Public law at the New York Court of Appeals: an update on developments, 2000.

AuthorBonventre, Vincent Martin
  1. INTRODUCTION

    Many, perhaps most, New Yorkers are fairly unaware of the Court of Appeals and what it really does. Yet, the court's decisions have a profound impact on our lives.(1) The amount of power and influence that the Court of Appeals has had on the most fundamental values of our community has always been substantial. But it is even greater now, especially given the Supreme Court's emphasis on principles of federalism in the area of civil rights and civil liberties over the last few decades.(2) When one thinks about the kind of issues that the Court of Appeals decides, it is astounding that more New Yorkers are not aware of this institution, the kind of work it does and the impact that it has on our lives.

    Virtually every facet of our lives ends up sooner or later at the Court of Appeals. More than that, the Court of Appeals almost always has the last word. First, much of what the court does is purely state law--in most cases there are no federal questions raised.(3) In those cases, the Supreme Court of the United States does not even have jurisdiction to review the decisions of the Court of Appeals.(4) Second, even if federal questions could be raised, the Court of Appeals, in providing for the enforcement of rights and liberties, has historically taken an approach that is much more generous than that of the Supreme Court of the United States with regard to violations of constitutional rights and liberties.(5)

    The New York Court of Appeals has often been cited as one of the finest courts in the country.(6) With Benjamin Cardozo's arrival in 1914,(7) the Court of Appeals was widely viewed "as the preeminent state court in the country."(8) Among other things, the court built a tradition of protecting rights and liberties, relying on New York's Constitution regardless of the protections provided under the Federal Constitution.(9) In fact, the court, under the leadership of Chief Judges Desmond, Fuld, Breitel, and Cooke,(10) "was in the national vanguard," protecting individual rights during both the Warren Era and the post-Warren retrenchment era at the Supreme Court.(11)

    However, beginning in the late 1980s, during the latter years of the tenure of Chief Judge Wachtler, the court entered a period of its own "retrenchment," during which the court "reversed the course on which it had been proceeding rather consistently for the previous quarter century."(12) The court even backpedaled "in the very areas in which it gained national prominence."(13) By 1990 and 1991, the court's retreat from prior levels of protection was firmly entrenched.(14) Within a matter of a few years, the court went from being one of the most liberal tribunals in the country to being an unmistakably conservative leaning one. (15)

    When Chief Judge Wachtler resigned from the court,(16) the direction of the court again changed.(17) During the first few years of Chief Judge Kaye's tenure, her court began to move toward greater protection of civil rights and civil liberties.(18) The court held in favor of individuals, as opposed to government, nearly twice as often as it had during the period prior to Chief Judge Wachtler's resignation.(19) Many court watchers took this as a sign that the court, under Chief Judge Kaye, would be bold and innovative in protecting civil rights and liberties.(20)

    However, five years ago, when Governor Pataki first took office, the Court of Appeals became a subject of intense criticism at the highest levels of state government and in the popular media.(21) The court was accused of virtually everything, from being the most liberal tribunal in the country to being an "ideological dog and pony show."(22)

    Soon, it appeared that the Kaye Court reversed track and began to resemble the last few years of the Wachtler Court.(23) Rulings in favor of individuals, as opposed to government, dropped to nearly the rate of the Wachtler Court.(24) The shift was particularly dramatic in the area of criminal law, the subject of the "courtbashing."(25) The court's record in criminal cases became practically equivalent to the court's record in the last few years of Wachtler's tenure.(26)

    Ironically, in some quarters, the court is now garnering effusive praise.(27) For example, the comments and articles in the New York Law Journal's special annual supplement on the court's latest term might lead one to think this court is similar in caliber to the court in the days of Cardozo, when the Court of Appeals was hailed as the finest tribunal in the country.(28)

    Perhaps the most telling commentary of all is the current approbation coming from conservative political partisans who just a few years ago had been condemning the court.(29) To be sure, these commentators do not suddenly say this is now a great court; but they do say that the court is now more balanced and less ideological--meaning, of course, that the court is now voting their way more frequently than before.(30)

