The Trailblazing Women Judges of the Court of Appeals

If you haven’t followed the hashtags #WomenJusticeWeek and #WomenJusticeDay on Twitter, you really should. For this past week, Jack Metzler (@SCOTUSPlaces) and the other #AppellateTwitter denizens have been paying tribute to the distinguished women Justices of the Supreme Court and the approximately 125 women Justices of the State high courts.


Included in that celebration are the three current women Judges of the Court of Appeals: Chief Judge Janet DiFiore, Associate Judge Jenny Rivera, and Associate Judge Leslie Stein, which were well covered by Naveen Kabir (@NaveenKabirEsq) in this thread:

The history of women on the Court of Appeals, however, began well before the three distinguished women Judges now on the Court. In fact, Judges DiFiore, Rivera, and Stein are actually the 5th (Rivera), 7th (Stein), and 8th women (DiFiore) Judges on the Court.

Blazing the trail before them were the still unmatched Judith Kaye, who was appointed as the first woman Associate Judge of the Court of Appeals in 1983 and then elevated as the first woman Chief Judge in 1993, Carmen Beauchamp Ciparick, Victoria Graffeo, Susan Phillips Read, and Shelia Abdus-Salaam. Each has made her mark on the Court and New York law, and deserve to be included in the celebration.

Chief Judge Judith Kaye

Chief Judge Kaye is one of the most remarkable women to ever serve on the bench. She was born to Jewish Polish immigrants in Monticello, NY, and grew up on a small farm. She graduated high school at 15, yes 15, and moved on to Barnard College to pursue a journalism degree. When she wasn’t getting the opportunities she wanted in journalism, she decided to pursue the law.

Chief Judge Kaye worked as a copy editor during the day and attended NYU Law at night, two full time jobs. She graduated sixth in her class of nearly 290, only ten of which were women. After law school, Chief Judge Kaye became a respected commercial litigator in NYC, first with Sullivan & Cromwell and later as the first woman named partner at Olwine, Connelly, Chase, O’Donnell & Weyher.

After a first vacancy occurred on the Court of Appeals in 1983, no women made it on the list of 7 sent to Governor Mario Cuomo, who had made it a campaign promise to appoint a woman to the Court. For the next vacancy that same year, two women made the final list: Justice Betty Weinberg Ellerin of State Supreme Court, who was a former president of the Women’s Bar Association, and Chief Judge Kaye. The Women’s Bar Association, however, rated Chief Judge Kaye as not qualified. Governor Cuomo ignored the rating and appointed her anyway.

And did Chief Judge Kaye ever prove the Governor right. While on the Court of Appeals, Chief Judge Kaye was a distinguished jurist who was well ahead of her time in many respects. For example, Chief Judge Kaye’s dissent in Hernandez v Robles, a same sex marriage case in 2006, remains one of the most powerful opinions written by a member of the Court. As she wrote,

Chief Judge Kaye (dissenting). Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a state legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children–from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.

 

For most of us, leading a full life includes establishing a family. Indeed, most New Yorkers can look back on, or forward to, their wedding as among the most significant events of their lives. They, like plaintiffs, grew up hoping to find that one person with whom they would share their future, eager to express their mutual lifetime pledge through civil marriage. Solely because of their sexual orientation, however–that is, because of who they love–plaintiffs are denied the rights and responsibilities of civil marriage. This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition.

Her cutting edge opinions also included novel issues concerning whether an agreement between a husband and wife during their marriage controls the disposition of frozen, stored pre-embryos after their divorce (see Kass v Kass, 91 NY2d 554 [1998]):

we agree that the informed consents signed by the parties unequivocally manifest their mutual intention that in the present circumstances the pre-zygotes be donated for research to the IVF program.

 

The conclusion that emerges most strikingly from reviewing these consents as a whole is that appellant and respondent intended that disposition of the pre-zygotes was to be their joint decision. The consents manifest that what they above all did not want was a stranger taking that decision out of their hands. Even in unforeseen circumstances, even if they were unavailable, even if they were dead, the consents jointly specified the disposition that would be made. That sentiment explicitly appears again and again throughout the lengthy documents. Words of shared understanding—“we,” “us” and “our”—permeate the pages. The overriding choice of these parties could not be plainer: “We have the principal responsibility to decide the disposition of our frozen pre-zygotes. Our frozen pre-zygotes will not be released from storage for any purpose without the written consent of both of us, consistent with the policies of the IVF Program and applicable law ” (emphasis added).

