The use of legislative history in interpreting New York State and federal statutes: symposium sponsored by the New York State-Federal Judicial Council.

• Position: Panel Discussion

Albany Law School--March 24, 2003

HON. ROSEMARY S. POOLER: (1) Good morning to everyone. My name is Rosemary Pooler. I sit on the Second Circuit and I am here representing the State-Federal Judicial Council, the group that is sponsoring this program. We are actually almost undone by our success. We are starting while people are still registering.

Just to do a few moments of welcome, I want to acknowledge Hank Greenberg who co-chaired this particular program with me and did yeoman's service. The members of the committee who are here, Marry Glenn, Marilyn Kunstler, Judge Barry Cozier, Judge Katzmann, who will be on the program; and Karen Milton who is staff to our Council. Most of all, I only take the microphone to say a word about our former chair, Howard Levine, who wanted us to move the programs around the state, who had the idea that in Albany we would get a good turnout, and who gave us the most inspired direction and leadership for two years that any committee could imagine, and we all wanted to thank him for that. We are happy to be in his stomping grounds and now, I will turn the program over to the new Dean of the Albany Law School, Dean Guernsey.

DEAN THOMAS F. GUERNSEY: (2) Good afternoon. We are overwhelmed by the turnout and the people who are still coming in. It is certainly an honor to welcome such a distinguished gathering of judges, elected officials, professors, government lawyers and private practitioners to Albany Law School. It would be a daunting task to individually recognize all who are deserving here this afternoon. So, allow me to simply acknowledge and welcome again to our institution the Honorable Judith Kaye and all of her outstanding colleagues on the New York Court of Appeals. Chief Judge Kaye, Albany Law School always has had a special relationship with the Court of Appeals and it has been one of my true pleasures since I have been here to see that is a strong and growing relationship. It is a relationship that this school is very proud of and something that we do cherish. It is also particularly exciting to have with us today members of the federal bench, something that does not happen with enough regularity as a matter of fact, and we are doing more to try and develop those relationships as well. Chief Judge John Walker of the United States Court of Appeals for the Second Circuit, we welcome you and your colleagues on the federal bench in New York to Albany Law School. I also want to thank Judge Rosemary Pooler for all of her efforts in putting together what is, in my opinion, a stellar program of major significance. Of course, we owe a big thank you as well, as you have indicated, to the New York State Federal Judicial Council, who had the wisdom to bring this program from New York to Albany.

As you can tell from the crowd in this room and the fact that we have to beam it over to another classroom, we believe that holding the conference in Albany was an excellent decision and shows what kind of support and attendance you will get in the state capital. Of course, I want to personally acknowledge and thank the former head of the State Federal Judicial Council, the Honorable Howard Levine, who has joined the law school faculty here, and we greet him as a colleague. Lastly, I want to thank the Government Law Center and Patty Salkin, as well as the Institute for Legal Studies for their efforts in coordinating the many behind the scenes details to get us all here today.

And now it is my great pleasure to introduce Chief Judge Judith Kaye for some welcoming remarks. Thank you.

HON. JUDITH S. KAYE: (3) Thank you, all of you, especially Dean Guernsey and the Albany Law School for the wonderful attention and the warmth of your feeling, which I return in full to the Law School and to the Government Law Center. It is a pleasure for me to join in this welcome today. Sometimes I have difficulty finding my way to the fourth floor of the Law School, although as the Dean has noted, I have been here many, many times. But today I just followed the crowd. And I certainly understand why there is such a crowd. We have a great venue, a great subject, a great over-viewer (one of the outstanding voices on the subject of statutory interpretation), Professor Eskridge, fabulous moderators-Judge Wesley and Judge Katzmann--and terrific panelists. Have you seen a better group of panelists? I have not.

I would like to linger for just a moment on the subject of the State-Federal Judicial Council, one of the symposium sponsors. In all candor, I have to tell you that in some venues it is known as the Federal-State Judicial Council. I have puzzled over this long and hard and even done some research.

