Letter of Concern about Hon. Hector LaSalle

Dear Governor Hochul,

We are New York law professors, writing to express our concerns about the possible nomination of Justice Hector LaSalle, one of the seven candidates for the position of Chief Judge of the New York Court of Appeals.  Some of Justice LaSalle’s decisions, which we link to below, betray a cavalier attitude towards reproductive rights, hostility to organized labor, and a worrying insensitivity to due process.  At a time when federal courts are increasingly inhospitable to individual rights claims, we are worried that Justice LaSalle’s activist conservative jurisprudence will take our State’s law in the wrong direction.

LaSalle Intervened to Protect “Crisis Pregnancy Centers” in New York

As you know, so-called crisis pregnancy centers (CPCs) have long been one of the tools anti-abortion activists use to deprive women of their reproductive autonomy.  CPCs can appear indistinguishable from reputable medical establishments in their promotional materials and physical appearances.  But they are not licensed to practice medicine.  Rather than offer pregnant women valuable medical advice, they engage in emotional manipulation to deprive women of control over their bodies.  For this reason, some states (including New York, thanks to your approval of S470) have taken steps to regulate CPCs and prevent them from taking advantage of pregnant women.

In 2010, the New York City Council held hearings into CPCs and determined that one of them, “Expectant Mother Care,” was practicing medicine without a license.  On the basis of that finding, the New York Attorney General served it with a subpoena to learn more about its operations.

Justice LaSalle intervened to shield  the CPC from the application of health care licensing laws.  The court held across the board that the Attorney General could not see the documents before the court itself reviewed them.  But for some documents it went even further.  The opinion stated that the Attorney General could not get the “advertisements and promotional literature, brochures and pamphlets that the CPC provided or disseminated to the public in New York State,” or the list of the CPC’s funders, even after court review.  The opinion Justice LaSalle joined concluded that that information was not important or relevant enough to the Attorney General’s investigation to require disclosure, even to the court.

The decision is shocking.  We recognize the need to protect the First Amendment right to speak and assemble.  This might have justified court review of sensitive documents, like a list of funders.  But it provides no justification for concluding that the CPC’s promotional materials or funders were not relevant to an investigation of the CPC’s fraudulent activities.  After all, it was precisely through its promotional literature, which someone paid for, that the CPC engaged in harmful conduct.

This opinion suggests to us that Justice LaSalle does not understand the severity of the threat to women’s rights posed by anti-abortion activists and their funders.  With the Supreme Court’s reversal of Roe last term, it is imperative that New York’s judges appreciate the importance of the right to choose and the many different fraudulent subterfuges anti-choice activists deploy.

LaSalle Empowered Management to Harass Labor

The United States is committed to the free enterprise system, in which wages for many jobs are set through bargaining between labor and management.  Union labor and organized workers have been the cornerstone of the American political economy and New York’s broad middle-class prosperity since at least the 1930s.

Because negotiations between large corporations and their paycheck-dependent workers can often be unequal, New York’s law has long protected workers’ right to organize and bargain.  In particular, long-established New York statutory law and judicial precedent prevents management from suing unions in state court or suing union leaders in their official capacity.  This is to protect unions from harassing lawsuits that would chill organizing speech.

In 2015, Justice LaSalle joined an opinion circumventing that law and creating an exception to it without justification.  The case grew out of a fight between Cablevision (now Optimum), one of the country’s largest corporations, and Local 1109.  The union’s district organizer and the Local executive vice president criticized Cablevision for its poor response to Hurricane Sandy, and, irate, Cablevision sued the union and its leaders.

The law should have prevented the suit.  After all, this was precisely the kind of lawsuit the law barred.  (In fact, the First Department heard a case involving a similar issue but different parties, and threw it out, relying in part on New York’s long standing labor law.)  But this did not sway Justice LaSalle.  At the Second Department, he joined the majority opinion enlarging a loophole: the suit could go forward against the two union officials in their individual capacity, even though the speech in question was delivered as part of their union work.

The decision is puzzling.  Perhaps Justice LaSalle thinks New York law should not offer unions so much protection.  But that, as the Court of Appeals recognized, is a decision for the legislature to make.  Here, Justice LaSalle broke with his colleagues on the Appellate Division bench to create a technical workaround to allow a giant corporation to sue union leaders.  This ruling suggests an unexpected hostility to labor, as well as a willingness to champion his own policy vision over the legislature’s, at least when it comes to workers.

LaSalle Is More Conservative Than the Current Court of Appeals

As law professors, we have a range of positions on criminal justice.  But we all agree on the importance of due process, including the fundamental right to appeal.  When a criminal defendant comes from straitened circumstances, the judge must be especially scrupulous that the law’s processes are followed so that the defendant is afforded their rights.

In 2014, Justice LaSalle rode roughshod over due process twice-over.  In the case, the defendant accepted a plea deal that included a waiver of appeal, although, as the trial court judge specified while accepting the plea, the defendant would still be allowed to appeal “certain constitutional issues.”  As it happens, the defendant had what he thought was such an issue: an illegal search of his car, which turned up evidence used to convict him.

Neither the illegal search nor the ambiguous waiver troubled Justice LaSalle.  He joined a majority opinion flatly rejecting the defendant’s contention.  The trial court, he concluded, was not obliged to tell the defendant under what circumstances his appeal waiver applied.  The defendant had told the Court that he understood the meaning of the appeal waiver, and that was enough to bar the appeal.

