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Judges of the Current Court (updated Fall 2007)

Court of Appeals of New York State The Judges, The Selection Process, Making the Current Court -- and Some Recent Decisions on Governance Vincent Martin Bonventre, J.D., Ph.D. Rockefeller Institute, October 15, 2007. Judges of the Current Court (updated Fall 2007). Judith S. Kaye.

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Judges of the Current Court (updated Fall 2007)

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  1. Court of Appeals of New York StateThe Judges, The Selection Process, Making the Current Court-- and Some Recent Decisions on GovernanceVincent Martin Bonventre, J.D., Ph.D.Rockefeller Institute, October 15, 2007

  2. Judges of the Current Court(updated Fall 2007)

  3. Judith S. Kaye • Appointed 1983 by Cuomo (replaced JF [elect]) • First woman on Court • From NYC (born in Monticello) • Appointed Chief Judge 1993 by Cuomo (replaced SW [Cuomo]) • Reappointed March 2007 by Spitzer • Mandatory age retirement 2008

  4. Carmen Beauchamp Ciparick • Appointed 1994 by Cuomo (replaced SFH [Cuomo]) • First Hispanic on Court • From NYC • Current term expires Jan. 2008; candidate for reappointment • Mandatory age retirement 2012

  5. Victoria A. Graffeo • Appointed 2000 by Pataki (replaced JWB [Cuomo]) • From Guilderland (born Rockville Center) • Term expires Nov. 2014 • Mandatory age retirement 2022

  6. Susan P. Read • Appointed 2003 by Pataki (replaced HL [Cuomo]) • From Capital Region (born Gallipolis, Ohio) • Mandatory age retirement 2017 • Term expires Jan. 2017

  7. Robert S. Smith • Appointed 2003 by Pataki (replaced RW [Pataki]) • From NYC • Mandatory age retirement 2014

  8. Eugene F. Pigott, Jr. • Appointed 2006 by Pataki (replaced GBS [Cuomo]) • From Grand Island [Buffalo Metro Area] (born Rochester, NY) • Mandatory age retirement 2016

  9. Theodore T. Jones Jr. • Appointed 2007 by Spitzer (replaced AMR [Pataki] • From NYC • Mandatory age retirement 2014

  10. Richard C. Wesley (resigned 2003) • Appointed 1997 by Pataki (replaced RDS [Cuomo]) • From Livonia [Rochester area] (born Canandaigua, New York) • Resigned for 2d Circuit appointment, 2003 • Pataki replaced w/RS Smith

  11. George Bundy Smith (retired 2006) • Appointed 1992 by Cuomo (replaced FA [Cuomo]) • From NYC (born New Orleans) • Denied reappointment by Pataki September 2006 • (mandatory age retirement would have been 2007) • Pataki replaced w/ Pigott

  12. Albert M. Rosenblatt (retired 2006) • Appointed 1998 by Pataki (replaced VJT [Cuomo]) • From Dutchess County (born NYC) • Reached mandatory retirement age, 2006 • Spitzer replaced w/ Jones

  13. The Selection Process • Background: Wachtler, Fuchsberg, Breitel, Carey • Commission: composition, purpose [evaluate, report, recommend] • Applications: notice, solicitation, applicants • Interviews: prelim evaluation, in-person meeting Vincent M. Bonventre, 12/06

  14. The Process cont’d • Voting: ranking/no-ranking, 2/3 support, re-voting & winnowing • Findings & Recommendations: 3-7 candidates “report” on “character, temperament, professional aptitude, experience, qualifications and fitness” —otherwise entirely confidential Vincent M. Bonventre, 12/06

  15. The Process cont’d • Gubernatorial Nomination: limited to list, agenda? • Senatorial Advice & Consent: committee hearing, full senate, “advice” or just consent? Vincent M. Bonventre, 12/06

