allow him to appoint a new associate justice – a vote that could make a major difference in an ideologically divided court.

The redistricting case, for example, ended in a 4-3 decision.

There were other narrow decisions. In April, the court overturned an appeal ruling that sided with a worker who fell from a ladder and injured his spine and shoulders. In March, the Court of Appeals ruled against Curby Toussaint, an employee who was struck by an electric buggy – a vehicle used to move concrete – at the site of the Freedom Tower in Manhattan. He sued the Port Authority of New York and New Jersey, which found a favorable voice in the Court of Appeals.

Wilson, Rivera and Troutman dissented on both counts.


Susan Bryant, executive director of the New York Defenders Association, said she and other attorneys have asked the governor and the Senate to consider appointing a judge with public defense experience.

“We don’t see a public defense perspective on the court at this time,” Bryant said, adding that she hopes more members of the public defense bar will apply for the higher court.

“The traditional route is for prosecutors to go to the bench, let alone defenders,” Bryant said. “But there has been a movement … to really have the perspective of people who have represented individual clients – and have represented people who have been most affected by the criminal justice system – to be among the decision makers on cases. individuals as well as the justice system as a whole.

In the process that led to Troutman filling the vacancy of retired Associate Justice Eugene Fahey, the Judicial Nominating Commission’s shortlist included two nominees from the public defense world: Timothy P. Murphy, a federal public defender in Buffalo, and Corey Stoughton. , special litigation and law reform attorney at the Legal Aid Society.

The other five finalists — Troutman included — have served as judges on the appellate division of the state Supreme Court, the state’s second highest court.

Asked earlier this month about her upcoming pick, Hochul offered an innocuous answer: “A judge is supposed to look at every case that comes before him with a balanced eye. We’ve seen what happened in the Supreme Court. (American), when there was an intentionality behind the selection of people who had a certain predisposition, and look where we are today, so I’m going to find someone who is a thoughtful person, someone one that is well regarded in the legal community.

The New York State Bar Association plans to interview the seven finalists and release rankings (“well qualified”, “qualified” or “unqualified”).

The way a judge is perceived initially and the way they sit in court can be radically different.

At the U.S. Supreme Court, for example, Chief Justice John Roberts, a conservative Republican appointed by President George W. Bush, defied expectations in rulings that upheld the Affordable Care Act, Marriage homosexuality and the Fair Housing Act. Before him, judges such as Sandra Day O’Connor, David Souter and Earl Warren followed paths often incompatible with the uncompromising base of the political parties that raised them.

In New York’s highest court, Associate Judge Richard D. Simons, a conservative Republican from Oneida County who recently died at 95, was hailed as a judge who took positions that deviated from partisan predictability. He led the court for several months after Chief Justice Sol Wachtler resigned following his arrest for harassing his mistress while in what he considered to be deep psychological distress.

Wachtler, who sat in the High Court from 1972 to 1993 – the last seven years as Chief Justice – described the initial challenge faced by any new head of the judiciary.

“The big hurdle will be breaking through,” he said. “That is, respect your judgement, respect your legal thinking, and be prepared to become a supporter of the institution rather than an individual voice. That takes leadership, and it takes a mindset of the from your colleagues to realize that the institution as a whole is far more important than the voice, pressure or disdain of individual judges – it diminishes the institution.”


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