Written By: Todd M. Jones
On August 31, Chief Judge Janet DiFiore stepped down from the New York State Court of Appeals (New York’s high court). Chief Judge DiFiore resigned amid an ethics investigation by New York’s Commission on Judicial Conduct. The Commission suspected that Chief Judge DiFiore obstructed the disciplinary hearing of Dennis Quirk, the president of the New York State Court Officers Association. As of today, she has not been replaced, and the Court is split 3-3 along party lines. Since September 1, Associate Judge Anthony Cannataro has served as acting Chief Judge.
In January, the New York State Senate Judiciary Committee (the “Committee”) rejected Governor Kathy Hochul’s nominee to replace Chief Judge DiFiore, Justice Hector LaSalle, by a vote of 10-9. The ten voting to reject Justice LaSalle were all Democrats, while the nine voting to confirm included three Democrats and all six Republicans on the Committee.
Justice LaSalle’s opponents cite his conservative judicial record as presiding Justice of the New York State Appellate Division, Second Department, as the reason for the vote of no confidence. Peter Martin, Director of Judicial Accountability at the Center for Community Alternatives stated, “Justice LaSalle’s deeply conservative judicial record includes decisions that are anti-abortion, anti-union, and anti-due process.” What’s more, a group of over 40 law professors penned a letter to Governor Hochul pleading with her not to appoint Justice LaSalle citing his decisions that include shielding crisis pregnancy centers, empowering management to harass workers, and a callous disregard for due process.
Governor Hochul dismissed her party’s widespread criticism of Justice LaSalle’s anti-abortion record, stating “If you actually read those cases that are in question, they have nothing to do with a woman’s right to choose.” Hochul responded to anti-labor concerns stating that critics mischaracterize a “procedural decision.”
For decades, New York judicial selection faced almost zero scrutiny since the process was less politicized and served as a formality. In December, Albany Law School professor Vincent Bonventre stated the legislature always backs the Governor’s nominee “unless the person the governor has nominated is completely and entirely incompetent.”
The Committee’s rejection of Justice LaSalle raises several unanswered questions. Namely, can the NYS Senate Judiciary Committee deny the Governor’s nominee via a committee vote without a full Senate floor vote? On February 10, Republican State Senator Anthony Palumbo sued the New York State Senate Democrats in Suffolk County, arguing a full Senate floor vote is required to reject a governor’s judicial nominee.
Most New York constitutional law experts agree that a full floor Senate vote must take place to reject a governor’s judicial nominee. The State Constitution provides, in relevant part, the procedure for selecting a new Chief Judge, “the governor shall with the advice and consent of the Senate.” The Constitution says, “the Senate” not “the Senate Judiciary Committee.” This argument is two-fold, (1) the plain meaning supports a full floor vote, and (2) if the drafters of the Constitution intended for confirmations to be done by the Senate Judiciary Committee, then they would have written that. Former Chief Judge of the New York Court of Appeals, Jonathan Lippman said “the vote must go to the floor.” Governor Hochul agreed.
On February 21, 2023, Suffolk County Justice Thomas Whelan found that under the New York Constitution, there must be a senate floor vote to confirm or reject or governor’s judicial nominee. Justice Whelan stated, “the constitutional issues are not complex” and in fact, “easy to solve.” Days before Justice Whelan’s decision, Senate Democrats held a Senate floor vote in a last-ditch effort to render Palumbo’s lawsuit moot. The Senate rejected Justice LaSalle by a 39-20 vote. Justice Whelan rejected Senate Democrats’ mootness argument.
Democrats may appeal the case in the Second Department where LaSalle is the presiding Justice. Justice LaSalle would likely recuse himself. Governor Hochul has stayed uninvolved with the lawsuit. However, she has not closed the door on potentially joining Republicans if there is an appeal.
At face value, Hochul and the Republicans won this legal battle while Senate Democrats lost. However, the real loser is the New York State taxpayer and the New York State Court Unified System. New York has now gone six months without a Chief Justice. Worse, now that the Committee must start over it could take up to 180 days until the Senate holds a floor vote on another nominee. By then, New York will have gone over a year without a Chief Justice.
New York State politicians have made a mockery of the judicial selection process so far, wasting six months and thousands of dollars in taxpayer money on a pointless legal battle. Yet, they had no problem whatsoever in making themselves the highest paid State Legislators in the country.
It is unclear when a Chief Justice will be selected, or when the legal battle will end. One thing is for certain, judicial selection is about filling a vacancy, and at that lawmakers are failing. On Tuesday, New York State Bar Association president Sherry Levine appointed a special committee to study the judicial selection process. In the meantime, the Court of Appeals will remain split 3-3.
Acting Chief Antony Cannataro, Administrative Directory – Executive Officers https://ww2.nycourts.gov/Admin/directory/anthony_cannataro.shtml#:~:text=Anthony%20Cannataro%20was%20designated%20Acting,Associate%20Judge%20in%20June%202021.
