Court Of Appeals Ruling Expands Parenthood To Non-Biological, Non-Adoptive Parents

The state’s highest court on Tuesday expanded the definition of parenthood on Tuesday that essentially found a non-adoptive, non-biological parent has the right to custody or visitation.

The ruling in a consolidation of custody cases had considered the question of the legal definition of a parent, reversing a 25-year-old ruling that blocked non-adoptive, non-biological parents from claiming rights of custody or visitation.

The ruling itself cited the U.S. Supreme Court’s landmark Obergefell v. Hodges that granted marriage rights to same-sex couples, as well as years of case law on the issue of child custody.

The lawsuits considered by the court were filed by women whose former parents had conceived a child through artificial insemination, their parents carried the child and was raised by the couple. Each couple would ultimately end their relationships, leading to the dispute over custody and visitation.

While seeking to be as narrow as possible, the court’s ruling found the existing legal definition of parent was “unworkable.”

“Under the current legal framework, which emphasizes biology, it is impossible — without marriage or adoption — for both former partners of a same-sex couple to have standing, as only one can be biologically related to the child… By contrast, where both partners in a heterosexual couple are biologically related to the child, both former partners will have standing regardless of marriage or adoption,” Judge Sheila Abdus-Salaam wrote in the majority opinion. “It is this context that informs the Court’s determination of a proper test for standing that ensures equality for same-sex parents and provides the opportunity for their children to have the love and support of two committed parents.”

Still, the court’s ruling was not too far afield, declining to consider situations in which non-adoptive and non-biological parents didn’t decide to conceive a child.

91 92opn16 Decision by Nick Reisman on Scribd

Will McDonnell Ruling Impact Silver, Skelos Convictions?

Convicted last year in separate corruption cases, both former Assembly Speaker Sheldon Silver and ex-Senate Majority Leader Dean Skelos had pinned their hopes on avoiding prison time to the corruption case of Bob McDonnell, the disgraced former governor of Virginia.

On Monday, the Supreme Court seemingly handed both Silver and Skelos a gift: McDonnell’s conviction on honest services theft was vacated in a unanimous ruling.

In the ruling, Chief Justice John Roberts acknowledged the facts of the McDonnell case were “distasteful” — namely the governor arranging meetings at the behest of a donor who plied him and his wife with luxury gifts, vacations and a $177,000 loan.

“But our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns. It is instead with the broader legal implications of the government’s boundless interpretation of the federal bribery statute,” Roberts wrote. “A more limited interpretation of the term ‘official act’ leaves ample room for prosecuting corruption, while comporting with the text of the statute and the precedent of this court.”

Nevertheless, U.S. Attorney Preet Bharara, the prosecutor who led the convictions of both Silver and Skelos is undisturbed by the Supreme Court’s ruling in the McDonnell case, whose office argued in a statement both New York cases fell within the Supreme Court’s interpretation of corruption.

“While we are reviewing the McDonnell decision, the official actions that led to the convictions of Sheldon Silver and Dean Skelos fall squarely within the definition set forth by the Supreme Court today,” Bharara spokesman James Margolin said in a statement.

Silver was found guilty in November of masking bribes as legal referrals that provided him over the years with $4 million in kickbacks. In turn, Silver used his power as the speaker of the Democratic-led Assembly to provide state grants and other sweeteners to a doctor who then directed patients to the law firm of Weitz & Luxenberg, where the Manhattan lawmaker drew a paycheck in an “of counsel” capacity.

In the Skelos case, the Nassau County Republican was found guilty of aiding his son Adam’s business interests through official actions, including a $12 million contract for a storm sewer project, as well as to the benefit of Glenwood Management, a real estate firm whose founder is a prolific campaign donor.

If overturned, such a development would be a blow to Bharara, whose office is conducting an investigation of upstate economic development projects undertaken by Gov. Andrew Cuomo’s administration, as well as former Cuomo aide and confidant Joe Percoco as well as lobbyist Todd Howe.

