Debate ramps up over nominee

ALBANY — A week after Gov. Kathy Hochul nominated state Supreme Court Presiding Justice Hector D. LaSalle to be chief judge of the Court of Appeals, 11 Democratic senators and a large number of special interest groups and labor organizations issued a searing rebuke, casting him as “anti-abortion, anti-union and anti-due process.”

They urged the governor, who described him as an “outstanding jurist,” to rescind LaSalle’s nomination and consider three other candidates, none of whom they said had demonstrated the “pro-prosecution bias” of LaSalle. But some court observers contend that characterization of the jurist is unfair and misplaced, and that the appellate court decisions they have cited do not establish that his record is what they say it is.

The groups’ Dec. 29 statement included support from Deputy Senate Majority Leader Michael Gianaris and Sens. Gustavo Rivera, Robert Jackson, Julia Salazar, Samra Brouk, Jabari Brisport, Kristen Gonzalez, Michelle Hinchey, Rachel May, Cordell Cleare and Lea Webb. Three other senators have since joined the public opposition — Jessica Ramos, John Liu and Shelly Mayer.

“We applaud ... Gianaris and his Senate colleagues for their commitment to protecting the rights of workers, tenants, women and all New Yorkers,” Peter Marin, director of judicial accountability at the Center for Community Alternatives, said in a statement issued with the groups’ announcement. “With a judicial record that is antilabor, anti-abortion and anti-due process, Justice Hector LaSalle is the wrong choice to lead New York’s highest court.”

Vincent M. Bonventre, an Albany Law School professor who clerked for two Court of Appeals judges, recently analyzed the cases cited by the opposition groups and said those decisions do not support the allegations that LaSalle is a pro-police jurist opposed to women’s rights or labor interests.

“The opposition to him, what they’re saying about his votes and his opinions, is just absurd,” said Bonventre, who acknowledged he has liberal views and would like to see a more progressive candidate preside over the state’s highest court. “You think the court needs a chief judge that’s more liberal, that’s perfectly fine, I even agree with that, but don’t unfairly mischaracterize his votes and his opinions and make him sound like some right winger. That’s not what this judge is about.”

Senate Majority Leader Andrea Stewart-Cousins, in an interview with Ben Max of the Gotham Gazette on Friday, said the trajectory of the Court of Appeals, which has faced criticism from Democrats for being too conservative, including under the leadership of recently departed Chief Judge Janet DiFiore, needs to go in a different direction. She said the commission that had selected the list of judicial candidates for the governor to choose from was heavily weighted by members appointed by DiFiore and former Gov. Andrew M. Cuomo.

“Here we are, and it’s difficult because people have decided long ago that we were looking for someone who was going to be ... not part of the status quo,” Stewart-Cousins said. She noted that other senators beyond the 14 who have publicly opposed LaSalle have told her they will not support a vote confirming him.

“I do not see this ending in the way the governor (wants),” she added. “I met with Judge LaSalle and we had a very pleasant conversation. I told him what the situation is on the ground. ... The reality is in my conference the numbers are not there.”

To buttress their allegation that LaSalle is pro-prosecution, his opponents have cited a dissenting opinion issued by LaSalle in a case in which the appellate division ruled that police officers did not have probable cause to arrest the driver of a vehicle after two suspects in an armed robbery fled from officers and jumped into the waiting vehicle. The court’s majority said police should not have arrested the driver because he could have been innocent rather than a getaway driver.

LaSalle, in his dissent, said the suspects who ran from police “entered the rear of a nearby vehicle, and (officers) observed the defendant fumbling with the keys, attempting to put them in the ignition,” he wrote. “Contrary to the conclusion of the majority, in evaluating the totality of the circumstances, I do not believe the defendant’s behavior can be viewed as ‘innocuous.’ Indeed, in my view, the totality of the facts and circumstances would lead a reasonable person possessing the same expertise as the arresting officer to conclude that the defendant was acting in concert with (the suspects), in attempting to assist them to flee the scene of the home invasion.”

In his online law blog, Bonventre noted in his analysis of the cases that “as a self-acknowledged liberal, I would have agreed with LaSalle in this admittedly close case.”

Brooklyn District Attorney Eric Gonzalez issued a statement in support of LaSalle this week, acknowledging that while the “history of wrongful convictions in our state is systemic and heartbreaking,” it’s unfair to suggest that LaSalle has contributed to that issue.