    Equally as instructive, despite what else is being said or quoted publicly, is that few, if any, serious court watchers privately describe this court as particularly strong.(31) Individuals of every political stripe--individuals who have worked at the court, on the court, before the court, or watched it closely for other reasons--have privately opined that this is an incredibly cautious court, one not particularly innovative or creative, one that seems overly concerned with political reaction and insufficiently concerned with policy implications and wisdom in its decision-making. Some commentators have publicly explained this caution away, arguing, "if the Court has not broken much new ground of late it is only because it has not needed to, and because Judge Kaye is always reluctant to reach further than necessary to resolve the dispute at hand."(32)

    The purpose of this article is to determine and examine the direction of the Court of Appeals since the `court bashing' period in order to get a better picture of the current ideological character of the court. First, the article takes a brief look at some of the court's key decisions from the last term in the area of public law: cases that address fundamental rights and liberties, criminal cases, and cases weighing the rights of individuals against those of the state or other authority.(33) Next, the article looks at recent trends in decision-making at the court since the `court bashing' began.(34) Finally, it examines the voting patterns of individual judges over the last decade in an effort to identify ideological leanings or shifts among the judges, as well as in the decision-making of the court as a whole.(35)

  2. CASE HIGHLIGHTS FOR THE 1999-2000 TERM

    1. Free Speech Cases

      One area where the court has been lauded is in the area of free speech.(36) The court heard several significant speech-related cases in the last term, refining the law in the area of defamation and tackling a number of free speech issues arising out of computer technologies.(37) The commentary largely viewed the court as vigorously safeguarding free speech.(38)

      In fact, contrary to the implications of such praise, and contrary to the impressions typically portrayed when speaking of the protection of free speech, the court did not defend unpopular speech or unpopular or vulnerable speakers. It did not boldly stand up to government or other powerful interests that were seeking to suppress expression. Instead, in the name of speech and press, the court sided with government, industry, and other powerful interests, and it repeatedly rejected the claims of much more vulnerable individuals who suffered genuine injury from questionable expression-related activity. Arguably, the court's decisions evince an insufficient regard for individual personal privacy and integrity at least as much as any concern for expressive freedom.

      In Messenger v. Gruner+Jahr Printing and Publishing,(39) a magazine publisher used photographs of a fourteen-year-old girl to illustrate an advice column in a teen magazine.(40) The column featured a fictionalized letter from a teenage girl seeking advice following a drunken sexual encounter.(41) The girl pictured in the accompanying photograph brought an action in federal court against the magazine publisher alleging, among other things, that the publisher violated New York's statutory privacy laws.(42) She argued that the photographs, in conjunction with the column, created a "false impression" that she was the author of the letter.(43)

      The Second Circuit Court of Appeals certified two questions to the Court of Appeals: whether New York's statutory privacy laws allow recovery when a likeness is used in a fictionalized manner in conjunction with a newsworthy article, and, if so, whether there are other limitations that would bar recovery in this case.(44) The court, in a per curiam opinion, held that recovery was barred in this case because the plaintiffs photograph "bore a real relationship" to the column, which was newsworthy and not "an advertisement in disguise."(45) The court rejected the plaintiffs contention that the traditional "newsworthiness" exception to the privacy laws is not dispositive "where a photograph, juxtaposed with an article, creates a `substantially fictionalized' implication"(46) Rather, the court held that the "fictionalization" rule would apply only in cases where the article was falsified to such a degree that it was no longer newsworthy.(47)

      The court was divided. Judge Bellacosa dissented from the per curiam opinion, arguing that the historic "fictionalization exception" to the "newsworthiness" exception is still in force and applicable in this case.(48) He faulted the court for failing to address the false impression issue, which, he argued, "is what takes this case over tolerable lines and limits."(49) The column, although newsworthy, "publicly paraded plaintiff as the epitomized subject for sensationalized impact."(50) Judge Bellacosa made clear that he believed it is possible to maintain...

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