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 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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trending-Pataki Court Reprise Reprise Emerging Kaye Court Pataki’s Court-bashing Pataki’s Increasing Impact Pataki’s Increasing Impact Kaye/Ciparick shift persists Pataki’s appointees: Wesley forSimons RosenblattTitone GraffeoBellacosa Court’s pro-prosecution record [But] Rosenblatt: the “non” Pataki appointee ? [But] Rosenblatt: the “non” Pataki appointee ?

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

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

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

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

JOHNSON V. PATAKI (1997) ─Death Penalty ─Death Penalty ─Gubernatorial authority ─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. 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. 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: Votes: Kaye Bellacosa Levine Wesleyv. Titone GB Smith Ciparick

COHEN V. STATE (1999) ─Separation of Powers ─Separation of Powers ─Budget Process ─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. 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: Votes: Kaye Bellacosa Levine Ciparick Wesley Rosenblattv.GB Smith

SILVER V. PATAKI (2001) ─Interbranch Lawsuit ─Interbranch Lawsuit ─Budget Process ─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. 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: Votes: Kaye Smith Levine Ciparick Wesley Rosenblattv.Graffeo

PATAKI V. NY ASSEMBLY SILVER V. PATAKI (2004) ─Separation of Powers ─Separation of Powers ─Budget Process ─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.” 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.] [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: Votes: Graffeo Read RS Smith + GB Smith Rosenblattv.Kaye Ciparick

CAMPAIGN FOR FISCAL EQUITY V. STATE (2003) ─Public School Funding ─Public School Funding ─State Constitutional Guarantee of Education ─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. 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: Votes: Kaye GB Smith Ciparick Rosenblattv. Read [Graffeo not participating]

CAMPAIGN FOR FISCAL EQUITY V. STATE (2006) ─State Constitutional Guarantee of Education ─State Constitutional Guarantee of Education ─Judicial vs. Gubernatorial Authority ─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. 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: Votes: Rosenblatt Read RSS Smith Pigottv. Kaye Ciparick [Graffeo not participating]

CUBAS V. MARTINEZ (2007) ─Administrative Authority ─Administrative Authority ─Immigration Policy ─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. 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: Votes: Graffeo Read RSS Smith Pigott Jones v. Kaye Ciparick

Judges of the Current Court (updated Fall 2007)