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Download Judicial Notice Issue 8 JUDICIAL NOTICE TABLE CONTENTS ɄȘ ISSUE 8 SPRING 2012 pg 3 pg 14 pg 28 pg 39 FEATURED ARTICLES Pg 3 Kaye on Jay: New York’s First Chief The Family Man by Judith S. Kaye Pg 14 New York Justice in Civil War Louisiana by John D. Gordan, III Pg 28 New York’s Assembly Indicts a Political Party by Henry M. Greenberg Pg 39 Forward to The Nature of the Judicial Process by Andrew L. Kaufman DEPARTMENTS Pg 2 From the President Pg 48 The David A. Garfinkel Essay Contest Pg 55 A Look Back...and Forward Pg 58 Society Officers and Trustees Pg 58 Society Membership Pg 62 Become a Member Back inside cover Courthouse Art JUDICIAL NOTICE 1 DearFROM THE PRESIDENT Members embership in this Society brings with it not only the spoken word—in M terms of our stellar programs and speakers—but the written word as well. We call this Judicial Notice, which, as a good deal more than a newsletter, has given our readers some wonderful articles. This issue is no exception, featuring four lively pieces. The first has an alphabetical ring to it: Kaye on Jay, aptly named for an essay by former Chief Judge Judith S. Kaye on the domestic side of an uncommonly worldly man. The two have much in common beyond the ring of their names. Jay was our first Chief Judge and Kaye our last, before the present Chief, Jonathan Lippman. Beyond that, Jay and Kaye occupy prominent positions at 20 Eagle Street, as they face one another, by way of oil paintings, in the courtroom of the New York Court of Appeals. Family is family. John D. Gordan, III, our in-house scholar, has unearthed an interesting chapter in Civil War history and jurisprudence as he describes the judicial journeys of a New York judge who for several years after a political tussle in 1856 was President Lincoln’s appointee to the United States Provisional Court for Louisiana. Our own Editor-In-Chief, Henry M. Greenberg, takes a fascinating look at politics in 1920 when the New York State Assembly expelled some members for “disloyalty” to the United States and the State of New York for their affiliation with the Socialist Party. The issue concludes with a favorite author writing about a favorite judge as we present Professor Andrew L. Kaufman’s introduction to Benjamin Cardozo’s The Nature of the Judicial Process. Read on… Albert M. Rosenblatt, President BOARD OF EDITORS SOCIETY PRODUCTION STAFF DESIGN EDITORIAL OFFICES EDITOR-IN-CHIEF MANAGING EDITOR NYS UNIFIED COURT SYSTEM, 140 Grand Street, Suite 701 Henry M. Greenberg Marilyn Marcus GRAPHICS DEPT. White Plains, New York 10601 Teodors Ermansons [email protected] ASSOCIATE EDITOR Judith S. Kaye Patricia Everson Ryan 914.824.5717 PICTURE EDITOR Albert M. Rosenblatt Michael Benowitz PRINTING Frances Murray New York State Bar ASSISTANT EDITORS Association, Printing David L. Goodwin Services Jacqueline Guidarelli-Wu 2 JUDICIAL NOTICE ǸɴȐ ɄȽ Ǹɴ 5,>@692»:-09:;*/0,-, ( ;OL-HTPS`4HU 1\KP[O:2H`L everal years ago at the ;/,7<)30*7,9:65 John Jay Homestead, John Jay was an end- 6I had the privi- lessly fascinating public fig- lege of delivering the ure. Indeed, he played at Goodhue Lecture hon- least five key roles in the oring the late Senator formation of our State Mary Goodhue, with and nation. whom I worked to The first is as secure state and feder- lawyer turned guerilla ally funded services and spymaster. By the for young children at early 1770s, he had risk of developmental built one of the most delay. She was at the successful private law time the Chair of the practices in New York. Senate Committee on Jay’s superb reason- Children and Families, ing and writing skills and I was the Chief were well known to his Judge. I have over the colleagues, and he was years tinkered a bit with my frequently called upon to script, and we have found the serve on committees and draft images you now see, making it important documents, such as the a particular pleasure now to share Address to the People of Great Britain, these remarks with you.