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Committee of Retired Justices of the

Appellate Division, First Department

(Committee In Formation)
c/o PO Box 3273
Sag Harbor, NY 11963
(917) 941-9296

January 11, 2023

Hon. Andrea Stewart-Cousins Hon. Brad Hoylman

Majority Leader of the Chair, New York State Senate Committee
New York State Senate On the Judiciary
188 State Street Legislative Office Building – Room 310
Legislative Office Building - Room 907 Albany, NY 12247
Albany, NY 12247

Re: Hon. Hector LaSalle

Dear Majority Leader Cousins and Senator Hoylman:

In a campaign to derail the selection of Appellate Division, Second Department Presiding

Justice Hector LaSalle as the next Chief Judge of the New York State Court of Appeals, a coalition
of woke members of the legal academy have spewed false and misleading accounts concerning
Justice LaSalle’s record as a judge. Some members of the Democratic majority in the State Senate
that will vote on whether to confirm Justice LaSalle have unfortunately followed suit.

The plain fact is that a fair and reasoned examination of Justice LaSalle’s judicial record
will demonstrate that he is faithful to the rule of law. We are former members of the Appellate
Division, First Department and know what the background of a good appellate judge should be.
Justice LaSalle meets that high bar and deserves to be confirmed as the next Chief Judge of the
State of New York.

But, certain academics including a former law clerk at the Court of Appeals, has mined the
hundreds and hundreds of memorandum decisions that Justice LaSalle has joined, in an ostensible
effort to uncover his judicial philosophy. What they have come up with is faulty analysis and
misstatements of what Justice LaSalle stands for based on an exceedingly small selection of the
hundreds of memorandum decisions in which Justice LaSalle has joined. Many of his supporters
have answered these false accusations but no one has thus far pointed out the misuse of
memorandum decisions for purposes of uncovering and analyzing a judge’s legal philosophy. For
that purpose, memorandum decisions are of marginal value and often provide a distorted picture.

Here’s why the academics, including someone who actually has worked within the New
York State Court System, should know better:

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Hon. Andrea Stewart-Cousins
Hon. Brad Hoylman
January 11, 2023
Page 2

Memorandum decisions are a feature of the intermediate appellate courts in New York –
in particular the four Appellate Divisions. These decisions are relatively concise, to-the-point
statements of the relevant facts, the applicable law and the result. They are, you might say
generally, but not always, lean and mean and focus on providing an abbreviated analysis.
Sometimes, but not usually, they arrive with a dissent annexed, usually short and to the point, like
the majority position in the memorandum.

Memorandum decisions are not generated in the chambers of individual justices at the
Appellate Divisions, who sit in panels to decide cases. They are initially the work-product of court
attorneys who prepare bench memos to assist the justices in their work; the memorandum decisions
are a by-product of the bench memo and are generally useful when there is unanimity on the part
of the assigned panel of justices. The justices often modify these offerings with minor revisions
or “tweaks;” they are meant to be voted on, finalized and released when there is agreement among
the justices as to the core reasons for the result and there appears to be no further necessity for any
expanded writing.

The reality – which knowledgeable law professors should know – is that the sheer volume
of appeals that come to our Appellate Divisions necessitate conclusory memorandum decisions.
Virtually every kind of order and judgment is appealable as of right. In the First Department for
example, justices sit once a week and face an ever-growing calendar of twenty (20) or more appeals
per sitting. If a detailed and painstaking reasoned decision was required for each appeal, the entire
appellate structure would come to a grinding halt. For better or worse, these workmanlike
memorandum decisions are the only answer to the crush load of cases. The Court of Appeals, with
its restricted jurisdiction, does not shoulder this burden.

To read into these memorandum decisions broad philosophical viewpoints on subject areas
such as abortion rights and labor union rights is as unfair as it is uninformed. They simply do not
support conclusions about an individual judge’s philosophical bent.

All of this is not to say that Justice LaSalle should not be questioned, in detail, about his
record during his confirmation process. Fairness dictates however, that what he should be asked
about is what reflects his core beliefs. Question him about his signed opinions, speeches he may
have given, his view on the boundaries of stare decisis or inquire into his views concerning the
over-use of stale principles of contract construction in deciding commercial cases, or more
fundamentally, how he sees balancing the reach of state constitutional protections within the
context of our federal system. Ask him how he would deal with the diminishing work output of
the Court of Appeals under its prior leadership and how he will deal with that problem going

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Hon. Andrea Stewart-Cousins
Hon. Brad Hoylman
January 11, 2023
Page 3

But don’t relegate the puny memorandum decision to an importance it doesn’t deserve in
your examination of Justice LaSalle. There is plenty else to inquire about that is meaningful and
if you employ a transparent, fair process it will reflect the hope of many who wish that the
confirmation process for such an important post will eschew the political kamikaze attacks that
seem to be the order of the day.


Richard T. Andrias
James M. Catterson
Leland G. DeGrasse
Luis A. Gonzalez
E. Michael Kavanagh
Bernard J. Malone, Jr.
George D. Marlow
David B. Saxe
John W. Sweeny, Jr.

cc: Hon. Kathy Hochul

Governor of New York State
NYS Capital Building
Albany, NY 122224

Hon. Elizabeth Fine, Esq.

Counsel to the Governor
State Capital Building, Room 210
Albany, NY 12233

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