State Bar Association expresses concern for judicial independence

April 5, 2023 Robert Abruzzese
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STATEWIDE — New York State Bar Association President Sherry Levin Wallach released a statement regarding the importance of judicial independence and the separation of powers:

“The New York State Bar Association is a steadfast supporter of ensuring access to justice for all, upholding the rule of law, and promoting fairness in legal processes,” Levin Wallach said. “We acknowledge that these crucial objectives can only be fully achieved when there are distinct, independent, and co-equal branches of government. For courts to maintain their independence, they must be allowed to operate in line with their constitutional responsibilities.

“We firmly believe that judges must have the ability to make decisions and issue rulings without external influence. Each branch of our state government should execute its responsibilities while respecting the other branches. This principle of checks and balances forms the foundation of our democratic system.”

Concerns of judicial independence have grown since the rejection of Hon. Hector LaSalle as the State’s next chief judge. LaSalle’s rejection was unprecedented as the legislature’s approval has previously been seen as more-or-less a rubber stamp. Hon. Janet DiFiore was approved unanimously after he was nominated by then Gov. Andrew Cuomo.

City & State New York reported on an opposition group that grew out of Gov. Cuomo’s nomination of Madeline Singas as the Nassau County District Attorney and became alarmed regarding her regressive stances on bail and discovery reform laws.

Editor Peter Sterne reported that the group reorganized when Chief Judge Janet DiFiore abruptly and unexpectedly resigned three years before her term was up. This time they were particularly concerned with recent U.S. Supreme Court rulings regarding abortion rights and concealed carry laws.

“I wish I could credit it to our genius advocacy, but let’s be honest, it’s because the federal and then the state court both went stark raving mad,” said one group member (a practicing attorney) told City & State. “When you’ve got the Supreme Court handing out opinions saying, ‘Oh, well, let’s undo every constitutional right since 1963,’ and then you’ve got the Court of Appeals saying, ‘We’re going to give the control over districts to an upstate Republican judge,’ you know, that’s going to get politicians’ attention.”

Hon. Sol Wachler, the former Chief Judge from 1985 until 1993, wrote an opinion piece in Newsday on Sunday entitled, “New York’s independent  judiciary is under threat,” where he raised concerns that Gov. Hochul’s negotiations with the State Senate

He explained that not only has the issue of Hon. LaSalle’s rejection made the process complicated, but that it has been made worse by a failed election redistricting attempt, which led to the Court of Appeals rejecting the “unconstitutionally gerrymandered” election maps.

In response, Justice Wachler explained, Senators Michael Gianaris and Brad Hoylman-Sigal denounced the jurists who voted to reject the maps and stated that no Court of Appeals judge who voted with the majority would be confirmed as the next chief judge. Wachler argues that this approach would effectively end the “merit selection” system and threatens the independence of the judiciary.

“Indeed, every trial or appellate judge who seeks advancement within New York’s judiciary and rules in favor of a landlord’s eviction of a tenant, or sets bail, or decides a case based on precedent deemed anti-labor, or has ever been endorsed by the Conservative Party, or has ever served in a prosecutor’s office, has been put on notice by our ‘progressive’ State Senate that their hopes for judicial promotion depend not on their abilities or administrative skills, but on how their judicial record is rated by ‘progressive groups’ and the State Senate majority,” Justice Wachler wrote. “As Sen. Gianaris put it, he only wants Court of Appeals judges whose thinking is “more in line with the values of the majority of the Senate.

“This is the very antithesis of an independent judiciary.”


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