We extend our congratulations to Hector LaSalle, current presiding justice of the Appellate Division, Second Department, on his nomination by Governor Hochul to become Chief Judge of the New York Court of Appeals, a position previously held by such legal luminaries as Benjamin N. Cardozo, Stanley H. Fuld and Judith S. Kaye. While it is a great honor, it is an equally great burden. The Chief Judge not only carries a full caseload as one of the court’s seven judges, but also (1) supervises the work of the court, (2) oversees the work of New York’s entire Unified Court System, and (3) is a member of the Judicial Conference of the State of New York.

During the weeks before Governor Hochul’s selection of Judge LaSalle to be the next Chief Judge, she was lobbied by many individuals and organizations, including the Center for Community Alternatives, “a leader in community based alternatives to incarceration promoting ‘reintegrative justice’ and a reduced sentence on incarceration.” The Center sent the Governor a letter “co-signed by more than 100 other progressive organizations” that demanded “the next Chief Judge must not be a former prosecutor” (New York Times, Dec. 13, 2022); three members of the present court are former prosecutors.

The coalition and its supporters are obviously unaware that some of the court’s most highly regarded former judges had been prosecutors: Chief Judges Stanley H. Fuld and Charles D. Breitel and, more recently, Associate Judge Albert Rosenblatt. Such public service is no disqualification for a potential nominee and no indication of how that nominee might vote in a particular case. People v. Donovan, 13 N.Y.2d 148 (1963) is a good example of this.

In that case, a payroll guard was shot to death during the course of a robbery. Defendant Donovan was apprehended on the following day, his codefendant Mencher two days later. Both were questioned at a police station and after a period of interrogation by police and prosecutor admitted their guilt orally and in writing. The written confession was taken from Donovan after the police had refused to allow an attorney, retained for him by his family while he was in custody, to see or speak with him.

Judge Fuld, writing for a 4-3 majority, stated: “It would be highly incongruous if our system of justice permitted the district attorney, the lawyer representing the State, to extract a confession from the accused while his own lawyer, seeking to speak with him, was kept from him by the police.” 13 N.Y.2d at 150-51. “The admission in evidence of Donovan’s written confession requires reversal of his conviction and, since that confession, thus improperly before the jury, implicated his codefendant Mencher, there must also be a reversal of the latter’s conviction in the interests of justice.” Id. at 154.

Since the nomination was made public, attacks on the Governor’s choice have intensified and continued unabated. Senate Deputy Majority Leader Mitchell Gianaris “expressed concern that [Justice] LaSalle wouldn’t provide the shakeup … the state’s highest court is in need of.” NYLJ, Dec. 30, 2022, p. 1. He previously said the court needs a realignment: “We’ll have a great opportunity with the chief judge opening to move the court in a better direction.” NYLJ, Dec. 14, 2022, p. 1, col. 6.  The coalition’s statement quoted another current legislator who noted the Governor’s “opportunity to nominate a chief judge ‘who will balance the interests of justice, safety and the rule of law.’” NYLJ, Dec. 9, 2022, p. 9, col. 5.

The unmistakable intent of these and other similar statements is to persuade the Governor to withdraw her choice of an eminently qualified Justice whose nomination is supported “wholeheartedly … [and] without reservation” by among others, 22 former  justices who worked  with him at the Appellate Division. NYLJ, Dec. 30, 2022, p. 4, col. 3. Opponents of the nomination want the Governor to appoint a candidate who would mold and modify the law in a so-called “progressive” direction in accord with their ideas of fairness and justice.

Is that the role of a judge of the Court of Appeals? We think not. Apparently neither did the Governor.

“Fairness and justice” should be the end product of the application of the law to the facts in every case, in every court, before every judge. That is a given. But the coalition and like-minded others are either unfamiliar with, or choose to ignore, the limited role assigned to the Court of Appeals, as reaffirmed by the New York Constitutional Convention of 1894.

The jurisdiction of the Court of Appeals was “focused on unifying, clarifying, and pronouncing the law of the state rather than considering the justice of particular cases on their facts—a function … assigned to the Appellate Division.” Newman and Pelzer, Declining Dispositions of the Court of Appeals, 85 Albany L. Rev. (2022); MacCrate, Hopkins, Rosenberg, Appellate Justice in New York, 22 (American Judicature Society ed. 1982) (MacCrate). The Court of Appeals was granted only very limited power to review the facts. The Appellate Division was created and given broad power to review the facts and render its decisions based on the law, the facts or an exercise of discretion. “In addition to ordering a new trial on the law, intermediate appellate courts may order new trials on the facts or, by an exercise of discretionary power, in the interest of justice.” People v. Williams, 31 N.Y.2d 151, 153 (1972).