Brandon Vogel, Meet the New Presiding Justice: Hector LaSalle, NYSBA (Aug. 5, 2021) https://nysba.org/meet-the-new-presiding-justice-hector-lasalle/
Brian Lee, NY State Bar Announces Study of Judicial Selection and Independence of State’s Highest Court, NYLJ (Mar. 1, 2023). https://www.law.com/newyorklawjournal/2023/02/28/ny-state-bar-announces-study-of-judicial-selection-and-independence-of-states-highest-court/?kw=NY%20State%20Bar%20Announces%20Study%20of%20Judicial%20Selection%20and%20Independence%20of%20State%27s%20Highest%20Court&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20230228&utm_term=nylj
Cablevision Sys. Corp. v. Commc’ns Workers of Am. Dist. 1, 16 N.Y.S.3d 828 (2d. Dept. 2015).
In Matter of Evergreen Assn., Inc. v. Schneiderman, 54 N.Y.S.3d 135 (2d Dept. 2017).
Jimmy Vielkind, New York Senate Rejects Hector LaSalle’s Nomination to Lead State’s Top Court, WALL STREET JOURNAL, (Feb. 15, 2023) https://www.wsj.com/articles/new-york-senate-to-vote-on-hector-lasalles-nomination-as-top-judge-1f19397a
Joshua Solomon, State Supreme Court justice says LaSalle was entitled to floor vote, TIMES UNION, (Feb. 21, 2023) https://www.timesunion.com/state/article/state-supreme-court-says-lasalle-entitled-floor-17796614.php
Julie Coleman, New York’s Top Judge Steps Down Amid Misconduct Allegations, Forbes, (July 12, 2022). https://www.forbes.com/sites/juliecoleman/2022/07/12/new-yorks-top-judge-steps-down-amid-misconduct-allegations/?sh=3feb69fb61db
Keshia Clukey, Hochul’s Fight Over Chief Judge Tees Up `Constitutional Crisis’, BLOOMBERG LAW, (Jan. 19, 2023) https://www.bloomberglaw.com/bloomberglawnews/https:/www.bloomberglaw.com/bloombergawnews/bloomberg-law-news/BNA%2000000185cb0cde4aa1ddfb7fd26c0001?bna_news_filter=bloomberg-law-news&bwid=00000186-3c2c-d67b-a5ef-
Keshia Clukey, Suit Over Hochul’s NY Court Pick Tests Senate Panel Clout, BLOOMBERG LAW, (Feb. 10, 2023) https://www.bloomberglaw.com/bloomberglawnews/exp/eyJjdHh0IjoiQlVOVyIsImlkIjoiMDAwMDAxODYtM2MyYy1kNjdiLWE1ZWYtN2M3ZjU5YzMwMDAxIiwic2lnIjoieEYyZmk3all0TDllTjFCZXFUdHd0d0hKcDFFPSIsInRpbWUiOiIxNjc2Mjk1MzE4IiwidXVpZCI6ImhDaE0zcjJhMjdVYUlGRUltUXhJK0E9PU5lSS9lZEI2NTFHY0xhTFpvc3ZOcWc9PSIsInYiOiIxIn0=?bwid=00000186-3c2c-d67b-a5ef-7c7f59c30001&cti=LSCH&emc=bbunw_nl%3A72&et=NEWSLETTER&isAlert=false&item=read-text&qid=7420745®ion=digest&source=newsletter&uc=1320026750&udvType=Alert&usertype=External
Letter to Governor Hochul From New York Law Professors Expressing Concern Re: Justice LaSalle’s Jurisprudence, https://docs.google.com/forms/d/e/1FAIpQLScFifZMWxcfrVeGcbw5gS_1s8rbkzCP0zBpQjdbGDh1RpZAIw/viewform;
Maysoon Khan, NY lawmakers get pay raise making them nation’s best-paid, AP News, (Jan. 1, 2023) https://apnews.com/article/politics-new-york-state-government-california-kathy-hochul-32de11eab6133e10899f14467822a2c2
Nancy Cutler and Ashley Stocker, Hochul taps LaSalle to lead NY courts; will he pass muster with Senate progressives?, LOHUD (Dec. 23, 2022) https://www.lohud.com/story/news/2022/12/22/hector-lasalle-picked-top-ny-judge-seen-anti-abortion-union/69740427007/
N.Y. CONST. art. VI, §2. e.
Palumbo v. NYS Senate et al, Index no. 603276/2023
People v. Corbin, 993 N.Y.S.2d 746 (2d. Dept 2014).
Sam Mellins, Senate Committee Rejects Hector LaSalle for Chief Judge, NEW YORK FOCUS (Jan. 18, 2023) https://www.nysfocus.com/2023/01/18/hector-lasalle-rejected-senate-committee/
Sam Mellins, Will Hector LaSalle Be the Next Janet DiFiore?, NEW YORK FOCUS (Jan. 5, 2023) https://www.nysfocus.com/2023/01/05/hector-lasalle-janet-difiore-appeals-court/