Full state Senate must vote on judicial nominees, judge rules, siding with GOP

On Tuesday, a Suffolk County judge ruled in favor of Republican state Sen. Anthony Palumbo, who had sued the state Senate and a number of Senate Democrats earlier this month.. Palumbo accused the state Senate of violating the state constitution when it declined to hold a full floor vote on the nomination of Hector LaSalle as chief judge even after the Judiciary Committee voted 10-9 to reject the nomination. 

Palumbo and many of LaSalle’s supporters, including Gov. Hochul and former Chief Judge Jonathan Lippman, argued that the state constitution requires the full state Senate, not just the Judiciary Committee, to vote on whether to confirm or reject a judicial nominee.

Suffolk County Supreme Court Judge Thomas Whelan accepted that argument.

“This Court must conclude that the practice adopted by the defendants is not allowed under the Constitution. The judiciary committee does not have the constitutional duty for ‘advice and consent.’ The constitution clearly states that this power is reserved to the Senate. The judiciary committee can aid the full Senate by performing an investigative function, but it cannot substitute for the power reserved to the Senate by the constitution,” the judge wrote in a nine-page decision.

Like everything else related to LaSalle’s unsuccessful nomination, Whelan’s decision seemed to be as much about politics as law. It will undoubtedly be appealed, first to an intermediate appellate court (most likely the Second Department, which awkwardly enough is presided over by LaSalle) and then to the state’s highest court, the Court of Appeals.

The most surprising thing about this ruling may be that it happened at all.

Days after Palumbo filed his lawsuit asking the courts to order the state Senate to hold a full floor vote on LaSalle’s nomination, the state Senate did just that. On Feb. 15, the full Senate voted 39-20 against the nomination.

Once the full Senate voted on LaSalle, there seemed to be little need for the lawsuit. Palumbo had already gotten everything he had asked for (namely, a full floor vote), so what more could the court do? In legal terms, the issue was moot.

Usually, courts will dismiss cases once the issues involved become moot. But there are exceptions to the rule.

Vincent Bonventre, a professor at Albany Law School who closely follows the appellate courts, said that the most common exception has to do with issues which are both likely to recur in the future and which the court would not otherwise have an opportunity to address.

In the case of Palumbo’s lawsuit, it is possible – though not particularly likely – that the issue could recur. In theory, the Judiciary Committee could reject a governor’s future Court of Appeals nominee, prompting state Senate leadership to once again refuse to bring the nominee to a full floor vote and inviting another lawsuit from an aggrieved Senator. But that probably won’t be happening with Hochul.

“I think the governor is very, very, very unlikely to nominate someone unless she's pretty sure that that person would be confirmed by the Senate,” Bonventre said. “And I'm pretty sure that the leadership of the Senate is not again going to insist that the full Senate doesn't have to take a vote. So I think they both learned their lessons, and for that reason, it's not that likely that we're going to see this question recur with any real probability.”

That was not good enough for Whelan, who wanted to set a clear precedent prohibiting the state Senate from ever denying a floor vote to a judicial nominee in the future. He rejected the Senate’s motion to dismiss the case.

“The governor's new appointee will be before the state Senate within the next 120 days. Since the rights of the parties will be affected by this decision, the matter is not moot. With the future appointment facing the same issues, the issues in this action fall within the exceptions to the mootness doctrine and should be considered by this Court,” the judge wrote in his decision.

The question of whether an exception to the mootness doctrine applies is generally left up to judicial discretion, Bonventre said. If a court doesn’t want to address the issue once it becomes moot, it is free to dismiss the case. That’s what usually happens. But if a judge really wants to make his opinion known on an issue, he can determine that the mootness exception applies and issue a ruling on the case anyway.

That’s what appears to have happened in this case. In his decision, Whelan waxed poetic on the meaning of constitutional democracy and prominently quoted the Founding Fathers. These digressions, which have relatively little bearing on the specific legal arguments at issue in the case, suggest that the judge viewed the state Senate’s initial decision to reject LaSalle in a committee vote instead of a full floor vote as nothing less than an assault on the rule of law.

“He might well have viewed what the leadership of the Senate had done as being pretty contemptible in insisting that they didn't have to take a full vote,” Bonventre said. “And so he wanted to, you know, put his opinion down on paper.”

While many cases involving the state government are heard in Albany courts, Palumbo decided to file in Suffolk County, where he lives. That’s perfectly legal, but the choice raised eyebrows among Democrats who suspected that the senator was searching for a friendly judge to hear the case. He ended up with Whelan, who explained in a Feb. 9 order that he had decided to take the case because the judge originally assigned to the case was not available. 

Whelan probably will not have the final say on the matter, though. State Senate leadership seems likely to appeal, though a spokesman for Senate Democrats said Tuesday night that they were still reviewing the decision and had not yet made up their minds on how to proceed. 

If the case is appealed, it would be heard by a panel of appellate judges from the Second Department, which has jurisdiction over Suffolk County. There is a chance that LaSalle, who currently serves as the presiding justice for the Second Department, could randomly be assigned the case, in which case he would almost certainly recuse himself.

Any appellate court decision could then be appealed up to the Court of Appeals, the state’s highest court. But the Court of Appeals is currently made up of three conservatives and three liberals.The absence of a chief judge – a seventh vote – could  cause a deadlock and leave the appellate court’s decision in force.  

The key question, then, is whether the Second Department appellate judges would uphold Whelan’s decision or reverse him. Would they dismiss the case as moot or agree with the lower court judge that an exception to the mootness doctrine applies?

For his part, Bonventre thinks the appellate court will probably just toss the case.

“I think it's much more likely that the appellate courts are going to say that this is moot and not apply the exception,” he said.

One thing is for sure: no matter what happens, LaSalle will not be chief judge. Even if the Second Department and the Court of Appeals uphold Whelan’s decision, it would only apply to future nominees.