sign in sign up
<<
Home , Dictatorship, Standard of review

nylj.com | Tuesday, May 1, 2018 | 9

Separation of Powers: Framework for Freedom

Our Commitment To Excellence Helps Keep Our Judiciary Strong and Independent

Janet DiFiore

Chief Judge of New York

his year’s Law Day theme, the much that we can do to keep our T“: Frame- branch of strong and work for Freedom,” invites us to resilient. Even with all the issues reflect on the vital role of the courts dividing Americans today, we should in our democratic system of govern- all be able to agree on the need for ment. The founders of our nation fair, accessible and well-functioning established three separate branches courts. Indeed, that is the vision and of government in a unique power- objective of our Excellence sharing arrangement that requires in the New York State courts, which each branch to serve as a check I announced as our top institutional on the power of the others. Their careful calibration of balanced photo Essay powers, intended to avoid tyranny and ensure liberty and freedom, Legislative Assaults has served our nation well from Innovation its inception. However, this proven On State Courts formula for will surely 2018 legislative trends that In New York fail if any one of the branches of pose the a threat to the role or government is weakened at the independence of the courts: State Courts expense of the others. And so there is cause for concern when we read • Injecting Into Judge Selection about officials and legis- Photographs • Politicizing Judicial Rulings, lators who engage in vitriolic per- by David Handschuh Discipline, or Court Rules sonal attacks on judges in order to publicly malign and punish them • Reducing Resources or Establishing ith the alarming num- for unpopular decisions. Michael More Political Control in Exchange Wber of opioid overdose Wines, “Judges Say Throw Out the For Resources fatalities in the Bronx and Map. Lawmakers Say Throw Out the •  Altering Judicial Term Lengths and throughout New York state, Judges,” New York Times, Feb. 14, Limits Chief Administrative Judge 2018. Of equal concern are legisla- • Protecting the From Lawrence K. Marks, in part- tive proposals pending in 16 states Court Rulings nership with Bronx County to diminish judicial independence •  Changing Size of Courts District Attorney Darcel D. by giving governors and Clark, announced the launch more power over judicial selection, Source: Brennan Center for Justice in Bronx County Criminal authorizing to override Court of two specialized court decisions on the constitution- court parts that specifically ality of , and enacting retal- target low-level offenders at iatory budget cuts. Brennan Center priority upon assuming the position George Grasso, above, supervising judge for Bronx Criminal Court, presides over the first case in the high risk of overdose. for Justice, Legislative Assaults on of Chief Judge in February 2016. The Overdose Avoidance and Recovery program at the Bronx County Criminal Court on Jan. 29. Bronx Coun- State Courts—2018. Excellence Initiative is focused, as The first such drug courts ty District Attorney Darcel Clark, below, announces two new specialized drug courts in Bronx County in New York City, the Over- Criminal Court on the same day. As judges, lawyers and citizens a threshold matter, on improving dose Avoidance and Recovery who care about the vitality of our the efficiency, timeliness and qual- (OAR) tracks, under the democracy, we must be vigilant ity of justice services delivered by direction of Bronx County in defending against unjust and our courts. It seeks, ultimately, to Criminal Court Supervising irresponsible attacks that erode promote excellence in all aspects Judge George A. Grasso, public confidence in the judiciary of judicial decision-making. By deliv- offer intensive treatment and impair its ability to serve as an ering high-quality justice services in lieu of incarceration to independent check on overreach that meet the modern-day needs misdemeanor offenders by the other branches. Judges, of and expectations of our litigants, the charged with criminal course, are ethically prohibited courts earn respect and credibility possession of a controlled from responding to criticism of their in the eyes our citizenry and our substance in the seventh decisions under the Rules of Judicial partner branches of government. degree who are at high risk Conduct. New York Code of Judicial When the public values the work of overdose. Eligible Conduct, Rule 100.3(B)(8). They of the judicial branch, we are far offenders who complete depend on their partners in the Bar better able to withstand the inevi- the OAR program will have to stand up for them so that they can table criticism that comes with our their cases dismissed continue to uphold the role as the arbiter of society’s most and sealed, averting the free of outside pressures and fear of contentious disputes. By contrast, collateral consequences retaliation. Fortunately, New York’s when we fail to meet core obliga- of a potential conviction— judges have enjoyed the vigorous tions, such as the delivery of timely, a strong incentive for partici- support of many statewide, local, affordable justice, we become easy pation in this voluntary court ethnic and specialty bar associa- prey for who seek to initiative. tions (as well as many public offi- subvert judicial independence for The Bronx program is the cials) who understand the impor- their own political ends. second such program estab- tance of keeping our judiciary strong As Chief Judge, the issue of pub- lished in the state. The earlier and independent. Mark H. Alcott, lic confidence is never far from my Opioid Intervention Court, “Defending Judges, Standing Up mind. On February 6th, I delivered opened in Buffalo last May, for the Rule of Law,” NYSBA Journal, the State of Our Judiciary Address was the first of its kind January 2018, pp. 20-24. and summarized the encouraging in the nation. While judges may not be able to progress we are making to improve engage in the rough and tumble of the fairness, efficiency and effec- political and civic debate, there is tiveness of our entire » Page 12

