The Supreme Court: What's Ahead

As we approach the month of June, there are 22 cases remaining for decision by the United States Supreme Court before the Court takes its summer recess.

The cases touch a wide range of interests and concerns, from whether the current Iraqi government has sovereign immunity for the acts of Saddam Hussein, to the continued viability of the Voting Rights Act, to the Right of Confrontation in criminal cases. 

It will be particularly interesting to learn how Justice Souter votes on each case, and to then consider how his proposed successor Judge Sotomayor would have voted had she been sitting on the case instead of Justice Souter. This may provide an early indication of the short term effect, if any, her appointment will have on the Court. 

Judge Sotomayor: Ricci v. DeStefano

A very unusual aspect of President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court is that the Court is simultaneously reviewing one of Judge Sotomayor's decisions.

In Ricci v. DeStafano, 530 F.3d 87, Judge Sotomayor was one of the members of the three-judge panel of the United States Court of Appeals for the Second Circuit which, in a brief opinion, upheld New Haven's decision not to certify a fire department promotion examination on the grounds the examination results had a disparate impact on racial minorities. 

The Supreme Court heard oral argument on April 22, and a decision is expected by the end of June. As I noted yesterday, "Whatever the outcome, it will add fuel to Judge Sotomayor's confirmation hearings in the Senate." Today's New York Times ("Sotomayor's Opinions Are Exhaustive But Often Narrow") agrees: DeStafano "will probably attract more questions at her Supreme Court confirmation hearings than any of the many hundreds of much more deeply considered decisions she has written."

Note: The District Court's opinion in DeStefano, which contains a detailed recitation of the facts, is reported at 554 F.Supp.2d 142.   

Supreme Court Reverses N.Y. Court of Appeals

The big news today is, of course, President Obama's nomination of New Yorker Sonia Sotomayor to replace Justice Souter on the United States Supreme Court. The news did not distract the Court from attending to its own business, and it released three opinions today.

First, in Haywood v. Drown the Court reversed the New York Court of Appeals which, as I discussed last week, had upheld the constitutionality of Correction Law § 24 which bars federal 42 U.S.C. § 1983 suits for monetary damages against correction officers in New York trial courts. Under the statute, such suits must be brought against the State in the Court of Claims, which does not have trial by jury and cannot award counsel fees. 

The Court of Appeals had divided 4-3, and I stated we could anticipate a divided Supreme Court, too. The Supreme Court did vote 5-4, with Justice Stevens writing the majority opinion, and Justice Thomas the dissent. Justice Stevens' opinion notes the dissent by Judge Jones in the Court of Appeals, and adopts much of his reasoning.

Justice Stevens' opinion notes that in accordance with § 24, federal § 1983 suits for monetary damages can be brought against all sorts of public officials except correction officers--the state's policy has been to "shield this narrow class of defendants from liability when sued for damages." In accord with its precedents, the Court concluded that under the Constitution's Supremacy Clause New York cannot "shield a particular class of defendants (correction officers) from a particular type of liability (damages) brought by a particular class of plaintiffs (prisoners)." 

The Court also issued two criminal law decisions. In Montejo v. Louisiana the Court overruled Michigan v. Jackson, 475 U.S. 625 (1986), which had barred police interrogation of defendants who requested the appointment of counsel at an arraignment. The Court divided along conservative/liberal lines with Justice Scalia writing the majority opinion, and Justice Stevens writing the dissent. In Abuelhawa v. United States a unanimous Court ruled that one who telephones a drug dealer to purchase cocaine is not, under federal law, "facilitating" a felony sale and guilty of a felony himself. 

Note: Judge Sotomayor was a member of the Second Circuit panel in Ricci v. DeStefano, 530 F.3d 87 (2nd Cir. 2008), which upheld New Haven's invalidation of a civil service fire department promotion test on the grounds the results of the test had a disparate impact on racial minorities. The Supreme Court heard oral argument in the case on April 22, and a decision is expected by the end of June. Whatever the outcome, it will add fuel to Judge Sotomayor's confirmation hearings in the Senate.  

Bat Masterson and Benjamin Cardozo

One does not associate Benjamin Cardozo with Bat Masterson, the legendary western lawman and gambler. 

That is what I thought until I recently came across the article "Benjamin Cardozo Meets Gunslinger Bat Masterson" by William H. Manz in the July/August 2004 issue of the Journal of the New York State Bar Association. 