Importantly, many other New York jurists disagreed with Justice LaSalle’s reasoning.  One of his own colleagues on the Second Department, in that same case, found the majority’s reasoning nonsensical.  How could the defendant waive his right to appeal when no one would tell him what kinds of appeals he had actually waived?

Justice LaSalle’s position was so extreme, it was repudiated by the conservative Court of Appeals just five years later.  In a major case considering appeals waivers like the one that had been an issue before LaSalle, former Chief Judge DiFiore authored an opinion striking down two such waivers under the Court’s existing precedent.  To be valid, the Court sensibly held, an appeals waiver could not mischaracterize the rights waived.

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These are only some of Justice LaSalle’s decisions that trouble us.  We focus on them because of what we believe they tell us about Justice LaSalle’s judicial philosophy.  They show an insensitivity to the importance of reproductive rights, a disregard for labor’s rights and its value in our political system, and a callousness about defendants’ rights and principles of due process.  These decisions remind us of the rulings of Republican appointees to the federal bench.  They seem out of step with the values of New Yorkers and the platform on which you have run and won election.

Respectfully Submitted,

Noah A. Rosenblum, Assistant Professor of Law, NYU School of Law

Vincent Southerland, Assistant Professor of Clinical Law & Co-Faculty Director, Center on Race, Inequality, and the Law, NYU School of Law

Steve Zeidman, Professor of Law & Director of the Criminal Defense Clinic, CUNY School of Law

Issa Kohler-Hausman, Professor of Law and Sociology, Yale Law School

Jason D. Williamson, Adjunct Clinical Professor, Executive Director, Center on Race, Inequality, and the Law, NYU School of Law

Alice L. Fontier, Adjunct Professor, NYU School of Law

David Siffert, Adjunct Professor, NYU School of Law

Betsy Ginsberg, Clinical Professor of Law, Director of Clinical Legal Education and Director of the Civil Rights Clinic, Benjamin N. Cardozo School of Law

Cynthia Grant Bowman, Dorothea Clarke Professor of Law, Cornell Law School

Anthony O'Rourke, Joseph W. Belluck and Laura L. Aswad Professor of Civil Justice, University at Buffalo School of Law

Babe Howell, Professor, CUNY School of Law

Sandeep Dhaliwal, Acting Assistant Professor of Lawyering, NYU School of Law

Anna Arons, Acting Assistant Professor, NYU School of Law

Anna Roberts, Professor of Law, Brooklyn Law School

Ellen Yaroshefsky, Howard Lichtenstein Professor of Legal Ethics, Director-Monroe Freedman Institute for the Study of Legal Ethics, Maurice A. Deane School of Law, Hofstra University

Elora Mukherjee, Jerome L. Greene Clinical Professor of Law & Director, Immigrants' Rights Clinic, Columbia Law School

Kate Levine, Professor of Law, Benjamin N. Cardozo School of Law

Jane M. Spinak, Edward Ross Aranow Clinical Professor Emerita of Law, Columbia Law School

Barbara Schatz, Clinical Professor Emerita of Law, Columbia Law School

Anna G. Cominsky, Associate Professor of Law, New York Law School, Managing Attorney of New York Law School Legal Services, Inc.

Jocelyn Simonson, Professor of Law and Associate Dean for Research & Scholarship, Brooklyn Law School

Colleen Shanahan, Clinical Professor of Law, Columbia Law School

Christopher J. Morten, Associate Clinical Professor of Law and Director of the Science, Health & Information Clinic, Columbia Law School

Josh Gupta-Kagan, Clinical Professor of Law, Columbia Law School

Martha Rayner, Clinical Associate Professor of Law, Fordham University School of Law

Mary Marsh Zulack, Clinical Professor Emerita, Columbia Law School of Law

Barbara A. Black, George Welwood Murray Professor of Legal History Emerita, Columbia Law School

Jeena Shah, Associate Professor of Law, CUNY School of Law

Brett Dignam, Clinical Professor Emerita, Columbia Law School

Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law Emeritus, NYU School of Law

Conrad Johnson, Clinical Professor of Law, Columbia Law School

Camille Pannu, Associate Clinical Professor of Law, Columbia Law School

Jeffrey Fagan, Professor of Law, Columbia Law School

Gaynor Cunningham, Acting Assistant Professor of Law, New York Law School

Mark Barenberg, Sulzbacher Professor of Law, Columbia Law School

Amber Baylor, Associate Clinical Professor of Law, Columbia Law School

G.S. Hans, Associate Clinical Professor of Law, Cornell Law School

Martin J. LaFalce, Assistant Professor of Law, Director Defense and Advocacy Clinic, St. John's University School of Law

Sylvia A. Law, Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, Emerita, NYU School of Law

Kate Griffith, Professor of Labor & Employment Law, Cornell ILR School

Aziz Rana, Richard and Lois Cole Professor of Law, Cornell Law School

Vivian Berger, Nash Professor of Law Emerita, Columbia Law School

Jason Schultz, Professor of Clinical Law, NYU Law

Mateo Taussig-Rubbo, Professor, SUNY Buffalo Law School

Michael Schwartz, Associate Professor, Syracuse University College of Law

Cynthia Godsoe, Professor of Law, Brooklyn Law School