By Matthew Bova.
Although it is hardly conclusive evidence of a judicial nominee’s approach to the law, prior professional experience can shed important light on the issues our next Chief Judge will seek to tackle when leading our high court. Alicia Ouellette and Abbe Gluck’s careers as professors of law, and Corey Stoughton’s career as a civil rights attorney, may go a long way towards improving the Court’s approach to doctrine, procedure, and practice. These candidates should be given a close look by the Governor.
Doctrine
Too often, Court of Appeals decisions leave important questions unresolved (or simply unmentioned), punt on an issue, lack reasoning, or fail to seek consistency in our jurisprudence. E.g., People v. Blandford, 37 N.Y.3d 1062 (2021) (appeal implicated clear inconsistency between New York law governing canine searches and a recent Fourth Amendment decision from the Supreme Court (Rodriguez v. United States, 575 U.S. 348 (2015)); although defense counsel raised the Fourth Amendment claim before the trial court and expressly cited Rodriguez, the Court, over a three-judge dissent, found the claim unpreserved and thus did not clarify the law); People v. Ibarguen, 37 N.Y.3d 1107 (2021) (declining, again over dissent, to decide whether a social guest has Fourth Amendment “standing” even though the suppression court squarely reached that question, instead referring to the lower court’s sound exercise of “discretion” without clarifying how a legal rule can be “discretionary”); People v. Jorgenson, 26 N.Y.3d 85 (2015) and Transcript of Oral Argument at 8-9 (appellant expressly argued that sufficiency-of-the-evidence claims should be immune from preservation rules; Court found the evidence insufficient without mentioning preservation, leaving the issue unsettled to this day); People v. Reyes, 83 N.Y.2d 945 (1994) (holding, with no analysis, that a command to stop is a mere “request for information,” paving the way for officers to have virtually unfettered authority to command New Yorkers to halt without any suspicion at all). The result is inconsistency and confusion in doctrine and, all too often, the absence of any governing rule.
This reality was best put on display recently in People v. Hemphill, 35 N.Y.3d 1035 (2020), where the Appellant challenged, on Confrontation Clause grounds, a New York rule that a defendant “opens the door” to otherwise inadmissible out-of-court statements merely by presenting a defense that renders those statements relevant. In one sentence and with no analysis, the Court of Appeals rejected Mr. Hemphill’s Sixth Amendment claim on expedited “SSM” review (truncated letter briefing and no oral argument), vaguely referring to a sound exercise of “discretion” by the trial court. 35 N.Y.3d at 1036.
The Supreme Court granted certiorari and reversed, holding that the New York rule was “antithetical” to the Sixth Amendment. Hemphill v. New York, 142 S.Ct. 681, 692 (2022). Commenting on this ruling in the New York Law Journal, Christopher Dunn of the New York Civil Liberties Union (a former colleague of Corey Stoughton), referred to a “Shrinking New York Court of Appeals,” hoping that the Hemphill Supreme Court decision would “prod the court to recognize a need to pay more attention” to the rights of the accused.
Doctrinal specialists, such as Professors Gluck and Ouellette, have spent their careers “paying attention” to legal doctrine by critically analyzing and developing it. E.g., Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898 (2011) (analyzing Erie doctrine in “a decade’s worth of state and federal cases”; concluding that this area of the law contains “doctrinal inconsistencies” and that courts are “getting the Erie question wrong” or are not even “aware that the question exists in the first place”); Alicia Ouellette, Shaping Parental Authority Over Children’s Bodies, 85 Ind. L.J. 955 (2010) (challenging the assumptions underlying the law governing a child’s autonomy over surgical decisions and proposing a comprehensive new approach). Professors Ouellette and Gluck are likely to be troubled by a conclusory and un-critical approach to fundamental questions of law, such as the approach displayed in Hemphill. In turn, they may “prod the Court” (Dunn, above) to move away from conclusory decision-making and towards the comprehensive articulation of New York jurisprudence.
Corey Stoughton, a civil rights attorney who has argued countless constitutional cases at the trial and appellate level, can also bring a new approach to legal doctrine, particularly when it comes to rules of appellate procedure. Appellate procedure is not exactly a headline grabber. It’s dry and cable news never covers it. But a civil rights attorney knows a simple reality: procedure is power. Procedural rules, such as preservation, standing, etc., are critical to justice as they control access to judicial review—the cornerstone of any constitutional system. Civil rights practitioners also know that when procedural rules are vague and unclear, a court’s subjective discretion may end up carrying the day. A civil rights attorney, concerned about appellate procedure’s impact on an individual’s ability to vindicate their rights, can be trusted to carefully approach threshold questions of procedure with an eye towards avoiding arbitrary bars to merits review.
The Every-Day Work of the Court
Reform of every-day Court of Appeals practice is also important. A civil rights attorney who is concerned with full and fair access to the court system would be a good candidate for much-needed reform of Court of Appeals practice rules.
The Court’s refusal to adopt an e-filing system, coupled with a rule pinning deadline compliance to the receipt of papers by the Court as opposed to the traditional mailbox rule (thus subjecting timeliness to a mail carrier’s success), wastes resources and causes needless anxiety for litigants and their counsel. A practicing civil-rights attorney, familiar with the stress of deadlines when a client’s liberty is on the line, is likely to be sensitive to such issues.
Similarly, a seasoned practitioner may very well tackle the Court’s approach to oral argument—a common frustration amongst the appellate bar. Currently, the Court of Appeals typically gives parties ten minutes to argue cases, even though the rules authorize thirty. Litigants routinely wonder how an issue can have statewide significance and yet merit only ten minutes of discussion (most people, after all, spend more than ten minutes figuring out what to eat for dinner). A seasoned litigator who has put in the time preparing for oral argument and understands its value is likely to be willing to do something about the ten-minute rule. Law professors, whose careers are necessarily marked by the constant exchange of ideas and debate, can also be trusted to right the ship here.
There are systemic issues that a civil rights attorney may be particularly interested in too. As commentators and former Court of Appeals Judges have long observed, the procedures governing criminal-leave applications are broken. E.g., Judge Eugene F. Pigott Jr., Criminal Leave in the Court of Appeals a Case of Implicit Bias?, 85 Alb. L. Rev. 165 (2022) (forthcoming). Unlike a civil motion for leave to appeal, which is assigned to the entire Court and is granted upon the vote of two Judges, a criminal-leave application—a defendant’s last chance for state review—is randomly assigned to a single Judge. Each Judge has sharply different approaches—and drastically distinct leave-grant rates—thus creating an arbitrary lottery system that the bar has criticized for decades. Similar arbitrary treatment reigns in the SSM context, where cases seem to be randomly placed on the “SSM track” and resolved with curt, conclusory memoranda, even where they produce dissenting opinions. An attorney such as Corey Stoughton, who has spent her career seeking to reform the law and the courts, can be trusted to tackle systematic problems with Court of Appeals procedure.
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In the last 25 years, the court has seen a great deal of turnover, but, with the singular exception of Judge Jenny Rivera, has not elevated a full-time law professor or civil rights attorney to its ranks. Both backgrounds can be quite helpful to bringing about meaningful change that will enhance the quality of the court’s day-to-day work and its ultimate jurisprudence.