STATE CONSTITUTIONAL ISSUES.

• Position: Symposium in Honor of Chief Judge Judith S. Kaye - Discussion

State Bar Building, Albany, New York

Wednesday, June 14, 2017

Co-sponsors:

New York State Bar Association

Northern District of New York Federal Court Bar Association

Speakers:

Hon. Mae DAgostino, United States District Judge, Northern District of New York

Vincent M. Bonventre, Justice Robert H. Jackson Distinguished Professor of Law, Albany Law School

Judge D'Agostino: Professor Bonventre from Albany Law School. I recently told him that I wish I could go to his classes because I heard him speak now at a few seminars, and he is enthralling.

Prof. Bonventre: I guess I'll have to be enthralling, thank you Judge. But I'm very, very pleased to be here especially with these panelists who I admire so much. You know, this is like deja vu all over again because some of us did these presentations three weeks ago down in Manhattan. But, nevertheless, even though I will be repeating myself, I am certainly glad to once again pay tribute to Chief Judge Kaye. Chief Judge Kaye and I actually began in the New York Court of Appeals together in 1983, she as a Judge and I as a Junior Clerk. Several years later, she became Chief Judge of the court and I became a junior professor. Ultimately, she became revered as a national judicial icon, and I became a sometimes resented local commentator on her court.

But we stayed close through all those years, and I recently wrote something that. . . Let me just read it to you. Of course, it's not as magnificent as some of the articles that Hank Greenberg has written about Judith Kaye, but this is my own effort. "Those of us who worked with her and knew her and loved her will remember her warmth and kindness, her wisdom and inspiration, her dignity and class, her elegance and eloquence, and her unsurpassed decency, and tireless devotion to the public good. We miss her dearly." My purpose is to place Chief Judge Kaye's advocacy of state constitutional adjudication in context, and to give it some contour. Simply speaking, her philosophy with regard to state constitutional adjudication is that state courts, including the New York Court of Appeals, ought to be applying state law whenever possible to decide constitutional questions.

I mean there's nothing particularly peculiar about that. In fact, there really isn't anything either idiosyncratic or radical about her views. Indeed, there were other judges of other state courts around the country who also were advocating prominently for state constitutional law. Whether that was Hans Linde in Oregon, Randall Shepard in Indiana, Stanley Mosk in California, Shirley Abrahamson in Wisconsin, Christine Durham in Utah, and I could go on and on. But the thing about Chief Judge Kaye is that there was just nobody as brilliant as her, nobody as eloquent as her, and of course none of those others sat on the New York Court of Appeals. So nobody had the kind of gravitas that she had.

Now, not only were there others around the country that were advocating for independent state constitutional adjudication, but the fact of...