In a surprising announcement Tuesday, Governor Andrew Cuomo made two picks to fill the open seats on the New York Court of Appeals. It wasn’t surprising that the Governor made the two picks together (I called that one when the Commission on Judicial Nomination released the list of candidates to replace the late Judge Paul Feinman). It was surprising who he selected for the Court: Madeline Singas, the Nassau County District Attorney, will replace Associate Judge Leslie Stein and Hon. Anthony Cannataro, the Citywide Administrative Judge for the Civil Courts of the City of New York, will replace Judge Feinman.
From the list of candidates sent to the Governor for Judge Stein’s vacancy, which included Caitlin Halligan, Hon. Erin Peradotto of the Fourth Department, and Kathy Chin, all of whom had previously been selected for the Court of Appeals candidate list multiple times, Governor Cuomo chose District Attorney Singas, a close political ally who he appointed as the special prosecutor to investigate the allegations that then-Attorney General Eric Schneiderman had assaulted four women with whom he was romantically involved because of her reputation for pursuing crimes against women. She is a career prosecutor, joining Chief Judge DiFiore as another sitting District Attorney to join the Court of Appeals bench.
Judge Cannataro is the Citywide Administrative Judge of the Civil Court of the City of New York and is Co-Chair of the Richard C. Failla LGBT Commission of the New York State Courts. As an openly gay jurist with a decade of judicial experience, Judge Cannataro was one of two openly gay candidates on the list to replace the late Judge Feinman. Judge Cannataro clerked at the Court of Appeals for Associate Judge Carmen Beauchamp Ciparick to begin his legal career, and he has credited that experience for why he wanted to become a judge. Now, the Governor has picked him to sit on the same bench as his former boss, back at 20 Eagle Street.
My prediction credibility took a pretty severe hit with these choices by the Governor. I ranked District Attorney Singas last on the list of seven women candidates for Judge Stein’s seat (though I wasn’t the only one), and Judge Cannataro fourth, but at least called him the dark horse if the Governor did not go with Michael Bosworth to replace Judge Feinman.
What Does This Mean for the Court of Appeals?
The picks leave the Court of Appeals devoid of Judges with any Appellate Division experience. Both Judges Stein and Feinman came from the Appellate Division, but their replacements have no judicial experience in New York’s appellate courts. So, when the Court returns after its summer recess for the September session in the fall, Judge Fahey will be the only one left who has served on the state’s intermediate appellate court. And he’s going to be forced off the bench by mandatory retirement in December. Not ideal.
As former Judge Eugene Pigott once said, it is the Justices of the Appellate Division who see how leaveworthy issues percolate in the lower courts and that’s an important perspective to have on the Court of Appeals’ bench. I agree. Indeed, as I said when I looked at the list to replace Judge Stein, “[a]ppellate judging is different than most of the practice of law, and having that experience on the Appellate Division, especially handling high volume caseloads where almost every order is appealable as of right, is valuable insight for a Judge to understand exactly how the Court of Appeals’ holdings will impact the lower courts.” That’s especially so as the Court has severely restricted its discretionary docket over the past few years.
The Governor’s addition of two more downstate judges on the Court, which already had had 5 judges from New York City, again leaves Judge Fahey alone as the only upstater. As I explained before in my personal criteria for Judge picks, that’s a problem. For years, the Court’s caseload has predominantly come from the First and Second Departments. There are many issues that impact upstate differently, and having someone on the Court who can understand those impacts personally is important. These two nominations make it even more important that Judge Fahey is replaced in December by a judge from somewhere other than New York City and Long Island (hint, hint, I think Judge Peradotto fits the bill).
How Do District Attorney Singas’ and Judge Cannataro’s Nominations Impact the Court’s Ideological Divide?
So, what do District Attorney Singas’ and Judge Cannataro’s appointments mean for the Court ideologically? First, let’s think about where we are right now. Chief Judge DiFiore and Judge Garcia make up the Court’s more conservative wing (New York conservative, not typical conservative), and Judges Rivera and Wilson are on the more liberal side. Judge Fahey sits in the middle between the two wings, with a practical perspective on the law that doesn’t strongly put him in either camp.
