Exceeding federal standards.

• Position: Welcome & Opening Remarks into Discussion, p. 1247-1279 - Chief Judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium - Discussion

ALBANY LAW SCHOOL

Dean Alexander Moot Courtroom

Thursday, April 3, 2014, 2:00pm

1. WELCOME & OPENING REMARKS

   ROBERT MCIVER: Hello everyone, and thank you for attending. My name is Robert McIver and welcome to the Albany Law Review's eighth annual Chief Judge Lawrence H. Cooke spring State Constitutional Commentary symposium. We are absolutely thrilled to be joined by such a tremendous and prestigious panel, including Judge Graffeo of the Court of Appeals, Justice Landau of the Oregon Supreme Court, Chief Justice O'Connor of the Ohio Supreme Court, Justice Palmer of the Connecticut Supreme Court, Chief Justice Rabner of the Supreme Court of New Jersey, and the Honorable Barbara Underwood, the New York State Solicitor

   General. The topic tonight is exceeding federal standards and the panel will spend the next three hours discussing the impacts of state constitutions in providing greater protections than exist under the federal Constitution. Given the numerous brilliant opinions to be discussed tonight. I think it is easy to take for granted the role of state courts in protecting our rights and liberties. This was not always the case. This year, the Albany Law Review was particularly humbled and honored to publish the late Stewart F. Hancock's article on this exact topic. Judge Hancock was on the court at a time when the judges argued at length, and even dissented as to whether it was ever proper for state courts to deviate from the guidance of the federal Supreme Court. In his article, Judge Hancock proudly remarked as to the progress in New York State in that

   state constitutionalism has been unquestionably accepted and is now a frequently and routinely applied approach to resolving issues of fundamental rights in New York. State constitutional law--and especially its reestablished legitimacy and unhesitating use by judges at all levels of New York judiciary--have helped make the New York judicial system the leading and, in [his] opinion, the best in the nation. I think tonight's panel and the opinions and ideas that are to be discussed over the next several hours are a special and fitting tribute to how correct Judge Hancock was when he envisioned the role state of courts and state constitutions. I know I speak for the Albany Law Review when I say that we're honored to listen to the discussion on this topic. I also would like to take a moment to thank everyone that helped with this event, including all the members of the Law Review that dealt with my late-night e-mails, particularly, April Corrigan, Danielle Quinn, our faculty advisor, Professor Bonventre, and of course our wonderful and supportive Dean Penny Andrews. I'd also like to thank Tammy Weinman, Dave Singer, and Evette DeJesus for their tireless efforts, without which this simply would not have been possible. I would now like to introduce our faculty advisor, Professor Bonventre, for some introductions. Thank you everybody, and enjoy the symposium.

   PROFESSOR VINCENT BONVENTRE: Thank you, Bob. Welcome to all of you and again thank you to the Law Review and especially to Bob Mclver, this year's State Constitutional Commentary editor for putting together a fabulous program and being such a fabulous editor. Thank you, Bob. Well, again as you know, this is one of the signature events at Albany Law School. I don't think anybody else has anything like this. Each year we bring some of America's great judges to Albany Law School, and despite the legal education's preoccupation with federal law and the federal Supreme Court, the fact of the matter is, most of America's great judges are on America's state high courts. In past years, we brought them here, whether Chief Justice Margaret Marshall of Massachusetts, Chief Justice Christine Durham of Utah, Chief Justice Shirley Abramson of Wisconsin, Chief Justice Chase Rogers of Connecticut, and our own former Chief Judge Judith Kaye, of the Court of Appeals. We've also had some men here, Chief Justice Jim Hannah of Arkansas, our own Chief Judge Jonathan Lippman, Chief Justice Norcott of Connecticut, and last year, I know many of you were here, we had the entire New York Court of Appeals in this moot court room.

