Judge Victoria A. Graffeo: committed, conservative, collegial.

• Author: Cooney, Jeremy A.
• Position: New York

It is too early for all but speculation on how Judge Graffeo's appointment will impact the court. Commentators generally expect her to be moderately conservative and self-restrained. If her voting does turn out to be staunchly conservative--i.e., strongly pro-prosecution and pro-government authority--she would be continuing in the path of her predecessor, [Judge] Bellacosa. That in itself would create no change.... On the other hand, if Graffeo's voting were to be more centrist or, by surprise, somewhat liberal, her presence would then have a moderating and even liberalizing effect on the Court of Appeals.... (1)

1. INTRODUCTION

   After nearly a decade of service on the New York Court of Appeals, Associate Judge Victoria A. Graffeo is far from liberal.

   Appointed in 2001 by Republican Governor George E. Pataki, Judge Graffeo's judicial philosophy on the high court bench has been unsurprisingly conservative. Her voting record has been consistently pro-prosecution and pro-government authority. But despite cultural and ideological similarities, she has distinguished herself from Judge Joseph W. Bellacosa, whose seat she replaced after his departure from the court. (2)

   Unlike Judge Bellacosa, Judge Graffeo has taken a gentler role on the state's highest tribunal. (3) By most often joining in the majority's decisions, many observers would not describe her as a "mover and shaker." In fact, during her lengthy tenure, she has only authored a small number of dissenting opinions. (4) Her reluctance to authoring dissents was somewhat predictable based upon the fact that she had only written or joined three dissenting opinions in the over 1,800 cases that came before the her on the Third Department. (5) Moreover, in contrast to some of her colleagues, her dissents are neither written with a sharp tongue nor laced with hostility, but rather written in a clear-cut fashion; exacting the legal point and supporting her proposition with only the facts of the case at-hand. (6)

   Her mild presence should not, however, be mistaken for complacency or insecurity. Judge Graffeo is steadfast in her beliefs and is not afraid to voice discontent. Most importantly, she is consistent when applying her judicial beliefs. To that end, by reviewing her professional background, selected case law, and her decision-making during her tenure, this article explores some of her judicial themes that have emerged to afford the reader a better understanding of who she is as a judge on the state's highest court.

2. BACKGROUND

   On November 3, 2000, at a news conference in the state's Executive Chamber, Governor Pataki nominated then-Appellate Division Justice Victoria Graffeo for the New York Court of the Appeals. (7) She was appointed to fill the vacancy left by Associate Judge Joseph Bellacosa, who left the court to become Dean of St. John's University Law School. (8) Upon nominating Judge Graffeo, Governor Pataki stated that she "ha[d] greatly distinguished herself throughout her diverse career in public service." (9)

   Judge Graffeo's public service to the State of New York began in 1982, when she served as assistant counsel to the New York State Division of Alcoholism and Alcohol Abuse. (10) Two years later, she served in the state legislature as counsel to the Assembly Republican Minority Leader Pro Tempore, Kemp Hannon, and then as chief counsel to Assembly Minority Leader Clarence D. Rappleyea, Jr. from 1989 through 1994. (11)

   In 1995, newly elected Republican Attorney General Dennis Vacco named Victoria Graffeo as his solicitor general. In her capacity as a solicitor general, Victoria Graffeo worked closely with Attorney General Vacco to defend New York's 1995 revival of its death penalty statute. (12) She also was instrumental in the criminalization of physician-assisted suicide. (13)

   In September 1996, Governor Pataki appointed Victoria Graffeo to fill a vacancy for the New York State Supreme Court, Third Judicial District, in Albany, N.Y. (14) Three months later, she was elected to a full-term on the state's supreme court. (15) Her campaign for the supreme court seat was made difficult after Democrats exposed that she was receiving large amounts of funding from then U.S. Senator Alfonse D'Amato, a Republican, and Goldman Sachs. Both of these funding streams caused people to question her ability to be an independent judicial voice on the court. (16) Nevertheless, she prevailed and shortly thereafter, in 1998, Judge Graffeo was elevated to the New York State Supreme Court, Appellate Division, Third Department, as an associate justice.

