A. Thomas Levin Quoted in NYLJ, 'Behind the Curtain': Down to Six Judges, New York's Top Court Starts Sidelining Cases

Media Source: New York Law Journal

The court is operating with six judges as Gov. Andrew Cuomo has yet to put forward his nominees to succeed Feinman and outgoing Judge Leslie Stein, who is expected to retire from the court in less than a month.

By: Ryan Tarinelli Cases at New York’s highest court are being put on the back burner as the court tries to push forward with only six members following the death of Judge Paul Feinman. The state Court of Appeals has ordered reargument for at least six fully argued cases in the weeks since the judge stepped down from the court in March due to health concerns. It’s unknown why the seven-person court decided the cases will be reargued, but New York attorneys say it could be a sign there’s a deadlock among the judges. In all six cases, oral arguments took place before the court. Most of the cases were argued without Feinman. In one of those cases, Judge Rowan Wilson recused himself, leaving only five judges to hear oral arguments. The court is operating with six judges as Gov. Andrew Cuomo has yet to put forward his nominees to succeed Feinman and outgoing Judge Leslie Stein, who is expected to retire from the court in less than a month. The embattled governor has blown past a statutory deadline for choosing a nominee for Stein’s seat, despite saying weeks ago that he would shortly be making his pick to fill the position. A spokesman for the Court of Appeals declined to comment on why the cases are going to be reargued. The reargument orders indicate that judges are finding difficulty in reaching an agreement, said A. Thomas Levin, a Long Island attorney who has argued before the court. The most logical conclusion is that the bench is in a 3-3 deadlock on many of those cases, particularly since it’s rare to have a reargument at the Court of Appeals, he said. “But who knows what goes on behind the curtain,” said Levin, a former president of the state bar association. Steven Mintz, a founding partner and general counsel of Mintz & Gold, agreed and said it appears there’s a 3-3 vote on many of those cases. Sharon Stern Gerstman, former president of the New York State Bar Association and counsel to Magavern Magavern Grimm, said there might not be a 3-3 split in the cases, but there’s enough of a difference among the judges that they decided to wait until a seventh judge can hear arguments. Attorneys say there are other reasons the court could be delaying decisions, unrelated to any potential 3-3 divide, such as a new issue in a case that judges want to hear play out in oral arguments. Observations about the reargument orders underscore the divided nature of the current bench. In recent years, there has been a larger ratio of dissenting opinions on the court. Last year, there were 55 dissenting opinions as the court decided 96 appeals. In 2013, during former Chief Judge Jonathan Lippman’s tenure, the Court of Appeals issued 81 dissenting opinions and decided 259 appeals. In 2000, while former Chief Judge Judith Kaye was on the bench, the court decided 170 appeals, and there were 13 dissenting opinions. The Court of Appeals is staying quiet on why the six cases were pushed to reargument. All six of the decisions feature the same line and do not expand on the reasoning behind it: “Reargument ordered for a future Court session.” Click here to view New York Law Journal article.