“It was the intention of the 1894 convention that the Appellate Division would provide the sole appellate review for the vast majority of cases, so that the Court of Appeals could devote its attention to articulating general principles and reconciling conflicts among the lower courts.” MacCrate, supra. If the Appellate Division finds there has been a miscarriage of justice or an unduly harsh sentence imposed in a criminal case, or an excessive judgment in a personal injury action, that court was empowered to grant the relief it deems appropriate as a matter of discretion and in the interest of justice. That was not intended to be the role of the Court of Appeals.

The Court of Appeals was not meant to be a “progressive bulwark” (New York Times, supra) or an institution “fighting for the state’s most vulnerable people.” See Karen DeWitt, Advocates urge Hochul to choose a new chief judge who will look out for the vulnerable, WSKG. That is the role of the members of the Legislature, the people’s chosen representatives. They are the ones to make the laws of the state and to promote and implement “community based alternatives to incarceration … and a reduced sentence on incarceration” if, after consideration and debate, those measures are deemed desirable.

Any change in statutory law, such as decriminalizing certain action or changing the prescribed penalty for a crime, must come from the Legislature, not the Court of Appeals (unless the law being reviewed is found to be ambiguous or unconstitutional). In his Nature of the Judicial Process, Judge Cardozo stated that “the power to declare the law carried with it the power, and within limits, the duty, to make law when none exists” (p. 124); The judges of the Court of Appeals “have the right to legislate within gaps, but often there are no gaps.” (p. 129).

Judge Cardozo recognized that “[j]udges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though not the right to travel beyond the walls of the interstices, the bounds set to judicial intervention by precedent and custom. None the less, by that abuse of power, they violate the law.” Id., p. 129. First published a century ago (1921), these trenchant observations are still applicable today. Of course, where the common law applies and the appeal presents novel questions of law not governed by statute, the Court of Appeals not only may, but is charged with the duty of declaring the applicable law. Tort law provides many examples. Greene v. Esplanade Venture Partnerships, 36 N.Y.3d 513 (2021), is a recent one.

In Greene, the majority decision traced the historical development of the modern bystander zone of danger law from no recovery for injuries sustained by fright when there has been no immediate personal injury (Mitchell v. Rochester Ry, 151 NY 107, 110 (1896)) to its holding that a grandchild was “immediate family” for the purpose of applying the zone of danger rule in favor of a grandmother who was standing near her two-year old granddaughter when both were struck by debris falling from the façade of a building that killed the grandchild.

While each federal justice or judge is required to take an oath (or affirmation) solemnly swearing (or affirming) to “administer justice without respect to persons, to do equal right to the poor and to the rich, …” (28 USC 453), the New York Constitution requires no similar commitment by its justices and judges. They are merely required to “support the constitution of the United States and the constitution of the State of New York” according to the best of their ability. NY Const. art XIII §1.

However, the Rules of the Chief Administrative Judge, whose text “is intended to govern conduct of judges … and to be binding upon them,” provide that a “judge shall be faithful to the law [and] shall not be swayed by partisan interests, public clamor or fear of criticism” (§100.3(B)(1)). The efforts of the signatories to the coalition’s letter and of like-minded others efforts who sought to influence the Governor in her nomination of the next Chief Judge was, however, to induce her to select a person who would refashion the law in accord with their partisan interests, thereby violating the rules governing judicial conduct.

During her confirmation hearings, U.S. Supreme Court Justice Ketanji Brown Jackson said, “I decide cases from a neutral position … I evaluate the facts and I interpret and apply the law to the facts of the case before me without fear or favor, consistent with my judicial oath. I know that my role as a judge is a limited one.” See Ketanji Brown Jackson Confirmation Hearings, New York Times.

Justice Jackson’s approach to judging—to evaluate the facts and interpret and apply the law to the facts of the case without fear or favor—should be the norm for all appellate judges, including judges of our Court of Appeals.

Finally, we cannot let go unanswered Senator Gianaris’s completely unwarranted statement that “there appears to be a great possibility that Justice LaSalle would represent a continuation of the unacceptable status quo that has sullied the reputation of our state’s highest court and ruled inconsistently with the values held dear by New Yorkers.” NYLJ, Dec. 30, 2022, p. 4, col. 1-2.

We believe the New York Court of Appeals is still the premier common law appellate court in the country. We, and others, have been critical of the court for deciding so few cases during the last six years, but have never heard its reputation “sullied.” And, whatever unidentified “values [may be] held dear by New Yorkers,” we are confident they include a desire to have their highest court decide each case on its unique facts and the governing law, and without “fear or favor” or on some preconceived notion of the political direction the court should take.

Thomas R. Newman is of counsel to Duane Morris and author of ‘New York Appellate Practice’ (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.