its mission and also fits properly Inside within the overall fiscal plan for Working Together to Achieve Excellence the state. Separation of Powers: Juvenile justice reform is anoth- A Tribute to My Father er example of the cooperative rela- by Rolando T. Acosta...... 10 support one another to be suc- budget. Each year our branch of tionship among the three branch- Lawrence K. Marks cessful. government drafts a comprehen- es. For far too long, New York was CPLR Article 78— Responsible for administra- sive financial proposal, taking into one of only two states that treated Central to the Rule of Law Chief Administrative Judge tion of the court system, the New consideration the fiscal climate of all young under the age of by Alan Scheinkman...... 10 New York State York State Judiciary’s mission is New York state at the time, and 18 as adults and processed them Unified Court System to promote fair and efficient jus- presents it to the Governor on in criminal court for even the Separation of Powers: tice. Chief Judge Janet DiFiore December 1st for the upcoming lowest-level crimes. For close to A Judicial Balancing Act has made this the singular focus fiscal year (beginning April 1st). a decade, the Judiciary had been by Elizabeth A. Garry...... 10 of her Excellence Initiative. In striv- In mid-January, the Governor a strong advocate for raising the ing for excellence, it is apparent transmits the Judiciary’s budget age of criminal responsibility in Protecting Our Country that, yes, we are an independent proposal, with any comments he this state. Addressing this prob- From Momentary Passions eparation of powers is a doctri- with each assigned responsibili- government entity, but to achieve may have, to the Legislature, along lem as best we could on our own, Snal element of both the federal ties and functions so that no one our goals we must receive support with the Executive Branch’s bud- we created Adolescent Diversion by Gerald J. Whalen...... 11 and New York state constitutions. branch is omnipotent. Separation and assistance from the two other get proposal. Representatives of Court Parts, designed to improve Derived from principles espoused of powers was designed to bind branches of government. Indeed, the Judiciary then have extensive the criminal courts’ treatment of Ensure That All Understand the by Montesquieu, the 18th century governmental authority by creat- the Judiciary must foster and discussions in the ensuing weeks 16- and 17-year-olds charged with Importance of an Independent French philosopher, the United ing tension among the branches, encourage cooperation among the with members and staff of the Leg- non-violent offenses. Although this Judiciary States from its very inception has with each limiting the others. Nev- three branches if we are to admin- islature and with Executive branch program yielded successes, it was by Sharon Stern Gerstman...... 11 strongly embraced this doctrine. ertheless, to accomplish impor- ister justice effectively. officials. This culminates in legisla- not enough. We recognized that Essentially, governmental author- tant goals and necessary reforms, Perhaps the leading example tive enactment of a budget by the there was only so much we could ity is divided into legislative, the three branches of government of the need for this collabora- start of the fiscal year that meets do independently of the other two Law Day: A ngela Turturro, Sections Editor executive, and judicial powers, frequently must collaborate and tive exchange is the Judiciary’s the Judiciary’s needs in fulfilling branches, and that the » Page 12 Monika Kozak, Design 10 | Tuesday, May 1, 2018 | nylj.com Separation of Powers: A Tribute to My Father CPLR Article 78—

