If legislators fail, who is there to follow?

• Author: Wesley, Richard C.
• Position: Issues Facing the Judiciary

I have enjoyed a long-standing love affair with the Capitol District. As reflected in my curricula vitae, I attended the University at Albany, worked and served in the state legislature and had the great honor and pleasure to serve for six and a half years on New York's High Court--The Court of Appeals. Albany has always been a place of growth and personal fulfillment for me.

The Albany Law School has also played an important role in my professional life. The law school has sent me several wonderful clerks and has invited me twice before to speak on the law and its development. My initial effort in that regard was the inaugural Hugh R. Jones Memorial Lecture on March 11, 2002. (1) In that talk, I focused on the life of Hugh Jones and the artcraft of appellate judging in a common law court. The following March, I returned to speak at a seminar entitled The Use of Legislative History in Interpreting New York State and Federal Statutes. (2) I moderated the panel discussion on how laws are made in New York and how legislative history is assembled. That was a very distinguished panel that included the Chair of the Assembly Judiciary Committee, Helen Weinstein; the former Chair of the Senate Judiciary Committee, Judge James Lack; and former counsel to the Governor, Evan Davis. It was, for me, an exciting and enlightening discussion. It combined my years of service as aide and Assembly member with my tenure as a trial and appellate judge.

Today I return, this time, to give you my views of where some of the jurisprudential "action" will be in the years to come. This has not been an easy task for me. As you all know, I left Eagle Street and changed my professional address to 40 Foley Square in New York City. My new responsibilities as a Circuit Judge for the United States Court of Appeals for the Second Circuit have, to some degree, cast my work into a bit of confusion. My new colleagues begin every case with a jurisdictional inquiry that befuddles a state court-trained judge who thinks in terms of minimum contacts and the Due Process Clause and not Article III of the Constitution. I like Article III--I really do--but to think that Congress can limit my authority to resolve a case has been a new experience.

Let me begin, then, by confessing I intend to draw a bit on my Jones Lecture, my efforts in moderating the discussion about statutory interpretation and several cases--some federal and others from New York--that may give us some idea what lies ahead for state and federal courts both in New York and elsewhere.

During the course of the panel discussion, Judge Lack and Assemblywoman Weinstein revealed a significant and startling fact that I have long known existed but have rarely, if ever, seen employed in analyzing the intent of statutes. Both conceded that occasionally when a bill is being negotiated between the Assembly and the Senate, the parties will purposefully accept an ambiguous term or will intentionally omit a legislative directive knowing full well that the matter will ultimately be decided by the courts. Certainly, no one announces the compromise for later judicial review. But the ambiguity or omission does allow both sides to put the necessary spin on the measure in applauding its passage, while reserving the right to blame the courts if their view is not ultimately endorsed in an opinion. A good example of this is Majewski v. Broadalbin-Perth Central School District.

In Majewski v. Broadalbin-Perth Central School District, the issue was whether the changes in the Workers' Compensation Law that restricted the ability of third party tortfeasors to seek contribution from an injured employee's employer were prospective or retroactive. (3) A long discussion of that case is not necessary today. Suffice it to say that when the case came to us at the New York Court of Appeals, the statute did not provide a clear answer and the legislative record had an interesting contrast in it. The bill's sponsor in the Assembly proudly proclaimed that the bill was prospective while the Governor announced at the bill's signing that employers would see immediate reductions in their insurance premiums as the bill would apply retroactively to all pending cases! (4)

Now I confess this is not something new and I suspect that years from now, legislators in New York, Washington and elsewhere will compromise on a word or provision knowing full-well that someone else, dressed in the robes of a judge, will be called upon to decide what was intended.

Some may view that judicial function as judicial activism, but judges are confronted with cases that raise legal...