In 2009, former Senate Majority Leader Joe Bruno was convicted of a theft of honest services charge in federal court, but that was overturned two years later based on a Supreme Court decision. A subsequent retrial in 2013 led to Bruno’s acquittal.

Silver faces 12 years in prison; Skelos was sentenced to 5 years.

First Latina Family Court Candidate In Monroe County

Monroe County Democrats hope to make a little history this fall by electing the first Latina candidate as a Family Court judge. The party says Maritza Buitrago will be the first candidate to even run.

“I decided to accept the challenge of being a judge because I can make a difference in the lives of families and children,” Buitrago said.

She was born in Puerto Rico where he father served for more than 25 years as a judge. Buitrago came to Rochester on a scholarship and earned her Bachelors and Masters Degrees at the University of Rochester.

“In the history of Monroe County Family Court, since 1962, there has never been a bilingual judge, one who can speak fluently in both English and Spanish. Anyone who has been associated with the court knows the desperate need for that,” retired Family Court Judge Michael Miller said.

Buitrago was rated “Highly Qualified” by the Monroe County BAR Association. She has worked exclusively on Family Court cases in the Public Defenders office since 2009.

“My daily work with families as an assistant public defender has not only given me the knowledge necessary to serve as a judge but the ability to analyze legal issues in a fair and balanced way,” she said.

The Republican candidate is 46-year-old Stacey Romeo. She currently serves as a judicial law clerk in New York State Supreme court.

Romeo has also served as Town Attorney for Pittsford and Irondequoit.

Schumer Still Fielding Questions About Supreme Court Nomination

U.S. Senator Chuck Schumer, D-NY, is getting used to answering questions about filling the Supreme Court seat of late Justice Antonin Scalia. With a new batch of reporters in Buffalo, Thursday, Schumer had his argument down to a well-rehearsed four points.

First, he cited the Constitution. The senator said, it doesn’t state that the president should only be able to act in the first three years of a four year term.

Second, he said the president has precedent to nominate a new Supreme Court justice. He said in the country’s history, 17 justices have been nominated and approved in the last year of a president’s term.

Third, he said the senate should try to avoid the judicial gridlock of a 4-4 split court. Finally, he said senators have an obligation not to obstruct government.

It’s that last part that’s sparked Schumer criticism this week.

In a 2007 speech Schumer said, “We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances. They must prove by actions, not words, that they are in the mainstream.”

Monday the senator explained those comments and Wednesday he elaborated even more. Schumer was asked by a reporter if he at least regretted the tone of what he said in the past.

“What I said is right,” he said. “If you think a justice is out of the mainstream and is hiding that, you shouldn’t vote for that person and I have voted no in the past and I probably will in the future.”

Schumer said he hopes President Obama nominates somebody “legally excellent,” moderate, and if all else is equal, diverse. He said over the past few days calls for the president not to nominate have quieted.

“We’ve had at least two Republicans change their minds and a third say, ‘I think there should be a hearing.’ I’m not prejudging how they’re going to vote or how they should vote,” Schumer said.

Rep. Reed: Supreme Court Agreement Not Impossible But Not Likely

Southern Tier Congressman Tom Reed, R-NY, said he and his colleagues in the House of Representatives certainly have a right to their opinion about who should replace late Supreme Court Justice Antonin Scalia, but ultimately the decision is up to the President and the Senate. Reed kept any specific opinions about who he’d like to see in that seat to himself Wednesday.

“There’s a whole long list of folks that are out there but we’re going to leave that to our Senate partners. It’s their role. I just hope there’s a true vetting process, that there’s a vigorous vetting process because it’s so important for the future of the country,” Reed said.

Not long after Scalia passed away, Senate Majority Leader Mitch McConnell vowed to block any Barack Obama appointment, a strategy since backed by House Speaker Paul Ryan. But Reed, unlike others in his party, is not totally ruling out the idea that there could be a new justice before the end of Obama’s term.

