CLIENT ALERT: Please read this special message.

Kaye's Approach To Change Cautious And Pragmatic

New York Law Journal - Joel Stashenko

ALBANY - To former Chief Judge Sol Wachtler, a case of no great importance first signaled the formidable talents of Judith S. Kaye as a judge and a leader on the state Court of Appeals.

The case - Mr. Wachtler recalls it involved timber-cutting rights in the Adirondacks - had split the court 3-3 before Judith Kaye's arrival as a novice judge and its first female member in September 1983. The Court took up the matter anew.

"The attorneys reargued the case and Judith had the opportunity to read the briefs," Mr. Wachtler recalled in a recent interview. "She listened attentively to the other judges. We were waiting for her vote. She went through her analysis of the case on both sides and stated her opinion. The rest of us agreed, and the Court decided the case unanimously. That was tribute not only to her thoughtful approach to cases, but her ability as an advocate at conference and to her collegiality."

As Judge Kaye begins her last month on the Court, former colleagues, clerks, academics and other observers repeatedly cited the same qualities as Mr. Wachtler did when assessing the jurisprudence of Judge Kaye in a quarter-century on the Court: even-handed, thorough, well-prepared, consensus-minded and, above all, collegial.

"What an extraordinary, unimaginable, unbelievable, incomparable privilege it has been to serve the people, the public, as a judge of this fantastic, great, phenomenal Court of Appeals," she said on Nov. 20, after hearing oral arguments in her last case on the Court.

Judge Kaye, who turned 70 on Aug. 4, must leave the Court due to a mandatory retirement rule in the state Constitution. But rulings she has authored in the last 25 years - 498 majority decisions and 83 concurrences or dissents, plus a vast number of unsigned rulings - have affected the lives of New Yorkers in a myriad of ways.

Her majority rulings have struck down portions of two death penalty laws, allowed homosexuals to legally adopt their partners' children and to succeed their partners in rent-stabilized apartments, opened car leasing to drivers as young as 18, made adults who serve alcohol to minors liable for damages caused by drunken party-goers, expanded state liability for injuries suffered by inmates at the hands of other prisoners and decreed that New York City public school children were not getting the "sound, basic education" the state Constitution guarantees them.

* * *

"That is our responsibility, to look to the next step, but also to do it very cautiously," Judge Kaye said. "The law moves very cautiously. But it does move."

* * *

The Court moved the law significantly in Matter of Jacob, 86 NY2d 651 (1995), which allowed gays to adopt the children of their partners. In her 4-3 majority ruling, Judge Kaye wrote that ultimately it is the children in such households who benefit the most by the creation of a "measure of permanency with both parent figures" that would be absent by prohibiting gay partners to adopt.

Judge Kaye said Matter of Jacob is the opinion she has gotten the most response to personally in her judicial career. "People come up to me and comment on that case more than any other," she said. "It's usually somebody who has adopted a child. So it stands out for that."

Of more recent vintage, Judge Kaye's dissent in the combined decision in Hernandez v. Robles, 7 NY3d 338 (2006), will be one of the most-quoted rulings from her later years on the Court, predicted Roberta A. Kaplan, lawyer for the plaintiffs in Hernandez and law clerk to Judge Kaye in 1994 and 1995. A 4-2 majority in that case held that same-sex couples have no right to marry in New York under the state Constitution.

Judge Kaye wrote about the significance in a human being's life of finding a mate and the unfairness of being unable to wed that person simply because he or she happens to be of the same gender.

"Solely because of their sexual orientation, however - that is, because of who they love - plaintiffs are denied the rights and responsibilities of civil marriage," Judge Kaye wrote in a dissent joined by her most frequent ally on the Court, Judge Carmen Beauchamp Ciparick. "This state has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition."

Subsequently, Judge Kaye's dissent was cited by the majorities in decisions by the top courts in California [In re Marriage Cases, 43 Cal.4th 757 (2008)] and Connecticut [Kerrigan v. Commissioner of Public Health, SC 17716 (2008)] in recognizing same-sex marriage as legal in those states.

* * *

It is not easy to find outspoken critics of Judge Kaye's jurisprudence as a whole, though she has been taken to task for individual decisions.