of powers was not a lofty concept where appropriate. Moreover, we Rolando T. Acosta taught in school; he knew it was a are precluded from deciding legal Central to the Rule necessary ingredient to bring the questions based on our subjec- Presiding Justice dream of liberty and good govern- tive feelings (id. at 135-36); we are Appellate Division, ment to fruition. bound by written law, , Of Law First Department Our respect for the checks and and our oaths to uphold the Con- balances enshrined in the U.S. stitution and the rule of law. As Constitution is what has prevent- Cardozo put it: ed tyranny from taking hold. As [J]udges, even when [we are] Alan Scheinkman James Madison explained, “[t]he free, [are] still not wholly free. accumulation of all powers, legis- [We are] not to innovate at Presiding Justice honor my immigrant father by strong democratic institutions— lative, executive, and judiciary, in pleasure … . [We are] to draw Appellate Division, Iwriting about the core principle particularly an independent judi- the same hands, … whether heredi- [our] inspiration from con- Second Department that undergirds our democracy ciary with the will to respond to the tary, self- appointed, or elective, secrated principles … . [We and preserves our liberty: the encroachment of the executive on may justly be pronounced the are] to exercise a discretion separation of powers. For him, the the other branches of government. very definition of tyranny” (Madi- informed by tradition, method- concept is not only theoretical, but As the president of the country’s son, No. 47). Therefore, ized by analogy, disciplined by personal. He has experienced how powerful drivers’ union, my father to have a functioning democracy, system, and subordinate to the the balance of power anchors our and his organization were respon- judges must be free from undue primordial necessity of order ristotle is said to have authority under Article 78 can freedoms, and how without it, we sible for disseminating information influence and pressure from the in the social life. Aobserved: “It is more proper result in direct alteration of a are lost. throughout the island in the pre- executive or legislative branches, that law should govern than any determination made or discre- You see, my father grew up Internet era. As a result, he was as well as from private parties, Benjamin N. Cardozo, The one of the citizens.” Aristotle’s tionary act taken by a repre- under a dictatorship, which lasted jailed on several occasions around economic interests, or politics (see Nature of Judicial Process 141 pronouncement may well have sentative of another branch of more than 30 years. Unsurprising- the time of the country’s , Yash Vyas, "The Independence of (1921) (internal quotation marks been the genesis of the Rule of government, the Legislature ly, after that dictatorship fell, the his only “crime” being that he over- the Judiciary: A Per- omitted). Law, which may be distilled to strictly limited the scope of the country did not suddenly become saw and facilitated the distribution spective," 11 Third World Legal Thus, whereas judges must fol- the proposition that we are all courts’ review power. The court a model democracy. For years, the of information that is essential for Studies 127, 133-34 (1992)). low the law and, indeed, refrain governed by law, including the is permitted to consider only a caprice of those in power contin- voters to make educated choices Of course, judicial independence from deciding questions neces- individuals who hold governmen- limited set of questions, and ued to pass for justice, while each when electing their officials. He and does not mean a lack of account- sarily left to “coordinate branch- tal positions. It is recognized in the standard of review is highly political party that won an countless others were jailed for ability. Judges must be free even es of government” (Baker v. Carr, our current system of separation deferential—a restriction which brought with it its own constitu- exercising rights that many of us in from their own prejudices (id. at 369 U.S. 186, 217 (1962)), so too of powers by which our federal is a check on judicial overreach. tion. My father was one of the many the take for granted. 133), or at least be aware of those must the legislative and execu- and state constitutions distribute Specifically, in reviewing an unfortunate victims of the lack of So, for my father, the separation prejudices and recuse from cases tive branches respect » Page 12 power among three branches of administrative determination, government and provide mecha- the court may consider only nisms for each branch to check whether the determination “was and balance exercises of power made in violation of lawful proce- by the other branches. The dure, was affected by an error of judiciary is a check on both law or was arbitrary and capri- the executive and legislative cious or an abuse of discretion, branches but equally so those including abuse of discretion as branches have their own check to the measure or mode of pen- on the judiciary. alty or discipline imposed.” CPLR Among the means available 7803(3). An arbitrary and capri- to the judicial branch to curb cious determination is one that excesses by the other branch- “is without sound basis in reason es of government, the one that and is generally taken without comes most readily to mind regard to the facts.” Matter of is the power of the courts to Pell v. Board of Educ. of Union authoritatively pronounce that Free Sch. Dist. No. 1 of Towns of a particular legislative enactment Scarsdale & Mamaroneck, West- or executive action runs afoul of chester County, 34 N.Y.2d 222, 231 the Constitution or laws of New (1974). Stated differently, such a York. It is equally well known determination lacks a “rational of C ongress L ibrary that the legislative and executive basis.” Id. Where a determina- branches have the authority to tion was made after “a hearing overrule judicial constructions of held, and at which evidence was The Constitution, printed, legislation and to determine the taken, pursuant to direction by with marginal notes by George budget of the judiciary and set law,” the court may also consider Washington, Sept. 12, 1787, the compensation of the judges. whether the determination is above. At left, Howard Chandler These are weighty and important supported by “substantial evi- Christy’s painting “Scene at the issues that often garner media dence.” CPLR 7803(4). The Court Signing of the Constitution of headlines and galvanize public of Appeals has defined “substan- the United States” from 1940— attention. But in other ways, day tial evidence” as “such relevant “The United States Constitution sets out a system of national government with three branches—legislative one of the best known images in and day out, our courts play an proof as a reasonable mind may in the U.S. Capitol. The painting important role in protecting the accept as adequate to support a (Congress), executive (President), and judicial (Supreme Court). The Constitution vests important functions depicts Independence Hall in in each of the branches, meaning it gives them separate, distinct powers. This separation of powers and average person from the pros- conclusion or ultimate fact.” 300 Philadelphia on Sept. 17, 1787. Gramatan Ave. Assocs. v. State the principle of checks and balances aim to prevent any branch from getting too powerful and becoming pect of arbitrary governmental George Washington is the most overreach. One such way is Div. of Human Rights, 45 N.Y.2d oppressive.” prominent figure. through the use of Article 78 of 176, 180 (1978). American Bar Association, Planning Guide, “Separation of Powers: Framework for Freedom,” the Civil Practice Law and Rules. These standards reflect the (Law Day 2018) The judiciary has the abil- principle that the function of ity—and the responsibility—to a court engaged in Article 78 review actions taken by officers review is not to determine or administrative agencies that whether the officer or agency are not amenable to resolution in determined the facts or exer- a civil or criminal court proceed- cised discretion in the same Separation of Powers: A Judicial Balancing Act ing. Absent , gov- way the court would have, or ernmental agencies would have applied the law in a way that untrammeled authority to decide would produce the result that today as they were at our nation’s As the courts’ role in CPLR whether a person may engage in the court would have reached. Elizabeth A. Garry founding. Article 78 proceedings is intend- a particular occupation, keep Rather, the court’s task is essen- Administrative determinations ed to serve as a check—often on his or her employment, or even tially to determine whether the Presiding Justice are one of the primary ways that executive branch authority— drive a car. Traditionally, judicial officer or agency was applying Appellate Division, government affects the daily lives our standard of review is highly review of agency action took the the law at all, and whether it Third Department of our citizens. CPLR Article 78 deferential. In accord with the form of writs of mandamus to based its determination on the proceedings challenging these empowering us to review review and certiorari to review. facts, as opposed to acting for determinations are commonly government actions, these cases Those writs, along with writs of an impermissible reason, or for where we see the separation of may hinge upon whether “sub- prohibition and mandamus to no reason (i.e., arbitrarily and powers in action. Our court hears stantial evidence” supports a compel, were codified in what is capriciously). cases challenging the disciplinary determination or whether it was now CPLR Article 78, and those The degree of judicial restraint he Appellate Division, Third ernment; this is further revealed actions of public employers, the “arbitrary and capricious,” an powers of review are now gov- required in Article 78 proceed- TDepartment occupies a in our considerable administrative denial of government benefits, “abuse of discretion,” or lack- erned exclusively by Article 78. ings is occasionally challenging unique position among the three law caseload, which consistently prison disciplinary proceedings, ing a rational basis. CPLR 7803. See CPLR 7801. Literally every for judges, particularly Justices branches of our New York state reveals the balance and interplay parole board determinations, The Court of Appeals has gener- day, counsel bring Article 78 of the Appellate Division, who are government, both geographically between the legislative, executive tax assessments, professional ally explained that “rationality proceedings to challenge gov- accustomed to reviewing deter- and legally. Our courthouse is and judicial branches. discipline and license revoca- is what is reviewed under both ernmental determinations and, minations made by other courts located in the Robert Abrams We are reminded of the wis- tions, and zoning board deter- the substantial evidence rule by doing so, play an indispens- in the course of regular appel- Building for Law and Justice in dom and foresight of the indi- minations, among many others. and the arbitrary and capricious able role in assuring adherence late review. On a direct appeal, the State Plaza, just across viduals who crafted our system The Third Department hears standard” (Matter of Pell v. Bd. to the Rule of Law. Appellate Division Justices have the street from the State Capitol, of government when we see the a particularly large volume of of Ed. of Union Free School Dist. Proceedings under CPLR the ability, and sometimes the and next door to the Legislative separation of powers at work in these cases because our region No. 1 of Towns of Scarsdale and Article 78 often involve review- obligation, to review factual Office Building, where members our courtroom. As the branches is home to so many government Mamaroneck, Westchester County, ing determinations of execu- findings, to exercise interest-of- of the Assembly and Senate keep occasionally struggle with the agencies; in addition to Article 78 34 N.Y.2d 222, 231 (1974)) and tive branch agencies, and thus justice jurisdiction, and to sub- their Albany offices. Other Empire scope of their respective powers, proceedings, we have exclusive instructed that “where a deter- operate as a check on executive stitute their discretion for that of State Plaza neighbors include the and as we in the courts work to jurisdiction to review appeals mination is made and the person power by the judicial branch. trial-level judges. None of that, Erastus Corning Tower and the uphold our judicial duties without from workers’ compensation law acting has not acted in excess of This check, however, has itself however, is permissible when Agency Buildings, housing vari- encroaching on our legislative and (N.Y. Workers’ Compensation Law his jurisdiction, in violation of been limited by the legislative reviewing a determination by an ous executive departments. We executive colleagues, it is clear §23) and unemployment insur- lawful procedure, arbitrarily, or in branch, which enacted Article 78 officer or agency under Article are thus quite literally surrounded that checks and balances are ance determinations (N.Y. Labor abuse of his discretionary power, and retains the power to amend 78. In such a case, the court’s by our counterparts in state gov- as fully relevant and important Law §624). including discretion as » Page 12 it. Because a court’s exercise of review of the facts is » Page 12