In 1903 Masterson came east to New York City. A boxing enthusiast, he became a sports editor and columnist for the Morning Telegraph. 

The confrontation with Cardozo began with a series of columns Masterson wrote in 1911 about an upcoming bout between "Oklahoma Giant" Carl Morris and "Pueblo Fireman" Jim Flynn. When Masterson learned that both fighters were financed by Morris' manager, Frank B. Ufer, he charged that Flynn was being paid to "lie down" for Morris.

A front page article then appeared in the New York Globe and Commercial Advertiser in which Ufer was quoted as saying Masterson had "made his reputation by shooting drunken Mexicans and Indians in the back."

Masterson sued the Globe publisher Commercial Advertiser Association for libel, and Commercial Advertiser retained Cardozo for the defense. According to the Manz article the record shows that Cardozo's strategy was to maintain that Ufer's comment was not meant to be taken seriously and that it could not have caused Masterson's reputation any harm.

The trial began on May 20, 1913, in Supreme Court, New York County. The highlight was Cardozo's cross-examination of Masterson in which Cardozo sought to show that Masterson had killed many men and there had been many articles about his exploits. Masterson, however, was steadfast that the fact alone that he was said to have killed a man was not an attack on his reputation, but the false claim that he had shot drunken Mexicans and Indians in the back was an attack on his reputution.

The jury brought in a verdict of $3,500 for Masterson, plus $129.25 in costs. Cardozo appealed to the Appellate Division, First Department, and on December 19, 1913,  the Court by a 3-2 vote reversed the judgment and ordered a new trial unless Masterson stipulated to a verdict of $1,000. The two dissenters would have affirmed the judgment. Masterson v. Commecial Advertiser Assn., 160 A.D. 890, 144 N.Y.S. 1129. 

Manz writes that there is no record of a further appeal, so it must be assumed Masterson settled for the $1,000. Less than a month after the Appellate Division decision, Cardozo became a judge in  the Supreme Court, New York County. Masterson remained a sportswriter until his death in 1921. According to Manz, he is buried in Woodlawn Cemetery in the Bronx.       

When is a Bar "Overcrowded"?

As the warm weather approaches, New York City's bar scene will flourish. Whether sophisticated or raucous, bars are subject to a host of regulations from the Fire Department, the Department of Buildings, and the State Liquor Authority (SLA), not to mention Penal Law provisions regarding disorderly conduct.

The Appellate Division, First Department, divided today 3-2 on what constitutes substantial evidence that a bar is overcrowded in violation of SLA rules. Mtr. of 47 Ave. B. v. New York State Liq. Auth. In the view of the majority, testimony that patrons were standing "shoulder to shoulder" is an inadequate basis to find overcrowding and to revoke a bar's liquor license.

The bar's certificate of occupancy permitted 61 people in the cellar, and 135 on the first floor. The majority noted that the SLA investigator did not use a counting device, nor did he take an actual headcount of the people in the bar, so there is no way to determine whether the number of patrons exceeded the number permitted by the certificate of occupancy.  A "guesstimate," said the majority, is not substantial evidence.

In the dissent's view the investigator's estimate that there were 75 to 100 patrons in the bar's cellar, and patrons standing throughout the bar "shoulder to shoulder," together with a police officer summons that there were 300 patrons in the bar, is sufficient evidence to establish the claim of overcrowding. The majority noted, however, that the summons was unsworn and was dismissed in court, so all that is left is evidence that patrons were "shoulder to shoulder."

The "substantial evidence" test for reviewing administrative agency determinations calls for a minimum of judicial oversight of agency rulings which seriously affect livelihoods and licenses. Rejecting the "shoulder to shoulder" evidence is sound. As the majority observed, "It does not warrant further conjecture as to the consequences of finding every bar/restaurant in Manhattan to be in violation of the SLA Law based solely upon evidence that patrons were standing 'shoulder to shoulder.'" 

I'll drink to that.   

New York in the Supreme Court

As the United States Supreme Court moves towards the conclusion of its 2008 Term at the end of June, it has completed all oral arguments and has over 25 cases to decide. Two of those cases bear directly on New York.

In Cuomo v. The Clearing House Association New York maintains that the National Bank Act does not preempt state enforcement of state laws against national banks. The case was argued in the Court on April 28. Barbara D. Underwood, Solicitor General of New York, appeared for the state.