  16. The Process cont’d • Election vs “Nonpolitical Merit” Appointment: • Pros / Cons • Final Product, Comparisons • Essentials Vincent M. Bonventre, 12/06

  17. Making the Current Court Appointments & Appointees: From Cuomo thru Pataki to Spitzer The Wachtler & Kaye Courts Voting and Decisional Patterns Vincent Martin Bonventre, 10/07

  18. Late Wachtler – Early KayeAll Cuomo Court • Late Wachtler era Pro-prosecution record Wachtler/Bellacosa v. Kaye/Titone • Post-Wachtler – Early Kaye Pro-defendant swing Wachtler Court – Kaye Court transition

  19. Emerging Kaye CourtAll Cuomo Court • Reprise Late Wachtler Early Kaye • Emerging Kaye Court Pro-defendant swing persists Kaye/Titone/G.B. Smith/Ciparick “liberal” majority

  20. Cuomo to Pataki Transition • Reprise Post-Wachtler / Early Kaye Emerging Kaye Court • Pataki’s Court-Bashing Pro-prosecution “adjustment” Kaye/Ciparick voting shift

  21. Trending-Pataki Court • Reprise Emerging Kaye Court Pataki’s Court-bashing • Pataki’s Increasing Impact Kaye/Ciparick shift persists Pataki’s appointees: Wesley for Simons Rosenblatt Titone Graffeo Bellacosa Court’s pro-prosecution record • [But] Rosenblatt: the “non” Pataki appointee ?

  22. Pataki’s Court ? • Reprise Pataki’s Increasing Impact: “Bashing” + Appointments • Pataki’s Majority [Simons to Wesley to] R.S. Smith [Titone to] Rosenblatt [Bellacosa to] Graffeo [Levine to] Read • But Court Re-Adjustment ? Kaye/Ciparick Re-shift Pataki’s Judges: Wesley, Graffeo, Read “Non” Pataki Judge: Rosenblatt R.S. Smith (?) Court’s Pro-defendant Swing Back (?)

  23. Emerging Current Court: 2006, 2007 & Beyond • Re-Emerged Pro-defendant Wing Kaye & Ciparick [& G.B. Smith] • Solid Pro-prosecution Votes Graffeo & Read • [Rosenblatt in the Center] • The Less Predictable R.S. Smith • An Unmistakable Spectrum Kaye/Ciparick [& G.B. Smith] Graffeo/Read R.S. Smith [& Rosenblatt] • Questions ?? G.B. Smith Replaced by Pigott?? ?? Rosenblatt replaced by Jones??

  24. Future CourtSpitzer’s Opportunities ? • Rosenblatt Replacement, Jan. 2007 [Jones] • Kaye Reappointment/Replacement, March 2007 [Reappointment] • Mandatory Retirement, 2008 • Ciparick Reappoint./Replacement, Jan. 2008 • Mandatory Retirement, 2012 • Graffeo Reappoint./Replacement, Nov. 2014 • Mandatory Retirement, 2022 • R.S. Smith Mandatory Retirement, 2014 • Jones Mandatory Retirement, 2014 • Pigott Mandatory Retirement, 2016 • Read Reappointment/Replacement Jan. 2017 • Mandatory Retirement, 2017

  25. Recent Decisions on Governance • Gubernatorial Power • Death Penalty • Separation of Powers • Budget Process • Financing Public Education • Agency Policy Making Authority • Immigration Policy

  26. JOHNSON V. PATAKI (1997) • ─Death Penalty • ─Gubernatorial authority • The grant of discretionary authority to district attorneys in the first-degree murder statute does not foreclose superseder of a district attorney by the Governor. Executive Law § 63 (2) authorizes superseder even in the absence of a request by a district attorney. The Governor’s stated objective was not to override the District Attorney’s discretionary authority regarding sentencing. Rather, it was to assure that discretion would be exercised where the District Attorney's "blanket policy" against the death penalty might have foreclosed any exercise of discretion. • Votes: Kaye Bellacosa Levine Wesley v. Titone GB Smith Ciparick