President Harry S. Truman, sec- ond photo from left, at his desk at the White House on Dec. 16, 1950, signing a proclamation declaring a national in order to fight “Communist impe- rialism,” a reference to Chinese forces fighting against U.S.-led UN forces in the .

At left, Supreme Court Justice Hugo Black in 1937.

Far left, staff Sergeant James Walsh with the 25th Infantry Division in in 1951. A rchives and R ecords dministration N ational of C ongress L ibrary

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) stemmed from the Korean War. President Harry Truman sent troops to aid South Korea without asking Congress for a declaration of war. With an increased demand for steel because of the war, steel prices rose, and the United Steel Workers of America threatened a strike unless wages also increased. Fearing disaster if steel production came to a halt, Truman ordered his Secretary of Commerce to take possession of and operate the steel mills to ensure the military effort in South Korea would not suffer. The steel mill owners believed Truman’s order was unconstitutional because it was not authorized by any law, and so the case landed before the U.S. Supreme Court. Truman argued that, as Commander in Chief, he had authority to seize and operate the mills. The majority opinion, authored by Justice Hugo Black, limited the President’s power to seize private property without either specifically enumerated authority under Article P roject C ollection V eterans H istory Two of the U.S. Constitution or statutory authority conferred on him by Congress. nylj.com | Tuesday, May 1, 2018 | 11

9, 1937 (online by Gerhard Peters Protecting Our Country From and John T. Woolley, The American Ensure That All Presidency Project). He framed the court’s recent decisions as directly thwarting the will of the American Momentary Passions people, specifically the voter- Understand the imposed mandate for Congress and the president to protect the Gerald J. Whalen and expeditious political prog- nation against another economic Importance of an ress created a “struggle between depression. The court had become, Presiding Justice every progressive administration in his opinion, an unbridled “super- in our history against the Federal legislature,” one against which Appellate Division, bench.” Id. the nation was required to “take Independent Judiciary Fourth Department Jackson’s rebuke that night action to save the Constitution of the “paralyzing complexity of from the Court and the Court from government” (id.) unintention- itself.” Id. ally foreshadowed Franklin D. Roosevelt was not the first Sharon Stern Gerstman Roosevelt’s attempt to change the president to suggest a fundamen- n a 1937 speech to the New York gress looks forward to results, personality, if not the functionality, tal conflict between the court’s President IState Bar Association, then-Assis- the courts look backward to of the court to an institution more power of review and the politi- New York State tant Attorney General Robert H. , the President sees supportive of his goals. Robert H. cal principles of a representative Bar Association Jackson offered a stark view of the wrongs and remedies, the Courts Jackson, That Man: An Insider’s government. Lincoln opined in Supreme Court’s role in govern- look for limitations and express Portrait of Franklin D. Roosevelt his first inaugural address that ment. He posited that the judicial powers. The pattern requires the 50-51 (Oxford University Press “if the of the government, branch, with its “[u]nreasoning Court to go forward by looking 2003). In his address introducing upon vital questions affecting the devotion to precedent” in igno- backward.” Id. Jackson’s specific the so-called court-packing plan, whole people, is to be irrevocably rance of the realities of life, had target that night was the monop- Roosevelt pulled no punches in fixed by decisions of the Supreme ost lawyers have a limited that fifth-grade class, and unless created a “[g]overnment by liti- olizing of the Court by the legal accusing the court of acting as Court, the instant they are made, Mneed to consult the five arti- any of us is a constitutional gation” in contravention of effec- profession, with its penchant for a policy-making body, not a judi- … the people will have ceased to cles of the U.S. Constitution, and scholar, probably not much with tive policy enforcement. Robert H. technical legal patterns only attor- cial one, by vetoing progressive be their own rulers, having to that probably have not done so since a lawyer’s brain. So why did the Jackson, Address Before the New neys can unravel. Jackson found social and economic legislation extent practically resigned their attending law school. Most of the ABA pick this subject, this year? York State Bar Association (New that the conflict in philosophy passed by Congress. Franklin D. government into the hands of cases involving constitutional I can only surmise that the York, N.Y., Jan. 29, 1937). “Con- between this staid legal thinking Roosevelt, “Fireside Chat,” March that eminent tribunal.” » Page 12 law invoke rights and responsi- ABA chose this theme because bilities under the amendments, there has been a slow erosion of primarily the Bill of Rights and the separation of powers, prob- the 14th Amendment. ably because so many of our citi- The actual body of the Con- zens and even our leaders do not stitution sets out the framework appreciate its importance as the of our government. Each article foundation of our democracy. As addresses a different branch of lawyers, we are keenly aware of government—how it is constitut- the erosion of the power of the ed and what powers are allotted judicial branch by many factors. to it. Article I addresses the legis- First, the judiciary is under lative branch, Article II addresses economic attack. The judiciary the executive branch, Article III depends upon the executive and addresses the judicial branch, legislative branches for funding. and Article IV addresses the We have often seen the executive