“My hope is that the President will honor the legacy of Justice Scalia and appoint someone, nominate someone of that caliber, a commitment to the Constitution who comes at the issues from that perspective and if he does that I think the Senate will take up that nomination and that could lead to a successful outcome,” Reed said.

The congressman called himself a realist though and said based on the president’s track record, he expects a “hard liberal nominee.” Then, he said, it will be up to Senate Republicans to do what they’ve been vowing to do since the beginning of the week.

START-UP, Casino Laws Back in Court

Bob SchulzOne man’s case against two bills passed at the end of the 2013 legislative session was heard in the state’s appellate court division today.

Bob Schulz says the bills that created the START-UP NY program and paved the way for the approval of four additional casinos upstate go against the state constitution. His main argument centered around the governor’s message of necessity, which was used for both bills. A message is used to waive the three-day aging process required for bills under state law.

Schulz said during oral arguments today that the message should not have been used in either case because there was no emergency for either program.

“There are no emergencies attached to these bills that are being rushed to through the legislature. It has to stop,” Schulz said. He’s the founder of We The People of New York, a group who says they exist to ‘hold government accountable’ to the state constitution.

The state argued in favor of the message, saying it was necessary because of changes made to the legislation after it was introduced. They also said Schulz’s constitutional interpretation of the message was incorrect.

“All the constitution requires is that they contain some factual statements and it’s undisputed here that the messages of necessity contain factual statements,” said Kathleen Arnold, the attorney for the state. “In this instance, the legislature requested the messages of necessity. It’s not really sure what the problem is actually.” More >

Former WNY Rep. John LaFalce Remembers Antonin Scalia

When it came to political ideology, former U.S. Rep. John LaFalce and late Supreme Court Justice Antonin Scalia were on opposite ends of the spectrum, but the two prominent Italian American political figures forged a friendship based on a mutual love of the law and their shared heritage.

“He loved to eat Italian food and drink Italian wine and that’s primarily how he and I became friends,” LaFalce said.

LaFalce, a Democrat, met the Conservative icon through the National Italian American Foundation of which he was a founding and active member. Scalia enjoyed attending the frequent dinners sponsored by the organization.

The former Congressman said Scalia wasn’t afraid to voice a dissenting opinion and had friends on both sides of the aisle.

“I remember a conversation he and I had in a car once when there was a vacancy that President Clinton had to fill and he said to me, ‘If President Clinton has any sense he would nominate Ruth Bader Ginsberg.’ He said, ‘Not that I agree with her, but she is a terrific, liberal judge.’ He says, ‘I would want a conservative judge,” LaFalce said.

But LaFalce said he strongly disagreed with many of Scalia’s decisions. Two in particular, he believed caused a lot of harm to the country, the Citizens United case and Bush V. Gore in 2000.

“I thought that he had to abandon all the statutory and Constitutional interpretations, principles that he had over the years, in order to reach a predetermined result and that was to make sure that George Bush, a Republican, became President rather than Al Gore. It was difficult for me to respect him after that decision,” LaFalce said.

Politics aside, LaFalce said the two did have a mutual respect for each other. In 1993, at the Congressman’s request, Scalia came to Buffalo to speak at Canisius College.

LaFalce had organized a cocktail reception for the justice to meet some attorneys from the area. That day, LaFalce said he got the news that his father had passed away.

He said he’ll never forget that Scalia was there for him in that moment. LaFalce said Scalia will be remembered for always having a strong opinion and his ability to express that opinion with his pen.

DiFiore Plans ‘Excellence Initiative’ For Courts

difiorecuomoGov. Andrew Cuomo formally swore in the state’s newest top judge on Monday: former Westchester County District Attorney Janet DiFiore. She’s the second woman to hold the top post on the Court of Appeals, New York’s highest court.