In 2007 the United States Court of Appeals for the Second Circuit ruled against New York. 510 F.3d 105. But the severe financial downturn since then has exposed deep flaws in the federal regulation of banks, and the question is to what extent, if any, will the financial crisis affect the Justices' determination of the preemption question. 

In Haywood v. Drown the Supreme Court addresses a question which divided the New York Court of Appeals 4-3. Haywood v. Drown, 9 N.Y.3d 481 (2007). Pursuant to Correction Law § 24, New York courts have no jurisdiction under state or federal law to entertain civil actions for money damages against correction officers. In an opinion by Judge Graffeo, the majority ruled that the statute does not violate the Supremacy Clause of the Constitution by barring New York courts from adjudicating federal civil rights actions under 42 U.S.C. § 1983. Judge Jones wrote a dissent in which Judges Smith and Pigott joined. 

The case was argued on December 3, 2008. The six months since oral argument suggest the Supreme Court will be divided, too. Solicitor General Underwood also argued this case.

Note: With all the chatter that New Yorker Sonia Sotomayor may be nominated to replace Justice Souter on the Supreme Court, her opinions on the Second Circuit have become the subject of much attention, and the attention will undoubtedly intensify if she is nominated. For a detailed look at her appellate opinions in civil cases, see scotusblog for May 15 and 18.

           

The Patron of Lawyers

As we approach May 19, I am reminded of the debate over who is the patron saint of lawyers. There are those who insist it is Thomas More, the 16th century English Chancellor who was tried, convicted, and executed for treason when he refused to compromise his religious convictions to accommodate Henry VIII.

There are others who insist it is Yves of Treguier, who died on May 19, 1303, and was canonized in 1330.

Yves was born in 1253 in Kermartin, a small village near Treguier in Brittany, France. (He is also called Ivo of Kermartin.) A lawyer in both the civil and ecclesiastical courts, he became famous for representing the poor without charge. Some say he inspired modern day legal aid. He became the judge of his diocese and his fame grew when he refused to accept bribes, which apparently were the order of the day.

On the third Sunday of every May there is a grand pardon (pilgrimage) in Treguier to honor and celebrate his life. Hundreds of lawyers, from around the world and of different religions, join the procession with thousands of Bretons in attendance. A reliquary with Yves’ skull is carried through the streets to the chapel which marks the place of his birth.

The debate over who is the patron of lawyers will not be resolved. I like to think that Thomas More and Yves of Treguier represent two aspirations of the profession: More the principled stand against oppressive government, and Yves the provision of legal services for the disadvantaged and needy.

GPS and the Right to Privacy

Last week I wrote that the early rulings of the new Chief Judge of the Court of Appeals, Jonathan Lippman, indicate that a liberal voice has taken the center seat at the Court. Any doubts about this are put to rest by today's ruling in People v. Weaver in which Chief Judge Lippman makes a resounding affirmation of the right to privacy in New York.

Harking back to Justice Brandeis' invocation of "the right to be let alone" in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928), Chief Judge Lippman's opinion for the four-judge majority concludes it was unconstitutional for the police, without a warrant, to place a global positioning system (GPS) device inside the bumper of a van and to then continuously monitor the van's movements for the next 65 days. The opinion notes that while a GPS device tracks the vehicle, this tracking information allows the government to obtain all sorts of information about a person's private life such as "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment, the strip club, the criminal defense lawyer, the mosque, the synagogue or church, the gay bar and on and on." This type of surveillance, the opinion concludes, requires a search warrant. 

Significantly, too, the opinion explicitly states the ruling is not based on the United States Constitution, but is based solely on Article One § 12 of the State Constitution ("we premise our holding on our State Constitution alone").  This places the ruling beyond United States Supreme Court review. 

This is a major ruling and much will be written about it in the months and years ahead. The opinion breathes new life into state constitutional law, and the 4-3 split illustrates the liberal-conservative fissure on the Court. But for the moment it is best to simply observe the emergence of a strong Chief Judge prepared to boldly lead his court.       

Denied With An Explanation

While not an everyday occurrence, it is not unusual to read an opinion of a Justice of the United States Supreme Court dissenting from the denial of the petition for a writ of certiorari. These opinions not only provide insight into that Justice's thinking, but they sometimes provide a roadmap for how cases like it may garner the four votes needed for the writ to be granted.

I do not recall ever seeing an opinion of a Judge of the New York Court of Appeals dissenting from the Court's denial of a motion for leave to appeal to that court in a civil case. When the Court denies the motion on jurisdictional grounds such as lack of finality, the Court will so state, but members of the Bar will complain that these brief statements often shed little light on such arcane matters as finality.