news NY daily rights reserved to each state and and legislative branches attack addresses how the states inter- the judiciary’s budget requests. relate with each other. Article V This includes the criticism of New York Daily News article on sets out the process to amend judicial salaries—it shouldn’t the Watergate scandal in 1974, the Constitution. have to be the case that the best above. Our brilliant founding fathers lawyers must be willing to take constructed a federalist govern- large pay cuts to be judges of the President Nixon, at left, ment, with a strong central gov- Court of Appeals. announces he would release more ernment, and individual state It includes the cutbacks to Watergate tapes during broadcast . The central gov- support personnel, so essential of his address to the Nation on ernment is carefully constructed in New York where the number April 29, 1974. to separate the powers of each of judges may be limited by the branch, but to allow each to New York State Constitution. It Democratic National Committee exercise checks on the others’ includes restriction of overtime, A rchives & R ecords dministration N ational headquarters at Watergate Com- powers. If you are still reading, so that an expert witness on the plex in Washington, D.C., below. you might be asking why I am stand has to come back the next reteaching what we all learned day, at great cost to the litigants, In 1974, President Richard Nixon, in a letter to Senate Watergate committee chairman Sam J. Ervin Jr., in fifth-grade ? The Ameri- rather than allowing extended outright refused to produce any of the documents subpoenaed by the committee, calling the request “‘an can Bar Association’s theme for hours to accommodate his or overt attempt to intrude into the executive office to a degree that constitutes an unconstitutional usurpa- Law Day this year is Separation of her testimony. tion of power.’” Powers: Framework for Freedom. Second, the legislative and To comply with the three subpoenas, Nixon told Ervin, “would unquestionably destroy any vestige of It is a subject we have probably executive branches consistent- confidentiality of Presidential communications, thereby irreparably impairing the constitutional function not thought about much since ly criticize the judiciary for the of the office of the Presidency. Neither the judiciary nor the Congress could survive a similar power assert- checks and balances they are ed by the executive branch to rummage through their files and confidential processes.” called upon to exercise—ensur- wikimedia Sharon Stern Gerstman is counsel to ing that the legislative and execu- Paul Healy, “Nixon Refuses to Give Tapes to Ervin Panel,” Daily News (Jan. 5, 1974) Magavern Magavern Grimm in Buffalo. tive branches stay » Page 12

Looking for an accomplished expert?

ALM Experts has leaders in every discipline.

ONE ultimate resource includes: • More than 15,000 profi les of leading expert witnesses • 4,000 areas of expertise covering all 50 states

Access to a range of high-profi le experts is just a click away. Your source for experts, consultants & litigation support services.