Chief Judge Kaye’s opinions on standing and the State Environmental Quality Review Act standard of review remain the most cited precedent in those areas (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761 [1991] [standing]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 [1986] [SEQRA]).  She also heavily emphasized the unique rights granted under the New York Constitution, especially in high stakes cases like the education funding cases (seeCampaign for Fiscal Equity v State of New York, 100 NY2d 893 [2003]).

Chief Judge Kaye also went to bat for the all of the State’s Judges when she joined with other judges from across the State to sue the New York Legislature for impermissibly tying a judicial pay increase to unrelated legislative matters (see Matter of Maron v Silver, 14 NY3d 230 [2010]), and the Court of Appeals agreed with her that the “independence of the Judiciary is improperly jeopardized by the current judicial pay crisis and this constitutes a violation of the Separation of Powers Doctrine,” though it declined to adopt any remedy for the state constitutional violation (id. at 244).

What struck me most about Chief Judge Kaye was not her attempts to convince her colleagues to speak with one voice on important issues, or her administrative reforms of the New York court system that are far too many to list, but her kindness and how she treated the Court and everyone who worked there as family. Chief Judge Kaye’s last day on the Court was December 31, 2008, forced off by the New York Constitution’s mandatory retirement provision. My clerkship at the Court began just a few months earlier, but what I remember most vividly was the lengths she went to know everyone’s name and give all of us her time.  During after the first argument session in September 2008, Chief Judge Kaye stopped up to the Central Staff offices to talk about the cases that had just been argued and how she viewed her and our place at the Court.  This was a regular occurrence. And even just a few days before she left the bench, Chief Judge Kaye stopped up once again to reflect with us on her 25 years as a Judge of the Court of Appeals and what it meant to her.  She was genuine, brilliant, kind, and a jurist and administrator still unmatched at the Court.

Associate Judge Carmen Beauchamp Ciparick

Associate Judge Carmen Beauchamp Ciparick was the second woman and first Hispanic appointed to the Court of Appeals. Unlike Chief Judge Kaye’s upbringing on a small farm, Judge Ciparick’s began in Washington Heights. Her parents were two of the earliest Puerto Rican immigrants to that narrow stretch of upper Manhattan. While her father was a civil servant in the US Army Corps of Engineers, her mother stayed home to raise her and her older sister, Myrna. Every winter, they would brave the cold for the Christmas show at Radio City Music Hall and every summer, they headed for the shore to the Rockaways or New Jersey’s Point Pleasant.

After graduating from George Washington High School, Judge Ciparick attended the all-women Hunter College tuition free, where she majored in History and Political Science and developed her interest in the law. Although her parents initially opposed her decision to go to law school, they eventually came around to the idea, and Judge Ciparick signed up for night classes at St. John’s University School of Law. During the day, she worked full time as a history and physical education teacher at a junior high and at night, she went to law school. Talk about a long day.

Judge Ciparick was one of only eight women in her law school class in 1963. Women in law school were so rare, in fact, that they were often singled out by professors. In Judge Ciparick’s torts class, for example, the professor once questioned her at length on whether a lady’s evening gown was an inherently dangerous instrument. Judge Ciparick endured and graduated in 1967, and was admitted to the bar later that year.

Judge Ciparick’s early years of practice were as a Staff Attorney with The Legal Aid Society in the South Bronx, a poor, predominately Spanish-speaking area. It was the only job she wanted and applied for out of school. And she loved it. Although she was often mistaken for a secretary or an interpreter, because she grew up in a bilingual household and spoke fluent Spanish, Judge Ciparick relished representing the underserved in numerous civil matters, including landlord-tenant disputes, divorces, adoptions, personal bankruptcies, and various administrative proceedings.

Two years later, she joined the court system as Assistant Counsel to the Judicial Conference of the State of New York, the predecessor to the Office of Court Administration. By 1972, she had risen to the supervising attorney of the New York City criminal courts, overseeing a pool of 40 attorneys who were providing legal assistance to the criminal court judges. While the supervising attorney, Judge Ciparick made significant efforts to hire women and minority attorneys into the pool.

In 1978, at the young age of 36, Judge Ciparick joined the bench when NYC Mayor appointed her to the Criminal Court of the City of New York. She was the first Puerto Rican woman to serve on the bench in New York State history and one of the youngest judges in the entire State. She was elected to the Supreme Court bench four years later (but almost never made it onto the ballot when the Democratic Party missed the filing deadline, and she had to be elected on the Liberal Party line).

