The Albany Law Review’s Chief Judge Lawrence H. Cooke State Constitutional Commentary Symposium this year featured two of the most recent “retirees” from the Court of Appeals, Associate Judges Robert Smith and Eugene Pigott, who reached mandatory retirement age and left the Court in 2014 and 2016, respectively. Entitled “Off the Bench: Reflections on Judging on the High Court,” and moderated by Albany Law’s Professor Vincent Bonaventre, the long-time expert on the Court of Appeals (see New York Court Watcher, available at http://www.newyorkcourtwatcher.com/), Judges Smith and Pigott held a fairly free flowing discussion of their time on the Court, how they got there, the Court’s jurisdiction and caseload, and cases they regretted and thought the Court got wrong. Overall, it was a fantastic event, highlighted by the Judges’ sage advice and often self-deprecating humor. Here are a few highlights:
How to Become a Judge
Professor Bonaventre opened the discussion with a simple question: how did the Judges get to the Court of Appeals and why did they apply? Judge Smith responded that, as a commercial litigator getting peppered by Judges’ questions year after year, it was every lawyer’s aspiration to find himself on the other side of that equation. So, Judge Smith said, he applied and was rejected numerous times. Eventually, he gave up the pursuit of the judgeship, believing it just wasn’t meant to be. Judge Smith was then hired by counsel for the Governor’s Office to represent the Governor in litigation. The Governor’s office encouraged Judge Smith to reapply for the next vacancy on the Court, and as he put it, because they were his biggest client, he would have worn a red hat to court if they told him to. So, he reapplied, and was appointed to the Court in 2003 by Governor George Pataki.
His appointment, he claimed, was mostly due to his relationships with people in the Governor’s counsel’s office, who he had become very familiar with after applying and reapplying to the Court. As Judge Smith noted, a lot of professional advancement is based upon networking, and everyone does that in their own way. Some write; others attend bar meetings each night of the week. Judge Smith fell in between on that spectrum, he said. Most importantly, he told the audience, “be yourself because everyone else is already taken.”
Judge Pigott’s journey to the Court was slightly different. Still, he claimed, it had little to do with his own merit. Before becoming a judge, Judge Pigott said he became very involved in local politics, and encouraged the law students in attendance to do the same. Get out in your community, and run for the local municipal board, serve on a zoning or planning board, volunteer when you can, he said. By doing that, Judge Pigott was approached to run for Supreme Court, but declined when he didn’t particularly want to run a campaign. He was approached again with the prospect of a cross-endorsement for a judgeship, which in all practicality makes election nearly certain, and so he agreed. After six weeks on the trial bench (and likely before he even issued any decisions, he said), Judge Pigott was appointed to the Appellate Division, Fourth Department, and then two years later, he was elevated to the Presiding Justice. He laughed off his quick ascent to leading the Fourth Department as “clearly not based on merit,” but said he was interested in becoming a Judge on the Court of Appeals because of the intellectual challenge of handling the most important cases in the State. After eight years on the Appellate Division, he was appointed by Governor Pataki to the Court of Appeals. Judge Pigott had applied earlier, he said, but withdrew his application and got an earful from the Governor’s office when he did (Judge Smith was appointed to that seat). So, Judge Pigott applied again for the next vacancy and the Governor appointed him to the Court.
If you want to find yourself sitting behind the bench on New York’s highest court, more than just merit goes into the appointment, as Judges Smith’s and Pigott’s paths show. Because under the Constitution, the Governor appoints the Judges of the Court from a list of 7 given to him or her by a nominating committee, it becomes apparent that a good relationship with the Governor’s office goes a long way not only in receiving the appointment, but making the short list in the first place. Although the Judges tried to suggest that their own merit had little to do with the appointments, their backgrounds, Judge Smith as a renowned commercial litigator at Paul Weiss and Judge Pigott as the Presiding Justice of the Fourth Department, conclusively refute their self-deprecation. They were eminently qualified to serve on the Court, and were elevated not only because of who they knew in the Governor’s Office.
As the Judges discussed their time on the Court, Victor Paladino, an appellate attorney in the State Attorney General’s Office who has argued 31 times before the Court (and won the vast majority of those cases), brought up the Court’s recent trend toward limiting oral argument time to ten minutes per side, which began with Chief Judge Jonathan Lippman and has continued under Chief Judge Janet DiFiore. As Mr. Paladino put the question, did the Judges believe that the limitation of argument time reflected a diminished importance for oral argument?
Judge Smith responded that he hoped not. Known as a vigorous questioner during oral argument, Judge Smith would have increased the total time for argument. He found it helpful to get a better understanding of the issues he was struggling with, which was especially important because the Court’s writings were randomly assigned at the conference following argument (the practice of random assignment of writings after argument, which ensures better preparation for the entire Court in my opinion, has been abandoned by the current Court).
Judge Pigott agreed. Oral argument is important to the cases, he opined. Judge Pigott admitted that, when he was the acting Chief Judge after Chief Judge Lippman’s retirement in 2015, he increased the normal argument time that is allowed each party from 10 minutes back to 15 minutes per side, as it had been under Chief Judge Judith Kaye. He also allowed the advocates to go on beyond their time if he felt the argument was assisting the Court. Notably, Judge Pigott revealed a secret known apparently only to the Chief Judge: the drawer in the bench at the Chief Judge’s seat has buttons to control the white and red lights at the attorney’s lectern. By pushing one or the other, the Chief Judge delay the red light and let the argument go on, or can turn it on immediately and cut off the attorney in the middle of an argument.