ALMExperts.com 12 | Tuesday, May 1, 2018 | nylj.com

overdose with immediate, intensive Family Court Judges. Janet DiFiore, resources, we have re-convened our own take on “It’s a Wonderful DiFiore treatment. The early results—only “Going Paperless: The New York our Judicial Task Force on the New Gerstman Life,” to show Americans what it two overdose deaths among 250 City Family Court,” New York State York State Constitution and asked it would be like if the Constitution « Continued from page 9 participants in less than a year— Bar Journal, March/April 2018. to consider possible amendments « Continued from page 11 didn’t set up the judicial branch court system. Among the many have attracted the close attention We are also following through on to the Judiciary Article of the State within their constitutional pow- to be separate and independent reforms I highlighted was a new of policymakers and state court the recommendations of the Spe- Constitution that will enable us to ers. Every time a judge sets aside with strong powers? rule, recommended by the New systems all around the country. cial Commission on the Future of serve the public in more efficient an executive order or a piece of We might first show our York State Justice Task Force, Timothy Williams, “This Judge the New York City Housing Court and cost-effective ways. legislation, he or she is criticized judges, like those in some other that is strengthening Has a Mission: Keep Defendants to transform the litigation experi- These few brief highlights of our not only for the wisdom of the countries, removed or jailed for and preventing wrongful convic- Alive,” New York Times, Jan. 3, ence in one of the busiest, most extensive commitment to reform decision made, but for daring to positions antithetical to the politi- tions by requiring judges presid- 2018. This new approach, which we overburdened courts in the nation. and innovation in the New York challenge the executive or legis- cal leaders. We might show the ing over criminal trials to issue are quickly expanding to New York At a time when homelessness has state courts show how hard we lative authority. Pasted with the logical next steps, where those standing orders advising prosecu- City, recognizes that the devastat- reached historic highs in New York are working to deliver fair, smart label “activist judge” or “so-called with political power or allies with tors and defense counsel of their ingly addictive qualities of opioids City, we are overhauling Housing and cost-effective justice outcomes judge,” the pressure upon the power can commit crimes with- professional responsibilities to demands early court intervention, Court operations to improve effi- that make a positive difference in judge must take its toll. out fear of consequence; where disclose exculpatory evidence and aggressive treatment and close ciency and litigant services, and the lives of the litigants who appear Third, the influence of the average citizens have no power provide constitutionally effective interagency collaboration. Andrew adopting new procedures to pro- before us. I believe that our con- political process upon the selec- to enforce rights; where courts assistance of counsel. In upstate Denney, “New Bronx Opioid Treat- mote the legislative intent of the stant pursuit of excellence in the tion of the members of the judi- are for pomp and show, leaving counties where the presence of ment Court Looks to Help Addicts Universal Access to Legal Services delivery of justice will earn for us ciary limits the independence the real power to police who can counsel at first appearance has Kick their Addictions,” New York Law, which is designed to provide the credibility we need to carry of the judiciary. It is difficult for jail and strongmen who can steal. not always been easy to achieve, Law Journal, Jan. 29, 2018. legal assistance to low-income ten- out our constitutional duties as judges not to worry about pleas- We might show that when the we are implementing new off- With regard to families and ants facing eviction. a strong, equal, independent and ing the political leaders who hold judiciary is no longer indepen- hour and weekend arraignment children, we are in the midst of In our civil courts, we are pilot- non-political branch of govern- their advancement or re-election dent, and has no power, the leg- parts to ensure the provision of implementing historic “Raise the ing new programs to streamline ment. As Americans, we are for- or reappointment in their control. islature will soon follow, leaving constitutionally guaranteed legal Age” legislation that will enable the litigation and promote early case tunate to live in a nation where Even judges appointed for life feel all power in the hands of a despot representation. And in our high- vast majority of 16- and 17-year old settlements, and exploring whether the enormous power of our gov- the tug of pleasing the political who can control all without any volume New York City criminal offenders to have their cases adju- to adopt innovative reforms that ernment has been dispersed and leaders who were responsible for checks or balances from the legis- courts, a pilot program involving dicated in Family Court, where they have improved the litigation experi- balanced in such a way as to foster the appointment or election (see lature or the judiciary or from the the increased use of Superior Court will have access to rehabilitative ence in the Commercial Division. the freedom, equity and opportu- Bush v. Gore). citizens who are oblivious to what Informations is expediting the reso- options shown to reduce recidi- In our Surrogate’s Courts, which nity we need to pursue our dreams, All of these factors have a dis- has happened. Like Bedford Falls lution of felony cases and reducing vism and help young people get on provide important services to do good works and distinguish tinct effect on the independence without George Bailey, it would be backlogs. track for productive, law-abiding the public, we have adopted a ourselves as individuals. Howev- of the judiciary. As lawyers, this a pretty grim America to live in. In response to the tragic opioid lives. And our New York City Family new case management system to er, this ingenious “framework for concerns us, but does the aver- As lawyers, we know how crisis ravaging our communities, Court (with over 200,000 new case improve efficiency and will soon freedom” is not self-executing or age citizen care? Wouldn’t it be important an independent judi- we have opened the Opioid Inter- filings each year) recently became introduce standards and goals to self-sustaining. It requires every enlightening, if we could imagine ciary is. On this Law Day, let’s vention Court—the first of its kind the largest paperless court in the better measure court performance. one of us who has committed our a government without an inde- make sure our fellow citizens in the nation—in the City of Buffalo. state. The smart use of technology Finally, because the structure professional lives to the law to be pendent judiciary, sort of like understand it, too. In collaboration with the District is improving public access to the of the courts as set forth in the vigilant in defending judicial inde- Attorney, the defense bar and the court’s services, helping us manage New York State Constitution is so pendence and to work earnestly to treatment community, prosecution our massive docket more efficiently outdated and fragmented that it promote fair and effective justice is suspended in order to provide and supporting the complex, sub- prevents us from properly and effi- institutions that are valued by the wrongful convictions. These charged offenders at high risk of stantive work performed by our ciently managing our people and public. Marks miscarriages of justice repre- sent the worst possible result in « Continued from page 9 our criminal justice system. To ultimate solution was legislative address these grave injustices, icent architecture of checks and mental respect for our laws and checks and balances dividing reform. Last year, the Governor the Judiciary created the New Acosta balances established in our federal the people they protect. Indeed, power between the President, Con- and the Legislature agreed. York State Justice Task Force to and state constitutions? our wonderful experiment is only gress, and the courts” to maintain Through two phases, to be fully examine the causes of wrongful « Continued from page 10 I once believed that the bedrock viable or workable in an environ- a strong democracy (Pew Research implemented by October 2019, convictions and to recommend the Constitution, the rule of law, principle of separation of powers ment of mutual respect and the pro- Center, Report, Large