Judge Kaye acknowledged receiving "vile" invective after she wrote People v. Smith, 63 NY2d 41 (1984), which struck down the last workable piece of the state's 1960s-era death penalty statute. The ruling spared the life of Lemuel Smith, a serial killer and prisoner for life convicted of slaying Donna Payant, a corrections officer.

The death penalty statute adopted at the behest of Mr. Pataki 11 years later fared no better before the Court, now headed by Chief Judge Kaye.

She wrote the first opinion, Matter of Hynes v. Tomei; Matter of Relin v. Connell, 92 NY2d 613 (1998), in which the Court recognized constitutional infirmities with the sentencing provisions of the new death penalty statute. The chief judge also joined the 4-3 majority in the opinion that rendered the death penalty statute inoperable in People v. LaValle, 3 NY3d 88 (2004).

She was again in the 4-3 majority in invalidating the last pending death penalty under the statute, in People v. Taylor, 9 NY3d 129 (2007).

* * *

Judge Kaye's obvious gifts as a jurist helped erase any initial doubts about her qualifications, said Kathleen Peratis of Outten & Golden. But Ms. Peratis said Judge Kaye also benefited from the times of the mid-1980s, when women were beginning to take higher-profile positions in many fields that were hitherto held by men.

"The times have really changed," Ms. Peratis said in an interview. "It is true that she is so good at her job that her gender stopped being the most important thing that we saw, but I think that is kind of a common story now with women who were 'the first' 20 years ago. Their accomplishments caused that to stop being the first thing you say about them."

Judge Kaye remained the only woman on the Court of Appeals until Jan. 4, 1994, when Judge Ciparick joined the bench.

Victoria A. Graffeo became a Court of Appeals judge on Nov. 29, 2000, and when Judge Read arrived in January 2003, the Court had a female majority for the first time in its history.

New York, Wisconsin and Tennessee have the only state supreme courts on which women now outnumber their male counterparts.

Ms. Peratis, who once succeeded Ruth Bader Ginsburg as director of the Women's Rights Project at the American Civil Liberties Union, said she thought a comparison of Judge Kaye to Sandra Day O'Connor, the first woman on the U.S. Supreme Court, was an apt one.

"They share a real political acumen and a no-nonsense, no-drama kind of approach to what they do," Ms. Peratis said.

Judge Kaye demurred when asked to compare her work on the Court of Appeals with Judge O'Connor's on the U.S. Supreme Court. But the two have appeared in recent years at many of the same events sponsored by the American Bar Association and other groups and Judge Kaye said they have developed a personal bond.

Judge Kaye said she considers Judge O'Connor the "grandmother" of justice, a joking takeoff on the letter Judge Kaye received from a state prison inmate that began "Dear Mother of Justice."

"Particularly since her husband's illness and my husband, she's been so nice to me," Judge Kaye said. "I have felt a kindred spirit with her."

Judge Kaye's husband, Stephen Rackow Kaye, a partner at Proskauer Rose, died in October 2006. They were married 42 years. Judge O'Connor resigned from the Supreme Court in 2005 to spend more time caring for her husband, John, who has Alzheimer's.

Judge Kaye said she has no regrets about pulling her name out of consideration by then-President Bill Clinton for a 1993 opening on the U.S. Supreme Court, where she could have been Judge O'Connor's colleague. Reports that she might be considered for the opening created by the retirement of Byron White came too soon after her appointment as chief judge and the upheaval created by the arrest for harassing an ex-girlfriend and resignation of Mr. Wachtler as chief judge to allow her to pursue a Supreme Court judgeship in good conscience, she said.

"Oh, goodness, I have had such a great life [on the Court of Appeals] and I will have another one," she said in a recent interview.

* * *

Judge Kaye worked hard to forge close relations among the members of the Court.

* * *

Judge Kaye said she is all too aware of what she will lose when her historic career on the Court ends.

"These will always be my friends, I have no question," she said. "But we will never again be across the table from one another. On the telephone. Marking up drafts. Trying to figure out what the best resolution is. We will never again be doing that and that is something that I will miss tremendously. Boy, it chokes me up to think about it."