As a Supreme Court judge, Judge Ciparick decided hundreds, if not thousands, of cases, but one stands out in particular. The first was the trilogy of America’s Cup cases entitled Mercury Bay Boating Club Inc. v. San Diego Yacht Club. In the cases, Judge Ciparick presided over a dispute concerning whether the catamaran used by the San Diego Yacht Club to defend its sailing title in the world famous races complied with the specifications set forth in the deed of gift that governed the America’s Cup. She said that it didn’t, and disqualified the San Diego, handing the title to New Zealand. Although a divided Appellate Division reversed, the Court of Appeals dismissed the case entirely, saying it should be resolved by the sailing community, not the courts. The cases garnered Judge Ciparick international attention, as she was called a heroine by the London Times, received fan mail from New Zealand, and hate mail from California, with one sailor particularly claiming that her name would live on, “synonymous with Benedict Arnold in drag.”

In 1993, on the strength of her Supreme Court service, Governor Mario Cuomo nominated Judge Ciparick to the Court of Appeals. She was the second woman on the Court, joining Chief Judge Kaye, and the first Hispanic to serve on the State’s high court. She served with distinction for 19 years until she hit mandatory retirement in 2012.

During her time on the Court, Judge Ciparick wrote many, many important opinions, including recognizing disparate impact claims on the basis of sexual orientation under the New York City Human Rights Law (see Levin v Yeshiva University, 96 NY2d 484 [2001]), striking down the notice and review procedures of the Sex Offender Registration Act as constitutionally inadequate (see People v David W., 95 NY2d 130 [2000]), and finding that the general prohibition against gambling in the State Constitution’s Bill of Rights did not foreclose the establishment of casinos on Indian lands, the State’s lottery, installation of video lottery terminals at racetracks, or the State’s entry into a multistate lottery (see Dalton v Pataki, 5 NY3d 243 [2005]).

Associate Judge Victoria Graffeo

Associate Judge Victoria Graffeo was the third woman appointed to the Court of Appeals. She came from a proud Italian-American family that immigrated to New York in the late 1800s-early 1900s. Her grandfathers both fought for the US in World War I, and her father enlisted in World War II and fought on the shores of Normandy. From this patriotic background, Judge Graffeo’s family instilled in her a strong sense of what it meant to have freedom.

Early in her life, Judge Graffeo’s father took a job in Western Massachusetts as a surveyor building the Massachusetts Turnpike, and so they bought a small dairy farm that Judge Graffeo roamed as a child. They moved to Schenectady when her father came to help build the Northway, from Albany to the Canadian border, before they eventually settled in the Town of Guilderland, one of Albany’s suburbs.

Judge Graffeo attended SUNY Oneonta for college, after turning down a scholarship to Cornell because the private school was beyond her family’s means, and majored in political science. She student-taught high school social studies during her senior year of college, but then decided that she wanted to pursue the law. No one in her family had ever been a lawyer before, and so her parents were understandably surprised when she told them she was going to law school.

Because her family could not financially assist her legal endeavors, Judge Graffeo decided that she would attend Albany Law School while living at home and working part time to cover the cost of attendance. During her 1L year, she worked several jobs even though the Law School barred outside employment. One day, Judge Graffeo was called down to the registrar’s officer and unceremoniously lectured about devoting all of her time to the study of law. Although Judge Graffeo changed her habits to hide her outside employment better, she never did stop working throughout law school. During 2L and 3L years, she began working at a law firm that was one of the few in Albany that was even interested in hiring women. That experienced proved invaluable going forward, and Judge Graffeo became an associate at the firm with eight other male lawyers.

Only three years after she graduated from Albany Law and was admitted to the bar, Judge Graffeo found herself arguing a case before the very Court of Appeals that she would later join. In the case, she represented a contractor challenging a NYS Department of Labor prevailing wage claim, and she won.

Judge Graffeo’s early years as a lawyer, extraordinary as they were, certainly were not without mistreatment. For example, in one case that she was trying against a bank represented by a former judge, the judge frequently referred to Judge Graffeo as “my little friend” in front of the jury in an effort to undermine her effect. He failed, however, and after Judge Graffeo finished her direct case, the former judge offered her client a settlement much larger than they had anticipated.

Judge Graffeo began her government service as an assistant counsel at the New York State Division of Alcoholism and Alcohol Abuse, and served there until she was approached to become the floor counsel for the New York State Assembly Republicans and spent 10 years working in the Legislature. Eventually, Judge Graffeo became Chief Counsel to the Assembly Minority Leader, the first woman to serve in that role, where she was the only woman at the negotiating table with the Governor and his senior staff and the four leaders of the Senate and Assembly.