Majorities See 16- and 17-year-olds charged with changes and safeguards for the and the province of the courts. The was so integral to our culture that tection of individual rights, which is Checks and Balances, Right to Pro- misdemeanors and most felonies criminal justice system to adopt. alternative would inevitably lead we no longer had to worry about no less important when those rights test as Essential for Democracy at will be adjudicated in Family The Task Force includes repre- to the rights of the people being structural frailties like those of belong to those of a different nation- 9 (March 2, 2017). Court, where no criminal record sentatives from all parts of the trampled. developing . But as we al origin or persons we fear to be So, as we celebrate Law Day will result, and where they will criminal justice system—judges, Growing up, my father’s stories are increasingly faced with a loss “foreign.” and contemplate the doctrine that be connected with much needed prosecutors, defense attorneys, always seemed unreal and impos- of respect for fundamental values, My father is 96 now, and I can- forms the very foundation of our programs and services. members of law enforcement, sible, even though I experienced facts, truth, reason, and the rule of not help but think that the America government, let us commit to doing Another area in which we legislators, Executive branch some of them until I was 14 and law, I am no longer so sanguine. As he longed for, and the dream that our best, as lawyers and judges, to have made significant strides officials, forensic experts, vic- immigrated to the United States. judges, we take no position on pub- he made into a reality for his fam- restore our fellow citizens’ trust in by working with the Executive tim advocates, and legal schol- His experience is in stark contrast lic policy issues that are the source ily, is in jeopardy. We are being our core institutions. For if we truly and Legislative branches is ars. The Task Force’s efforts to America’s wonderful (albeit of vigorous debate in today’s soci- tested, to be sure. But while my value the separation of powers as the establishment of central- have spurred the Governor imperfect) experiment in democ- ety. For example, we have no official confidence in the “unshakable” pil- vital to the preservation of liberty, ized arraignment court parts. and the Legislature to adopt a racy, where strong democratic position on or health lars of our democracy is shaken, I our democracy will endure, and my A long-standing criticism of our wide range of statutory reforms, institutions check one another’s care . But the rule of law believe there is reason to hope that grandchildren will be fortunate town and village courts is that including the expansion of the power, and where an independent is not a partisan issue, nor are the this too shall pass. For example, enough to grow up, like my chil- many off-hours arraignments are state DNA database, increased judiciary answers to fundamental core constitutional principles that according to a 2017 survey by the dren and I have, in a nation where held without a defense attorney defense access to DNA testing, principles of justice, not to des- ensure debate on those policies Pew Research Center, 83 percent power is not consolidated in the present in these important pro- mandated videotaping of interro- pots. How could anything seriously and support the administration of of respondents said that it is “very hands of the few, or in one branch ceedings—in clear violation of gations in the most serious cases, threaten to dismantle the magnif- justice. We must insist on funda- important” to have “a system of of government. constitutional requirements. The and safeguards for identification necessity to conduct off-hours procedures. arraignments in these courts These are just a few examples results from the lack of overnight of how the Judiciary has effec- of the judicial to the legislative order, among other things, to keep restraints by law, just as it is the holding facilities in less populous tively collaborated with the Whalen power. It only supposes that the the latter within the limits assigned essential nature of law, as we know jurisdictions, and the absence other branches of government power of the people is superior to their authority.” Id. it, always to curb power.” Robert of defense counsel results from to improve the administration of « Continued from page 11 to both; and that where the will Further, the tension between H. Jackson, The American Bar Cen- insufficient staffing to cover pro- justice in New York. Although we John Nicolay and John Hay, eds, of the legislature, declared in its political expediency and judicial ter: A Testimony to Our Faith in ceedings throughout the night in can draw satisfaction from these Abraham Lincoln: Collected Works, statutes, stands in opposition to review complained of by Roosevelt the Rule of Law, 40 A.B.A.J. 19, 22 a given county’s multiple Justice accomplishments, further col- vol. 2, 5 (New York 1894). The pres- that of the people, declared in the is by no means an unintentional (1954). Although he did not divert Courts. We came up with a pro- laboration will be necessary to idents perceived a more effective Constitution, the judges ought to by-product of our tripartite Con- from his belief that the law is a liv- posed solution, but it required fully achieve the goals of the government would result from a be governed by the latter rather stitutional system; rather, the ing doctrine, not one closed to the changes in several areas of the Chief Judge’s Excellence Initia- court that acted in harmony with than the former.” Alexander Ham- founders expressly intended this realities of life, this time Justice law—the Judiciary Law, Criminal tive. In the future, we will focus the presidential administration, in ilton, Federalist No. 78 (The Heri- balance. What is criticized as Jackson recognized the beneficial Procedure Law, and the Uniform our attention on other areas in other words, as an institution sub- tage Press ed. 1945). inefficiency reflects a purposeful contribution of legal philosophy to Justice Court Act. By authorizing need of reform, including bail ject to the , not The judicial branch therefore fractionalized design intended to ensuring that all three government a centralized arraignment part in and criminal discovery. Where superior to it. Mario M. Cuomo, does not act in contravention of ensure additional security to the branches conduct themselves counties throughout the state, the Judiciary determines that Why Lincoln Matters 149 (Harcourt, the separation of powers or the rights of all. James Madison, Fed- with the knowledge that they individuals arrested anywhere executive and legislative support 2004). ability of Congress and the presi- eralist No. 51 (The Heritage Press operate under, not above, the law. in the county may be arraigned, are needed, we will continue to The frustration of the executive dent to effect the will of the people. ed. 1945). If the executive branch The importance of judicial with defense counsel present, in strive to work together with our branch is understandable. The The Constitution is the will of the steams forward to implement the independence to our society can- a single convenient location. This partner branches of state gov- president, under a , sets people, and unless and until the common interest of the majority, not be overstated. Circumstances greatly reduces unnecessary ernment so that we can ensure out to achieve the change prom- people act to change its provisions, the judiciary reflects whether the will inevitably present themselves, delays and realizes significant the highest quality of justice ised during the campaign, and “it is binding upon themselves rights of the minority will remain such as those that prompted Lin- savings to localities, all while that the public deserves. In the the effectiveness of any adminis- collectively, as well as individu- secure. Id. coln to ask whether the integrity meeting constitutional mandates. framework of our government, tration is often measured by the ally; and no presumption, or even An effective judiciary therefore of one law should be permitted to The Judiciary has spent nearly we recognize that excellence is speed with which such goals are knowledge, of their sentiments, can requires a steadfast resistance to threaten the whole Union (John a decade working closely with best achieved with the coopera- effected. Jackson’s 1937 speech warrant their representatives in a executive overreach in order to Nicolay and John Hay, eds., Abra- the Executive and Legislative tion and combined efforts of each expressly criticized the machina- departure from it.” Id. Thus, con- protect, not