COURT FIGHT OVER NEW YORK'S NEXT TOP JUDGE PITS DEMOCRATIC GOVERNOR WITH REPUBLICAN ALLIES AGAINST FELLOW DEMOCRATS

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The fight between Democratic New York Gov. Kathy Hochul, her Republican allies and Democrats in the State Senate over her attempt to make former prosecutor turned appeals court judge Hector LaSalle the State's next top judge is headed to a dramatic courtroom showdown.

LaSalle was Hochul's nominee to be Chief Judge of the Court of Appeals, New York's highest court. He faced intense public and political backlash from Democrats for decisions favoring corporations and police. The State Senate Committee on the Judiciary rejected LaSalle's nomination in a marathon, five hour-long public hearing Jan. 18. 

“The committee has spoken, the nomination was lost,” Senate Majority Leader and President Pro Tempore Andrea Stewart Cousins told journalists after the vote.

“The Senate has rules about how things get to the floor,” she explained. “And our rules dictate that we go through committees, and ... if the committee does not advance something, it does not go to the floor.”

Gov. Hochul fired back "While the Committee plays a role, we believe the Constitution requires action by the full Senate."

Republican State Sen. Anthony Palumbo filed a lawsuit to force a vote by the full senate in State Supreme Court in Suffolk County on Thursday, court records show. Paperwork filed by the ranking Republican on the Senate Committee on the Judiciary parrots Democratic Gov. Hochul's claim that the Constitution requires the full Senate to vote on LaSalle's nomination.

Judge Thomas F. Whelan scheduled an emergency hearing for Feb. 17.

The linchpin of Palumbo's suit is his contention that a vote of the full senate is required by Article VI of the Constitution, which says:

The governor shall appoint, with the advice and consent of the senate, from among those recommended by the judicial nominating commission, a person to fill the office of chief judge or associate judge, as the case may be, whenever a vacancy occurs in the court of appeal.

According to Palumbo's lawsuit, "advice and consent of the senate" means the full senate. "The Constitution does not delegate that authority to a committee."

Polumbo's lawsuit faces a high hurdle: the Constitution requires Government be split and divided by "separation of powers." 

“Ambition must be made to counteract ambition," Alexander Hamilton and James Madison wrote in Federalist Papers No. 51, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. The U.S. Constitution breaks the Federal Government into three separate branches. Congress has the primary power to enact laws; the President enforces the laws Congress enacts; and the judiciary applies the law in specific cases and controversies. 

States are not under any Federal obligation—constitutional or otherwise—to observe any particular structure of Government but all 50 state constitutions establish the same tripartite structure the Constitution requires for the Federal Government.

"The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions," New York's highest court, the Court of Appeals, has repeatedly held.  

Article III of the New York Constitution creates the "legislature." Section 1 states: "The legislative power of this state shall be vested in the senate and assembly." Section 9 ("Powers of Each House.") gives the Senate not just the power but imposes an affirmative legal obligation on it to "determine the rules of its own proceedings."

The State Senate established 16 Rules.  Rule 8, Section 6 governs "nominations." It requires the President Pro Tempore to refer nominations to "the appropriate standing committee[] "for consideration and recommendation"—”unless the Senate orders otherwise.” The Rule does not specifically require judicial nominations be voted on by the full senate—”unless the Senate orders otherwise.”

Since the full Senate has not ordered “otherwise,” the judicial committee’s vote quashed the LaSalle nomination. The Constitution grants the Senate the power to order its internal affairs with Rules and Senate Rule 6 grants the committee on the judiciary the right to make decisions for the full senate on judicial nominees. That’s it. The Republican lawsuit should end there. 

The New York State Constitution can be an extraordinarily precise document for a constitution. Its so precise, for example, it gives trees in the state Forest Preserve rights and has done so since 1895. New York’s Constitution is also an extraordinarily Progressive charter because its readily amendable. Since it was first adopted in 1777, its been rewritten five times, according to the Historical Society of the New York State courts, and it was amended 202 times between 1821 and 1987. Two amendments were approved by the People as recently as 2021.

Legislative committees and nominations aren't new. They're almost as old as time. If the People of New York meant to eliminate committees and require its state legislature to conduct full votes on judicial nominations they would have specifically said so at some point in the State's long history. They did not.

Instead, what the People of New York did was grant Committee action immunity from lawsuits like the one filed by Sen. Palumbo under Section 11 of the Constitution: "For any speech or debate in either house of the legislature, the members shall not be questioned in any other place." 

That’s what I’d argue anyway, if I was the Senate’s lawyer.

And yet, Hochul and her Republican allies do have a shot at winning the lawsuit. Not because their interpretation of the State Constitution is correct, but because of Realpolitik.

With its judges appointed by governors, the Court of Appeals has tended to interpret the state constitution in ways that increase the power of the Executive Branch. In Silver v. Pataki (2004), for example, it held that former Gov. George Pataki did not violate the state constitution by using line item vetos to strike parts of the legislature-approved budget. 

There's also a wild card in LaSalle's favor. 

The seven-member Court of Appeals—with the chief judge vacancy LaSalle's nomination is meant to fill—is evenly split between Conservatives and Liberals at 3-3. That means, in the event of a tie, the decision by the court below it will become the decision that controls the outcome of the case. Because Palumbo filed his lawsuit in Suffolk County, that court is the Appellate Division, Second Department.

It's the court LaSalle himself currently leads. If it rules in his favor, and the Court of Appeals splits, he wins the lawsuit.

In the end, even if Hochul and her Republican allies force a full Senate vote, there's no guarantee LaSalle has enough votes to win. Especially since the lawsuit will likely polarize the overwhelmingly Democratic Senate along party lines.

Bottom line: Hochul, LaSalle and Republicans face long odds in court.

Maybe they’ll have better luck in the state budget negotiations currently under way. That seems the more likely way the impasse over LaSalle will be resolved. How badly does Hochul want LaSalle? How much is she willing to give the Legislature for him? Will Democrats fold and give Hochul LaSalle in exchange for some fat, budgetary bacon to bring home to their districts?

Time will tell. Stay tuned.

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