Actually, we have to go all the way back to the year 1971, when the Council began. (4) The State-Federal Judicial Council (I say as State Chief Judge) was a joint initiative of then-state Chief Judge Stanley Fuld and then-Second Circuit Chief Judge Henry Friendly. The idea was a fine one, because we are blessed in this nation with coordinate, independent, state and federal judicial systems. But the blessing is sometimes hard to appreciate--for example, if you are an attorney caught between two systems, expected to be present in both, or you are confused about where state jurisdiction and federal jurisdiction overlap. Maybe what really inspired Chief Judges Fuld and Friendly was the idea that together, collaboratively, each system could be a source of help for the other, and for the Bar and for the justice system. And so this great idea was launched thirty-two years ago. That I now know for sure, though I have no authoritative answer on the nomenclature.

Over the decades, the Council has had its ups and downs, but my goodness, we went soaring off into the universe when my colleague Judge Howard Levine took the reins as Chair. Since then, we have had the most wonderful conferences and the most wonderful collaboration.

This is actually the Council's fifth symposium. In the year 2000, at the Fordham Law School, we had the inaugural symposium of this organization, which was a potpourri of certification, habeas, juries and practice in both courts. In the year 2001, we had two symposiums, one in Syracuse and one in New York City at the Appellate Division in Manhattan on post-conviction review--terrific. Last year, the year 2002, we had a session on expert testimony.

I know today's session will follow in the great tradition that has been established since Judge Levine became Chair, assisted by terrific Council members and a great Advisory Group. Advisory Group co-chairs Marilyn Kunstler and Marty Glenn are here today, along with several members of the Council, including my former law clerk, Hank Greenberg, who chaired the subcommittee that put today's program together.

Above all, there are really two people who deserve credit for the phenomenal ascension of a great idea, the State-Federal Judicial Council. One is Howard Levine and the other is the final welcomer, the really fantastic Chief Judge of the Second Circuit, John M. Walker, Jr.

HON. JOHN M. WALKER, JR.: (5) Thank you so much Judith for your very kind remarks. I will be brief. Judith covered everything that I would have covered and so I am going to amend my remarks and reduce them a little bit. I will not quibble about the name of our Council, but in Albany it is the State-Federal Judicial Council. This is the seat of the New York State Court of Appeals and as far as I am concerned, it is State-Federal when we are in Albany. We will worry about New York City later.

This Council is a remarkable body. I think in the last few years we have really tapped into something here because, in New York, we have two vital parallel systems, staffed with great judges, with great lawyers appearing before each one of them at all times, and we have a lot in common. We also interact and we have covered those interactions in a number of our conferences--conferences on habeas corpus, on certification and abstention, and the like. So, we depend on each other and we relate to each other that way, but we also have parallel systems which are essentially trying to achieve the administration of justice in the fairest, most intelligent, and most competent way that we can, exercising the greatest wisdom that we can, and so we can learn from each other. We in the federal system can learn from the state system, and I hope that the state system can learn from the federal system and, together, I think we have really hit on something. This conference on the use of legislative history is just one more example.

Judith has outlined the other conferences that were so successful in the past. So I just want to thank, once again, Dean Guernsey for making this venue at Albany Law School available to us. We are very happy to do this in Albany and look forward to an interesting conference. I am not going to keep you any longer.

PANEL DISCUSSION ON THE STATE COURTS' PERSPECTIVE

MODERATOR

HON. RICHARD C. WESLEY Associate Judge, New York Court of Appeals (Judge Wesley is now a Judge of the U.S. Court of Appeals for the Second Circuit)

PANELISTS

HON. JAMES J. LACK Judge, New York State Court of Claims and former Chair, Judiciary Committee, New York State Senate

HON. HELENE WEINSTEIN Chair, Judiciary Committee, New York State Assembly

EVAN A. DAVIS, ESQ. Cleary Gottlieb Steen & Hamilton and former Counsel to Governor Mario M. Cuomo

HON. RICHARD WESLEY: It is always hard when you are following someone from Yale and you went to Cornell, although I am not a Cornell apologist by any stretch of the imagination. My name is Richard Wesley. I am an Associate Judge of the New York Court of Appeals and, as my biography points out, I stand with both feet firmly planted in state service, but presently undergoing a bit of a lean towards federal service, the President having nominated me for the Second Circuit. So, I have my current boss and my prospective boss in front of me, and I must say that it is a little...