  27. COHEN V. STATE (1999) • ─Separation of Powers • ─Budget Process • Under chapter 635 of the Laws of 1998, the Legislature must have "finally acted on" the appropriations submitted by the Governor before individual legislators may be paid. The inducement does not require that the Legislature pass the Governor's budget; only that it pass a budget The Act does not impermissibly merge or shift the powers between those two branches; it does not create or result in "extortionate economic pressure. • Votes: Kaye Bellacosa Levine Ciparick Wesley Rosenblatt v. GB Smith

  28. SILVER V. PATAKI (2001) • ─Interbranch Lawsuit • ─Budget Process • As "Member and Speaker, New York State Assembly," Silver may bring an action against the Governor claiming that the Governor had no authority to exercise 55 line-item vetoes in "non-appropriation" bills. Silver brought the action to obtain a declaration that the vetoes violated article IV, § 7 of the New York Constitution, and that legislation relating to the budget that does not appropriate money is not subject to the line-item veto power. The Governor contends that the bills in question were part of the budget process and contained items of appropriation subject to his line-item veto. • Votes: Kaye Smith Levine Ciparick Wesley Rosenblatt v. Graffeo

  29. PATAKI V. NY ASSEMBLY SILVER V. PATAKI (2004) • ─Separation of Powers • ─Budget Process • The Governor did not exceed constitutional limits on what his appropriation bills may contain under the “executive budget” provisions of the state constitution. The line between "policy" and "appropriations" is essentially nonexistent: every dollar the State spends is spent on substance, and the decision of how much to spend and for what purpose is a policy decision. Resolving such disputes in the courtroom might produce “judicial budgeting.” • [For example, the Governor proposed to appropriate $ 8.3 billion for "general support for public schools” with 17 pages of provisos and conditions, determining (based on pupil population, services provided and many other factors) how much money would go to each school district. Other appropriation bills also contained language changing the method for computing Medicaid rates payable to residential health care facilities and appropriating funds to a proposed Office of Cultural Resources.] • Votes: Graffeo Read RS Smith + GB Smith Rosenblatt v. Kaye Ciparick

  30. CAMPAIGN FOR FISCAL EQUITY V. STATE (2003) • ─Public School Funding • ─State Constitutional Guarantee of Education • The State must ascertain the actual cost of providing a sound basic education, as required by art XI, § 1 of the state constitution, in New York City. Reforms to the current system of financing school funding and managing schools should ensure that every school in New York City would have the resources necessary for providing a sound basic education. • Votes: Kaye GB Smith Ciparick Rosenblatt v. Read [Graffeo not participating]

  31. CAMPAIGN FOR FISCAL EQUITY V. STATE (2006) • ─State Constitutional Guarantee of Education • ─Judicial vs. Gubernatorial Authority • The Governor’s estimate of $ 1.93 billion in additional annual operating funds was reasonable, and that the courts should defer to this estimate; Supreme Court should not have appointed a blue-ribbon panel to make independent calculations. • Votes: Rosenblatt Read RSS Smith Pigott v. Kaye Ciparick [Graffeo not participating]

  32. CUBAS V. MARTINEZ (2007) • ─Administrative Authority • ─Immigration Policy • The Department of Motor Vehicles (DMV) policy to deny driver's licenses to applicants w/o valid social security numbers (SSNs), unless they provide immigration documents issued by the Department of Homeland Security (DHS). This requirement of DHS documentation does not impose a new obligation, but merely comports with a pre-existing regulation, 15 NYCRR § 3.9, that applicants supply "proof that [they are] not eligible for a social security number." The Commissioner is not unlawfully setting immigration policy -- an act well outside the scope of his authority -- in the guise of verifying identity. • Votes: Graffeo Read RSS Smith Pigott Jones v. Kaye Ciparick

  33. Judges of the Current Court(updated Fall 2007)

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