   Less than five years after first serving on the bench, on November 29, 2000, the New York State Senate unanimously confirmed Victoria Graffeo as an associate judge for the highest tribunal in the state. (17) She was selected over six candidates: Appellate Division, First Department Justice Richard T. Andrias; Administrative Justice Stephen G. Crane, Manhattan; Administrative Justice Steven W. Fisher, Queens; former New York State Bar Association President James C. Moore; Deputy Chief Administrative Judge Juanita Bing Newton; and then-Presiding Judge of the Court of Claims Susan Phillips Read (a later Pataki appointment to the Court of Appeals). (18) The governor attributed his selection of Judge Graffeo to her professional experience in the three branches of government and her receiving the highest ratings possible from the New York State Bar Association, the Association of the Bar of the City of New York, the Women's Bar Association of the State of New York and the New York State Trial Lawyers Association. (19)

   Judge Graffeo became the third woman to serve on the state high court, joining then-Chief Judge Judith Kaye and Senior Associate Judge Carmen Beauchamp Ciparick. (20) Today, at age fifty-eight, Judge Graffeo is the second-most senior member of the Court of Appeals.

   Judge Graffeo, originally from Rockville Center on Long Island, grew up in New York's capital region. (21) She graduated from the State University of New York at Oneonta in 1974 and, most notably for this law journal, she is a favorite daughter of Albany Law School of Union University, who received her law degree in 1977. (22) She presently resides in Guilderland, New York, with her husband, Mr. Edward E. Winders. (23) She has two grown children, Jennifer and Eric. (24)

   Judge Graffeo previously served as president and board member of the Capital District Chapter of the Women's Bar Association of the State of New York. (25) She is also a member of the Albany County Bar Association and New York State Bar Association, for which she served as a member of the Committee to Promote Public Trust and Confidence in the Legal System. (26)

3. JUDICIAL THEMES

   1. Strict Statutory Interpretation and Legislative Deference

      After ten years of serving in the New York State Assembly chamber, (27) it is of little surprise that Judge Graffeo strictly adheres to statutory framework and declines to judicially postulate legislative intent. (28) In her tenure on the bench, she has consistently looked at the plain meaning of language, sponsors' memos, floor debates, and other legislative history devices to best determine legislative intent. And if given the opportunity, she will defer to the legislative branch. (29) This is something that Governor Pataki found important in her selection to the high court when he stated "I have made it very plain that I don't believe that a court should be usurping legislative authority." (30) He got what he wanted with Judge Graffeo.

      One example of Judge Graffeo's methodology for indentifying legislative intent is seen in her majority opinion in In re M.B. (31) The case involved the guardian-brother of a forty-two year old mentally retarded man, M.B. (32) Due to Down's Syndrome, M.B. never possessed the ability to make health care decisions for himself. (33) And, in January of 2003, his brother was appointed guardian. (34) Sometime after this new guardian appointment, M.B. fell terminally ill and his brother sought to end life-sustaining treatment. (35)

      In the fall of 2002, the state legislature passed legislation that clarified and expanded the rights of guardians' authority to make health care decisions for their respective wards. (36) The new law, the Heath Care Decisions Act for Persons with Mental Retardation ("HCDA"), went into effect on March 16, 2003. (37) The guardian-brother sought to employ these new rights with respect to his brother, but his authority to do so was challenged by the Mental Hygiene Legal Service, the residential service that took care of M.B. before he was hospitalized. This case, therefore, was brought to the Court of Appeals to interpret the legislative intent surrounding HCDA. More specifically, the question presented was whether guardians appointed prior to HCDA's effective date were retroactively granted the authority to make health care decisions, including the decision to end life-sustaining treatment. (38)

      Writing for the Court, Judge Graffeo stated "our task--as it is in every case involving statutory interpretation--is to ascertain the legislative intent and construe the pertinent statutes to effectuate that intent." (39) To accomplish this task, she examined the statutory text and the contents of the bill jacket, including sponsors' memos and letters of support. (40)

      First, in examining the act's language, Judge Graffeo wrote that "statutory text ... is the clearest indicator of legislative purpose." (41) By going word-by-word and phrase-by-phrase, she was able to identify the legislature's intent by their inclusion and exclusion of language. Second, by reviewing assembly and senate sponsors' memos, she was able to decipher the specific bill sponsors' goals and intentions for passing the legislation. (42) For example, Judge Graffeo quoted her former boss in the assembly, later-turned state senator Kemp Hannon, to demonstrate his intent to grant authority to all guardians, present and future, the...