   Today's lineup is another, in the words of Dean Penny Andrews, another spectacular cast of characters. So this is a very, very special event and talk about special, that's what all of us at Albany Law School, and it seems like absolutely everyone on the bench and the bar in New York State, think about Judge Graffeo, our own special honoree. I must confess that I do think it would've been appropriate for our special honoree to just sit back, relax, and just hear all of us talk about how absolutely wonderful she is, how much we admire her and love her, but I must say that I shamelessly said to Judge Graffeo look, we're going to dedicate this year's State Constitutional Commentary to you and the symposium because we love you and admire you all, and by the way, while I have your ear, can you also give a presentation, and on top of that, could you also moderate the event, but she graciously said yes, but it was particularly shameless of me. I know, Jonathan Lippman that has told me himself, that he does come up with all these great proposals, but the reasons they get done because he hands them over to Judge Graffeo out to get them done and she's extraordinary at getting them done and getting them done well. To lighten Judge Graffeo's role, I've volunteered to do this terribly burdensome task of introducing our panelists and Judge Graffeo will be introduced afterward by another special guest. Let me, very briefly, introduce our panelists without going any further. I'm not going to be reading from the bio blurbs, there are some blurbs about the justices in your brochures. I'm not going to be dealing with that.

   Let me talk first about the Justice Jack Landau of the Oregon Supreme Court, and he's been on the Oregon Supreme Court since 2011. Before that he was on their intermediate court for eight years. What attracted us, among other things, to Justice Landau were a couple of his law review articles: Hurrah for Revolution: A Critical Assessment of State constitutional Interpretation. (1) Another one: The Unfinished Revolution: Interpreting the Oregon

   Constitution. (2) That seemed pretty cool. I also saw an Oregon editorial when he was running for the Oregon Supreme Court and this is what the editorial had to say about him. After eight years on the intermediate court,

   he's still cranking out opinions and polishing his reputation as a good judge with an analytical bent, a scholarly sensibility and an independent judicial philosophy.... People who've worked with Landau describe him as focused, courteous, self-assured and highly productive. They admire his ability to follow the law to its logical conclusions, which makes him hard to pigeonhole.... Landau is the clear winner. (3) And clearly we're glad you're here with us today.

   From Ohio we have Chief Justice Maureen O'Connor. Justice O'Connor just so happens to be apparently the most popular judicial vote-getter in recent Ohio history. She won by a landslide to the Ohio Supreme Court in 2008 and another landslide in 2010 to be the Chief Justice. She has been on the forefront in Ohio when seeking reforms for the selection method for judges in Ohio. O'Connor's approach is that, unfortunately, fitness for judicial office often matters not at all in judicial elections. But not only in judicial selection and judicial elections, Chief Justice Maureen O'Connor has been a powerful voice and engine for reform in lots of different ways in the Ohio judiciary and we are honored to have her here as well.

   From Connecticut, we have Justice Richard Palmer. Justice Palmer served as United States Attorney for Connecticut. He was then the chief state's attorney for the state of Connecticut. He was selected by Governor Weicker in 1993 to the Connecticut Supreme Court, and appointed several times since then. He also teaches criminal law and ethics at Quinnipiac, and I like those two subjects, I teach them as well. But among other reasons we're thrilled he's here is that he definitely has a prominent place in Connecticut judicial history because he's the one that authored the majority opinion in the Kerrigan case in 2008, invalidating that state's ban on same-sex marriage, and he will be speaking to us about that as well. Thank you for coming, Justice Palmer.

   Justice Stuart Rabner of New Jersey. In 2002 when, now Governor Chris Christie of New Jersey was the United States Attorney, he put Stuart Rabner in charge of that office's new terrorism bureau. Then he made him the head of the criminal division. Stuart Rabner was then was appointed Attorney General of New Jersey in 2006. The very next year, 2007, former Governor Corzine nominated Stuart Rabner to be Chief Justice of the New Jersey Supreme Court and apparently some state senator tried to hold up the nomination. Now Governor Christie jumped to Rabner's defense, calling him a fabulous choice and criticizing the hold up as typical rotten politics. Well, we hope Governor Christie has that very same attitude when Chief Justice Rabner comes up for reappointment during his tenure on the New Jersey Supreme Court. He has kept that court, as it has been for quite a while, in its position as one of the great courts in America on the front of a lot of issues. Thank you for being here, sir.

   Finally, New York State Solicitor General, our fabulous solicitor general, Barbara Underwood. Barbara Underwood was born in that demographically homogeneous town of Evansville, Indiana. But she now lives in that racially, ethnically national melting pot of Brooklyn, the capital the world. That's what Brooklynites call it. On this sixtieth anniversary of Brown v. Board of Education, I also want to mention that she clerked for Justice Thurgood Marshall. Not only that, she has argued over twenty cases before the United States Supreme Court. She's also...