When George Pataki was elected New York Governor, Judge Graffeo was appointed the Solicitor General of New York. During her time as the Solicitor General, Judge Graffeo managed the State’s federal and state appellate caseload and took Vacco v Quill, a constitutional challenge to New York’s criminal statute banning assisted suicide to the US Supreme Court (seeVacco v Quill, 521 US 793 [1997]).

In 1996, Judge Graffeo was nominated to fill a judicial vacancy in the Supreme Court, Albany County bench when Hon. Lawrence Kahn was appointed a federal district court judge. Later that fall, Judge Graffeo ran for election to the bench in a hotly contested race for three seats among six candidates, four of which were incumbents.  She was surprised when she won (after suffering a larger than expected defeat in her home county, which was heavily Democratic), and so began Judge Graffeo’s long distinguished service on the New York bench.

Judge Graffeo sat on the Supreme Court for two years before she was appointed by Governor Pataki as an Associate Justice of the Appellate Division, Third Department. She debated applying for the position because she was the only woman on the trial court bench at the time (now Presiding Justice of the Third Department Karen Peters was an Associate Justice of that court then).  But, she decided that her elevation could encourage more women lawyers, and so she applied.  And two years after joining the Appellate Division, Judge Graffeo was nominated again by Governor Pataki, this time to be the third woman to serve on the Court of Appeals.

During Judge Graffeo’s 14 years on the Court, she left her mark on the Court and on New York law.  The case that I will always remember the most was the case that I was involved in, asking whether local municipalities were preempted by the Environmental Conservation Law from using their zoning powers to ban fracking. It was a very important case at the time for municipalities that feared the long-term impacts of fracking, coming before New York completed its environmental review and banned fracking entirely. Judge Graffeo’s reasoned analysis concluding that state law did not preempt local zoning authority was a perfect example of her measured writing tone and the detailed review of authority that were the hallmark of her opinions (see Matter of Wallach v Town of Dryden, 23 NY3d 728 [2014]).

Other of Judge Graffeo’s important opinions included whether it would violate the public trust doctrine to operate a restaurant in Union Square Park (see Union Sq. Park Community Coalition v New York City Dept. of Parks & Rec., 22 NY3d 648 [2014]), whether the Cayuga Indian Nation’s sale of cigarettes could be taxed under New York law (seeCayuga Indian Nation of N.Y. v Gould, 14 NY3d 614 [2010]), whether the tort of conversion applies to intangible electronic documents stored on a computer (see Thyroff v Nationwide Mut. Ins. Co., 8 NY3d 283 [2007]), and whether SEQRA applies to annexation actions (see Matter of City Council of City of Watervliet v Town Bd. of Town ofColonie, 3 NY3d 508 [2004]).

Associate Judge Susan Phillips Read

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Associate Judge Susan Phillips Read was the fourth woman appointed to the Court of Appeals. Born in a small town on the banks of the Ohio River, Judge Read developed her lifelong love of reading, music, swimming, football, and the ballet as a young child. Following a family tradition, she graduated from Ohio Wesleyan University in 1969, and the University of Chicago Law School in 1972.

After law school, Judge Read worked at the US Atomic Energy Agency Commission in Bethesda, Maryland before she married her husband and moved to Albany, New York.  Although Judge Read wasn’t truly enthused about practicing law outside of a major metropolitan area, her husband was a native upstate New Yorker who, she said, “considered living more than 25 miles from the Saratoga [horse-racing] track a hardship too heavy to bear.” Living in Saratoga myself, I certainly understand his sentiment.

Upon her admittance to the New York bar, Judge Read worked as a staff attorney at the Central Administration of the State University of New York, before going in-house at GE.  She eventually rose to the position of GE’s Chief Environmental Counsel nationwide, a daunting task I’m sure. In 1988, Judge Read left GE to join Bond, Schoeneck & King as a partner in their Albany office, and was in the private practice for the next 7 years. In 1995, she joined Governor Pataki’s administration as Deputy Counsel to the Governor, and was appointed as a Judge of the Court of Claims, which hears contract and tort actions against the State, three years later.

After five years on the Court of Claims bench, four of which she spent as the Presiding Judge, Governor Pataki nominated Judge Read to the Court of Appeals. With her confirmation to the Court in 2003, it marked the first time in United States history that a state high court sat with a woman majority, with Judge Read joining Chief Judge Kaye, Judge Ciparick, and Judge Graffeo in the four judge majority. Often referred to as the “Renaissance Judge” for her broad interests, both legal and non-legal, Judge Read served on the Court for 12 year before deciding to retire in 2015.