negate, the will of the ham Lincoln: Collected Works, vol. 2, branches to safeguard against branch. tions of the court as preventing trary to the assertions of Roosevelt people. Almost 20 years after his 60 (New York 1894)), that tempt the the political compromise neces- and Lincoln, it cannot be posited speech to the New York State Bar momentary yielding of our found- sary to make real progress. The “that the Constitution could intend Association, Justice Jackson advo- ing principles to a claimed greater assertion that the court’s exercise to enable the representatives cated for such resistance through good. The bulwark of a strong and Featherstone v. Franco, 95 N.Y.2d of its judicial power of review is of the people to substitute their an independent judiciary and independent judiciary is necessary Scheinkman 550, 554 (2000). Earlier this year, antithetical to our democratic pro- will to that of their constituents. supporting legal community. He to protect our country against such the court once again reminded cess, however, is unsupportable. It is far more rational to suppose, emphasized a truth that has not momentary passions—compel- « Continued from page 10 the judiciary that a court may Alexander Hamilton explained that the courts were designed to changed since the Constitution’s ling though they may be—for if limited to ascertaining whether not annul a disciplinary measure that the court’s power of review be an intermediate body between creation, that “[i]t is the nature of we fail in that, we lose our very the determination was supported taken against an employee if that does not “suppose a superiority the people and the legislature, in power always to resist and evade foundation. by substantial evidence, and in measure is not “irrational” and assessing discretionary deci- does not “shock the conscience,” sions, the Appellate Division is and that the Appellate Division subject to the same limitations “exceed[s] its authority” when courts more closely than those the Legislature intended that we purpose of determining campaign as the Court of Appeals, in that it “reweigh[s] the evidence Garry of judges and “ameliorate harsh impositions contribution limits. Matter of Bren- such a decision may be dis- and substitut[es] its judgment other non-judicial government of sanctions by administrative nan Ctr. for Justice at NYU School turbed only if it constituted an for that of the hearing officer.” « Continued from page 10 actors who apply and interpret agencies” and “accomplish what of Law v. New York State Bd. of abuse of discretion as a matter Matter of Bolt v. New York City to the penalty imposed, the courts laws and regulations. This is a sense of justice would dictate,” Elections, – A.D.3d –, 2018 NY Slip of law. Dept. of Educ., 30 N.Y.3d 1065 have no alternative but to confirm so because, unlike our review but on the other hand, we must Op 02227 (3d Dept. 2018). These limitations have (2018). These holdings reflect his [or her] determination.” Id. of judicial action, our review of respect the principle that “it is This is undeniably an issue of received special emphasis from the court’s recognition that “‘it We are not to substitute our administrative action is a statu- the agency and not the courts great importance, as presented the Court of Appeals in cases is the agency and not the courts judgment for that of the agency tory exception to the general rule which, before the public, must by petitioners. Nonetheless, the involving the imposition of which, before the public, must decision maker “unless the deci- that the branches of government justify the integrity and efficiency majority held that we could not discipline or penalties. In 1974, justify the integrity and effi- sion under review is arbitrary and will not interfere with one another. of their operations.” Matter of Pell, reach and address petitioners’ the Court of Appeals held that a ciency of [its] operations.’” Id. unreasonable and constitutes an The Court of Appeals has noted, 34 N.Y.2d at 235. request—because to do so would sanction imposed by an agency at 1072 (Rivera, J., concurring), abuse of discretion.” Id. at 232 for instance, that “‘this grant of In seeking this balance, we are violate the separation of powers. or employer may be set aside quoting Matter of Pell, 34 N.Y.2d (internal quotations and citations power must be reasonably con- continually exploring and occa- We held that the issue posed was by a court under Article 78 only at 235. omitted). We may not look beyond strued in the light of the settled sionally redefining the boundaries not appropriate for judicial resolu- if the punishment is “so dispro- CPLR Article 78 represents a the grounds stated in the deter- principles governing the relation- of our deference, and it is a chal- tion because it was an action that portionate to the offense, in the careful balancing of the powers of mination (Parkmed Assoc. v. New ship between the courts and the lenging area of law. The agencies must be left to the Legislature, light of all the ci rcumstances, as different branches of our govern- York State Tax Com’n, 60 N.Y.2d administrative agencies’,” (Mat- act, and we in the judicial branch which had conferred authority to be shocking to one’s sense of ment. By strictly adhering to the 935, 936 (1983)), and administra- ter of Pell, 34 N.Y.2d at 232–33 review, their actions within the upon the Board to render this fairness.” Matter of Pell, 34 N.Y.2d proper standards of review, the tive hearings are not held to the quoting Stolz v. Bd. of Regents of framework set forth by the Leg- determination. at 233 (internal quotation marks courts avoid interfering with the same rules of evidence that would Univ., 4 A.D.2d 361, 364 (3d Dept. islature; the evolution of our deci- This is just one very recent exam- omitted). Since then, the Court legitimate prerogatives of other apply in court (Sowa v. Looney, 23 1957)) and our highly deferential sions in this area of law vividly ple of the practical implications of Appeals has consistently held governmental entities, while still N.Y.2d 329, 333 (1968)). The Court standards of review have evolved reveals the separation of powers at of the separation of powers set forth that an administrative sanction fulfilling their role in enforcing of Appeals has expressly rejected accordingly. work. in the constitutions of the United “must be upheld unless it shocks the Rule of Law by ensuring that the “legal residuum rule and the This can be a difficult balanc- This same principle applies States and the state of New York. Of the judicial conscience and, those entities do not abuse their doctrine … that annulment was ing act. In these cases, individuals when we are asked to review an course, our system of government therefore, constitutes an abuse power by wielding it in an arbi- in order where the agency’s find- may be facing serious discipline, issue more appropriately suited was designed this way because it of discretion as a matter of law,” trary or unjust manner. Through ings were such that a ’s verdict losing their livelihoods due to a for action by the Legislature. Even is ultimately within the power of and “the Appellate Division lacks the litigation and determination to the same effect would be set professional license revocation where the legislative branch has the people to elect a legislature any discretionary authority or of Article 78 proceedings, we all aside by the court as against the or being denied access to medi- declined to act, principles of justi- that will address any matter the interest of justice jurisdiction in play our part in preserving the weight of evidence.” 300 Gram- cal care or other government ciability may prevent us from act- current body is unable or unwilling reviewing the penalty.” Matter of Rule of Law. atan Ave. Assoc. v. State Div. of benefits. In some of the cases we ing in their stead. As an example, to grapple with. Even when there Human Rights, 45 N.Y.2d 176, 180 review, we might have reached a earlier this year I wrote a decision is a void, or potential inaction, the n.* (1978). different determination than that in a case where our court was constitutional separation of pow- DID YOU BORROW THIS? As a result, it may appear that of the administrative decision asked to direct the State Board ers may operate to prevent other we review the decisions of our maker if the initial decision had of Elections to rescind an opinion partners in government from step- Why share when you can have your own copy of the New York Law Journal delivered directly judicial colleagues working in trial been ours to make. On one hand, treating LLCs as persons for the ping in to take charge. to your home or office. For subscriptions—or to purchase back issues— call 1-877-256-2472.