“Her professional credentials and experience combined with her personal skill and integrity equip her to not only manage but to excel in this multi-faceted position of chief judge of the Court of Appeals,” Cuomo said.

The event was held as a kick off for the state Court of Appeals session, which generally begins earlier, but has deal with multiple vacancies and the Legislature not returning to consider DiFiore’s nomination until January.

DiFiore had been previously and officially sworn in by Judge Eugene Pigott last month after her Senate confirmation.

DiFiore succeeds Chief Judge Jonathan Lippman, who retired last year after reaching the mandatory retirement age. While he focused on legal services for the poor, DiFiore says she wants to take a top-to-bottom approach of the state’s court system.

“We in the court system will be relentless in our efforts to achieve and maintain excellence throughout our court system,” DiFiore said in her remarks, “giving the people of New York state the level of justice services they rightfully expect and which they rightfully deserve.”

Wearing the robes of the late Chief Judge Judith Kaye, who died last month, DiFiore says she wants to find ways of improving how the judicial branch of government operates through what she is calling the Excellence Initiative, though the details remain vague.

“My team and I will be working to improve all aspects of our system and services toward achieving operational and decisional excellence in everything we do,” she said.

DiFiore’s formal swearing in on Monday came the same day as the Senate confirmed former U.S. Attorney Michael Garcia to the bench. Garcia is Cuomo’s first Republican nominee to the court and officials have denied there was a trade between the governor and Senate Republicans for the judicial nominations.

“No governor named Cuomo would believe a court is complete without a boy from Queens,” Cuomo said with a smile.

DiFiore is Cuomo’s sixth nominee to fill a vacancy on the state Court of Appeals. By the end of the year, he will have to select a replacement for Pigott, the final appointee of Gov. George Pataki, who is reaching the mandatory retirement age.

Arcuri Files To Run For Judgship

Former Rep. Michael Arcuri has filed paperwork with the state Board of Elections to run for a county judge post in Oneida County.

Arcuri, an Oneida County district attorney from 1993 through 2006, is eyeing the post currently held by Judge Barry Donalty, who is retiring at the end of the year.

Arcuri was elected to Congress in 2006, serving two terms after he was defeated by Republican Richard Hanna for the central New York congressional seat. After leaving Congress, Arcuri went into private practice as an attorney in Syracuse.

He announced his plans to run for judge last week, pointing to his time as a prosecutor as well as a lawyer in private practice.

Hanna himself is due to retire at the end of this year after serving three terms.

DiFiore Confirmed As State’s Top Judge

Janet DiFiore was confirmed on Thursday by the state Senate to become the next chief judge on the Court of Appeals, the state’s top court.

The vote in the chamber was unanimous; Queens Democratic Sen. Tony Avella abstained, citing his being a plaintiff in a case against New York City.

DiFiore becomes the second woman in state history to lead the court. The first, retired Chief Judge Judith Kaye, died earlier this month.

Gov. Andrew Cuomo nominated DiFiore, the Westchester district attorney, to replace Jonathan Lippman, who retired at the end of December.

“She has demonstrated unparalleled integrity and independence throughout her career as both a judge and prosecutor, and her commitment to the highest ethical standards makes her one of New York’s finest public servants. Her keen intellect, unassailable credibility, and diverse experience will serve the Court well and ensure a stronger and fairer state for all,” Cuomo said. “I congratulate Chief Judge DiFiore on her confirmation, and look forward to seeing her lead the Court for years to come.”

Cuomo on Wednesday nominated Michael Garcia, a former U.S. attorney and a Republican, to fill the spot vacated by Judge Susan Read, who retired in the summer.

DiFiore’s nomination was backed the Senate Judiciary Committee on Wednesday and supported by the state Bar Association.

“Ms. DiFiore’s breadth of experience, intellect and collegiality will serve her well as she leads the Court of Appeals,” the association said in a statement. “As both a judge and a prosecutor, she has demonstrated her commitment to justice and fairness in the courtroom.”