Although District Attorney Singas is a Democrat, she doesn’t appear to be a staunch liberal who would join Judges Rivera and Wilson. As a career prosecutor, her record has been fairly conservative, much like the Chief Judge’s. She has had nine cases at the Court of Appeals in her terms as the Nassau County District Attorney (none of which she argued). Each time, the DA’s positions sought, unsurprisingly, to keep DA investigation files from inspection under FOIL (see Matter of Friedman v Rice, 30 NY3d 461 ); to allow parents to consent to the recording of phone calls on behalf of their children, which would clear use of those recordings in prosecutions (see People v Badalamenti, 27 NY3d 423 ); and to allow for questioning of a defendant who is represented without his or her attorney present on an different, unrepresented crime (see People v Henry, 31 NY3d 364 ).
District Attorney Singas’ selection should place her on the more conservative wing of the Court with Chief Judge DiFiore and Judge Garcia, both of whom are former prosecutors, much to the defense bar’s chagrin. But she has never been a judge before, so it’s impossible to tell what her judicial philosophy will be until we see how she approaches the Court’s cases at oral argument and in her writings.
Although Judge Cannataro has about 10 years of judicial experience, only three of his opinions have been selected for publication in the Official Reports–a summary judgment order in a personal injury action (see Ramirez v Rosario, 44 Misc 3d 1204[A] [NYC Civ Ct 2014]), a decision on a motion for a default judgment and cross motion to dismiss in a breach of contract case (see Lancman v Rappaport, Hertz, Cherson & Rosenthal, P.C., 44 Misc 3d 1204[A] [NYC Civ Ct 2014]), and a decision on an issue of first impression concerning whether an insurer complied with the insurance department regulations for reimbursement when it pays for services in another state based on that state’s no-fault fee schedule (see Surgicare Surgical v National Interstate Ins. Co., 46 Misc 3d 736 [NYC Civ Ct 2014]). The latter decision is most like what Judge Cannataro will be handling at the Court of Appeals, and his writing provides a few insights to his judicial outlook. After disposing with a few procedural issues, Judge Cannataro turns to the No Fault statutory and regulatory scheme, and notes importantly that the Superintendent of Insurance is granted deference to their interpretations of the insurance regulations. Judge Cannataro proceeds to break down the wording of the regulation’s text, and uses the subsections surrounding the salient provision to provide context to his interpretation. Finally, Judge Cannataro confirms that his interpretation of the regulation comports with the “policy goals” underlying the Legislature’s adoption of the no-fault fee schedule, as shown in the legislative history, as well as “consistency and fairness” in applying the regulation.
It’s the latter point that’s most noteworthy to me. Ensuring that his decision promotes consistency and fairness suggests that Judge Cannataro is willing to look at the policy implications of his decisions at the Court and not be beholden to text that might produce undesirable results. Granted, it’s a one-off decision out of a ten year judicial career, but his public statements seem to back that up. In an interview Justice Cannataro gave last year, he made a point to clarify that judges can understand the issues that litigants face:
The biggest misconception about judges is that we are not sensitive to the needs of the litigants that appear in front of us, and I say this as someone who oversees a court where there are so many unrepresented people from such diverse backgrounds. I think there is a feeling that judges don’t understand what regular people are going through. People tend to forget sometimes that judges are regular people. We come in all different types, sizes, and backgrounds.amNewYork, A conversation with Judge Anthony Cannataro, Civil Court of the City of New York and Justice of the New York State Supreme Court
Although the lack of published opinions written by Judge Cannataro make predicting his judicial philosophy difficult, I would guess that he will fall on the more liberal wing of the Court, to the left of Judge Fahey, but to the right of Judge Rivera. If that’s true, District Attorney Singas and Judge Cannataro seem to balance each other out ideologically, which makes Judge Fahey (and his upcoming successor) the true swing vote on the Court. We’ll see.
On to Senate Confirmation
Now that Governor Cuomo has made his two selections for the Court of Appeals, the nominees have to go through Senate confirmation (see NY Const, art VI, 2[e]). Normally, the Governor’s picks for the Court of Appeals sail through Senate confirmation without much trouble at all. I expect Judge Cannataro will as well. But it certainly will be interesting to see how the Democratic majority in the Senate handles the confirmation hearings for District Attorney Singas. She appears to be far less progressive than we in New York would expect a Democratic nominee to be, and with the Senate held by a progressive Democratic majority, it’s uncertain how she will be received. Could the Senate refuse to confirm the Governor’s choices and send him back to the drawing board? It’s possible, but very, very unlikely.
Once confirmed, both District Attorney Singas and Judge Cannataro would likely serve out their full 14-year terms on the Court of Appeals bench, and will shape New York law for many, many years to come.