In criminal cases the application goes to one judge. Each judge considers more than 350 applications each year, so it is unreasonable to expect an explanation for the over 98% which are denied.

It therefore came as a pleasant surprise last week when Judge Robert Smith issued an opinion explaining why he was denying the application in a criminal case (People v. Sevencan). The opinion states, "Publication authorized by the Court," which implies that it reflects the views of the other members of the Court. The opinion addresses a particular class of criminal appellants, and is a useful explanation for why the Court is unlikely to accept their cases for review. Whether other judges on the Court will follow Judge Smith's example remains to be seen, but it is a welcome development.

Lincoln the Lawyer

As America celebrates the 200th anniversary of Abraham Lincoln's birth in 1809, it is worth recalling that Lincoln was a famous and busy lawyer before he was President. Yesterday I came across his statement about the profession:

"DISCOURAGE LITIGATION. PERSUADE YOUR NEIGHBORS TO COMPROMISE WHENEVER YOU CAN. POINT OUT TO THEM HOW THE NOMINAL WINNER IS OFTEN A REAL LOSER IN FEES, EXPENSES AND WASTE OF TIME. AS A PEACEMAKER, THE LAWYER HAS A SUPERIOR OPPORTUNITY OF BEING A GOOD MAN."

Good thoughts to take into the weekend.

The New Chief Judge

As the speculation grows as to who will be Justice Souter's successor on the Supreme Court, of more immediate concern to New Yorkers and members of the New York Bar is the state's new Chief Judge, Jonathan Lippman.

While Chief Judge Lippman has been sitting on the Court of Appeals for only three months, his rulings and public pronouncements already offer a glimpse of what lies ahead.

Cases: it appears that the Chief Judge will not be shy about dissenting. The first day on which his name appeared on a full opinion--March 31, 2009--he and Judge Jones joined Judge Ciparick's dissent in People v. Kalin, in which the majority made it easier for criminal complaints to state a prima facie case.

That same day Chief Judge Lippman wrote the majority opinion holding that in a civil case it is reversible error--not subject to harmless error analysis--for a trial judge to refuse a request to poll a jury after it announces its verdict. The decision (Duffy v. Vogel) is a thoughtful statement on the importance of the jury poll.

Since March 31st Chief Judge Lippman has been the author of two more opinions, both criminal cases: In People v. Goldstein he wrote for a unanimous court in rejecting a claim that the defendant was not adequately informed of the consequences of his guilty plea; and in People v. Borrell (decided today) he wrote for the majority that the defendant was not denied the effective assistance of appellate counsel. The Borrell opinion is notable for its frankness in acknowledging that the standard for the effective assistance of appellate counsel is not very demanding, a conclusion that will be disheartening for those of us who think the courts have not been demanding enough in assessing the constitutional effectiveness of counsel in criminal cases.

On the civil side, Chief Judge Lippman has not authored any other full opinion except for the jury poll case. He did, however, join Judge Pigott's dissent from the grant of summary judgment against an injured worker (Ferluckaj v. Goldman Sachs & Co.); he joined Judge Ciparick's dissent from a ruling which absolved a town of liability for a personal injury because notice of the sidewalk defect was not filed with the correct town official; and he joined Judge Pigott's majority opinion in Passante v. Agway Consumer Products, Inc. which the three dissenters claim has rewritten New York's product liability law.

At the time of his selection as Chief Judge the conventional wisdom was that Chief Judge Lippman would be one liberal vote replacing the liberal vote of outgoing Chief Judge Kaye. The early signs suggest that he will be more liberal than Chief Judge Kaye, and not hesitant to dissent.

Public Pronouncements: since his elevation to Chief Judge, there has been a flurry of announcements on a variety of administrative and substantve matters. Two are of particular note.

First, the Chief Judge has stated he wants to examine why the Court of Appeals grants so few criminal leave applications. For example, in 2006 there were 2,436 applications, and the judges of the Court granted 53 applications, or approximately 2% of the requests. The Bar has long complained that too few criminal cases are accepted by the Court, and the new Chief Judge's interest in the matter is welcome.

Also welcome, is the announcement that the Chief Judge is creating a commission on wrongful convictions. The fact that the Chief Judge has expressed such a concern so early in his tenure sends an important message--but only time will disclose whether the incidence of wrongful convictions will change.