As Hochul’s Deadline Nears, Law Professors Urge Against ‘Activist Conservative’ for Chief Judge

Dozens of law professors are raising the alarm over Judge Hector LaSalle’s rulings on ‘crisis pregnancy centers’ and union protections. Hispanic and Latino lawyers’ groups say his appointment would be a win for diversity.

Sam Mellins   ·   December 19, 2022
Interior of the dome of the New York State Court of Appeals building in Albany. | Daniel Case / Wikimedia Commons

SHE HAS JUST FIVE days left: By Friday night, Governor Kathy Hochul needs to make one of the most consequential decisions of her time in office — the next chief judge of New York’s top court.

As the deadline draws nearer, two camps within New Yorks legal profession are dueling over one of the seven shortlisted candidates. A group of 46 law professors are urging Hochul not to tap Hector LaSalle, the head judge of a mid-level appeals court that covers parts of New York City and its suburbs. In a letter to the governor sent Monday, the professors condemn what they call LaSalle’s “activist conservative jurisprudence,” and warn that his leadership would “take our State’s law in the wrong direction.”

The letter highlights decisions that LaSalle signed onto curtailing investigations into whether an anti-abortion organization was engaged in illegal activity, allowing a large corporation to sue labor union leaders, and preventing a criminal defendant from appealing his conviction. LaSalle’s stance on abortion-related issues is particularly relevant in light of the United States Supreme Court overturning the constitutional right to an abortion earlier this year, the letter argues.

One week earlier, a coalition of Hispanic and Latino lawyers’ associations made the opposite case. Responding to an earlier letter opposing LaSalle, five bar associations called the attacks on LaSalle spurious misrepresentations of his record and argued that his candidacy is a historic opportunity to appoint the courts first Latino chief judge of the Court of Appeals, as the top court is known.

Picking LaSalle “would represent significant progress in our Lucha (struggle) as Latinx bar associations in New York,” they wrote.

“​​We need a fresh start on the court, as the letter says, to restore its prestige and legitimacy,” Columbia Law School professor Jeffrey Fagan, who signed the letter opposing LaSalle’s nomination, told New York Focus in an email. “There are better candidates who wouldnt come to the Chiefs position with the baggage that LaSalle brings.” Other signatories hail from law schools including New York University, Cornell University, and the University at Buffalo.

New York Focus reached out to the five bar associations that sent the letter backing LaSalle; none of them provided a comment.

The conflict provides a glimpse into the political jockeying around an appointment that has historically been fought over in private, despite its huge importance for New Yorkers. Hochul’s choice has received heightened attention as she seeks to replace former Chief Judge Janet DiFiore, an appointee and ally of former Governor Andrew Cuomo who resigned abruptly in August.

In recent years, judges appointed by Cuomo and led by DiFiore have pulled the court to the right, voting as a four-member conservative bloc on the seven-person court. Fearing a return to this dynamic, a group of over 100 progressive organizations and labor unions publicly urged Hochul not to nominate LaSalle, Judge Jeffrey Oing, or Acting Chief Judge of the Court of Appeals Anthony Cannataro, broadly considered the three most conservative options on the seven-person shortlist.

Regardless of whom Hochul picks, the state Senate will vote on her nominee when it reconvenes in January. Since the current system for picking Court of Appeals judges was set up in the 1970s, the Senate has never rejected a governor’s nomination.

LaSalle’s Record

In November, Hochul wrote in an op-ed that the New York Court of Appeals should serve as a counterweight to the United States Supreme Court, with its increasingly emboldened conservative supermajority. Hochul has made abortion rights one of her signature issues, and earlier this year she criticized the Supreme Court’s ruling in Dobbs v. Jackson Womens Health Organization as “taking away a woman’s right to choose.”

One ruling of LaSalle’s may put him at odds with the governor on this front: his court’s intervention in the New York attorney general’s attempt to investigate Expectant Mother Care, a New York City network of “crisis pregnancy centers” that attempt to persuade women not to get abortions.

In the early 2010s, the New York City Council found that the centers may have been practicing medicine without a license, leading the state attorney general to issue a subpoena to Evergreen Association, the counseling network’s parent organization. Evergreen sued to block the subpoena, arguing that it violated its First Amendment rights and exceeded the attorney general’s authority. A lower court rejected these claims, but on appeal, LaSalle’s court partially agreed with Evergreen.

The decision that LaSalle signed onto shielded Evergreen from scrutiny by entirely blocking the attorney general from accessing a list of the organizations funders, promotional materials, and advertising. It ruled that any other documents obtained by the subpoena had to first be reviewed by a court to determine if they were relevant to the investigation before the attorney general could use them.

The 46 signatories opposing LaSalle point to this case in their letter, writing, “Justice LaSalle does not understand the severity of the threat to women’s rights posed by anti-abortion activists and their funders.

The Hispanic and Latino bar associations’ letter called the decision “precisely the kind of balanced judgment that is often required in these sensitive cases.”

In another decision, LaSalle voted to allow the television provider Cablevision, now known as Optimum, to pursue a defamation suit against union leaders who had criticized the company’s response to Hurricane Sandy. New York law offers wide-ranging protections to unions and union officials against lawsuits, so Cablevision’s initial attempt to sue the union and its leaders was thrown out of court.

But LaSalle and his colleagues found a way around that: They ruled that though Cablevision couldn’t sue the officials in their union capacity, it could sue them as individuals, so the union protections wouldn’t apply.

This ruling suggests “an unexpected hostility to labor,” the law professors claim. In their view, it created “a technical workaround to allow a giant corporation to sue union leaders.” The letter from the Hispanic and Latino bar associations didn’t address the case.

The legal protection that New York offers to unions is unusual, and it doesn’t exist at the federal level. In an August letter to Hochul and others considering the judicial nomination, 20 Democratic state senators emphasized the importance of the next chief judge’s commitment to New York-specific legal protections, though they didn’t mention unions in particular.

Vincent Bonventre, a professor at Albany Law School and an expert on the Court of Appeals, who didn’t sign either letter himself, told New York Focus that this kind of politicking isn’t unusual when there’s a vacancy on the court but that it usually happens out of public view.

“I think its much better than its out in the open,” he said. “Thats a heck of a lot better than for there to be secret conversations.”

One exception, he noted, was in 2014, when gay rights groups publicly urged Cuomo, then the governor, not to reappoint Judge Victoria Graffeo to the Court of Appeals, due to her rulings against same-sex marriage. Cuomo didn’t reappoint Graffeo, picking Albany judge Leslie Stein for the job instead.

Correction: December 19, 2022 This article previously misstated which letter opposing LaSalles candidacy garnered the Hispanic and Latino bar associations initial response.

Sam Mellins is senior reporter at New York Focus, which he has been a part of since launch day. His reporting has also appeared in The San Francisco Chronicle, The Intercept, THE CITY, and The Nation. 
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