* which outlined the Colonists’ grievances.1 1VOU1H` 5L^@VYR*V\Y[VM(WWLHSZ*VSSLJ[PVU 0HTLZWLJPHSS`WSLHZLK[VW\ISPZO[OPZLZZH`HZH[YPI\[L[VT`ILSV]LKMVYTLY3H^*SLYR:[L]LU*2YHUL^OV^HZHTLTILYVM [OL1VOU1H`/VTLZ[LHK)VHYKVM;Y\Z[LLZMYVT\U[PSOPZ\U[PTLS`KLH[OPUHUK^OVPUZWPYLK[OL/VTLZ[LHK»ZPU]P[H [PVU[VTL(ZOPZ,HNSL:JV\[WYVQLJ[:[L]L»ZZVU*HTLYVUKLZPNULKHUKI\PS[H)\[[LYMS`.HYKLUH[[OL/VTLZ[LHKOVUVYPUN OPZMH[OLY0L_[LUKZWLJPHS[OHURZHZ^LSS[V1VOU1H`*VSSLNL7YLZPKLU[1LYLT`;YH]PZ>OLU0^HZYLJLU[S`H[[OL*VSSLNL7YLZP KLU[;YH]PZZWVRLVM1VOU1H`HZHWLYZVU¸^OVRUL^OV^[VMPNO[MVY5L^@VYR¹^OPJOJH\ZLKTL[VKPNV\[T`YLTHYRZHUK WVSPZO[OPZHY[PJSLMVYW\ISPJH[PVU4`NYH[P[\KLPZIV\UKSLZZHZ^LSS[V[OLL_[YHVYKPUHY`6MMPJLVM*V\Y[(KTPUPZ[YH[PVUSH^`LYZ^OV OH]LHZZPZ[LKTLPU[OLWYLWHYH[PVUVM[OPZHY[PJSLZ[HY[PUN^P[OHUV[OLYILSV]LKMVYTLY3H^*SLYR1LYLT`-LPUILYN"OPZJVSSLHN\L 3H\YH:TP[O"HUKV\YWOLUVTLUHS*V\Y[VM(WWLHSZ3PIYHYPHU-YHUJLZ4\YYH` JUDICIAL NOTICE 3 ɄȽ ,ǸɴȐ (Ǹɴ His resourcefulness and enterprise brought him to Chief sits front and center behind the bench, in the front lines in 1776. Jay headed a small band that salmon robes, leading the parade of judges’ portraits sought to harass British ships on the Hudson River, that decorate the walls of our magnificent Court of and he rode to Connecticut to obtain cannons and Appeals courtroom. Regrettably, we know few details ammunition, an assignment that drew heavily on of the actual work of the Court back then, given the his powers of persuasion. And as later immortalized absence of reported decisions (in marked contrast to in a novel by James Fenimore Cooper, Jay worked today). After the United States Constitution went into with spies to infiltrate and collect information on operation in 1789, Jay was given his choice of posts British loyalists. Jay’s involvement in espionage likely in the federal government, and opted for Chief Justice exposed him to the risk of execution as a traitor at of the Supreme Court of the United States.6 In his the time, but ultimately gained him (much belated) recent memoir, Justice John Paul Stevens states that, recognition by the CIA as one of the three Founding of the twelve Chief Justices who pre-dated his term Fathers of American Intelligence.2 of service on the U.S. Supreme Court, John Jay ranks A second key role was as an architect of the among the five who “stand out as national leaders original New York State Constitution, an extraor- entitled to our highest respect.”7 dinary document that was largely Jay’s work. That Finally, Jay was a shrewd diplomat for a Constitution established our three discrete branches powerless New World. Both under the Articles of of government and spelled out their authority— Confederation and on behalf of the new United including a bicameral legislature, a popularly elected States, he was several times sent on tough diplomatic governor to head the executive branch, and an inde- missions, including negotiation of Jay’s Treaty, which pendent judiciary. It included not only the structural was widely criticized in the United States.8 framework of our State and nation but also such As we have seen, Jay amassed quite a record of enduring values as the guarantee of religious freedom, public service, particularly for a person barely into the right to trial by jury, the right to counsel and the his thirties at the time of the American Revolution. right to vote. Many of the core provisions of that My focus, however, will be on the private side of this 1777 document survive to this very day in our State extraordinary individual. and Federal Constitutions.3 Third, John Jay was a key advocate for New York’s ;/,-(403@4(5 ratification of the United States Constitution. With The constant backdrop for John Jay’s many the vote extremely close in the pivotal states of New public roles was the push and pull of family obliga- York, Massachusetts and New Hampshire, narrow pas- tions—not an unfamiliar tension for so many of us sage here was due in large part to Jay’s advocacy. Jay to this day. Jay was repeatedly called away from his argued forcefully that a single, united nation would family to attend to affairs of state, and at the same be better able to demand respect from other nations; time he was called away from historic moments to that a second effort was unlikely to produce better support and comfort relatives in times of need. The results; that the carefully negotiated compromise importance of family is particularly striking in the would allow the states to remain strong and united; life of John Jay, as is the importance of letter-writing and that the people “should give the proposed to maintaining these close ties across the miles. A Constitution a fair trial” and “mend it as time, occa- few of those letters accompany this article, and many sion and experience may dictate.”4 His Address to the more support the work of the historians and scholars People of the State of New York has been called “Jay’s I have cited. While we have far more communica- major contribution toward the ratification of the tions options today, I was intrigued to see Jay’s advice Constitution.”5 to his son Peter about written communications. Jay Fourth, Jay was the very first Chief Justice of urged Peter to write frequently while they were apart, both New York’s high court and the United States but also to be “always mindful” of the possibility that Supreme Court.
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