“A careful and objective review of Justice LaSalle’s record on criminal matters (before) his bench makes clear that his decisions are firmly grounded in sound interpretation of the law, and that he has repeatedly found for defendants who have been deprived of a fair trial due to misconduct or error by prosecutors, ineffective assistance of defense counsel, or flawed decisions by trial judges,” Gonzalez wrote.

Another case cited by opponents of LaSalle involved a 2013 subpoena issued by the office of then-state Attorney General Eric T. Schneiderman to Evergreen Association Inc., a not-for-profit that had operated pregnancy crisis centers in New York City. The volunteer organization, which arguably presented itself as a medical provider although no employees had medical credentials, promoted that it sought to assist women with unplanned pregnancies to pursue “alternatives to abortion so that they may keep and love their babies.”

Schneiderman’s office sought to investigate the nonprofit, which often had offices in medical facilities, after public concerns were raised about its practices, including a finding by the New York City Council that Evergreen had “engaged in conduct which could constitute the unauthorized practice of medicine, including evaluating fetal health and requesting the medical history of clients,” according to court records.

The attorney general’s office had said its preliminary investigation found evidence that Evergreen may be “engaged in the unauthorized practice of medicine, including more proof that Evergreen facilities are located in medical buildings and designed like medical clinics, that Evergreen refers to its clients as patients and requests their medical information, and that Evergreen conducts pregnancy tests and makes diagnoses regarding pregnancy ... and gestational age.”

The issue later came before the appellate court after Evergreen moved to quash the attorney general’s subpoena. The nonprofit argued that the attorney general’s subpoena was the result of a politically motivated “fishing expedition” and that its request for three years of records was overly broad and potentially violated the organization’s constitutional rights.

The appellate division, in a unanimous decision that La-Salle joined, ruled that the attorney general’s subpoena sought records that may go beyond the scope of its investigative needs. The subpoena sought, for instance, information such as its funding sources and the names and credentials of all of its staff members.

But the decision did not quash the subpoena. Rather, the court ruled that any responsive documents should be reviewed in-camera by the state Supreme Court justice presiding over the case, and that the judge should disclose to the attorney general’s office “only those documents that are substantially related to the attorney general’s legitimate need to gather evidence to determine whether (Evergreen) has engaged in the unauthorized practice of medicine and which do not unnecessarily intrude on (its) First Amendment right to freedom of association.”

Bonventre contends the 2017 appellate decision followed legal precedent by the U.S. Supreme Court in not allowing a government agency “to get lists of members of these organizations, or who the donors are, unless the government has some extremely strong reason, like national security.” He described the appellate division’s narrowing of the attorney general’s subpoena as “hardly a ‘shocking’ threat to women’s rights.”

Jonathan Lippman, who served as chief judge of the Court of Appeals from 2009 through 2015, recently wrote an op-ed in the Times Union in which he said LaSalle, who presides over the largest and busiest appellate court in the U.S., is “extraordinarily qualified” and that the criticism of him has been unfair.

Lippman wrote that LaSalle “has not been given a fair hearing. To my surprise, some are already jumping to conclusions based on innuendo and skimpy evidence.”

“Judges are not just politicians in robes. The only appropriate way to assess them is to look at their entire career and the fairness and empathy reflected in the full array of their work,” Lippman continued. “That’s how the state Senate looked at me during my confirmation process, and at all the other chief judges who have come before them. When they do, I am confident they will see LaSalle as a fair, compassionate and thoughtful jurist.”

But the opposition to LaSalle has been mounting and numerous lawmakers and special interest groups, including reproductive rights groups, labor organizations and criminal justice advocates, are planning a news conference at the Capitol on Monday to increase the pressure on Hochul to withdraw the nomination.

“Justice LaSalle’s record shows he is quick to bow to anti-abortion extremists,” the groups wrote in news release. “In 2017, he curtailed the (attorney general’s) investigation into a network of ‘crisis pregnancy centers,’ sham medical clinics that use false info(rmation) to mislead and coerce pregnant patients. He is the wrong choice.”

On the opening day of the year’s legislation session earlier this week, Senate Minority Leader Rob Ortt said he was deeply disappointed to see so many Democrats outright reject LaSalle without a review process. He said his conference was looking forward to “considering (LaSalle’s) appointment with an open mind.”

For Hochul, the dwindling support of LaSalle in the Senate’s Democratic conference is making it more likely that it may require every Republican member of the chamber’s Judiciary Committee to support his nomination in order to get the matter to the floor for a vote.