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Cuomo remakes the state's highest court


As of the start of the year, the highest court in the nation and the top court in New York state have something in common: Both have vacancies that were created by the departure of Republican-nominated judges.

But unlike the vacancy on the U.S. Supreme Court, which was caused by the death in February of Justice Antonin Scalia, the open seat at the New York Court of Appeals came about because Judge Eugene Pigott—one of only two Republicans on the bench—reached the state's mandatory retirement age of 70 and had to vacate his seat Dec. 31.

While the Supreme Court has been operating minus a justice for nearly a year, Gov. Andrew Cuomo is required to name a judge to the seven-member Court of Appeals by Jan. 15. The state Senate will have 30 days to confirm or reject the nominee.

Since taking office in 2011, Cuomo has nominated six judges for 14-year terms on the appeals court, and all were approved with little difficulty.

Observers will be watching how the new bench rules on commercial litigation.

In early December, the governor received a list of seven nominees for the post, put together by the Commission on Judicial Nomination, a group of a dozen respected legal professionals.

His selection will conclude a quiet remaking of the highest court in the state. Not since the early 1990s—when his father, the late Mario Cuomo, was in office—has a single governor nominated all seven members of the bench.

"Mario revered the court. After all, he clerked there," said Vincent Bonventre, a professor at Albany Law School and founder of the blog New York Court Watcher. "He was very, very interested in making sure it was a world-class court, balanced with Republicans and Democrats, upstate and downstate, liberals and conservatives."

The younger Cuomo, by contrast, has so far appointed five Democrats and one Republican to the bench: four judges from the New York City area and two from upstate. The new appointments have earned the governor accolades for shattering glass ceilings. Four of the judges are women, two are Hispanic and one is African-American."He's very cognizant of gender and ethnic diversity," said professor Arthur Pinto of Brooklyn Law School. "The thing is, none of them strike me as coming from a strong business litigation background."

If this were purely a criminal court, such an observation might not ruffle feathers. But the New York Court of Appeals hears the most complex cases in the state: criminal and civil cases that raise substantive constitutional questions, and matters of civil litigation that sparked dissent among lower court judges. And like those of the Supreme Court, rulings by the New York Court of Appeals are binding on lower courts. So the Court of Appeals has a reputation to maintain.

"New York is considered the leading common-law court in the country," said Alan Mansfield, co-chair of the global litigation practice at Greenberg Traurig and interim chair of the Commission on Judicial Nomination. New York is also considered "the leading commercial-law and contract-law state in the country," said Michael Cardozo, who spent a decade as New York City corporation counsel under former Mayor Michael Bloomberg and is a partner at Proskauer Rose. Cardozo attributes the state's reputation to the traditionally high level of sophistication on the bench.

Traditionally pro-business

The Court of Appeals has historically been "very protective" of New York's employment-at-will doctrine, Pinto said. Business leaders are hoping Cuomo picks a judge with extensive commercial experience to replace Pigott, who spent nearly two decades in private practice in Buffalo and was the last remaining judge appointed by Republican Gov. George Pataki.

"With Judge Pigott stepping down, there aren't a lot of judges who have spent their whole career practicing commercial law," Cardozo pointed out, and that worries some.

"It's very important to New York to continue to attract commercial litigation and for there to be confidence in the capacity of our appeals court system," said Kathryn Wylde, head of the Partnership for New York City, a business group.

Pigott's record was considered somewhat conservative, "but he was hardly right-wing," Bonventre said. "Just like in the general population, Republicans on the Court of Appeals tend to be more pro-business."

Given the current justices' short tenure—the longest-serving member was appointed in 2013—a pattern of sympathies has only just started to emerge.

According to Bonventre's analysis of the first six months of Janet DiFiore's tenure as chief judge last year, the court in criminal cases has been ruling slightly more often in the prosecution's favor. Bonventre looked at closely divided cases with decisions of 4–3 and found that 65% of those outcomes were more favorable to the prosecution, suggesting the court has a more conservative bent.

He also looked at the divided civil cases, where the judges split their decisions 4–3, and found again that the court has been leaning more pro-business. During the six-month period, the judges cast 30 votes in civil cases that were pro-employer or pro-landlord and 22 that were pro-worker or pro-tenant.

"Whether we look at the data from the criminal cases where the court's record leans pro-prosecution, or from the civil cases where it leans somewhat more strongly pro-employer, -business, -landlord, the early DiFiore court's overall record is generally conservative," Bonventre wrote. It is worth noting that Pigott's decisions were more often pro-business, pro-employer and pro-landlord. That means his replacement could tip the court in divided cases.

A recent ruling offers an example: In September, the court heard Yoga Vida v. the Commissioner of Labor about a group of yoga instructors who argued that they should be classified as employees not independent contractors, and claimed the yoga studio owed them unemployment insurance contributions.

The case comes amid a spate of claims nationwide against employers accused of misclassifying workers as freelancers or, in cases of so-called wage theft, not paying workers for overtime or minimum wage.

The Court of Appeals ruled against the instructors in October, saying the yogis had the freedom to make their own schedules and choose how they were paid and were allowed to teach at other yoga studios, among other criteria that pegged them as contractors not employees. The judges split 4–2, with one judge absent. Pigott sided with the majority.

Wylde is hoping the governor picks a judge who doesn't upset that balance. Indeed, she says that maintaining New York's attractiveness as a venue for business "requires that the judiciary have an increasingly sophisticated expertise in business law. And since there are relatively few judges that fit that, it's very heartening to see there are a few very experienced commercial litigators in the current recommendations list."

Whether Cuomo will pick one of them is anyone's guess. "Even those of us who watch the court sometimes can't figure out what he is doing or why," Bonventre said.

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