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Poor Form By Former NY Judges


Governor Kathy Hochul nominated the Presiding Justice of the New York Supreme Court, Appellate Division, Second Department, Hector LaSalle, to be Chief Judge of the New York Court of Appeals, filling the vacancy of former Westchester County District Attorney Janet DiFiore, who had replaced Jeanine Pirro when she was bumped to judge to get her out of the job. One of the things people often fail to realize is that political parties use judgeships as payoffs or dumping grounds to get rid of people.

Why Justice LaSalle is unclear. Was this payment of a debt? It’s hard to imagine that Hochul knew or cared anything about him personally, as she couldn’t find Brooklyn without a map, and LaSalle’s history was as a prosecutor, a past position over-represented already. The last thing New York needed was another former prosecutor on the Court of Appeals, keeping them the majority voting bloc as appointed by Dem governors who feared being viewed as soft on crime.

It might be chalked up to Hochul pretending to do something about crime by choosing a former prosecutor,who also would have been the first Hispanic chief judge in New York, but so few people notice or care about the chief judge,  there was little mileage to be gained here. Normally, this flies way below the radar.

Not this time. Progressives in the New York Senate were outraged by the choice. Activists were livid about what they saw as anti-abortion and anti-union decisions he joined. Law profs railed against the choice. I expressed opposition based upon his background as a former prosecutor. But not everyone thought Justice LaSalle was the wrong choice, and a group of former Appellate Division, First Department justices wrote a bizarre letter in support.

Perhaps some will read the language as bold, as it’s the sort of wording one might find on a blog written by some no-account trench lawyer. But these are former justices, using their status as former justices to establish their authority to both support Justice LaSalle and criticize the prawfs who opposed him.

In a campaign to derail the selection of Appellate Division, Second Department Presiding Justice Hector LaSalle as the next Chief Judge of the New York State Court of Appeals, a coalition of woke members of the legal academy have spewed false and misleading accounts concerning Justice LaSalle’s record as a judge. Some members of the Democratic majority in the State Senate that will vote on whether to confirm Justice LaSalle have unfortunately followed suit.

Whether the “members of the legal academy” were “spewing’ has nothing to do with whether they’re “woke,” but whether their argument has merit. The ex-judges counterargument was, well, remarkable, as the decisions of Justice LaSalle under scrutiny were “memorandum opinions.” To be clear, most appellate division decisions are memorandum decisions. So what?

Memorandum decisions are a feature of the intermediate appellate courts in New York – in particular the four Appellate Divisions. These decisions are relatively concise, to-the-point statements of the relevant facts, the applicable law and the result. They are, you might say generally, but not always, lean and mean and focus on providing an abbreviated analysis.Sometimes, but not usually, they arrive with a dissent annexed, usually short and to the point, like the majority position in the memorandum.

Memorandum decisions are not generated in the chambers of individual justices at the Appellate Divisions, who sit in panels to decide cases. They are initially the work-product of court attorneys who prepare bench memos to assist the justices in their work; the memorandum decisions are a by-product of the bench memo and are generally useful when there is unanimity on the part of the assigned panel of justices. The justices often modify these offerings with minor revisions or “tweaks;” they are meant to be voted on, finalized and released when there is agreement among the justices as to the core reasons for the result and there appears to be no further necessity for any expanded writing.

So the argument about actual decisions that establish actual law and are signed by actual judges and put actual people in prisons for decades is that they’re throwaways of no consequence written by back office staff and barely noticed by judges?

When it comes to the merit of judicial decisions, my focus is on the soundness of the reasoning rather than whether the outcome conforms with my politics or desires. As I’ve said many times, I’m strongly in favor of a limited right to an abortion as a matter of policy even though Roe v. Wade was an unsound decision. But when the defense of Justice LaSalle isn’t based on the strength of reasoning in the challenged opinions, but rather that the decisions were “just” memorandum opinions, so they don’t count, that’s a shocking position.

The reality – which knowledgeable law professors should know – is that the sheer volume of appeals that come to our Appellate Divisions necessitate conclusory memorandum decisions. Virtually every kind of order and judgment is appealable as of right. In the First Department for example, justices sit once a week and face an ever-growing calendar of twenty (20) or more appeals per sitting. If a detailed and painstaking reasoned decision was required for each appeal, the entire appellate structure would come to a grinding halt. For better or worse, these workmanlike memorandum decisions are the only answer to the crush load of cases. The Court of Appeals, with its restricted jurisdiction, does not shoulder this burden.

It’s true that the burden of appeals is heavy, though not nearly as heavy as it used to be when the volume of cases was double and triple what it is now back in the good old crack days. But if the job is too damn hard to do right, then quit and get a job at Biglaw. The problem isn’t the brevity of opinions. Hell, Brown v. Board of Education was only 12 pages long, for crying out loud. The problem is responsibility for opinions, regardless of the length of the decision or the length of the prison sentence you just carelessly affirmed.


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