Judge Read’s noteworthy opinions while on the Court include the interpretation of the scope of a brownfield site under the Environmental Conservation Law (see Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State Dept. of Envtl. Conservation, 14 NY3d 161 [2010]), issues of Partnership Law (see Ederer v Gursky, 9 NY3d 514 [2007]), whether an attorney in a medical malpractice action may interview an adverse party’s treating physician privately when the adverse party has affirmatively placed his or her medical condition in controversy (seeArons v Jutkowitz, 9 NY3d 393 [2007]), and whether grandparents were entitled to visitation over the parent’s objection (seeMatter of E.S. v P.D., 8 NY3d 150 [2007], among many others.

Associate Judge Shelia Abdus-Salaam

Associate Judge Shelia Abdus-Salaam was the sixth woman confirmed to the Court of Appeals (only a few months after current Associate Judge Jenny Rivera), and the first African American woman to serve on New York’s high court. Judge Abdus-Salaam, who was the direct descendant of a slave from Virginia, grew up in a working class family with six brothers and sisters in Washington, D.C. She attended the D.C. public schools, before going to college at Barnard College.

Judge Abdus-Salaam then continued onto law school at Columbia Law, where she graduated in the same class as former US Attorney General Eric Holder.

Judge Abdus-Salaam began her legal career at the Brooklyn Legal Services, representing the underserved in a wide range of legal matters. She then was hired as an Assistant Attorney General in the civil rights and real estate financing bureaus of the New York Attorney General’s Office.

Judge Abdus-Salaam began her career on the bench in the New York City Civil Court, where she served for one year before she was elected to Supreme Court, New York County in 1993. After 16 years on the trial bench, Governor David Paterson elevated Judge Abdus-Salaam to the Appellate Division, First Department, where she sat until her appointment to the Court of Appeals in 2013.

During Judge Abdus-Salaam’s short time at the Court of Appeals, she really left her mark on New York law. I discussed the true impact that her decisions had in the wake of her tragic death, but one case in particular should be mentioned again.

Judge Abdus-Salaam’s opinion in Matter of Brooke S.B. v Elizabeth A.C.C. (28 NY3d 1 [2016]) will likely go down as her most important decision.  Prior to the ruling, the Court of Appeals had previously held in Matter of Alison D. v Virginia M. (77 NY2d 651 [1991]) that, “in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s ‘parent’ for purposes of standing to seek custody or visitation under Domestic Relations Law § 70(a), notwithstanding their ‘established relationship with the child.’”  Brooke S.B., 28 NY3d at 13. Concluding that the time had come to revisit that 25-year old rule “in light of more recently delineated legal principles,” Judge Abdus-Salaam, writing for the unanimous Court, overruled Alison D. and held that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70.”  Id. at 14.

Judge Abdus-Salaam’s opinion opened visitation and custody rights to same-sex partners, rights that had been previously denied under Alison D., as Chief Judge Judith Kaye had decried in her dissent in that case.  As Judge Abdus-Salaam put it,

in the 25 years since Alison D. was decided, this Court has gone to great lengths to escape the inequitable results dictated by a needlessly narrow interpretation of the term “parent.” Now, we find ourselves in a legal landscape wherein a non-biological, non-adoptive “parent” may be estopped from disclaiming parentage and made to pay child support in a filiation proceeding, yet denied standing to seek custody or visitation. By creating a disparity in the support and custody contexts, Alison D. has created an inconsistency in the rights and obligations attendant to parenthood. Moreover, Alison D.’s foundational premise of heterosexual parenting and nonrecognition of same-sex couples is unsustainable, particularly in light of the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in Obergefell v. Hodges, which noted that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.

Under the current legal framework, which emphasizes biology, it is impossible—without marriage or adoption—for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child. By contrast, where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption. It is this context that informs the Court’s determination of a proper test for standing that ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.

Id. at 24-25 (cleaned up).  Judge Abdus-Salaam’s overruling of Alison D. signaled a monumental shift in New York law, one that will have many long lasting impacts on children and families across the state.

Each of the women that have served with distinction on the Court of Appeals has left an indelible mark on the Court and the law. Their contributions cannot be overstated, and they all deserve the recognition they have received as phenomenal judges of the Court. Happy #WomenJusticeWeek!

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