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New York Post


N.Y. Judge Wars: Hidden '06 Issue

June 30, 2006

By Walter Olson

At least three of the seven seats on the Court of Appeals, the state's top court, will fall open early in the term of Gov. George Pataki's successor. So either Democrat Eliot Spitzer (or maybe Tom Suozzi) or Republican John Faso will take a major hand in shaping the future direction of the Em­pire State's legal system — and the dif­ferences between Spitzer and Faso in particular carry big implications for the state's schools, public safety and business climate, for starters.

Considering the power it wields, the Court of Appeals keeps a remarkably low profile in fractious Albany. Even its modest name helps deflect contro­versy: It's no less "supreme" than other states' high courts, but doesn't wave the word in your face.

And New York's top judges have generally avoided the bitterly divisive high-court politics seen in states like California, Texas and Ohio. Differ­ences between members of the court get aired in relatively amiable fashion.

Ideology does rear its head — the court often splits on liberal-conserva­tive lines. A prime exam­ple is its 2004 decision striking down the state's death-penalty statute, over a dissent by three Pataki appointees.

For years, New York's high court was among the nation's most prominent liberal voices on criminal-justice issues, delighting civil libertarians and frustrating police advocates with rulings extending Mi­randa rights, the exclusionary rule and so forth. That's been changing lately as Pataki appointments have joined the court, Republican nominee Faso, who has promised to make crime an issue this fall, may argue that opponent Spitzer is too beholden to Democratic constituencies to follow up on this trend.

The new chief executive will have a choice of replacing or reappointing Chief Judge Judith Kaye and Carmen Beauchamp Ciparick from the court's liberal wing, and swing voter Albert Rosenblatt, all of whose seats fall va­cant early in his term.

Then there's the ongoing mess aris­ing from the Campaign for Fiscal Eq­uity litigation. Backed by teachers unions and other interested parties, CFE has prevailed on the courts to as­sert control of school budgeting — pushing state taxpayers to shell out more for urban schools, especially New York City's, which are already richly funded by national standards.

The Court of Appeals has generally given a green light to the activism of trial court judge Leland DeGrasse in the case. It's a fair bet that Faso appointees would be more sensitive to suburban interests and less enthusiastic about letting budget­ers' every decision get second-guessed in court.

One possibly relevant precedent comes from Connecticut: In the Shelf v. O'Neill litigation, our neighboring state's closely divided high court briefly embarked on an ambitious so­cial-engineering scheme aimed at res­cuing urban schools at suburbs' ex­pense — but then backed off after a GOP governor's appointment power changed the court's makeup.

Tort law is another sensitive area. Just this March, the Court of Appeals once again divided 4-3 in voting to up­hold an award of $1.4 million to Juan Soto, who was injured after trespass­ing on the elevated tracks near Queensboro Plaza and trying to outrun a No. 7 train. Judge Robert Smith, appointed by Pa­taki, objected to no avail that Soto's "injuries were entirely his own fault." Lawyers for New York City cite the high court's willingness to uphold gi­gantic awards as a factor in pushing the city's liabil­ity pay-outs skyward, to $575 million in 2004.

On other matters of business law, the court has mostly followed a middle-of-the-road course, perhaps mindful that to do otherwise might imperil Gotham's role as the nation's commercial hub.

For instance, both wings of the court came together in a unanimous 2001 de­cision rejecting wacky theories hold­ing the firearms industry financially responsible for the misuse of guns in crimes. That ruling must have come as a sting to the public official more closely identified than any other with those wacky theories — one Eliot Spitzer.

Given Spitzer's record, it's a fair question whether he might start filling the court with judges who'd start dashing off on anti-business crusades. That would be a sure way to drive cor­porate headquarters, Wall Street and international commerce to more wel­coming legal pastures, much as the ex­cesses of the California Supreme Court in recent decades have contrib­uted to that state's business woes.

Reporters should ask both candi­dates about their plans for Court ap­pointments. The stakes are high.



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