While Judge Pigott expressed a preference for more argument, the trend under Chief Judges Lippman and DiFiore has been to limit the time for the attorneys to argue their cases. Chief Judge DiFiore, in particular, has appeared to strictly enforce the allotted time, and has cut off counsel in the middle of an argument when she feels the argument has gone on too long. This trend toward limiting argument, especially in cases before the Court that have great impacts statewide, is troubling. There are cases where ten minutes (actually, eight minutes if you reserve rebuttal time) is simply not enough to discuss the complex issues that the Court must tackle.
The Court’s Caseload
Over the years, the Court of Appeals has generally granted between 6 to 8 percent of the leave applications in civil cases, and the remainder of the Court’s cases come from direct appeals (very few as of right appeals survive the Clerk’s Office’s jurisdictional inquiry) and leave grants by the Appellate Division. Yes, that’s right, the Appellate Division has jurisdiction to grant leave to appeal to the Court of Appeals on its own accord and help determine the Court’s docket. Practically, most leave grants from the Appellate Division come from the First and Second Departments; it is a rare circumstance to see the Third or the Fourth Department grant leave. Additionally, over the past few years, the Court has taken fewer and fewer cases, now scheduling only three arguments per day instead of the four per day the Court used to hear. So, what did the Judges think of the reduced caseload and the Appellate Division’s ability to grant leave to the Court?
Judge Pigott had strong feelings on both. He would like to see the Court take more cases, and strongly believed the Appellate Division should have jurisdiction to grant leave. The Appellate Division is full of distinguished jurists who are particularly attuned to the issues they see frequently and those that are important for the Court of Appeals to resolve. Judge Pigott, having served on the Appellate Division, trusts the judgment of the Appellate Division justices to see the trends in the law and choose the cases in which they grant leave wisely, and felt that the Court benefits from that practice.
Personally, although I firmly agree that Appellate Division Justices are well attuned to evolving issues in New York law, I would like to see the Court become a pure certiorari court, and eliminate the Appellate Division’s jurisdiction to grant leave. Many of the cases that are granted by the Appellate Division end up being resolved on what the Court calls the “Sua Sponte Merits” track, where the Court decides the case usually in a summary memorandum after short briefing and without oral argument. Those cases, which are often fact specific having little relevance beyond the particular parties to the case, lend little to the development of New York law as a whole. Instead, the Court, upon the advice of the clerks reviewing the motions for leave to appeal, is in a better position to assess whether an issue is truly ripe for decision or whether it would benefit from further percolation in the Appellate Division, whether a case would have a statewide impact, and whether New York law will benefit from the Court hearing the case.
But, to make that change to the Court’s jurisdictional predicate, the Court’s jurisdiction over certain nonfinal orders would need to be changed. For example, the grant or denial of a motion for a preliminary injunction is a nonfinal order that may be reviewed by the Appellate Division, but may not be by the Court of Appeals. Thus, the only way for a nonfinal Appellate Division order to be reviewed by the Court immediately is if the Appellate Division grants leave to appeal. And because it is hard to argue that the grant of interim relief “necessarily affects” the final judgment in a case (see CPLR 5511), it is unlikely that the Court would ever have jurisdiction to review the grant or denial of a preliminary injunction, absent the Appellate Division granting leave to appeal from the nonfinal order. So, changing the rule to allow only the Court of Appeals to grant leave to appeal would leave the Appellate Division as the final arbiter of nonfinal orders that cannot be reviewed later by the Court on appeal from a final judgment. That would not be ideal, without a corresponding change to the Court’s jurisdiction over nonfinal orders (and “unpreserved” questions of law reached by the Appellate Division in the interests of justice, but that’s an entirely different story I won’t address now).
Criminal Leave Applications
Unlike civil leave applications, which take two votes to be granted, the Court decides the more than 2,000 criminal leave applications it receives every year by divvying them up to the Judges, about 300 or so each, and then the Judge decides on his or her own whether to grant leave to appeal. There generally is no discussion at conference whether and which criminal cases to take. Instead, the assigned Judge votes to grant or not, and that is the end of the review.
As Judges Smith and Pigott explained, each Judge has his or her own process to review the criminal leave applications. Judge Smith noted that when he first joined the bench, he had his clerks comb through the criminal leave applications and pick out the cases that they believed were worthy of further discussion, and then he would review and make the decision. After a few years of that process, Judge Smith changed the way it worked, and read all 300 himself to decide which to give to his clerks for further review and analysis.
Judge Pigott, on the other hand, reviewed and decided all of the criminal leave applications himself. As he put it, “no one got leave on a Monday after the Bills lost.” Recognizing the somewhat imperfect nature of the Court’s treatment of criminal leave applications, Judge Pigott advocated that the criminal leave applications should go instead to the Court’s staff clerks for full reports and recommendations, and then be decided by the Court in the same manner as the civil motions, with the votes of two Judges necessary to grant leave. Although Judge Pigott recognized the practical difficulty of adding 2,000 new cases to the desks of the Court’s 12 staff clerks, he said the Court and the criminal cases would benefit greatly from that more measured review. And the Court’s entire budget is about 1 percent of the State’s entire budget, he noted, so adding 6-10 new staff attorneys to the Court to handle the increased workload would make it workable.
In all, the Albany Law Review and Professor Bonaventre put on a fantastic and enlightening event with two of the most insightful Judges to have served on the Court of Appeals. Their records on the Court speaks volumes, and it was great to hear their perspectives on how to make our venerable Court that much better.