GOP wins point in Lasalle fight
Judge: State constitution requires full Senate vote on Court of Appeals nominees
ALBANY — A state Supreme Court justice issued a ruling in favor of Republican senators on Tuesday, finding that a governor’s nominee to the Court of Appeals must be subject to a vote before the full state Senate.
The ruling was in response to a lawsuit filed against Senate Democrats by state Sen. Anthony H. Palumbo, the leading Republican on the Senate Judiciary Committee, in the wake of a debate over whether Gov. Kathy Hochul’s nomination of Justice Hector D. Lasalle as chief judge needed a full floor vote.
Lasalle’s nomination was initially rejected by the Senate Judiciary Committee last month and Democratic leaders had said that ended the process and that he was not entitled to a full floor vote. But GOP senators and Hochul, who did not join their lawsuit, had publicly challenged that position and said the state constitution requires gubernatorial nominees to the Court of Appeals to be voted on by the full Senate — no matter what happens at the committee hearing.
The judge’s decision on what was referred to as a “constitutional crisis” can be appealed by Senate Democrats, who hurriedly scheduled a floor vote last week after the lawsuit was filed. Lasalle was rejected by the Senate during that vote.
“An unnecessary constitutional crisis arose in the past month,“reads the ruling issued by state Supreme Court Justice Thomas F. Whelan on Tuesday. “To the contrast, the issues are quite easy to resolve. It is time for this constitutional logjam to be broken asunder.”
Senate Majority Leader Andrew Stew
art-cousins and Judiciary Committee Chairman Brad Hoylman-siglal have maintained that a negative vote against Lasalle at the committee level was sufficient to kill the nomination.
But the position by Stewart-cousins and Hoylman-sigal, Whelan said, was unconstitutional and the “interpretation is simply unreasonable.”
It was the first time the Senate, which ultimately held its floor vote after Palumbo’s lawsuit was filed, had rejected a nomination by the governor to the Court of Appeals since the “merit-based” selection method was adopted in the state’s constitution by voters in 1977. It was also the first time the Senate Judiciary Committee had declined to bring a governor’s nomination to the floor.
A Times Union analysis of historical records reveals that the framers of the constitutional amendment appeared to envision the committee only as a step in the process where a public hearing and vetting of the nominee would take place before a vote by the full Senate.
“This constitutional amendment calls for the governor to appoint in such manner as provided by law, by and with the advice and consent of the Senate, after a public hearing before the Senate Judiciary Committee, to appoint judges to the Court of Appeals,” said Senate Judiciary Committee Chairman Bernard Gordon, a Peekskill Republican, according to a transcript of the June 22, 1976 floor debate.
Senate Republicans, a handful of Democratic senators, Hochul and a group of pro-lasalle judges and advocates pushed to have his nomination come before the floor for a vote after the January committee rejection. They argued the constitution required as much, but the issue had never faced such a test before.
“The appointment here was not ‘lost,’ as stated by the defendants on (Friday) ... but was still alive, awaiting final resolution by the full vote of Senate chamber,” Whelan said.
Stewart-cousins has argued the constitution empowers the Senate to make its own rules and the rules indicate that matters before a committee, if not advanced to the floor, could die there.
Detractors countered that the rules don’t empower the Senate to make rules that violate another section of the constitution. The argument went back and forth, and for at least a week, appeared to begin to fade as neither Stewartcousins nor Hochul offered any desire to escalate the situation in court.
But Palumbo and the Republicans stepped in and sued Stewart-cousins and the Democrats who voted to block the nomination from a floor vote. Two days before Friday’s hearing before Whelan in Suffolk County, Senate Democrats unexpectedly unannounced they were going to hold a floor vote.
“We don’t want to spend millions of taxpayer dollars in litigation,” Hoylmansigal said on the Senate floor last week. “We’ve determined it’s in the best interest of New Yorkers to put this nomination to the floor and settle it once and for all.”
Stewart-cousins framed it as an issue of a “distraction” that should end so that the Senate could focus on the ongoing budget negotiations; Hochul proposed a $227 billion budget earlier this month, which, as usual in Albany, kicked off intense policy negotiations on the hot topics before lawmakers.
The move was a shift in the stance of Senate Democratic leadership. After the committee issued a negative recommendation on Lasalle’s nomination, Hoylman-sigal, when asked why not advance the nomination to the floor to avoid a potential legal fight, said the “Senate has an institutional prerogative at stake.”
“The separation of powers is a valid concern for anyone serving in a branch of government and to cede that simply for the benefit of moving the process along, I think would be mistaken as well,” Hoylman-sigal said in January.
After Hoylman-sigal brought the nomination of Lasalle forward last week, Senate Democrats declared the lawsuit should be moot.
The question — whether Palumbo and other senators were denied their constitutional right to a floor vote — had been resolved, although the Senate Democrats retained their position that the floor vote was not legally necessary.
With the lack of clarity on the constitutional question and how it could play into any future Court of Appeals nomination, including whomever Hochul nominates next instead of Lasalle, Senate Republicans argued the lawsuit was necessary. During the hearing Friday, Whelan showed a similar interest in the question.
“Now, normally when the executive branch and the legislative branch has a conflict, the judicial branch just grabs a box of popcorn and sits back and watches,” Whelan said from the bench. “However, when one (branch) creates a constitutional logjam — that is in reality a constitutional crisis — it is the duty and the obligation of the judiciary to rule on the constitutional solution.”
If the case is appealed, it would move to the Appellate Division’s Second Department, where Lasalle is the presiding justice. It’s expected that the case would be moved to a different appellate division given that conflict of interest.
Hochul has said she was going to stay out of the litigation during the first phase but left open the option to join the Republicans in the lawsuit if the decision is appealed.