For the past month, supporters of state Court of Appeals Chief Judge nominee Hector LaSalle have fought the growing opposition to his nomination. They have called criticisms of him “mischaracterizations” based on a few cases that have been used to paint LaSalle as anti-union and anti-abortion rights. While only a handful of cases have received the bulk of attention since his nomination, opponents have highlighted an array of opinions that LaSalle joined during his decade in the Appellate Division that they believe illustrates a conservative track record that makes him a bad fit to lead New York’s highest court.
LaSalle’s decision to join opinions in two particular cases – Cablevision Systems Corp. v. Communications Workers of America District 1 and Evergreen Association Inc. v. Schneiderman – have made up the core of the arguments for LaSalle’s alleged anti-labor and anti-abortion rights beliefs. In the Cablevision case, he joined a unanimous decision among the appellate panel of judges to allow a lawsuit from Cablevision against individual union members to advance. In the Evergreen case, he joined a majority decision limiting the subpoena power of the state attorney general in relation to an investigation into a crisis pregnancy center. Opponents and supporters have argued the merits of those decisions, with supporters making the case that they were simply procedural and opponents saying they were evidence of a clear conservative bias.
As supporters have said that LaSalle can’t be judged on two cases, opponents have begun to unearth other decisions that should warrant scrutiny. One such case was People v. Bridgeforth, in which LaSalle joined a decision that said dismissing jurors based on skin color passed constitutional muster. “The opinion Justice LaSalle joined in Bridgeforth ignores the obvious discrimination in the prosecution’s actions,” attorneys Vincent Southerland and Jason Williamson recently wrote in a Queens Daily Eagle op-ed. The decision found that while the prosecutor dismissed the jurors based on skin color, skin color is not a protected class and therefore the dismissals were allowed. “It was an opinion that quite literally did not see color,” Southerland and Williamson wrote.
The case made its way to the state Court of Appeals, where the judges unanimously ruled to overturn the appellate decision. In its opinion, the judges agreed with the argument that upholding the decision would have “eviscerated” the protections afforded under a different landmark ruling known as Batson, which decided that striking jurors on the basis of race was unconstitutional. “Had Justice LaSalle’s rejection of skin color as a protected class prevailed, it would have had the perverse effect of inviting the very sort of discrimination that Batson is supposed to prevent,” Southerland and Williamson wrote.
Another key decision was Campanelli v. Long Island Lighting Co. In the case, a child with birth defects sued the company his father worked for, arguing that the lead dust he brought home from work resulted in the development of disabilities through exposure in utero and during infancy. LaSalle joined an opinion that found the company only had a duty of care for the employee, not for his children. “What's interesting about that decision is that there is no statutory law on the books that requires it,” Noah Rosenblum, an assistant law professor at the New York University School of Law, told City & State. “The Legislature never passed a law that said the duty of care in New York only extends this far.” Rosenblum said that a previous appellate decision the opinion referenced explicitly said it should not set precedent, instead setting up a situation where individual judges should weigh the merits of the cases in deciding the ultimate liability rather than rely on precedent. “He totally could have said that the duty of care did extend – he just chose not,” Rosenblum argued as further evidence of LaSalle’s conservative jurisprudence.
Interestingly, LaSalle technically has a record with the Court of Appeals already, having vouched on two cases in which another judge recused themselves. One of those cases was very high profile, and he joined former Chief Judge Janet DiFiore and what some court observers considered a conservative bloc in a narrow majority. On the second case he joined, there was a much wider majority and only one of the seven judges dissented. Several other decisions on which he joined an opinion similarly received support from the court’s conservative bloc of judges while the more progressive judges generally dissented.
LaSalle’s defenders have continued to say that the totality of the 5,000 cases on which he has joined opinions paint a very different picture than the one his opponents have presented. “I was labeled one of the most liberal judges and certainly was maybe the most liberal chief judge in recent memory, and I know Hector LaSalle shares the views I have about everybody getting their day in court,” former Chief Judge Jonathan Lippman told City & State. He wouldn’t opine on specific cases when asked about them without first reading the decisions and other details, but said he has confidence that LaSalle’s record is not conservative. “I’ve read his cases that I’ve seen, I know this judge, I know where his center is,” Lippman said. “I believe (his judicial philosophy) is the same as mine.”
Vincent Bonventre, a New York courts expert and law professor at Albany Law School, made the case in his blog New York Court Watcher that the Cablevision and Evergreen decisions did not support the idea that LaSalle was conservative, nor that he is anti-union and anti-abortion rights. “The court – with LaSalle's vote – was applying, as it must, the precedent set by the Court of Appeals in its 1951 decision in Martin v. Curran,” Bonventre wrote in defense of the Cablevision decision. “Really anti-union or anti-labor?” In a different post, he wrote about a handful of cases that he said contradicted the arguments that opponents have made. The Court of Appeals overturned one of the decisions in the case of People v. Buyund, in which the conservative majority ruled against the opinion while the progressive minority voted to uphold it. “LaSalle in accord with (Judges Rowan) Wilson and (Jenny) Rivera – hard to get less pro-prosecution than that,” Bonventre wrote of the agreement between LaSalle and the two most liberal judges in the Court of Appeals.
Bonventre offered other examples of overlooked cases, just as LaSalle opponents have presented more decisions for consideration as well. While neither represent the totality of LaSalle’s judicial history, the cases certainly offer more for lawmakers to consider beyond the few that his supporters have constituted as the crux of the opposition.
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